On 8 June 2023, 18 Muslim MPs sent out a letter to Justice Minister, Wijedasa Rajapaksha with recommendations in response to the Draft Bill on the Muslim Marriage and Divorce Act (MMDA). These included retaining provisions for marriage between 16-18 years old under Quazi’s permission, non-eligibility of female registrars, Quazi positions to be assigned only to men, not mandating registration of Muslim marriages, and deeming marriage contracts invalid without the wali’s signature. These recommendations, at the best, would be considered tone-deaf to over a half-century of calls for MMDA reforms.
This is not surprising. In early May this year, Sri Lankan Muslim MPs except for one boycotted the MMDA meeting that was held between 15 women who were affected by the Muslim Marriage and Divorce Act and the Muslim MPs. This meeting was organized by the Ministry of Justice, Prison Affairs and Constitutional Reforms to discuss the proposed MMDA reforms. One of the women at the meeting shared that as soon as the Muslim MPs saw the women, they left without even listening to them. For these women, meeting these MPs and relaying their plight to them was a prized opportunity. They believed that by relaying their plight and the suffering they faced due to the gender-discriminatory provisions in the MMDA- the MPs would understand the true ground realities of MMDA and the dire need for reforms.
Even with the opportunities presented, the Muslim MPs chose not to understand the intricacies of the ground realities of the Muslim Marriage and Divorce Act However, in their recommendations they stated that they presented it to prevent and mitigate ‘negative impact in the Muslim community’. The question thereby raises that when MPs ignore engaging with the community to understand the actual ground realities, how can they send in recommendations under the guise of protecting the community and mitigating negative impact on the community?
These current recommendations sent by the MPs also contradicts their stance in July 2019 where they endorsed and recommended making positions of Quazi and marriage registrar to be open to Muslim women, making registration of nikah mandatory to validate a marriage while in November 2022, they endorsed and recommended that signature of wali be optional and in both years; they recommended that minimum age of marriage be raised to 18 years without any reference to exceptions. (See more)
The recommendations presented by the Muslim MPs are regressive as they continue to retain certain gender discriminatory provisions:
- Changing of phraseology from “persons professing Islam (hereinafter referred to as Muslims)” in the MMDA Amendment Bill to “Muslims”– the phrasing in the Bill was intended to be open-ended to enable Sri Lankan-origin Muslims without Sri Lankan citizenship to be able to marry under the MMDA without being denied legal validity as the MMDA currently only applies to “Muslim inhabitants of Sri Lanka”.
- Replacement of the words “solemnization of marriage” with the Arabic word “Nikkah”– usage of the word “solemnization” does not differ from the contextual meaning of “Nikkah” except it focuses on the marriage contract to be formal and in writing. The word “Nikkah” when loosely interpreted refers to either verbal or written marriage contract, allowing for leeway for the validation of verbal marriage contracts.
- Recommendation to preserve sect-based rulings within the substantive personal laws– the advisory committee proposed to remove the sect-based ruling from the law and instead suggested lawmakers to select rulings that are most palatable with respect to achieving justice. MPs want to retain the Shafi-sect based rulings.
- Making signature of wali mandatory– while the Bill proposed to make wali’s signature optional, the MPs recommended that bride must be allowed to sign but without the wali’s signature, the marriage contract would be deemed invalid. It was not addressed whether the marriage contract would be invalid without the bride’s signature.
- Registration of marriage– while the proposal in the Bill was that marriage registration should be made mandatory, the MPs while agreeing that marriage registration is mandatory also stated that non-registration of marriage will not affect the validity of such marriage. They have also stated that the registration must take place within the same day as the Nikah and the delay in terms of registration will be a punishable offence.
- Non-eligibility of female marriage registrars – the MPs state that appointment of female registrars will cause ‘practical difficulties’ as ‘segregation between men and women has been practiced for decades by Muslims in Sri Lanka.’
- Positions of Quazis to be predominantly helmed by men– The MPs state that Islamic scholars have the opinion that being a Quazi is the responsibility of the man. They also propose that the Judicial Services Commission (JSC) should evaluate the applications for Quazi by inquiring within the locality of the applicant considering academic qualifications, good conduct and credibility of the person. Legal experts opine that this method of evaluation can result in female applicants being rejected on various grounds.
- Provision to enable marriages between ages of 16-18 with the consent from the Quazi – the MPs state that ‘fixing the minimum age of marriage to 18 is not going to eradicate the number of child marriages in our country.’ Further, that the Penal Code allows for ‘girls above the age of 16 can consent to have sex.’ They even quote a UN resolution saying it allows Member States to specify a minimum age of marriage not less than 15. These justifications are misinformed and taken out of context to prove a point they want to cling to. Recorded lived experiences of child brides has shown the negative impact child marriages have had on their lives including on education, reproductive and mental health
- Preservation of the Quazi system– MPs stated that the current system is accessible, quicker processing, inexpensive, not time consuming, private caucus and has three distinct appealing options. They also proposed to increase the legal power vested upon Quazis to enable a more efficient Quazi system. They also stated transferring the marriage disputes to other courts could affect the Muslim community adversely and will cause most Muslim women to refrain from seeking legal remedy for marriage disputes. The MPs reasoning can be seen as stemming from ignorance of the ground realities as there are various accounts of Muslim women facing discrimination and harassment due to the current Quazi system.
- Polygamy– MPs approve conditional polygamy but state that polygamous marriages that do not follow the stipulated conditions will not be deemed invalid but instead the offending party would be liable to a fine. They also proposed that appeal against a Quazi’s decision regarding a polygamous marriage should be made to the Board of Quazis, not to the District Court as proposed in the Bill. Legal experts opine that the fine would be paid by those from financially privileged backgrounds who’d be able to get away without conditional polygamy but those from low income backgrounds would not be able to pay the fine, thus this law would not apply equally to all.
- Recommendations regarding divorce– Muslim MPs did not address issues pertaining to unequal divorce grounds, the introduction of the concept of “irretrievable breakdown of marriage” and mutual consent in divorce but rather focused of preservation of word “Talaq” in certain sections of the Law, preservation of Section 30 which allows for a man to pronounce Talaq outside the Court and Court would validate the Talaq. The Bill proposed to remove Section 30 to prevent misuse of Talaq pronouncements. The MPs proposed to retain it and recommended a fine to be imposed to discourage the practice. MPs also made proposals for Khula and Fasah divorces, for the latter to be allowed only under the grounds (reasons) which are stipulated via Shariah law enhanced by sect-based rulings.
- Maintenance “Mata’a” payment– MPs recommend that this should be paid to the divorced woman on the conditions that the woman is not the cause of separation, thereby assigning of matrimonial fault on the breakdown of the marriage to the husband.
- No changes to Section 74 of the MMDA– MPs do not agree that legal representation should be presented to any party or witness in any proceedings before a Quazi.
Some parts of these recommendations are clearly against the continued calls for MMDA reforms and can also be seen to be completely ignorant of the ground realities and allows for the retention of gender-discriminatory provisions. While the MPs believe that their recommendations can mitigate negative impact on the community, the plight of victims who’ve suffered over the years says otherwise. Their stories and voices have been documented over the decades in reports, research, mainstream media and the victims themselves have come forward to tell their stories.
However, it can be seen that the Muslim MPs choose to ignore these voices and instead put forward recommendations under the guise of adhering to Islamic religious opinions and mitigating negative impact to the community, but in reality- the recommendations only serve to protect their vested political interests.
Written by By Muqaddasa Wahid