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Breakthrough in Muslim matrimonial law reforms

19 July 2019 04:03 am - 0     - {{hitsCtrl.values.hits}}

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Finally, after more than sixty years of efforts by various Muslim groups, Sri Lankan Muslims have arrived at an agreement to amend certain clauses of the law that governs matters pertaining to their marriage and divorce. Former Local Government and Provincial Councils Minister Faiszer Musthapha had broken the news by talking to several newspapers this week. 
The reformation of the Muslim Marriages and Divorce Act (MMDA) of 1951 had been stalled always owing to the differences among various influential groups among Muslims in the country and for the last time it was two groups of a committee headed by former Supreme Court judge Justice Saleem Marsoof that was appointed in 2009 for the very purpose that were at variance. 

 

"If one views that this vaguely-specified 12 year limit is not in conflict with Islam, one can agree to a higher age limit, even to the national limit of 18 years"


However, during an informal meeting between Muslim politicians and journalists held a few days ago, the former stated that they had been entrusted by both groups to go ahead with reforms, taking into account the views held by them. Therefore, at least a segment of the reforms that have been under discussion for decades is likely to see the light of day. 
MP Musthapha had told the media that an agreement had been reached on Friday at a meeting of Muslim MPs including those who resigned from their ministerial portfolios recently to accelerate reforms on MMDA. Accordingly, Secretary to the Justice Ministry will be tasked with formulating a draft proposal on the amendments agreed upon by the Muslim politicians. 
He had also said the issues agreed upon by the Muslim MPs included raising the minimum age of marriage for both bride and groom to 18, allowing the bride to sign the Register of Marriage at her consent, upgrading the required qualification of a Quazi (judge of the Muslim matrimonial court) to Attorney-at-Law and permitting females to serve as Quazis. 
The most hotly debated issue among these changes that has drawn highest attention from the non-Muslims as well is the minimum age limit for marriage, especially for women. Those among Muslims who oppose a minimum age limit in par with the national age limit are of the view that Islam did not specify such a limit. It is true, but neither has Islam objected to fixing a minimum age limit considering the modern-day social requirements. 

 

"JSC responsible for appointment, transfer and termination of Quazis"


On the other hand, MMDA vaguely spells out a minimum age limit of 12 years by providing for the marriages for girls under 12 years with the consent of a Quazi. Despite this permission having never been heard to have been used by anyone, it is clear that there is a minimum age limit in MMDA. If one views that this vaguely-specified 12 year limit is not in conflict with Islam, one can also agree to a higher age limit, even to the national limit of 18 years. 
This age limit in MMDA has created a perception among non-Muslims, especially those who are hell-bent in portraying Muslims as a pre-mediaeval tribe, that underage marriages are highly-prevalent among Muslims and that MMDA had led to it. In fact, as in the case of other communities, underage marriages are taking place only in less-educated and poor Muslim families. Despite MMDA having facilitated them in this regard, it has not been the main cause for underage marriages. 
The Daily Mirror of last Wednesday said in a front page story quoting Medical Officer of Health (MOH) Ms. M.M. Thilakarathne that 77 underage mothers had been reported from Moratuwa last year and 54 of them, aged between 13 and 15, had been reported from Angulana. She had further stated that during the past six months there had been nearly 30 underage girls who had been conceived. Given the fact that Moratuwa, especially Angulana is not a predominantly Muslim area, it points that the issue is not confined to Muslims and  it has nothing to do with law. 


Yet, in the interest of social integration, laws pertaining to the minority communities have to be changed and modernised as far as possible to be on par with national laws. It is not clear as to why the Muslim politicians failed to come to an agreement in respect of other issues in MMDA that have been under discussion for the past several decades. Unconditional polygamy without proof of financial capacity of husbands and consent of the wife, lack of uniform application of MMDA across all Madhabs or sects, unilateral divorce by husbands and unequal divorce procedures for women and men, requirement of women to obtain permission from a male guardian who is called “Wali” to marry, dependence on the Quazi for the maintenance of the divorced wife and the children are some of the issues yet to be sorted out. 

 

" Issues of unequal divorce procedures, unconditional polygamy and maintenance have already portrayed the Muslims and especially Islam in a bad light"


In fact, these issues, except for the one on Wali, seem to be less contentious than those on minimum age limit and the women Quazis that have been now agreed upon. The issues of unequal divorce procedures, unconditional polygamy and maintenance have already portrayed the Muslims and especially Islam in a bad light. 
The prevalent perception among some people that Muslims have agreed to amend MMDA at this juncture due to the pressure by anti-Muslim groups who love to claim Muslims in Sri Lanka live under separate laws is wrong. Attempts had been made to change MMDA as far back as in 1954, three years after the original law was promulgated. Yet, the reform process has gained significant momentum since 1980s and all these efforts were made by the very members of the Muslim community. 
A committee headed by Dr. H.M.Z. Farook in 1970 recommended reforms that included many amendments to MMDA including raising the minimum age of marriage and another committee headed by Dr. A.M.M. Shahabdeen was set up in 1990 and submitted its report to the government in 1992. However, lack of interest on the part of the government as well as Muslim leaders prevented the follow-up legislative process. 

 

"Given the fact that Moratuwa, especially Angulana is not a predominantly Muslim area, it points that the issue is not confined to Muslims and it has nothing to do with law"


It was against this backdrop that the 18-member ‘Committee to Suggest Amendments to the Muslim Family Law’ was set up by the then Justice Minister Milinda Moragoda in 2009 under the chairmanship of former Supreme Court judge Justice Saleem Marsoof. Therefore, the pressure by outsiders has nothing to do with the process of reforming MMDA. 
Nevertheless, it is reasonable to surmise that the hardliners had softened their stance by the pressure exerted on Muslims after the terrorist attacks targeting Christians on April 21, the Easter Sunday. 


MMDA or the Muslim Personal Law for that matter is not independent of the laws of the land. They are under various laws adopted by Parliament. For instance, it is the Judicial Service Commission (JSC) that is responsible for the appointment, transfer and termination of Quazis while the judgments of Quazi courts can be challenged in the Court of Appeal. Nevertheless, uniformity in national laws and those governing the affairs of minority communities is essential, as far as possible, without compromising the basic tenets of their religions or traditions, when it comes to national integration. 

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