By Dinithi Gunasekera
With the appointment of a new Cabinet of Ministers recently, especially following the open promises made towards numerous reforms by Minister of Justice Ali Sabry, the Muslim Marriage and Divorce Act (MMDA) is yet again in the limelight.
Amidst such major developments, communities throughout Sri Lanka are hopeful and prominent groups that are vocal on the issue are breaking their silence like ever before.
The discussion on the MMDA hosted by the Sisterhood Initiative in collaboration with the Muslim Personal Law Reforms Action Group (MPLRAG) on 11 October 2020, which also corresponded with the International Day of the Girl Child, is a prime example of the conversation still ongoing among the public, even in the midst of a Covid-19 relapse.
The session was also the first live discussion on the MMDA reforms and it took the form of a question and answer (Q&A) session, which provided the general public the freedom to inquire to aid the informative discussion.
MPLRAG and Sisterhood Initiative
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The event kick-started with moderators Sisterhood Initiative Founder and grassroots volunteer Nabeela Iqbal and Shamla Naleer, one of the media representatives of the initiative, introducing the distinguished panel.
It comprised of MPLRAG Co-Founder, Co-author of “Unequal Citizens: Muslim Women’s Struggle for Justice and Equality in Sri Lanka”, and activist and researcher on women’s rights and Muslim family laws in Sri Lanka Hyshyama Hamin; Attorney-at-Law Ermiza Tegal, who has had over 20 years of experience working on human rights, governance, and social justice; journalist, editor, and researcher Maryam Azwer; and writer, researcher, and women's rights activist Sumaiya Pallak.
The MPLRAG is a lobby group of voluntary activists, lawyers, and researchers working towards reforming the MMDA.
“Our primary motivation is the reform of discriminatory laws and practices that apply to each of us as Muslim women and to our sisters in Sri Lanka,” shared the members of the MPLRAG.
Equivocally, the Sisterhood Initiative, headed by Iqbal, is a budding youth group of “vibrant young women”, according to Hamin, which strives to create safe spaces for Muslim women in Sri Lanka to come together and share experiences, engage in curated discussions, and build a certain sense of community. Within the community, Iqbal revealed the surging interest of many regarding the MMDA, which contributed to the purpose of the live session.
The MMDA and the Quazi Court System
Attorney-at-Law Tegal was eager to elaborate on the legal perspective regarding the issue, relating from its history dating back to when Sri Lanka was colonised by the Dutch and how a code of law was imported to the country from Batavia (Indonesia) in 1770, which was then accordingly codified many times and made into an ordinance.
In 1951, the MMDA, which had been drafted by an all-male committee, was enacted. It included provisions based on interpretations of Islamic Sharia law, Roman Dutch law, and local customs and practices such as “kaikuli”, the dowry system – not a concept known to Muslims, it was incorporated into the MMDA.
The MMDA is essentially a family law and special act that only applies to Muslim inhabitants who marry within the faith. It covers marriage, divorce, and maintenance. There is also no choice for Muslims to marry outside the MMDA.
There are 65 Quazi courts around Sri Lanka. Memon and Bohra communities have a specified Quazi and Puttalam has a Quazi for internationally displaced persons (IDPs).
The MPLRAG does not look at the MMDA only from perspectives of the Constitution but also through Islamic law, jurisdiction for reforms, international human rights, and primarily the lived realities.
“We want to see all our Muslim brothers and sisters enjoy the same rights as other citizens of this country.”
A plethora of problems
“Allah orders justice, kindness, and good conduct. He forbids injustice, immorality, and oppression.” – Al-Quran 16:90
Many are aware that the MMDA needs reform, but not so much about the specific nooks and crannies that make it flawed. Activist Maryam Azwer elaborated on how the MMDA is problematic on different levels within the Muslim community as an internal problem, and from the perspective of the Muslim community being a minority in Sri Lanka.
It is evident that specific provisions in the act discriminate against women and girls explicitly. Additionally, it enables the Quazi Court System not to be in favour of women, which makes it difficult for equal access to justice and creates an environment and culture of impunity.
Forced and child marriages
“A woman, they say, always remembers her wedding night. Well, maybe they do; but for me there are other nights I prefer to remember; sweeter, fuller, when I went to my husband matured in mind as well as in body, not as a pained and awkward child as I did on that first night.” – Kamala Markandaya, Nectar in a Sieve
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Sisterhood Initiative Founder and grassroots volunteer Nabeela Iqbal[/caption]
The minimum legal age for a civil marriage in Sri Lanka is 18 years of age. However, through the combinational result of a vast array of social problems and many loopholes in the country’s legal and justice system, child marriages persist at an alarming rate even today.
Iqbal, in conversation with The Sunday Morning Brunch, stated: “Child marriage has always been an issue for Muslims and non-Muslims in Sri Lanka. For Muslims, it’s a systemic issue and for non-Muslims it’s not.”
Laws that allow child brides
It was unravelled that many use the 2012 Consensus Report, a misinterpreted document, to say that child marriages is not a Muslim issue but a Sri Lankan issue, when in fact, it is a problem faced gravely by the Muslim community.
The primary loophole as observed by experts is that there is no requirement for written consent from the bride in the marriage certificate.
“It’s safe to say that child marriages still occur within communities. However, Muslims don't have the legal grounds to criminalise and invalidate it,” said Tegal.
According to Section 23 of the MMDA, it is even permissible for a girl under the age of 12 to be married with the discretion of a Quazi. Even the statutory rape provision in the Penal Code (363) does not apply to married Muslim girls between 12 and 15 years of age.
The completion of some formal level of education and a basic understanding of how the world works are crucial elements in marriageable parties. They should somehow be of a certain capacity to manoeuvre and negotiate within the marriage.
“While we are struggling with this issue, other communities are attempting to tackle child marriages as a social issue and are even thinking about sexual education within the school curriculum and equipping young individuals,” expressed Tegal.
Maryam Azwer further explained how the MMDA is problematic through an example from the Eastern Province – the bride’s signature is not mandatory in the marriage documentation, which enables possible non-consensual marriages. A girl who had not consented to the marriage was married off as her father had placed his signature on her behalf.
Additionally, marriages do not require registration in order to be considered valid. The MMDA also has no conditions for polygamy and there are instances the newly wedded wife would not have known that the husband has other wives.
Islamically speaking, the husband is expected to provide for his multiple wives, if any, equally. However, there are no conditions within the mandate of the MMDA explicitly stating so. Husbands are allowed to divorce at a whim without stating legitimate reasoning. Sunni wives are only granted divorce based on harm, the return of Mahr, or mutual consent. On the frontlines of the issue, women are also not allowed to be Quazis or to hold other positions within the courts, which is something the MPLRAG has been pushing for.
There are a number of specific practical issues women face within the structure of the Quazi Court System itself. There are differences in procedures for women in divorce, due to all-male Quazis; there are numerous reported incidents of intimidation, mistreatment, and even harassment. Women have also reported that they are not allowed to elaborate their side of the story in court. Cases of obvious bias where the male counterpart is favoured are not rare occurrences and there are also reported cases of bribery and extortion due to lack of monitoring.
What does the Quran and Sunnah say about women as judges?
According to Hamin, the Quran does not differentiate between the value of men and women and does not refer at any time to biological differences justifying unequal treatment. There are multiple verses in the Quran that specify that there are no fixed gender roles in society that deny women positions as leaders in society.
There are many examples of Islamic women in positions of power as judges in Quazi or Sharia courts in Singapore, the Maldives, Malaysia, Indonesia, Yemen, Bangladesh, Sudan, Palestine, Egypt, and Pakistan. Singapore appointed its first woman senior president to head the Syariah Court starting from October 2020. Indonesia, during the time the MMDA was introduced in Sri Lanka and the country which was essentially the very source of the act, institutionalised hundreds of women into their courts system.
Primarily, the difference of opinion in jurisprudence towards the issue has nothing to do with the Islamic law, which is the Quran, explained Hamin.
The general narrative of young girls who are forced into marriage is not much different from the tragic tales that ultimately end up on the headlines. There are many unheard, untold stories of countless girls who are moulded into women by force. This becomes an issue largely in outstation areas and even rural pockets of Colombo. Writer and researcher on women’s rights Sumaiya Pallak revealed a series of woeful narratives Muslim women on our very own home soil have undergone.
“Something that women and victims or survivors of these child marriages commonly go through is getting married to men that already have two to three wives without their knowledge. There’s a lot of conflict when they get to know later on how to divide money or property and most of the time, the men don’t even have the financial capacity to take care of their wives. Physical or psychological violence from the husband as a response of anger to the questioning of the wife is a very common incident.”
There are incidents in which a Quazi court judge has claimed that the value of a girl decreases after 17 years of age. Pallak also related the stories of a 15-year-old girl who was given in marriage to a 35-year-old man in Oddamavadi, Batticaloa and faced severe physical violence on her wedding night; and a 14-year-old who did not know she was married until the night of her wedding when she was locked up into a room with her husband.
Research also revealed how polygamy, a common practice among Muslims, at times happens without knowledge and consent, leading to cases of abandonment, emotional and economic abuse, domestic violence, blackmail, and family disharmony. A case in Puttalam tells that a young woman with a two-month-old baby found out that the husband had taken a second wife only through a letter from the mosque.
The inequality in divorce procedure is another cause of concern, said Pallak, referring to the husband of a young woman in Mannar with two young children who filed for talaq (divorce) as he has found someone “pretty and fair” to marry during his trip to Trincomalee. The Quazi had reportedly granted a divorce within a few days, leaving the mother and children abandoned.
Through her experiences in volunteering, Iqbal herself related the story of a girl who opened up to her about her experiences as a child bride.
“She was too young to understand things like sex or child birth. The husband was much older and she mentioned how he forced a pregnancy on her. She was basically forced to carry a child because she did not know how any of these things worked.”
With this pregnancy, she was allegedly not able to go to school and her requests to do so were constantly delayed. Then another pregnancy would happen soon after the birth of the first child.
“A lot of them want to continue with their education but in the case their families are not financially capable, they are married off. This girl is now a young mother of three children. She described herself as a woman with dreams but she was used as the scapegoat. She said that this is not only her story but the story of many others.”
The essence of childhood along with the vitality of youth is accordingly lost in these girls.
“Islam says every girl and every boy should go to school. In the Quran it is written, God wants us to have knowledge. He wants us to know why the sky is blue and about oceans and stars.” – Malala Yousafzai
“This is a law that allows bad men to do bad things. That allows bad people to do bad things,” Iqbal reinstated, quoting Hamin.
Stay tuned to this space. We will be discussing the impact of social setbacks, reforms, barriers and challenges to reforms, how we can get involved, and more next Sunday (1 November).