Muslim Marriage & Divorce Act, Some Perspectives On Rights And Reforms – Part II

By Mass L. Usuf –November 7, 2016

Mass Usuf

To preach about a thing and not act upon it is being insincere, dishonest and uncivil. In so far as fundamental rights and human rights in Islam are concerned the psychological state of the Muslims worldwide stinks with intransigence, prejudice and lethargy. Thus, paving the way for others to tell Muslims to clean up.

To advocate the growth of these rights in Islam is like the idiomatic expression, taking coals to Newcastle. Look at the lucid statement below from the world renowned, our own, Justice Weeramantry in his seminal work on Islamic Law.

“In the West human rights were fought for and then extracted from those in authority through a bitter series of tussles by man against man. Rulers stubbornly withheld privileges … …. Revolutions took place ….and fresh concessions were made. ….. and in this way, a growing body of rights evolved through the ordeal of bloodshed and struggle.” (page 116, Islamic Jurisprudence)

“In Islam there was accommodation for these rights (Human rights) within the original religious system itself and in the main source of law (i.e. The Quran and Prophetic teachings), as expounded from the very commencement of Islamic jurisprudence. There was hence no need for an ideological framework, nor for a purely secular struggle to win them on a purely secular basis. (ibid. page 121, – Italics mine)

While most unbiased human rights scholars appreciate the Islamic value system, the issue is grossly misunderstood by the average person. What most advocates seek unconsciously is a Procrustean solution (a one fit or preconceived structure) without any regard to the richness in diversity, the in-depth wisdom and philosophy of these rights as propounded in Islam.

It is through these complexities that one must navigate to reform a partly Islamic-partly unIslamic, Muslim Marriage and Divorce Act (MMDA). Some concerns are:

1. The demand that the bride also must be allowed to sign, the bride can then directly consent to her marriage

Marriage without consent is void ab initio. It is absolutely against the Islamic law to give a girl in marriage without her consent whether – direct or indirect. A statement of the Prophet states:

“When a man gives his daughter in marriage and she dislikes it, the marriage shall be repudiated” (Bukhari, 67:43).

The requirement of consent is enshrined in Section 25 (1) (a) (ii) of the MMDA which clearly states that a marriage is not valid if the Guardian (Wali) does not communicate the bride’s consent. The Guardian acts as the Agent of the bride and conveys her consent to marry.

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