Marriage guardianship: Why the deathly silence?
One wonders why the proposed amendments to the Muslim Marriage and Divorce Act (MMDA) have not addressed the issue of marriage guardianship? There has been a deathly silence surrounding this matter with all those involved in the review process being so tight-lipped about it that one wonders whether there is a hidden agenda to promote a repressive brand of Islamic law here.
To give you a background, deliberations on reforms to the MMDA have been going on for several years with almost everybody dragging their feet. It was only earlier this month with the statement of the Minister for Law and Order, Sagala Ratnayake, that the long due reforms to the MMDA had to be enacted as part of the conditions to regain GSP+ concessions from the European Union, that everybody got excited. The Ministry of Justice appointed a committee of Muslim representatives under the leadership of former Supreme Court Judge Saleem Marsoof to make recommendations to reform the Act. So at last something is happening now.
What’s wrong with the law?
So what’s wrong with the existing Act? Well, a few things. The MMDA which came into effect in 1951 has a few provisions that militate against basic human rights. For one thing there is no provision for the written consent of the bride as it is her marriage guardian (wali) who signs on her behalf. True, the Act requires the consent of the bride, but her consent is communicated by none other than her wali. This can understandably lead to abuse since the wali can simply give his ward away in marriage and declare she consented to it. It’s his word against hers since there is no proof of her consent.
For another, it requires the bride’s guardian (relative such as father or brother) to consent to her marriage, thereby placing obstacles on her free choice of spouse. It is a very basic human right that a grown-up woman should have the discretion to contract a marriage of her own liking. This the entire world accepts and which Islam too recognises, albeit not conceded in the local law which is based on the Shafi school of jurisprudence which the majority of Muslims in Sri Lanka follow. However, the predominant school of Islamic law, the Hanafi, found in most parts of the Muslim world, recognizes this right as do the majority of Muslim states.
From what little we know of the proposed reforms, it seems that at long last some provision is being made for the written consent of the bride. However, there seems to be no indication of removing the requirement for a marriage guardian even in the case of a grown-up, divorced or widowed woman, thereby considering Muslim women as legal minors under the law. It needs no gainsaying that this is the only law of the country, General or Personal, that regards women as legal minors in this matter of marriage.
Until now, there have been instances where Muslim women who could not obtain their wali’s permission to marry resorted to the expedient of changing over their ‘sect’ (school of law) from Shafi to Hanafi for the purpose of contracting marriage under Muslim Law. The existing MMDA implicitly recognizes the Hanafi school which is followed by the Memon Muslims and others of North Indian origin since it refers to the application of the law to those of the ‘Shafi Sect’, and this is supported by case law as well.
However, one wonders whether this right to change over from Shafi to Hanafi has been recognized in the proposed reforms as an individual right or would one’s parentage determine the persuasion in which case it could affect the rights of Muslim women, not for better but for worse. Why, because the only channel Muslim women would have recourse to, to contract a marriage of their choice, would be deprived them. Would this be the price they have to pay in the name or reforms?
However, let’s see what the Islamic faith truly says of this matter, rather than relying on diverse schools of law or patriarchal prejudices.
Religious basis
Many passages in the Quran clearly imply women have a free choice in choosing their life partners. To start with, the Quran clearly implies a partnership between equals since it describes marriage as a covenant (mithaq) between husband and wife, as in Surah al-Nisa (Verse 21):
And how could ye take it when ye have gone in unto each other, and they have taken from you a solemn covenant (mithaqan ghalizan).
It goes further, when it says:
“O ye who believe! Ye are forbidden to inherit women against their will”.
Although the inheriting of women as existed in pre-Islamic times where the widows of deceased men passed on to the latter’s relatives with or without their consent is illegal in Islam, this verse is relevant to our discussion here as it shows that the right to dispose of their persons has been given to the women themselves and not their guardians. If their guardians had any right over them, the right to decide would have been given to them, which is however not the case.
The Qur’an further says in
Surah al-Baqarah (verse 230):
“If he has divorced her, then she is not lawful to him until she marries another man”
When ye divorce women, and they fulfill the term of their (`iddat), do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms”. (2: 232).
“If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days: when they have fulfilled their term, there is no blame on you if they dispose of themselves in a just and reasonable manner, and God is well acquainted with what ye do“.(2: 234)
In the following verse
(2:235) we are told:
“There is no blame on you if ye make an offer of betrothal or hold it in your hearts. God knows that ye cherish them in your hearts: But do not make a secret contract with them except in terms honourable, nor resolve on the tie of marriage till the term prescribed is fulfilled“.
Do not the above Qur’anic verses imply that the decision to wed is a matter for the men and women concerned and that none else has the right to interfere in such affairs? We also find that the act of marrying as in 2:30 which uses the verb tankiha in the feminine singular mode is specific to the woman and not her wali and is not even conjoined with that of her wali.
This freedom to contract marriage on the part of women is also evidenced in the Sunnah or Prophet Muhammad’s Example:
Subai’a al-Aslamiyya had delivered after her husband’s death by half a month. Two men asked to marry her. One was young and the other was old. She preferred the young man. The old man said: “You are not free yet (to marry). Her family was away, and he hoped that when her family would come, they may prefer him over the other man. She went to the Messenger of Allah, may Allah bless him and grant him Peace, and he said: “You are free to marry, so marry whomever you wish” (Muwatta of Imam Malik)
We will find many instances in the Prophet’s time when women appointed or were represented by an agent (not necessarily an agnate relative) to contract a marriage due to reasons of propriety. Thus Sawdah bint Zama’ah, following the Prophet’s (peace be upon him) proposal of marriage, said “My affair is in your hands”. The Prophet subsequently appointed a third party to represent her (Kitab Tabaqat Al Kabir). Abd ar-Rahman bin `Awf asked Umm Hakim, Qariz’s daughter Do you entrust the question of your marriage to me?”. She said “yes”. He said to her “I have married you” (Saheeh Bukhari).
A woman’s right
All these only go to show that a woman did not give herself in marriage, but could appoint a third party as an agent to represent her and so contract a marriage of her choice. This was for reasons of propriety and decorum and was not intended to place obstacles on her free choice of mate. This is what we need to recognize, it is an agency rather than an absolute prerogative of a woman’s male kin.
Morocco which once had some very discriminatory laws against women including marriage guardianship reformed its Mudawana Code of Family Law under King Mohamed in 2004 giving top priority to women’s free choice in marriage. The reforms included at the very top of the list :
“Once a woman comes of age, she does not need a marital tutor (a male relative). Women cannot be married against their will, though if they wish to designate a male relative to act as their marital tutor, they may”.
In 2010, two-thirds of Moroccan women surveyed said they felt the new law had improved women’s status in Morocco, and 59% of men agreed. More men are probably coming around now.
In conclusion, we will find that the proposed reforms to the MMDA do not address the very important issue of marriage guardianship and may in fact be placing greater restrictions on Muslim women’s freedoms in other ways. It is high time the state, international human rights organizations and women’s rights groups intervened to ensure that the rights of Muslim women are safeguarded within the solid foundation of the Islamic faith.
(The writer is a commentator on Muslim matters and Vice President, Outreach, Centre for Islamic Studies)