Time To Change
- The Urgent Need for Sri Lankan Muslim Marriage Law Reform
By Maryam Azwer
Zainab* was a woman stuck in an abusive marriage. When she couldn’t take it anymore, she decided to divorce her husband, and, as per the law governing Muslims in Sri Lanka, Zainab approached a Qazi (a judge ruling in accordance with Islamic law) with her problems.
In what came as a complete shock to her, the Qazi did not give her a fair hearing. At first, he even told her to return to her husband, and simply refused to give her a divorce, despite the fact that her husband had been assaulting her on a daily basis. Several months later, although Zainab was finally able to obtain her divorce from the Qazi Court, it was not until she had had to endure much physical and mental strain.
Although not all Qazis necessarily deal with cases the same way, and although not all Sri Lankan Muslim women who apply for divorce go through the same dilemma as Zainab, there have been several issues raised over the years, indicating an injustice towards women, when this does not have to be the case.
Working Towards Law Reform
In the light of these issues, a sixteen-member committee was set up in 2009 by the then Minister of Justice, Milinda Moragoda. The Committee, appointed to “Consider and Propose Reforms to the Muslim Matrimonial Law and Upgrading of Qazi Courts in Sri Lanka”, is chaired by Justice Saleem Marsoof, and is due to complete its work soon.
The Sunday Leader last week spoke to Shibly Aziz, President of the Bar Association and a member of this committee, on the subject of the need for law reform, with particular focus on the Muslim Marriage and Divorce Act No. 13 of 1951. It is this Act that governs all areas pertaining to Muslim marriage and divorce in Sri Lanka.
“The problem is, that there are certain areas in the Act which have to be remedied, there is no doubt about it,” said Aziz.
Explaining the specific issues the Committee is presently focusing on, he said that “We are trying to reform the laws, and we trying to give more protection to women. One thing we are trying to do is improve the system of Qazi Court itself. It is a system where a lot of improvement is needed,” he added.
Among the potential changes, he said, was to build up a system of Qazis who were more like judicial officers. He explained that at present, “The Qazi Courts are an informal system where sometimes proceedings are held at his office, or his home. We want to give a judicial flavour to the whole thing, by having them in Sri Lankan court houses.”
He also said that “We did like them to deliver the Shari’a law in a judicial way… maybe a reduced number of Qazis, but with a wider jurisdiction, who will be fully trained, and who will come under the Judicial Services Commission, or some other body that can control them in an effective way. Through that system, we feel that some of the shortcomings in the system, which will have an impact on women, can be remedied,” said Aziz.
On the subject of alleged injustice towards women under the present system, Aziz had this to say: “I wouldn’t say that the majority of women are treated unfairly, but there have been allegations, and we have had instances where such complaints have been made; and that you can remedy only through a proper system of Qazi courts,” he said.
What’s Taken So Long?
The efforts of the present Committee are not the first in dealing with Muslim personal law reform in Sri Lanka.
According to Chulani Kodikara, Research Associate at the International Centre for Ethnic Studies, and author of Muslim Family Law in Sri Lanka: Theory, Practice and Issues of Concern to Women, attempts to look into law reform have been ongoing since the 1950s.
“There have been various Government committees, personal law reform committees which have looked at trying to amend the law, but there have been some private initiatives as well,” she said.
These past attempts have however had little or no positive results, and Kodikara explains why.
“Muslim personal law is in the end a very sensitive issue. It is linked to the Muslim identity in Sri Lanka, and is also seen as a very political issue,” she said.
Kodikara also noted that “The Government takes the view that the issue of personal law reform has to be left to the community itself. Community leaders don’t want to take the initiative because it’s too sensitive. And that’s where it’s stuck,” she said.
Meanwhile, Shibly Aziz also agreed that there have been several shortcomings and delays in pushing for serious reform. “I am also sorry that it has taken such a long time, and nothing concrete has come up so far. I have suggested that we identify a few urgent changes to the Act, and bring it on a fast track procedure, so that we don’t have to amend the entire act. Instead, we could identify some areas that are causing problems, and we could focus on those areas, and get Parliament to make those changes,” he said, adding that “Unfortunately that has not happened yet. I also feel that we have got bogged down in wider issues that take a lot of time to unravel,” said Aziz.
As Chulani Kodikara pointed out, this issue has always been of a sensitive nature.
This, however, does not necessarily have to restrict progress.
The Muslim Women’s Research and Action Forum (MWRAF) has been one group that has been actively pushing for law reform, within Islamic principles. Speaking on the organisation’s efforts, Director, MWRAF, Anberiya Hanifa said that “The MWRAF has been working to establish women’s rights as guaranteed by Islam. Any reforms we push for, will also be within the framework of Islam,” she said.
As for some form of change – much needed change – in the near future, Shibly Aziz was of an optimistic view.
“These are things that we are looking at, and I think that these are things that can be easily remedied. If the Committee can give the recommendations quickly, I am sure the Ministry of Justice will implement it,” he said.
*Name changed to protect identity