Unveiling the MMDA

The political rhetoric of ‘One Country, One Law’ should be about equal justice for everyone and not exploit it to prevent people from practicing their faith – Pic by Shehan Gunasekara

The hate campaign against Muslims in Sri Lanka seems to be taking a new turn, with a few child rights activists blaming the Muslims of promoting child marriages. Muslim bashing has become the norm in webinars and social media these days.

The hue and cry on Muslim kids marrying at 12 and 15 is a myth, stage managed to create a public outcry against Muslim Personal Laws and the Muslim Marriage and Divorce Act (MMDA). Regretfully, Muslim bashing is endorsed by probably 30 Muslim women who seem to think that the absolute majority of Muslims are not clever enough to understand human rights or child rights. 

A few isolated cases of Muslims marrying under 15 years are highlighted in a campaign to show Muslim laws are the reason for child marriages. I challenge the so-called child rights activists to show evidence that there is a disproportionate number of Muslim child marriages.

Our population censuses of 2012 gives the following facts:

Marriages below 15 years: total 3,204, amongst them Sinhalese 2200, Tamils 511, Muslims 471, Others 22. Marriages in the 16-19 age group: total 87,633, Sinhalese 62,630, Tamils 12,642, Muslims 11,916, Others 445. Look at the statistics, Muslims with their so-called ‘archaic’ laws have the least number of child marriages. Nothing to be proud of, I admit. But it is a glaring fact that it isn’t a Muslim problem but a national problem.

The World Health Organisation says, “About 16 million girls between the ages of 15 to 19 and, two million girls under the age of 15 give birth every year.” But here in Sri Lanka, some of our so-called activists see this as a Muslim problem. I invite them to walk along the Unawatuna beach where one may see little girls with child. They’re prevented by law to marry the man of their choice until they’re 18, but allowed to carry the burden and responsibilities of having a child out of wedlock. Why is this then made to look like a Muslim problem?

There are a few Muslim women activists who have lost the battle to repeal the MMDA. They have now coaxed some non-Muslims to look at MMDA as a women’s/child rights issue. I see this as an extension to the hate campaign that has been unleashed by some extremists who use racism against the Muslim community for their personal and political agenda. 

These activists had got a BBC Sinhala service reporter to produce a video on a supposedly battered child, who had been forced into a marriage by her parents. The story is narrated only from the girl’s perspective and no attempt has been made to reach out to the husband or interviewed an independent person to verify the facts of this girl’s marriage and divorce. I was wondering how the BBC had relegated itself to this kind of deplorable journalism without adhering to the basic journalistic principles of ethical and fair reporting which they have always upheld. The reporter has obviously produced the video to play on the emotions of the viewer.

As we all know, the BBC is the most respected broadcaster in the world and the BBC Sinhala service reporter has used that label to call his video an investigative report, but for me, this is no different to the racism and hate messaging of wanda pethi, wanda kottu, ‘wanda inducing’ underwear, Dr. Shafi’s fallopian saga or the general hate campaign orchestrated by the BBS and some persons clad in the esteemed yellow robe, calling themselves Buddhist monks.

What struck me most was that the girl in the BBC video was given her divorce because of MMDA. Under General Marriage Registration Ordinance (GMRO), sexual or physical violence is no grounds for a divorce. In a Quazi Court, the male or female need not give any reason for their separation. They can even say, “I don’t like to live with him/her.” Lawyers cannot appear in a Quazi Court and there are no unnecessary delays are caused by legal arguments and no cost.

Do child marriages take place only among Muslims? Do we know how many children are born out of wedlock in Sri Lanka? Do we know how many are raped every day in this country? Have we not heard the story of the four-year-old kid Seya who was abducted, raped and killed by a maniac? Did we not hear of the 15-year-old who was sold as a virgin by her own mother to several VIPs for their sexual and sadistic pleasure? Did we not hear about Dilani Madusika Rajanayake, the 10-year-old girl who was raped for over one year by six persons including members of her own family? None of these perpetrators were Muslim. 

How many cases of child abuse are reported to the Child Protection Authority everyday? How many thousands of cases go unreported? Check the statistics of incest, rape and child abuse at the Child Protection Authority. One could make hundreds of investigative videos that will make many hearts weep.

Of course the Quazi Court too has its own share of corruption and malpractices as elsewhere in Sri Lanka. There are reports of bribery, influence peddling and seeking of sexual bribes. The Judicial Services Commission should monitor and address these short comings and reform the Quazi system. The Ranjan Ramanayake leaks about our justice system spells out the flaws in our justice system.

In today’s world of consumerism, gender inequality has taken vast strides in widening the distance between the ordinary woman and the so-called empowered. Emancipation of women no doubt is the only way forward. The pluralist character of Sri Lankan society is mirrored in the multitude of religious communities that inhabit this country. 

The existence of different personal laws in the form of the Kandyan, Thesavalamai and the Muslim Personal Law epitomises the ethos of our multicultural island Nation. Muslim Marriage laws have been practiced in Sri Lanka for over 1,000 years, from the time Arab traders married Sinhala women. The Dutch brought the Mohammedan Code from Indonesia over 300 years ago and the current Muslim Marriage and Divorce Act became part of the constitutional right of Muslims in 1951.

I am sure all will agree, these need to be protected as religious and cultural rights. As rights activists, I call upon the reformists to be in the forefront to protect the religious rights of minorities. While I agree on the insistence of gender equality and children’s rights, no one should attempt to compromise religious and cultural rights of a minority that is guaranteed by our Constitution.

The political rhetoric of ‘One Country, One Law’ should be about equal justice for everyone and not exploit it to prevent people from practicing their faith. Failure to uphold the rights of all peoples will result in ‘One Country, One Religion’! The Government’s strong statements of multi ethnic, multi cultural, multi religious democracy in Geneva and New York will only be empty rhetoric. I hope the wise parliamentarians will study attempts to repeal Muslim Personal Laws and reject them toto should it ever reach Parliament.

The Quazi Courts

The Quazi Court is a consultative body that attempts to reconcile couples who are in conflict. The primary role of the Quazi is to reconcile any conflict among married couples and to discourage divorce. From the 1950s, the Quazis were volunteers who commanded the respect of their constituencies. They are known to have even visited the couples in conflict, their parents and village elders and advise them to mend any differences so that the couple may continue with the marriage.

If all efforts failed, he would grant them a divorce as prescribed in Islam. This process would take not more than six months, whereas under the GMRO a divorce process can take several years and huge legal costs. The Quazi Court doesn’t cost a cent for both men and women because the lawyers are not allowed to appear before a Quazi. In the common courts, we all know the better lawyer wins. Their argument would not be about the couple reconciling but to win for their client. How many of our rural sisters can afford the huge legal fees?

Polygamy 

This is contentious and an often-misunderstood issue. It is portrayed as an opportunity for lustful men to satisfy their sexual urge with multiple women. Islam has allowed polygyny in the Quran for valid reasons based on circumstances. In ancient times, there was a need for war widows to be provided guardianship as well as means of living.

In today’s context, it helps women who are spinsters, widows or divorcees to marry if they so wish, and live in dignity. There is no major stigma among Muslims for those who have more than one wife. The absence of the option of marriage would leave some women vulnerable and with no choice if they wished to marry for reasons that could be emotional, financial, physical or social.

Islam forbids prostitution or extra marital relationships and any physical relationships outside marriage is taboo. The lack of legal recognition and security through marriage is the fate of the woman who wishes to marry, but is prevented from doing so for the lack of unmarried men and a bar to polygyny under the GMRO.

The current law in Sri Lanka does not prohibit two consenting single adults to live together or even have children out of wedlock. Most of these women could be abandoned while a Muslim woman in a polygamous marriage has all her rights of inheritance upon death of the husband or alimony if divorced. The banning of polygyny would only endanger the right of a woman who chooses to enter marriage.

Female Quazis

While some Islamic scholars are not in agreement, many have accepted that the Quazi Courts could appoint suitably qualified males or females. This should satisfy the Muslim reformists whose principal demand has been the appointment of females as Quazis.

Age of marriage

It has been agreed by Muslims to raise the age of marriage to 18. Muslim girls too should benefit from at least 13 years of primary and secondary education. There should be provisions both in MMDA and GMRO where a judge or Quazi be able to grant permission for 16-18-year-olds to marry under exceptional circumstances. 

We should also lobby for the age of consent for sex to be 18 to be in par with the minimum age for marriage; or else it would mean that Sri Lanka promotes living together and children out of wedlock, which goes against the cultural norms of Sri Lankans.

Signing of the marriage registry

Currently, the father or a male paternal blood relative who the girl trusts, needs to seek the permission of the bride in the presence of two witnesses to sign on her behalf in her marriage registration. This practice is to negotiate the terms of marriage on behalf of the girl and ensure the best terms for her in contracting a marriage. Now there is general consensus in the Muslim community that the bride too can sign the marriage registry if she chooses to do so.

The MMDA needs to be studied by people of other faiths without believing the rhetoric of a few so called rights activists. They will no doubt see the merits of it and may even want to adopt the same laws for their marriages and divorce. For example, under GMRO, there are only three reasons that one could get a divorce:

1. Adultery subsequent to marriage,

2. Malicious desertion,

3. Incurable impotency at the time of marriage.

There are a few who think that they can find solutions to the inadequacies of the Quazi Court system by repealing Muslim Personal Laws and shifting the Muslim Marriage and Divorce issues to the district courts. There are also a few hundred women who feel that the MMDA and MPL are archaic and should be abolished. If they feel they are archaic and don’t want to marry under the MMDA, they are free to follow the proposal by Justice Minister Ali Sabry to allow anyone who wishes to marry under GMRO to do so. They should leave the MMDA for those Muslims who want to take their marriage vows under their religious laws and abide by Quranic guidance.

Sri Lanka’s prominent jurist, late Justice Weeramantry has written extensively on Islamic jurisprudence as he admired the legalism entrenched in it. Of course, these laws do require some reform to conform to the progress of modern administrative and procedural processes. While the Muslim community is happy to see reforms in the MMDA with the consultation of stakeholders in the community, repeal or repeal in the guise of reform will not be acceptable.