A Cabinet-approved proposal to amend the Muslim Marriage and Divorce Act (MMDA) accepts the minimum age of marriage to be 18 for both men and women but still provides for 16 to 18-year-olds to wed with Qazi permission. Campaigners for MMDA change are now fighting this. They oppose the exception because a majority of underage [...]


Activists decryshortcomings in MMDA changes


A Cabinet-approved proposal to amend the Muslim Marriage and Divorce Act (MMDA) accepts the minimum age of marriage to be 18 for both men and women but still provides for 16 to 18-year-olds to wed with Qazi permission.

Campaigners for MMDA change are now fighting this. They oppose the exception because a majority of underage marriages involve girls who are in precisely that age group. In some districts, as many as 80 to 100 percent are between the ages of 16 and 17, data on registered Muslim marriages show.

These statistics were also submitted to the Justice Ministry which, jointly with the Muslim Affairs Minister, presented the Cabinet paper on MMDA amendments. It provides for the age of marriage to be 18 years for both men and women, without a difference. But exceptions are allowed for 16-18 years with the approval of the Qazi (a judge in a Muslim personal law court).

“A lot of cases we have seen are also ones that are coerced into marriage,” said Ermiza Tegal, a human rights lawyer and member of the Muslim Personal Law Reform Action Group (MPLRAG). “Sixteen and seventeen-year-olds don’t have the strength or the capacity to decide if they want to get married or refuse.”

The Cabinet paper states, too, that “it shall be an offence if a marriage is solemnised without the permission of the Qazi or below 16 years”.

The punishment for an underage marriage without Qazi sanction is proposed as one to two years of imprisonment and a fine of Rs 100,000.

“This didn’t solve underage marriage,” Ms Tegal said. “Not for the Muslim community, if that is where the majority of underage marriages are. What it ensures is that 14 to 12-year-olds are not getting married. This was not a significant number.”

The clause in the Cabinet paper that says a person will be penalised if he marries someone under the age of 16 is “unusual”, she said. “There’s no language to say that it’s legally not recognised,” she pointed out.

The inclusion could be the result of a push by groups like the All Ceylon Jamiyyathul Ulama (ACJU) to say, had there been a nikah ceremony involving a child, such marriage should be still be recognised but that the husband can be penalised.

A Muslim wedding is known as a nikah. The bride does not have to be present so long as she sends two witnesses to the drawn-up agreement. The exchange of vows usually takes place in front of witnesses for both partners.

The ACJU and other Muslim groups dominated by men argue, among other things, that young children of diverse communities have sexual relations and fall pregnant and that there must be some means to legitimise such relationships. It was also spun as a child protection issue.

“If they’re having relationships and sex and children, we need to look at why and what we can do,” Ms Tegal argued. “The one solution can’t be to marry. If you can’t drive a car at 18, if you can’t enter a contract at 18, if you can’t drink till you’re 21, how is it that at 16 or 17 you can decide to take on the responsibilities of being married, of having children and all of that?”

The Cabinet paper has also gone back on several commitments Muslim parliamentarians made in July with regards to MMDA change. For instance, they had proposed taking the subject of maintenance and custody of children out of the jurisdiction of the Qazi court and brought under the District court. But the approved Cabinet paper provides for custody to be brought under an “upgraded” Qazi court and for a maintenance fund to be set up.

The suggestion that custody be brought under the Qazi court is a complete overturn of the original position of Muslim MPs, MPLRAG says, calling the stance “highly problematic”. “Child custody matters for Muslim families must remain with the district courts, so as to ensure the principle of best interest of the child applies without undue ‘community’ influence,” it states.

But refusal to allow women Qazis has raised the most concern among activists. There is no mention in the Cabinet paper of an undertaking made just last month by Muslim MPs to stop gender discrimination in the MMDA by removing the word “male” before Qazi.

Activists said the ACJU and other male-dominated Muslim groups were adamant there will be no female judges. There were “huge fights” about this during closed-door discussions, they revealed. While women campaigners put forward their arguments, they felt there was resistance to the idea of female Qazis “more than anything else”.

“They really don’t believe that women can adjudicate,” said Ms Tegal, who participated in talks. Opponents to female Qazis even suggested that there be three judges at a time instead of one, so that at least a single among them could be a woman.

“Why,” asked Ms Tegal, “can’t a woman just sit and decide on a case?” Activists say that the Cabinet, by not taking up the issue, has perpetrated a direct violation of fundamental rights of Muslim women as Sri Lankan citizens to hold judicial jobs for which they are qualified.

Qazi court positions are Government-salaried and tax-funded. Women are being kept out on basis of gender. This is, therefore, direct discrimination by the State against Sri Lankan Muslim women, MPLRAG maintains.

ACJU’s excuses to exclude women from these positions have no religious basis, campaigners insist. There is no reference in the Quran to any profession or activity in society, leadership or otherwise that is forbidden to women. Muslim women are judges in Shariah and family courts in Sudan, Palestine, Egypt, Tunisia, Yemen, Malaysia, Pakistan and Indonesia.

One of the positive changes approved by Cabinet is that it will be made mandatory for the bride to sign the certificate of registration of marriage. This is a “big deal” because there are many case studies which show women were being told they were married after the fact because a father could sign the certificate without the bride.

A proposal to upgrade the Qazi system was also welcomed. It provides for the institution to be elevated to the status of court, allowing recognition as an integral part of the Sri Lankan judiciary.

The status of a Qazi, too, is to be enhanced to that of a permanent and full-time judicial officer of such class and grade as may be determined by the Judicial Service Commission. The amending legislation will provide that persons who are appointed as Qazis, temporary Qazis and special Qazis are attorneys-at-law with sound knowledge of Muslim law.

There was worry that a draft law was not presented at Cabinet, only a decision to instruct the Legal Draftsman to draw it up. This could take months and, with elections on the cards, there could be further significant delays.

“A draft law was the only way to have done it fast,” said Ms Tegal. “The absence of it means there’s no serious effort to see this through expeditiously. It feels very tokenistic.”

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