MMDA and the consequences of adopting JSM submissions

The MMDA report is now in the hands of the Parliamentarians to make their recommendations to the Minister of Justice – Pic by Shehan Gunasekara

The MMDA stands for the Muslim Marriages & Divorce Act. The Committee comprises eminent theologians, judges, lawyers and educationalists. Both women and men were appointed as a team to resolve the many challenges faced by the Act. 

The committee commenced discussions in mid-2009 and took more than eight years to complete its deliberations and finally ended up submitting two reports, namely, the Justice Saleem Marsoof (JSM) and Faisz Mustapha (FM) report. This was mainly due to differences in the religious interpretations.

The JSM team that signed off included: Justice Saleem Marsoof, Suhada Gamalath PC, Professor Sharya Scharenguivel, Deshabandu Jezeema Ismail, Shermila Rasool, Razmara Abdeen, Safana Gul Begum, Faleela Be Jurangpathy, Dilhara Amerasinghe.

The FM team that signed off included: Faisz Musthapha, PC, late Shibly Aziz PC, Justice A.W.A. Salam, Justice Muhammed Mackie, Dr. M.A.M. Shukri, Nadvi Bahaudeen, Fazlet Shahabdeen, Ash-Shiekh M.M.A Mubarak, Mufti M.I.M Rizwe.

As can be seen both teams had female representation but the JSM report did not have any qualified religious scholars.

The report was not submitted by the ACJU but the FM team, which included two members of the ACJU, namely, Ash Sheikh Mufthi Rizwe and Ash Sheikh Mubarak.  Thus it is mistakenly interpreted as the ACJU report.

Now I come to the consequences of adopting the JSM report.

 

JSM report suggests appearance of lawyers before Quazi courts

Consequences:

If legal representation is made mandatory, the case might be dragged on for months and in some instances for years and will not come to a proper reconciliation. This is the experience most of us face when we take legal action. 

In the present Act, Section 74 prohibits attorneys-at-law from appearing before the Quazi courts for any party or witness. JSM in his report has stated that lawyers should appear on behalf of parties, if implemented, may place women litigants at a disadvantage as they may not be able retain lawyers who are comparable to those retained by their husbands.

In addition appearance by lawyers would add an adversarial element which is incompatible with the objectives of a Quazi court which is designed to act as a family court to facilitate the settlement of matrimonial and related disputes in an atmosphere free of bitterness.

The sad part is that our community has a very high rate of poverty, close to 40%. Many of them have problems in managing their day-to-day expenses. There is an organisation ‘Careline,’ which resolves marital issues before escalation to Qazi level. 

Many of the participants cannot afford the bus fare to come for counselling 

to Careline and very often Careline chips in.

 

JSM report suggests governing of divorce should not happen according to rules prescribed by Islam

Consequences:

JSM in his report has recommended that the word divorce should be removed from Section 16 of the Act and also Section 30 should be removed from the Act, which will be a violation of Islamic teachings with regard to divorce. If implemented, divorce will not be governed by the rules prescribed by Islam but by the self-written Scheduled, when writing it has not considered the rules of divorce prescribed in Quran and Hadiths.

 

JSM report wants the word ‘sect’ to be removed 

The consequences of which are:

Majority of the countries when formulating personal laws have done based on a sect/Madhab. Countries such as India and Pakistan follow Hanafi School of Thought, countries such Sri Lanka, Jordan, Maldives and Indonesia follow the Shafie School of Thought and countries such as Morocco and Sudan follow Maliki School of Thought.

We should keep in mind that countries where they have adopted Muslim Law without specifying a Madhab have written comprehensive manuals where Quazis are guided under all circumstances.

If sect (Madhab) is removed from the act, then Quazis must be provided with a comprehensive manual on how to determine the rulings. Else it could lead to a lot of confusion and misuse. People could pick and choose from different views based on their own interpretations. Also people would request rulings based on narrations they see fit for them. This impractical move will bring lot of chaos and will be a bad precedent.

Furthermore, defining Muslim Law without following a sect will lead to deviated groups also to be included under Muslim Personal Law. Example is the threat of Qadiyanis which still exists. Qadiyanis advocate the existence of a Prophet beyond that of the final messenger.

 

JSM report wants the wali (guardian) to be removed

Consequences are:

The word ‘wali’ meaning the willingness to take responsibility to manage or to take up the authority to administer something such as managing the orphans by attending to their needs and to become a wali for a woman by performing a marriage contract for her. As a Wali, it is his duty to ensure that the proposed groom is a reliable and a trustworthy person who will continue to carry on his role and responsibility towards the bride after her marriage.

It has been a tradition in our country and also being one of the integral part of Islam, Muslim marriages  happened in Sri Lanka under the purview of a marriage guardian; however if we remove this, our daughters can find their own partners and get married without parental approval. Incidentally disobeying one’s parents and marrying is considered one of the most serious sins in Islam.

Marriage requires a lot of experiences and wali has a lot of these compared with his daughters. Wali’s experience provides security for the sanctity of a marriage contract, if not

 chances are very high of a woman being victimised by an unscrupulous person or marrying a person who is morally and socially unfit for her.

As a solution to protect the ladies from the wali using his authority wrongly, the FM’s report states “it should be rendered mandatory for a bride to sign the notice of marriage and/or the marriage register as evidence of her consent to the marriage”.

 

JSM report wants marriage registration to made mandatory and if not taken place marriage (nikah) to be made invalid

Consequences:

Islam has not made registration of marriages as an integral part of the marriage for its validity. If we invalidate such legitimate marriages we will make children born through these marriages as illegitimate, which is against the objectives of Shari’ah.

Even the General Marriage Ordinance in Sri Lanka accepts customary marriage of other faiths based on evidence even if it is not registered under that act. As such invalidating 

Muslim marriages if not registered is against the laws of Sri Lanka and would violate the fundamental rights of the people practicing the Islamic faith and thus shall be inconsistent with the Constitution of the Sri Lanka as guaranteed under fundamental rights.

Non registration of a marriage has many negatives for the wives and the children born from such marriages. For example when the husband dies, the inheritance for the wife and children will become an issue as there is no proof of marriage. Thus it is important that registration should be mandatory and non-performance of it has to be considered a punishable offence. The FM report recommends that a marriage must be registered within two months and in the event of a non-registration, the bridegroom should be rendered guilty of an offence. The offender will be noticed by the Court to secure registration, again within two months and if he defaults, he may be sentenced to a mandatory jail sentence.

 

Other concerns

One of the main reasons of MMDA was to prevent oppression against women during the proceedings and if one reads through this article 

it can be seen clearly that the JSM report does not provide such a solution within the Muslim Law but instead in certain instances adds to the 

oppression, as in the case of introducing lawyers.

The FM report on the other hand advocates that during the divorce proceedings, two ladies must guide the Qazi (male) and provide their own judgement in writing.

The Qazi has the right to make the final decision but then the parties can seek redress at the Qazi Board. During the review by the Qazi Board the judgement made by the ladies will also be taken into consideration.

 

Conclusion

The MMDA report is now in the hands of the Parliamentarians to make their recommendations to the Minister of Justice. May I kindly request them to also consider the following issues:

To ensure that Qazi fees are increased from Rs. 6,000 a month to a more reasonable amount. 

The location of the Qazi Court to move from temporary sheds and residences of the Qazis to locations more acceptable where the case can be held in private without everyone listening to the proceedings.

The 65 Qazis to be provided continuous training, exchange experiences and provide statistics and trends that are taking place that can help the leaders of the community to take preventive measures against the increasing divorce rates.

The current Qazi Board has over 300 divorce files to be attended and they may need additional hands to clear the files.

Whatever we do, as Muslims we cannot trifle with the law of the Creator and we must fear Him at all times. This is the sacred duty of all of us and now 

the responsibility is on the shoulder of the Muslim Parliamentarians to deliver a solution. May the Almighty guide them. Ameen.



(The writer could be reached via email at [email protected].)