Committee proposes to regulate but not abolish polygamy in Sri Lanka

  • Muslim Law Reforms Committee proposal to Justice Minister in two weeks
  • 7 committee members vote for stringent regulation, 2 for total abolition

BY Mirudhula Thambiah

The Committee for Muslim Law Reforms (CMLR) has proposed not to abolish the controversial polygamy law applicable to Muslim men, with seven out of the nine committee members voting to permit polygamy under more stringent conditions, and two members voting to abolish it entirely, The Morning learnt.

Therefore, a proposal on regulating polygamous marriages under the Muslim Marriage and Divorce Act, No. 13 of 1951 (MMDA) will be handed over to Minister of Justice Dr. Wijeyadasa Rajapakshe PC by the committee in two weeks.

Section 24 of the Muslim Marriage and Divorce Act, No. 13 of 1951 (MMDA) elaborates on second and subsequent marriages.

Despite the Cabinet decision to abolish polygamous marriages last year when incumbent Minister of Foreign Affairs M.U.M. Ali Sabry PC was Minister of Justice, Dr. Rajapakshe PC had directed the said Committee to submit a proposal in this regard.

When contacted by The Morning yesterday (21), CMLR Chairman Attorney-at-Law Shabry Haleemdeen said that there were no proposals submitted regarding polygamous marriages when the initial draft of the Muslim personal and matrimonial law reforms by the Legal Draftsman’s Department was submitted to Ali Sabry PC.

Haleemdeen said that while the draft has been completed and finalised regarding other matters, it is still pending with regard to polygamous marriages.

“We are deliberating on polygamy since it is a sensitive issue for the Muslim community, for the reason that it is derived from the Quran. It is a religious tenet and people take it very seriously,” he added. 

“When we met Dr. Rajapakshe PC, he queried us on the opinion of the Committee. The opinion of the Committee is divided. Out of nine members, seven are of the view that polygamous marriages should be permitted, with very stringent conditions. However, the remaining two members are of the view that it should not be permitted. When this was communicated to Dr. Rajapakshe PC, he wanted us to send something in writing on that,” he added. 

Haleemdeen noted that recommendations will be made on the grounds that the permission of the conciliator has to be obtained in regard to second and subsequent marriages. Haleemdeen noted that the position of a conciliator will be in operation instead of the Quazi Courts system. The point of authority will be the Judicial Service Commission similar to the current context. They will decide on the qualification depending on the circumstances.

“We have recommended a person with legal as well as counselling knowledge to the position of the conciliator, thereby making the process easy,” he added. 

The conciliator will hold an inquiry and take a number of aspects into account, in order to decide if permission should be granted or otherwise.

He added that if a man decides to practice polygamy, the conditions will be very stringent under the Committee’s recommendations, and that it will not be easy even if it is permitted. The conciliator, before granting permission, will have to mainly consider the equal treatment of the wives. Equal treatment should be given financially, physically, and mentally. The person who is proposing to marry again should have sufficient financial means to support all their wives and children. 

“If a man is permitted to be married for the second time, he should ensure that the first wife is secure with financial sufficiency and properties,” he added. 

Haleemdeen said that there should also be a compelling reason as to why a man should enter into subsequent marriages such as the first wife suffering from a terminal illness or an incurable disease. Also, if the wife too consents on the grounds that she is unable to carry out her matrimonial duties, then he should be allowed to enter into another matrimonial relationship.  

Meanwhile, mentioning the other important reforms that had been included in the recommendations, Haleemdeen said that the age of marriage shall be fixed at 18 years, like all other laws, and that the registration of the marriage is made mandatory thus ensuring validity, while the signature of the bride is made mandatory on the registration form. 

“As of now, the bride doesn’t sign for the marriage; it is the ‘Wali’ (custodian) who signs. We have made that optional; supposing the bride wants the Wali’s signature, that can be obtained, if not, it is not strictly required for the validity of the marriage. Either way, the bride has to sign, showing her consent to the marriage. Previously, it was only the Wali who signed it. We have made it optional now,” he said.

The CMLR also recommended to recognise a pre-nuptial agreement like in other countries, where the parties can enter into an agreement as to how their marriage will proceed. There will be a provision made for this purpose.