MPLRAG welcomes the recent public release of the report of the Advisory Committee on recommendations to the Muslim Marriage and Divorce Act of 1951 (MMDA). The public discussion of the recommendations is an important step towards ensuring transparency and accessibility of the MMDA reform process for all Sri Lankan Muslim communities. We believe the legitimacy of reforms will be strengthened when people to whom this law applies understand what reforms are proposed.
Upon studying the report, we observe that several long-awaited reforms appear to have been proposed by the committee. We are encouraged by the fact that key recommendations have been unanimously agreed upon by the Committee, including by the General Secretary of the All Ceylon Jamiyyathul Ulama (ACJU). This is an important development towards recognising that there are real issues driving the reform of this law and that all stakeholders are interested in the welfare of the people in their communities.
MPLRAG offers the following preliminary analysis of the following recommendations by the committee:
Firstly, it is encouraging that the then-Cabinet of Ministers had taken a strong stance on the issue of child marriage and decided to introduce 18 years as the minimum age of marriage. Similarly, consent and signature of the bride as a mandatory requirement has been decided by the Cabinet. These issues are past community debate, as they center on preventing child and forced marriages, which the government has a duty and responsibility to ensure with urgency. Swift action must be taken to expedite these reforms.
Furthermore, we endorse the following unanimous decisions of the Committee:
- MARRIAGE REGISTRATION – Introducing registration of marriage for legal validity.
- MARRIAGE CONTRACTS – Pre-nuptial agreements entered into by couples be recognised.
- WALI ( GUARDIAN) – The signature of a Wali is not mandatory on the registration document.
- On the question of the signature of the Wali (guardian) appearing on the marriage registration form, MPLRAG appreciates the position taken by the female members of the Committee to safeguard and give due recognition of the woman having full autonomy to enter into a marriage. We are also able to endorse the alternative position of having the signature of the guardian as an option in the marriage form.
- DOWRY & KAIKULI – Dowry and any other transactions of money or property exchanged at the time of marriage can be recovered by the party who gave the property in the event of divorce. In the interest of fairness, circumstances of the use of the property by the couple will be considered. MPLRAG takes the position that dowry and kaikuli are not Islamic practices and Muslim communities must work towards eradicating them. Provision for recovery of dowry and kaikuli are only interim measures in recognition of the prevalence of the practice and the need for mechanisms to ensure fairness.
- MATRIMONIAL PROPERTY – Property acquired during the marriage will be fairly distributed at the time of divorce. Currently, there is no provision in the MMDA on this and it is important to address.
- DIVORCE – Fair procedures, burdens of proof and recourse to appeals to be applied to both parties. Mutual consent divorce to be recognised. Children’s affairs to be prioritised during divorce cases.
- MPLRAG also endorses the position taken by the female members of the Committee that a reconciliation process prior to divorce cannot be made mandatory and has to be optional.
- MATA’A – Mata’a (alimony) to be recognised.
- MAINTENANCE – Maintenance orders must be based on the criteria that ensure that adequate maintenance is paid. To increase access to justice, applications for maintenance can be also made to a magistrate court.
- WOMEN TO HOLD OFFICIAL POSITIONS – Women (in addition to men) can hold any position created by the MMDA including as marriage registrars and (depending on the system adopted) as adjudicators or conciliators.
- WHO CAN MARRY UNDER MMDA – The MMDA can be used if both parties are Sri Lankan or even if only one party is Sri Lankan.
- THE APPROPRIATE COURT – the report being in two parts proposes in part 1 a system similar to the Quazi system with some oversight and in part 2 proposes a combined system of community-based conciliators (for matters mutually consented to) and the district court (for contested matters). We endorse the objective of the proposals to introduce minimum qualifications, training and supervision into the system. We reiterate our proposals for a community-based and family court combined structure which would be dedicated to family cases. The proposals and their implementation must be closely monitored to ensure that hardships faced by litigants and, particularly, women are recognised and addressed as a continually learning and correcting system. See the MPLRAG Position Paper on A Family Court System for more information and analysis of our stance.
On polygamy:
On the issue of polygamy, MPLRAG firmly advocates that polygamy needs to be abolished, given that there is evidence from countries (such as Malaysia and Indonesia) which allow polygamy with conditions, which shows that regardless of stringent conditions the practice continues to seriously harm women and children.
MPLRAG sincerely hopes that the government wastes no more time in bringing long-awaited crucial amendments to the MMDA. The latest development provides some hope and assurance that the concerns and grievances raised by minority Sri Lankan women and girls are not being ignored. However, these are reforms that consecutive governments have promised yet failed to deliver on.
The onus is now on the current administration to demonstrate an ability and willingness to ensure that the family law Sri Lankan Muslim communities are expected to marry under, embodies the fairness and compassion prescribed in Islam and the justice enshrined in the Constitution of the country.
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*The committee consisted of five practicing lawyers, one academic lawyer and three religious scholars (one of whom is the Secretary General of the ACJU, another a government official responsible for Muslim religious affairs). The members of the committee were Shabry Haleemdeen (Chair), S M M Yaseen, M A M Hakeem, Safana Gul Begum, Ermiza Tegal, Naamiq Nafath, A B M Ashraf, Sheikh Arkam Nooramith and Sheikh Muiz Bukhary.