MMDA: Personal Laws At The Expense Of Fundamental Rights?
By Sabra Zahid –December 5, 2016
Sabra Zahid
Given the division within the Muslim community with regard to reforming the Muslim Marriage and Divorce Act of 1951 (MMDA), I thought I’d put down something as well to add to the discussion and also specifically after having listened to a few ladies share their experiences in the jury of a particular Quazi court (in the capacity of counselors of sorts). They had served under two Quazis, the first was quite accommodative, the second however was not so and they had to impose themselves, on what he hoped would have been an all-male jury.
The MMDA governs aspects of family law for Muslims in relation to marriage, divorce, maintenance, custody, and inheritance. The Muslim community is divided. On one end are those who call for reforming this law because of its negative impact on women and children. On the other end is the so called religious community (predominantly male) who want the law to remain as it is until the community calls for change arguing that the State shouldn’t give in to international pressure. However, the call for reforming the law dates as far as 1954, gaining momentum in the 1980s and with sporadic attempts there on. A section of Muslim women and men have been struggling for change and in light of this, I don’t see what this fuss about waiting for the community, as though these women and men who have been agitating for change don’t fall within it! Be that as may these demands are reasonable and long overdue. Opposing them defies all logic especially by those professing a faith which is supposedly universal and one in which justice is considered supreme and core to its belief system.
For instance the MMDA poses dangers by not stipulating a minimum age of marriage. Under the prevailing law, girls younger than 12 can be given in marriage with the authorization of the Quazi. Although in Sri Lanka it is not common for girls younger than 12 to be given in marriage, child marriages do in fact take place of girl’s between ages 14-16 and below 18 and so on. In light of this Sri Lanka should move ahead with times and raise the age of marriage as 18, as it has under the General Marriage Ordinance. There have been instances where the Mosque intervenes in instances where overzealous families attempt to give their girls in marriage. For instance, a relative was recently asked to wait until his daughter was at least 16 before given in marriage. This is highly commendable and is a sign that there are progressive elements within the system. However, there was no such intervention when a couple of years ago the same relative wanted to marry another daughter of his off at 14. Not only should the age of marriage be raised to 18, secular education should be made mandatory at least up to 16, because in most instances girls are sent to Madrasas (faith based institutions) which seek to inculcate in them a dogmatic approach to scripture and rituals. The social implications of such marriages are grave. The over reliance on their husbands for finances means even when abandoned or in situations of abuse there are no alternative means of fending for themselves. Apart from this, the burden of having to bear children and run a household, the capacity, and the ability to make decisions etc when one is herself a child has consequences not just for one’s self but for the whole family unit.
In terms of consenting to marriage the law treats Muslim women as legal minors even though they are “ready” for marriage. Although the proponents of the MMDA quote section 25 as a safeguard, a proper reading of the section would show that it is not in fact about the girl consenting but rather the significance of the Wali (guardian). Section 25 provides that a marriage is not valid unless (a) a person entitled to act as Wali is present in time and place (b) and communicates her consent and “his own approval thereof.” In any case there is no safeguard in place to ensure whether the guardian is actually communicating consent or whether the girl has been coerced, thus the law as it stands leaves space for potential abuse. In a particular case, a girl from Thihariya who had obtained good results for her O/L’s and who wanted to pursue her education, was deceived by her mother into taking her belongings including her school uniform as she was to be admitted to a better school to do her A/L’s. The mother who had other motives, dropped the unsuspecting girl to a house in Madawala where she was given in marriage, only for the husband to abandon her a couple of years later robbing her off from even the right to see her two children. She is now in her early thirties hopeful of continuing her education.
