The Sunday Leader

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

6 Comments for “Time To Change”

  1. Fathima Mohamed

    Does the committee for reforms have any female members in it? Otherwise is it a male dominated one where only the males have a say and females are left to lag behind and the justice meted out would be the same inspite all the changes assured.. Without a woman’s point of view and her ideas being adapted to this law, there is no use of bringing in such legislation, which is supposedly to protect females.

    • Dr Pandi

      This is like saying that people who decide on a moon exploration should all have been to the moon…. or that people who administer cricket should all be cricketers…and it doesn’t hold water. It doesn’t matter whether the lawmakers are men or women or neither as they have to be able to identify issues and be proficient in their field. Why was no woman in Islam a prophet? Did god not have the latitude for women’s point of view?

  2. Hilmi bin Uduman

    Nikah Nama – Empowering the Muslim Wife

    Many articles have been written by learned Muslims confirming the fact that the concept of Gender Equality is alluded to in the Holy Quran. One or more of the following sections of the Quran 3:195, 4:124, 16:97, 33:35, 40:40 and 49:13 is often mentioned in this regard. However, in the case of Divorce, the existing practice in Sri Lanka appears to be heavily weighted in favour of the Husband.

    My initial research to explain this apparent discrepancy led me to the following segment in a related article (Divorce in Islam – Rules of Divorce in Quran) published in the web.

    (Quote)
    Divorce In Islam – Five Ways OF Talaq In Islam
    Renowned Islamic scholar Dr Zakir Naik says that there are five way to get divorce in Islam.
    (Dr. Zakir Naik: A woman cannot give ‘Talaq’ – because Talaq’ is a Arabic word used for divorce, when a man gives to a woman – husband gives to a wife – but a woman can divorce).

    Divorce (Talaq) In Islam – Divorce By Unilateral Agreement

    The first type is by unilateral… by unilateral agreement, between the husband and wife – Both may say… ‘Okay, we are not compatible… let us part’.

    Divorce (Talaq) In Islam – Divorce On Husband’s Will

    The second type, is by the unilateral will of the husband, that is called a ‘Talaq’, in which, he has to forgo his ‘Meher’. If he has not paid it, he has to pay it to her… and including the gifts, he has given to her.

    Divorce (Talaq) In Islam – Divorce On Wife’s Will

    Third type, is by the unilateral will of the wife – I repeat, by the unilateral will of the wife… if she mentions it in her marriage contract. If she mentions it in her Nikah-Nama… in her marriage contract, that she has the right to give unilateral divorce, she can give it – It is call as ‘Isma’. I have never heard of anyone speaking of an ‘Isma’ – It is called as ‘Isma’ – Even a woman can give divorce, ‘Isma’.

    Divorce (Talaq) In Islam – Divorce As Nikah –e- Fask

    Fourth category is, if the husband ill-treats her, or not give her equal rights, she has the right to go to a Kazi or court for divorce, and nullify the marriage – It is called as ‘Nikah-e-Fask’. In this, according to the Kazi, he may ask the husband to give the full ‘Meher’, or part of the ‘Meher’, depending upon the Kazi.

    Divorce (Talaq) In Islam – Divorce As Khulah

    And the last is ‘Khulah’- that even though the husband may be a very good husband, the wife has got no complaints against the husband, but for personal reasons, she does not like the husband – she can request the husband, to divorce her – and that is called as ‘Khulah’.

    But very few people talk about women giving divorce, to the men. Some of the Ulemas have categorized these 5 types of divorce, into 2 or 3 different categories, but broadly there are 5 types of divorce, in Islam. Hope that answers the question.
    (Unquote)

    This article exposed me for the first time to the concept of the Nikah Nama or ‘Marriage Contract’. Inquiries made from many of my Muslims friends and relatives revealed an almost total absence of awareness of the Nikah Nama. The only thing that emerged was the fact that while all the local Muslim Husbands possessed Marriage Certificates, no one (at least among those I spoke with) had signed a ‘Marriage Contract’ with his wife. This was in stark difference to the prevailing practice amongst Muslims in other South Asian Countries (Pakistan, India & Bangladesh) where marriages are solemnized by the signing of a Nikah Nama by the Couple. An examination of a few ‘model’ Nikah Namas revealed the fact that one of the clauses of the Contract referred to ‘the delegation of the power of talaq (divorce) to the Wife’ – known as ‘talaq-al- tafwid’. This delegation of power will enable the Wife to make a unilateral decision with regard to divorce (as per Dr. Naik’s classification).

    The question then arises as to whether the Muslim Community in Sri Lanka should take the necessary steps either to amend the currently issued ‘Marriage Certificate’ so as to include the talq-al-tafwid clause or to provide the Couple the option of signing a separate legally-binding Nikah Nama in addition to the existing Marriage Certificate. This will ensure that at least among the Sri Lankan Muslims, gender equality exists in word and deed with regard to Divorce.

    Knowledge has no boundaries and there must be much I do not know about the Nikah Nama and it’s ramifications. I would like to invite my Muslim Brothers and Sisters to share their knowledge and thoughts on this subject with me. Correct me if I have not understood or have inadvertently misinterpreted any aspect of this subject

    Hilmi bin Uduman
    Battaramulla

    • Meena M.

      Thank you for this useful and insightful information. It is up to parents now, to insist that their daughters are safe guarded and have equality in their marriages.
      It is such a pity that this concept of this contract favorable to Muslim women has been conveniently been overlooked or never emphasized whatsoever. Our Muslim women should be aware of this valuable contract, it could even be a way out of abusive relationships.

  3. half citizen

    implementing law is insufficient.the qazi should have the ability to handle the case proper manner. qazis have to be monitored by a supreme councils.in case of short comings it has to be forward to supreme councils before going to supreme court.regulations has to be imposed to qazis to maintain and to prevent the erroneous judgements.there are many occasions we hear the qazi judgements with short comes.

  4. Sri Lanka’s Latest Khazi court information’s can be found in

    http://slhub.com/content/name-and-contact-details-quazi-judges

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