When are we going to let women sign their marriage contracts?

This continuous injustice is thriving in a country that claims peace while some of the country’s women are caged under archaic laws; it is irony at its finest 

By Hafsah Muheed 

“I am now 26 years old. I still remember how confused I was when I was 14 and was told that I was married that morning by my father.

“A man had come and offered a good mahr (dowry paid by a husband to his wife, becomes the property of the wife to spend, save, or invest as she pleases, although in some countries it is often taken by the bride’s family. Can be either money or property. May be paid all at once or split into two payments, one upon marriage and the other at a time stipulated in the marriage contract, such as upon the death of the husband or divorce. Required for the marriage contract and the marriage itself to be valid.) 

“My family told me they needed it to live. I was a mother by 16. I felt like a child looking after a child. My husband supported me, but not all the girls in my village receive that type of support. I have always wanted to be a teacher, and I hope I can make my daughter a teacher one day, so she won’t be confused and scared as I was.” 

Salma (name changed due to privacy) shares her story with the writer, her experience of the Muslim Marriage and Divorce Act No. 35 of 1951 (MMDA) of Sri Lanka. It highlights the impact of an archaic law that is affecting many young Sri Lankan girls and women. Over 30 years of dynamic activism by many women and human rights activists have been discussed and rejected with proposed reforms at many constitutional reform events. The stakeholders impacted by the process are silenced while ‘self-appointed key stakeholders’ have been twisting continuously the very interpretation of diversity; to keep the archaic law in its present state which is only affecting the lives of young girls and women of Sri Lanka.

In 2016 according to the research conducted by Hyshyama Hamin and Hasanah Cegu Issadeen in the publication, ‘Unequal Citizens: Muslim women’s struggle for justice and equality in Sri Lanka’, it highlights that apart from the lack of minimum age of marriage, the MMDA reforms are focused on resolving the below issues faced by Sri Lankan Muslim women and girls.

Lack of autonomy and decision-making for Muslim girls and women: The absence of a clause stating the minimum age of marriage has resulted in thousands of child marriages in Sri Lanka. This is also further supported by the lack of need for the bride’s signature and currently, the father or male relative of the bride can sign on behalf of her and give her in marriage. This is a clear indication of the absence of consent of a person who is directly a party to the marriage contract.

Unequal provisions for divorce: While the MMDA has two different provisions for divorce, one of the challenges is that the husband can initiate the process without the awareness of the wife until the Qazi (Muslim judge) informs her that her spouse has initiated the divorce process. The MMDA has a reconciliation clause with a certain period. That is also impacted by various biases and results in issues such as finalising divorce without deciding maintenance, return of dowry, and or mahr; putting women and girls at risk economically and socially.

Kaikuli (dowry) on immovable assets: This is a custom of providing a dowry to the groom and items such as money, gold, land, or property is given. Yet the MMDA only recognises movable assets such as gold and money. During the marriage or a divorce proceeding, for the female to access the given immovable assets is not supported by the MMDA. The fact that this is recoverable is unaware by some of the Qazi judges which results in many women in financial difficulties. The manner in how such a case proceeds tends to vary. It is only a minority of women who are encouraged to further pursue their right of the assets in the district courts. 

Lack of female Qazis (judges): The MMDA has its own stakeholders in the legislative process such as Qazis. Currently, it is completely male-dominated and has no mandatory legal credential to be a Qazi judge. The current MMDA Act requests the justice process to appoint any suitable male of good character which has created vague eligibility criteria to carry out legal proceedings of marriage and divorce. 

Marriage and divorce for all other citizens are governed legally and are comprised of credible stakeholders such as lawyers and judges to ensure justice and rights are preserved; yet the Muslim women and girls do not get this same level of preservation of justice and rights. Some of the challenges with the absence of legally qualified female Qazis (judges) are the lack of sensitivity and inappropriate behaviour which is seen through the findings of the complaints by women and girls especially about biases in cases of divorce and maintenance.

Polygamy: The challenge with polygamy is while MMDA allows a Muslim male to enter into plural marriages, it does not require obtaining the consent of the prior wives nor does it check the man’s ability to maintain and provide for all families. There is a process in which the Qazi must be informed and must check with the registrar of marriage. Yet there is no requirement to check about previous/ongoing marriages. It also must be noted that not all Qazis follow the required process of checking the needful.

Maintenance: This process for Muslim women and girls is very different from the current legislative process for all other citizens of Sri Lanka. Some of the challenges that Muslim women face are the inability to claim for maintenance while living with the spouse even if the spouse does not support financially for the children, the decision of arbitrary maintenance amounts, and payment age period for children by the Qazis. The lack of qualified individuals being selected for the role of Qazis and the lack of knowledge and bias impacts women, girls and children economically and socially.

Lack of absolute control

Each issue specifically impacts girls and women in terms of their freedom and decision-making. 

They have a lack of absolute control over the marriage and divorce elements of their life. Since the MMDA does not obtain the consent of one of the parties who is getting married, the woman, such a contract of marriage displays the behaviour of a void contract. A key party of the contract does not have the right to any of the key terms such as consent to the agreement, and ability to redeem assets. The lack of female representation, which is vital in ensuring a space for all narratives to be communicated during a breach or cancellation, has also been made absent legally. There has been progress across other countries practicing the MMDA with amended reforms put forward such as minimum legal age and appointment of female Qazis. When will Sri Lanka see all of its citizens enjoying equal rights?

Diversity is when groups of people having multiple core identities and beliefs coexist. For an equal society with all its diversity, personal laws must be implemented or amended through the lens of the rights-based approach. This ensures that any individual human rights are not violated in the context of respecting diversity. The constitution is the governing body of a country; the constitution states that it must protect all of its citizens’ human rights. Living with an intersectional identity is the very core of being a citizen of Sri Lanka. T

he very constitution that should be equal to all Sri Lankans, through Article 16 of the very same constitution is creating unequal citizens allowing archaic laws such as the MMDA, Thesavalamai Law and the Kandyan Law which has discriminatory limitations on property access and divorce, and inheritance focusing at one target group; the Sri Lankan women. We cannot be a country that treats women with respect only during selective phases in their life such as motherhood. 

Respecting women comes with allowing her to have full rights just as the next citizen of Sri Lanka. All of these personal laws must be amended through the use of a rights-based approach for the constitution to fulfil its duty to ensure the human rights of all Sri Lankans. It also comes as a basic requirement under the many obligations on international conventions Sri Lanka has ratified.

Activism regarding the MMDA reforms has been happening for decades with the tireless work of activists yet it is being bluntly ignored. The very fact that decades of activism have been ongoing and young activists also having to take upon and work on the MMDA reforms show the vicious cycle of bureaucracy taking place in fulfilling the rights of Sri Lankans. When the reforms are brought forward, the unaffected stakeholders of ‘self-claimed organisations representing the Muslim community’ misguide the reforms process and have been creating a stump of stagnation to the process. 

Committee full of men

A committee full of men who do not get impacted by the current MMDA; a self-appointed body of men claiming to represent the Muslim community, is supporting the violation of the rights of Sri Lankan Muslim women and girls. Groups of persons claiming to be stakeholders every time the reforms come towards presentation become silent during the unjust impact experienced by women and girls in their day-to-day lives across the country. 

The very question we all must ask is why decades of silence have been maintained and why is it only the activist minority that is working towards an equal Sri Lanka. Continuing the existence of the current MMDA means legally as a country we are allowing the continuation of child marriages, not allowing women to access their legal properties, and allowing marriage contracts where the wife does not know if there are more persons in her marriage, causing continuous social and economic impact to Sri Lankan women.

As a country, we constantly claim our rich diverse heritage and pride ourselves on being multi-cultural. Multiculturalism does not only involve celebrating the various festivals, events and sharing greetings, it comes with the responsibility of questioning uncomfortable truths. 

Diversity is not a hat to be worn only in the good times, it is a form of behaviour that understands the issues faced by different communities because diversity is looking at community issues as a Sri Lankan issue.

It is an issue for Sri Lankan women yet the deafening silence during reforms by the Sri Lankans is ironic around the loudness of the multicultural branding. Diversity must be accompanied by accessibility and respect for it to be sustainable. It is at these instances that the Ministry of Women and Children’s Affairs and Sri Lanka Human Rights Commission must take action towards pushing the gates of bureaucracy and create awareness and work towards the critical need to amend the various archaic laws impacting fellow Sri Lankans. 

The absence of a record of awareness on gender bias of women and children’s affairs contributes to such violation of women’s rights allowing patriarchal roots to flourish. As a country, we are taking backward steps towards equality and inclusivity. Currently, the MMDA is a highlight with contexts to national security requesting to check in and evaluate personal laws where an amendment of the MMDA has also been requested. A private bill also has been submitted to the parliament on the minimum age of marriage for all Sri Lankans with a provision opting out from personal laws where both have caused all male stakeholders who silence the process usually, to panic. 

Action towards amending the MMDA should be brought not just by grassroot women’s organisations but the Ministry of Women and Children’s Affairs, Ministry of Justice, Sri Lanka Human Rights Commission, along with civil society, and the reforms process should discuss the amendments with the impact demography: Muslim women of Sri Lanka. They have been working and still are working tirelessly to be able to live a normal life with their rights and to be treated like fellow Sri Lankans. 

The only hope is that the struggle they are experiencing even with all the urgent pleas to reform from their ancestors, now their granddaughters who are pleading the same wouldn’t continue to the baby girls that are being born right now at this moment. The current unjust MMDA and deafening silence of the nation, until it is spoken about, advocated for, and amended, is an injustice in recurrence. This continuous injustice is thriving in a country that claims peace while some of the country’s women are caged under archaic laws; it is irony at its finest.