1. What is the Muslim Marriage and Divorce Act (MMDA)?
The 1907 Sri Lankan (General) Marriage Registration Ordinance (GMRO) is applicable to all citizens of the country with the exception of Muslims who marry within faith. Two communities – the Kandyan Sinhalese and Sri Lankan Muslims have separate Acts for marriage and divorce, on the basis of ethnicity (with a geographic qualifier), and religion respectively. The present-day Muslim Marriage and Divorce Act (MMDA) was enacted in 1951.
Kandyan Sinhalese have the option to marry under the 1952 Kandyan Marriage and Divorce Act as well as the GMRO. However this option does not extend to Muslims as only the Muslim Marriage and Divorce Act 1951 (MMDA) governs Muslims inhabitants who marry another Muslim (including converts to Islam). Muslims however are allowed to marry partners who are of a different ethnicity or religion under the GMRO. Muslims in Sri Lanka currently account for 9.66 percent (1,967,523 )million of the total population of 20.3 million people.
(*MMDA is sometimes referred to as Muslim Personal Law (MPL) or Muslim Family Law.)
2. What is the origin of the MMDA?
The origin of Sri Lankan MMDA stems from a code of law on marriage and divorce exported from Batavia (present day Indonesia) in 1770 during the Dutch rule. Between 1806 and 1951, this code of law went through a process of codification, review and modification, led on each of these occasions by a few prominent legal and religious individuals at the time.
The present day Act embodies substantive provisions held by the preceding ordinances and codes and includes provisions based on Sharia law and Islamic legal practices. However, the Act also includes provisions pertaining to local customs unknown to Islamic law, such as that of kaikuli (dowry given from bride’s side to bridegroom) followed by Sri Lankan Muslims at the time. Among certain religious schools of thought, kaikuli is considered haram/forbidden in Islam.
Is the MMDA based on Shari’ah law?
There is technically no such thing as ‘Shari’ah law’. ‘Shari’ah’ is referred to as the general normative system of Islam as historically understood and developed by Muslim jurists mostly during the first three centuries of Islam. Shari’ah pertains to much more than just legal principles and norms, but where applicable legally – it is often termed as ‘Islamic law’.
Islamic law encompasses a wide range of legal aspects and Muslim Family/Personal Law is just one of the most common aspect of Islamic law that is implemented to varying degrees in about 44 different countries around the world. Muslim family law in many countries including Malaysia, Indonesia, Morocco, Tunisia and others have been through multiple reforms processes in order to address contemporary issues affecting Muslim communities in these respective countries.
The restriction of Shari’ah to mainly matters pertaining to family law (i.e., marriage, divorce, custody, maintenance, inheritance) in countries with dual legal systems is a development that came about in the late nineteenth and early twentieth century and can be attributed to colonial influences.
In Sri Lanka too, one such remnant of the colonial period has been with regard to the continuation of “indigenous laws” such as personal laws applicable for a specific community, parallel to the common and more secular law generally applicable to all citizens. With specific regard to marriage and divorce, this has resulted in personal laws for the Muslim and Kandyan Sinhalese communities, in addition to the (General) Marriage Registration Ordinance (GMRO).
3. How is MMDA administered and implemented?
The MMDA established a Quazi (Muslim judge) court system, including a Board of Quazis and an Advisory Board. There are 65 Quazi courts in Sri Lanka with one Quazi each, serving a population of approximately 2 million Muslims. Most Quazis have geographical jurisdiction, however certain Quazis such as the Quazi for Memon community, has island-wide ethnic jurisdiction for wherever Memon community members reside. In Puttalam there has been a special Quazi for all internally displaced persons in the district.
The Board of Quazis is a five-member all-male board tasked with overseeing appeals that arise from Quazi court judgments or proceedings, and provide clarification on “any question of Muslim law which may arise in connection with the administration of the MMDA or of any regulation made thereof” Board of Quazi hearings are held in Colombo and Kalmunai only. Quazi courts are significantly different from the civil court system and doesn’t allow for affected persons to have legal representation.
4. What is the relationship between Quazi courts and civil courts?
In the event that the cases are left unresolved or parties are aggrieved by the decisions of the Board of Quazis – cases are then taken up at the Court of Appeals. Furthermore as per the MMDA, the Magistrate court has the jurisdiction on enforcement orders for default on payment of maintenance. The District Court has applicable jurisdiction to facilitate recovery of sums due on claims pertaining to dowry (mahar and kaikuli) and with regard to child custody.
In the history of MMDA implementation, an Advisory Board that has been specified in the Act has never been formed.
5. Who oversees Quazi appointments?
The Judicial Service Commission (JSC) is mandated with handling the appointment of Quazis who may be any “Muslim male of good character and position and of suitable attainments, as well as undertaking terminations and transfers of Quazis and Board of Quazi members. According to the JSC Quazis are chosen based on 4 attainments: they are either lawyers, Moulavis or Alim (religious scholar), retired public officer in the staff grade, and/or a graduate. JSC is also tasked with taking action on complaints regarding Quazis, however only has the mandate to inquire and terminate/transfer.
6. What are the key issues with regard to MMDA?
There are major concerns that the MMDA violates the rights of Muslim women and limits access to justice, due process and redress. These concerns are with regard to provisions within the Act itself as well as practical problems with procedures and implementation via the Quazi court.
Some of these issues with regard serious infringement on right include (among others):
- Legally allowing child marriage by not stipulating the minimum age of marriage for Muslims as 18 years (A Quazi can permit even the marriage of a child under the age of 12);
- No requirement of mandatory (and written) consent from the bride;
- Different conditions of divorce for men and women –
- Only husbands are granted the right to unilateral divorce without reason;
- Under Shafi school of jurisprudence process of divorce by wives lengthy, requiring reasons and evidence, witnesses and case hearings;
- Under certain Shia sect’s there is no option for women to obtain a divorce on their own will, or for Quazi to give her divorce. Husband’s consent is always required;
- Arbitrary provision for wife and child maintenance depending on Quazi;
- Practice of polygamy without requirement of consent from the wife/s or wife to be as well as without verifying if husband is able to maintain;
- Qualified women not allowed to be marriage registrars, Quazis, jurors or Board of Quazi members. The position of Quazi is a state-salaried and tax-funded position that is allowed to discriminate against women simply on the basis of sex;
- No mandatory requirement of qualifications or compulsory training for Quazis.
Muslim women’s access to justice is severely restricted in Quazi courts. Affected women have articulated in multiple forums that they are discriminated against by the sub-par Quazi court system, which is significantly different from the civil court system and doesn’t allow for clients to have legal representation. Women are often mistreated by incompetent Quazis and the jurors of the courts; not given equal treatment as their husbands; are unable to express their side without fear of being verbally abused, threatened and humiliated in courts throughout their case processes. More often than not the all-male jurors (with no qualifications) are selected by Quazis arbitrarily.
7. What have been the efforts to reform the MMDA?
Muslim women’s organizations like MWRAF, have been advocating for reform to the MMDA for over 30 years. Although the earliest attempt at reforms can be tracked back to 1954, the reforms process gained significant momentum from the mid 1980’s. Notable amendments include, the amendment to the appointment of Quazis by the Judicial Service Commission in 1964. Over the years different aspects of the MMDA have been highlighted for reforms by different groups. Many committees for law reforms have been set up starting with the 1956 general committee on customary law reform that looked at the option for a uniform civil code, which garnered much opposition from the Muslim community.
Subsequent committees specifically on Muslim Family Law reforms were set up including:
- In 1970 – a committee headed by Dr. H.M.Z Farouque which provided recommendation for reforms that included substantive and procedural amendments to the MMDA, including raising the minimum age of marriage;
- In 1984 – a committee was set up but disbanded subsequently without any concrete progress;
- In 1990 – a committee was set up and headed by Dr A.M.M. Shahabdeen, which has been the committee most successful to date, in terms of preparing a report within two years and submitting to the government. The process ended at the lack of legislative action, as the MMDA reforms were not a political priority for the Muslim leaders or the government at the time;
- In 2005 – MWRAF initiated the Independent Committee for Muslim Personal Law Reforms (ICMPLR). The ICMPLR, following a widespread consultative process with many actors, prepared a comprehensive report on law reforms, which contributed as the initial documentation and precursor to the 2009 cabinet appointed committee;
- In 2009 – An 18 member ‘Committee Appointed to Suggest Amendments to the Muslim Family Law’ was set up by then Minister of Justice Milinda Moragoda. The committee is headed by former Supreme Court Judge and Presidential Counsel Justice Saleem Marsoof.
8. Why was the 2009 reform committee appointed ?
In 2009 after then Minister of Justice Milinda Moragoda after having extensive discussion with several eminent Muslims it was acknowledged that certain reforms to the Muslim personal law was “urgently needed”. He obtained cabinet approval to set up a 18 member committee consisting of senior legal personalities, heads of the All Ceylon Jamaitul Ulema (ACJU), academics and members of civil society organizations.
9. What is the status of the committee report?
Following significant public pressure, the Chairperson of the 2009 Committee, Justice Saleem Marsoof submitted the Committee report to the Minister of Justice in February 2018. Full report can be accessed on the Ministry of Justice website.
While all 18 members of the Committee agreed unanimously on a few issues, the Committee was split half way on many of the main issues being debated including:
- Whether or not MMDA should apply differently to different ‘madhabs’/ schools of jurisprudence and sects
- Absolute minimum age of marriage
- Validity of marriage without registration
- Requirement of wali (guardian) for bride
- Women as Quazis
- Upgrading of the Quazi court system to standard of magistrate courts
- Appearance of lawyers in Quazi courts
In layperson speak, the two split reports are termed as Justice Saleem Marsoof (JSM) Report and All Ceylon Jamiyyathul Ulama (ACJU) or Faisz Mustapha (FM) Report. Both sides believe that their recommendations are more Shari’ah complaint and based on Islamic law than the other sides.
Minister of Justice, Thalatha Athukorala has on multiple occasions commented that the Ministry is not able to take the reforms process forward because there is divided opinions among members of the 2009 Committee.
Since then there have been attempts both by male-led Muslim organisations and Muslim Ministers to bring both sides of the committee’s recommendations to find some ‘compromise’ or ‘consensus’ between the two reports. Women’s groups believe that such an approach is merely for convenience and will lead to piecemeal reform that will not substantially address the most pertinent issues and challenges faced by Muslim women and girls.
10.What is the link between Sri Lanka’s Constitution and the MMDA?
Article 16(1) is a clause in the Fundamental Rights chapter of the 1978 Constitution of Sri Lanka. It says that all written and unwritten law that existed prior to the 1978 Constitution is ‘valid and operative’. This means that these laws are valid even if these laws are ‘inconsistent’ with fundamental rights granted to all citizens. Article 16(1) of the present Constitution supersedes the guarantees of equality (Article 12(1)) and non discrimination (Article 12(2)). This implies that if any of the 600+ written and unwritten laws including the MMDA infringe or violate a person’s fundamental rights, it cannot be challenged in a court of law.
- Article 16(1) needs to be repealed to ensure that the new Constitution is the supreme law of the land and that fundamental rights and gender equality are ensured for all citizens regardless of religion or ethnicity;
- The absence of an Article 16(1)-like provision has no immediate impact on the continued operation and validity of MMDA or any of the other 600+ laws.Muslims of Sri Lanka can continue to practice the MMDA and any other personal laws. There will be greater space for reform which will have to be initiated and taken forward by the community itself;
If reforms to MMDA will indeed mean that fundamental rights of Muslim citizens are not violated, then Article 16(1) should not be such a major concern at all. Only in the event discriminatory provisions contribute to be present – the absence of Article 16(1) will offer an alternative legal remedy to address issues faced by Muslim women, men and children in matters of marriage and divorce through civil courts like any other Sri Lankan citizen.