Addressing the misconceptions on

reform to MMDA

Featured image is of my friend Sineen's nikah signing in India. The

registrar, and two witnesses approach the groom in his section.
The registrar says the brides name and asks him for his consent
to marry her. He says khabool hai three times, and signs the
certificate. Then they go to womens section and approach the
bride. They ask her whether she consents to marry the groom.
She replies khabool hai three times and signs the certificate.

2017-03-28
The pending reforms to the Muslim Marriage and Divorce Act
(MMDA) have resulted in both interest and controversy from
within and outside the Muslim community in Sri Lanka. Some
members of the community, perceive the reforms to be a result of
western/NGO pressure, whilst others believe that the reform is
long overdue. In the ensuing debate there have been many
perceptions and misconceptions regarding the process, of which
some I intend addressing.

AssalamuAlaikum Warahmathullahi Wabarakatuh

In the name of God, the most Compassionate, the Most Merciful.
Dear Muslims,
The first misconception is that the reforms have to do with
pressure from the EU and foreign agencies. This rhetoric is being
used to misinform Muslims into believing that pressure is being
exerted externally. Since the 1970s attempts have been made to
amend the MMDA to make it comply to international Shariah
standards and to address local problems. Currently divorce is on
the rise in the Muslim community, and women with children are
the most vulnerable.

Secondly, reform is being requested from within the Muslim

community. Dr. H.M.Z. Farouque, a close family friend, who led the
reforms in the 1970s, is a pious Muslim and scholar of law, who
understood changes had to be made to the MMDA, 47 years ago.
He says, In 1970, I was part of the Muslim Law Research
Committee comprising of a number of Muslim lawyers and an
Alim, and we handed over our recommendations to then Home
Affairs Minister to take action.

In 1990, the Dr. Shahabdeen Committee was set up to propose

reforms. They submitted a report and again, the reforms did not
materialize due to political inaction. The current reform
committee was set up in 2009 and is led by Justice Saleem
Marsoof, much before the GSP+ issue came about. The 30-year
civil war and unstable politics in the country resulted in the
reforms taking a back seat in political discussion until last year.
Most importantly, the reforms being asked for are within the
rulings of the Quran and Sunnah. Islamic marriage laws are
practical, liberal and cover a range of relationships that even
secular laws barely grasp. It does not force people to be with each
other if they do not want to, and ensures everyones sexual,
emotional and economic needs. It also lets couples negotiate the
terms of a marriage contract. Learning about it by looking at
everyones arguments has been very enlightening. I only wish the
MMDA upheld these fair rulings.

In Islam there are several perspectives on an issue, and all must

be explored to find the best solution. Sticking to only one school
of thought may not provide all the solutions, which is why even
other countries that have been traditionally Shafi or Hanafi are
slowly seeing the wisdom in Ijma (scholarly consensus) and Ijtihad
(reasoning).

The reforms ask for better training of Qazis (Judges) and a

crackdown on corrupt Qazis.All Ceylon Jamiyyathul Ulema (ACJU)
acknowledges that Qazis have been causing problems due to lack
of knowledge and resources. Qazis are arbitrarily selected and
now are usually lawyers or moulanas. As one lawyer and Shariah
researcher said, The problem lies in that the lawyers do not know
the religion and the moulanas do not know Fiqh (jurisprudence).

Qazis have also been caught taking bribes to delay or deliver fast
divorces. There is a redressal system in place, but it needs to be
more transparent so inept Qazis can be held responsible for their
verdicts. Justice Saleem Marsoof has compiled a report called
The Qazi Court System in Sri Lanka and its Impact on Women.
According to the report, Qazi courts were created to help Muslim
women seek justice easily as district courts took a long time and
were more expensive. Quite often, Qazi courts were more liberal
in their attitudes towards dispensing justice than district courts.
However, even good systems need to be checked and
administered properly or would be exploited. If the reforms dont
go ahead, this system, which everyone agrees needs attention,
may not get the proper support to be updated.

The biggest debate seems to be over the legal age of marriage. I

understand age is a social construct. I know a number doesnt
define maturity. However, our current social construct is defined
by the education system, which has helped eradicate illiteracy,
elevate poverty, and create opportunities for a stable life.
Currently the minimum marriage is set at 12, and girls can be
legally taken out of school and given in marriage without a
thought given to their right to education. This is more common so
that people realize and by asking for a higher minimum age, they
are ensuring that girls can complete school education. Exceptions
are being considered for pre-marital pregnancies, but poverty is
not an excuse.

I know poor families who have ensured their daughters finished

school/religious education (madrasa) till 18, and this has helped
the family as a whole. And also helped them find a better groom
for marriage. We live in an unpredictable world, and as citizens
and parents, we must first ensure the safety and security of our
children providing them with food, clothing, shelter and
education.
What has been discovered, in the countless narratives of women I
have interacted with is that in the event a woman who has
married young (thereby unable to complete formal education) and
is faced with divorce or widowhood, and comes from a
disadvantaged situation, she automatically plunges into a state of
poverty, and will have to support herself with low paid unskilled
work. She may have to leave the country for migrant work, and if
she has children, leave them to make a living.
This is the story of my own maid, who was an orphan from a poor
family. Her family got her married at 15 to a man who turned out
to be abusive and an alcoholic. She managed to leave her
oppressive husband after having five children. She moved to
Kuwait for work and her extended family lived off her money.
When she came back, her children were scattered, and she died
while in our care, with not a single relative attending her funeral.

Just because we come from privileged families or have

connections, it is easy to turn a blind eye to the plight of others. I
only urge you to think carefully and wisely, and read up about the
problems in the community before making an opinion. Remember
the Prophet (peace be upon him) stood up for the underprivileged
and exploited, and questioned the traditions
of his time.

The Prophet (peace be upon him) consulted and respected the

opinions of his female companions. The Qazi board should do the
same. This is because when men monopolize decisions regarding
women, they inadvertently fail to realize the impact their
decisions can have on womens lives. In Shariah courts in
Birmingham and Malaysia, a tribunal system is in place which
includes women, who make a joint decision regarding an issue.
Having a qualified woman to relay the case will preserve the
honour of the female plaintiff and will make her feel comfortable
in relating her side of the story, especially if there are intimate
issues to be discussed.

I cannot stress the importance of a woman being able to sign the

same document as her husband and listen to the marriage
khutbah (sermon). This ensures all players in a marriage i.e
groom, bride, wali and witnesses have their presence on the same
document. All parties of the formally verbal contract are now
represented in writing. Provisions have been made in other
countries for Muslim women to sign the nikah (marriage)
certificate in a segregated environment if desired. If you look at
nikah certificates worldwide, it is astounding as to how
comprehensive they are in upholding Islamic rulings unlike in Sri
Lanka.

The people who are opposing reform are doing so because the
issue has only recently come to their notice, so they assume its
some modern western conspiracy to damage the community.
They also come from privileged and sheltered backgrounds so
they are unaware of the plight of poor women and men in Qazi
courts and the impact of a lost education on them. For those who
have been following the reforms for the last 50 years know that
the men and women behind them are Muslims that have the best
interests of the community and want the reforms to be Shariah
compliant.

Women are facing genuine social problems, families are being

broken and children are not cared for. I visited an orphanage two
weeks ago and many of the little girls had parents, who were both
alive, but because of divorce and separation, no one was there to
care for them, and they had been left at a home. Some say the
solution is to marry them off young, but that brings with it another
cycle of poverty and potential hazards as illustrated above. If we
can be responsible about our own family members, shouldnt we
extend the same opportunities to others?

Does it make sense then to ask that women give written consent
like their husbands? That they finish school? That the Qazis
system is improved? That men and women are taught to be
responsible parents and spouses? That all wives are treated
fairly? That reconciliation is sought before divorce?

Since Islam calls for its people to uphold justice, even if those in
power forget, the common people have to come forward in the
spirit of their faith. There are members in the community who are
afraid, or ambivalent about the reforms. They think that other
communities also have unfair laws related to women and children,
but only the Muslims are getting all the attention. Even if they do,
we do not need to wait for other communities to reform their laws
to start on ours. Everyone has social problems, but we can be the
precedent for fighting for injustice.

They are worried that the women asking for reforms are not in
hijab, or the men do not have long enough beards. Or to question
ulema is a crime. Or that Sri Lankan Muslim culture is not ready
for this. The core of the Islamic spirit is to question injustice. For
all the clothes we wear, charity we give, pilgrimages we go on
and number of prayers we perform. How can we fail this basic
Islamic tenet to stand up for social justice?

I want everyone to understand that this has been an ongoing

debate for almost 50 years and it is time it needs to be dealt with
responsibly. Instead of blindly looking at it as an issue that divides
the community, let it be one that unites us. By making these
changes we will be securing for our children a stable family life
and
fair treatment.

O you who have believed, let not a people ridicule [another]

people; perhaps they may be better than them; nor let women
ridicule [other] women; perhaps they may be better than them.
And do not insult one another and do not call each other by
[offensive] nicknames. Wretched is the name of disobedience
after [ones] faith. And whoever does not repent - then it is those
who are the wrongdoers. (Quran, 49:11)

So Insha Allah lets work together for the best and most inclusive
solution.
Ultimately we are all human and only Allah knows best.
Posted by Thavam