Summary of the key recommendations put forward to the Hon. Justice Minister by the team StrengthenMMDA on 3rd November 2022.

during the meeting with the  Hon. Justice  Minister- team StrengthenMMDA-on 3rd November 2022.

Summary of the key recommendations put forward to the Hon. Justice Minister by the team StrengthenMMDA on 3rd November 2022.

Muslim citizens of Sri Lanka to exercise their religious values. These rights are protected by the constitution of the country. Thus, it is important to assure any amendments to this personal law should comply with religious principles.

Further, when we amend to overcome the shortcomings of existing law it is our responsibility to make sure those amendments should not put people in new plights.

The recommendations which have been made to the former minister of justice by the advisory committee are not transparent. however, we found some recommendations were disclosed unofficially by the committee in a webinar.

The team StrengthenMMDA has critically evaluated those recommendations, identified its shortcomings and practical complexities associated, and proposed following recommendations to be considered while amend the MMDA.

• A proviso is required to the section - fixing the age of marriage as 18. This proviso can be used in exceptional circumstances.

• The signature of a bride can be obtained as a mechanism to ensure her consent to the marriage, but it cannot nullify the importance of the consent of her Wali.

• Polygamy should not be eradicated from our personal law (MMDA), but it can be regulated with the guidance of our religious scholars. 

• Appointment of female Quasi should not be permitted (it doesn’t comply with our religious guidance). 

• Customary marriages should be recognized by the law.

• The name ‘Quasi’ cannot be removed, because it represents the unique identity of Sri Lankan Muslims for almost a century.

• Shortcomings in the Quasi system must be highlighted in order to enhance the efficient function instead of degrading its capacity or power. 

Now, we would like to emphasis on how we reach the key recommendations put forward.

First, fixing the minimum age of marriage as18. 

This recommendation is made to eradicate child marriages from our community. According to the latest census report statistics in SL, a large number of underage marriages has been recorded in non-Muslim communities. It must be highlighted that these marriages were held in the context where the general marriage ordinance explicitly reveals that the minimum age of marriage is 18, whereas MMDA has not stated a minimum age of marriage. These statistics have scientifically proved that fixing the minimum age of marriage as 18 by law is not going to eradicate the number of child marriages in our country.

As we all know according to the penal code girls above the age of 16 can consent to have sex. Muslims are not allowed to have extramarital relationships. This creates a valid ground to demand minimum age of marriage as 16.

Even the civilized countries like UK and USA they have accepted 18 years as minimum age of marriage only when the parties themselves engage in a marriage. They also have the facility in their laws the parties can marry before 18 in exceptional circumstances with the consent of their parents, guardian, or court.

fixing 18 as the minimum age of marriage by law to eradicate child marriages appears to be an unsuccessful mechanism. Instead, building proper awareness in our community and uplift their standard of life would be the pivot. Still we favour fixing the minimum age of marriage as 18, however, we demand a proviso to the very section, to accommodate needy marriages before the age of 18.

UN convention on minimum age of marriage is also not against to this demand. It facilitates a competent authority to grant a dispensation to the minimum age. Therefore, the demand for the proviso is sensible and a fair requirement, which is justified scientifically.

Second, Signature of a bride and the role of her guardian.

According to Islamic principles, obtaining the consent of a bride is a mandatory requirement to validate a marriage. So, there is no ground to forbid this arrangement. But in the newly proposed reforms it is included that, since the bride placed her signature, gaining the signature of her Wail (guardian) has been recommended to be not mandated. This is where this proposed amendment contradicts the religious guidance.

This arrangement does not satisfy our religious requirements. According to the guidance of Al-Quran and Sunnah, the contracting parties of a marriage are the bridegroom and the Wali (with the consent of the bride)

Third, Polygamy

'permission to polygamy' is not a favour for Muslim men. It is an additional responsibility.

This arrangement is made to avoid a situation where women could be used for men’s sexual needs and left without any marital rights.

Also, it is an arrangement made to build a society without prostitution and extramarital relationship. Islam prohibited prostitution and extramarital relationship and declared them as a punishable offence. 

In a community where polygamy is banned by law but not prostitution and extramarital relationship, a man could engage in many sexual relationships apart from his wife. Here, the possibility of spreading sexually transmitted diseases is also very high.

I would like to emphasise here that polygamy is not a luxury or favour to men, but it is a mechanism to ensure the rights of women, children, and society as a whole.

We agree that there are certain cases where the permission to polygamy is being misused and this permission needs to be regulated by law. However, it is important to ensure those regulations should not contradict with the religious guidelines. Proper approval from religious scholars is to be sought in this regard.

Forth, Appointing female Quasi

Appointing women Quasis is not allowed in Islam. We should not see this as gender discrimination. Islam is the religion which recognized the right of women 1400 years ago. However, Islam allocated certain responsibilities exclusively for the male gender such as doing the burial for a deceased, being the Imam of a congregation prayer, being the ruler of a nation, etc. It is a divine arrangement, and the wisdom behind it only the Almighty knows. As I said earlier this is a personal law based on religious principles, we can’t allow any other ideologies which contradict our religious guidelines to invade our Personal Law.

Further, there is a need that a Quazi to act as a ‘Wali’ (guardian) where there is an absence of a ‘Wali’ to a bride. A woman cannot be a ‘Wali’ to another woman in Islam.

In this context, it is obvious that women can’t be appointed as Quazi.

fifth,Registration of marriage

Registering a marriage is mandatory. But the law should facilitate recognizing customary marriage too. In Islam the customary marriages are valid. If the law does not recognize customary marriages, women who engage in customary marriages do not get any marital rights including property rights from their husbands. Also, children born in such marriages do not get any legal recognition in terms of inheriting the properties of their fathers.

Sixth, Changes in Quasi system

The reforms committee has recommended exercising the Quasi system under the title ‘Muslim Marriage conciliator’, here we must notice that the name ‘Quasi’ has been replaced in the reforms. In the Sri Lankan context, the name quasi is a brand and identity of the Muslim community for representing their uniqueness and the privilege they own as equal citizens of the nation, from the pre-independent era.

Removing the name Quasi is seen by the Muslim community as an attempt to remove one of the identities they owned almost for a century.

The powers vested in the Quasi system are also reduced to a certain extent, where there is a possibility many marriage dispute cases will be directed to District Courts.

The Quasi system is comparatively a viable system because, it is

• Easy to access
• Not expensive
• Not time-consuming
• Parties are being heard in private

We all must understand the mindset of women largely concerning the culture of Muslim women, where they feel very unpleasant to be present in a court environment and be heard about their personal marriage disputes in public. If the jurisdiction in relation to marriage disputes presently vested in the Quasi system, is transferred to District courts, it will make most Muslim women refrain from seeking remedy for any kind of marriage dispute committed against them. it will increase their mental depression, also it is harmful to their mental well-being.

The reforms we are trying to do on MMDA to ensure the rights of women in our community, should not put them in a miserable situation or an unacceptable plight. The government has to ensure that the process of reforming the MMDA would not trigger any harm or any other problems in women's society.

We all agree the existing Quasi system has many shortcomings, but those drawbacks can’t be considered as grounds to destroy the system. Necessary amendments are to be made to fix the deficiencies and make the system efficient.

(This was presented by lawyer Shifana Sharifudeen via zoom at the meeting.)

A few more photos taken during the meeting with the  Hon. Justice  Minister 

 Information by M.H.M.NIYAS