The choice to change is now! An opinion on reforming Sri Lankan Muslim Personal Law

Photography courtesy Aamina Nizar

AMEENA HUSSEIN on 03/05/2017

Muslims of Sri Lanka are governed under Muslim Personal Law. This means that in the areas of marriage, divorce and inheritance, all Muslims of this country will find themselves in a situation at some time or the other that will ensure they get to know about Muslim personal law. When I was quite young, I discovered that if my parents were to die without making wills there was an intricate system of inheritance laid out in a way that prescribed the precise portion of my inheritance. Being a curious child with an enquiring nature, I was mortified to find that a Muslim woman inherits only half of what a Muslim man would inherit. That was my introduction to Muslim Personal Law.

Most times, Muslims don’t actually give much thought to the fairness of the laws that they are governed under. Life happens and with it experiences and situations arise, and when it is declared that the Muslim law is such, many are under the impression that it is a religious law, and Muslim women are resigned to accept their lot. But, even at that young age, I was not ready to accept my lot. I thought it was extremely unfair that a Muslim woman (and by fate or definition I was included in that group) should get only half of what a Muslim man would get. Even as a child, mind you, I saw no logical reason for that to happen. My parents reassured me that they would make a will and I would be dealt with fairly but as I got older, I heard of cases where Muslim girls and women were not dealt with ‘fairly’ in terms of inheritance and that got me interested in the whole subject of Muslim law. I wanted to know all about this law that I was subject to and how I would be affected by it.

My initial investigations did not bring me good news. Whereas, Muslim parents can circumvent Muslim personal law in cases of inheritance by writing a will that is governed under civil law, for marriages and divorces Muslims do not have the same liberty. Two Muslims planning on marriage cannot opt to marry under civil law, we are forced to marry under Muslim law and it is because this law is either plainly unfair or implemented unfairly that even as I write today, many Muslim women are asking for reform, praying that a constitutional change will redress a wrong.

So what exactly is the Muslim Marriage and Divorce Act and why do I among others think it’s unfair. For one thing, the whole premise of the law is that from birth, a Muslim female is not as capable or intelligent as a man. To reinforce that argument, the law permits that a Muslim girl child as young as 12 can be given in marriage. Personally, I am shocked that in 2017, anyone would want to marry a child of 12 but the reality is that there are children of 12 being given in marriage, so there must be men willing to do so. This also means that a young girl given in marriage who is under 18 will stop schooling, further reinforcing  the dependent state of Muslim women. Many Sri Lankan Muslim men and women I speak with, assure me that as this does not happen or happens rarely, we shouldn’t worry about it. My answer to them is, if it does happen rarely, then no one will mind if we raise the age of marriage.

My concept of marriage is rather different. I envision marriage being between two people based on understanding, equality, friendship, trust and love. A marriage between a girl child and someone who is considered an adult man by the law, cannot be based on equality and while there might be understanding, friendship, trust and love, the very idea of an adult man engaging in sex with a 12 year old child is extremely uncomfortable for me to even think about. However, the reaction from the larger Muslim community of Sri Lanka to raise the age of marriage to 18 and bring it on par with the other communities has raised such vociferous opposition from mostly men and some women that I believe they think it must be normal for adults to have sex with children. Or specifically, for adult males to have sex with girl children. By the same token, I don’t think they will approve of twelve year old boy children marrying and having sex with adult females. I wonder why?

But reducing a Muslim woman to child-like status is not confined to age, for even if she is considered an adult by Sri Lanka and the rest of the world, that is at the age of 18 and older, she cannot enter into a marriage with a Muslim man without the consent and signature of a male guardian. As a child I attended many Muslim weddings and I was fascinated and entranced by the ceremony that looked on the surface like a storybook event. But as I got older and into my teens, I wondered what was happening at the all-male table at the back of the hall.  It took me even longer to question the tradition entirely and it was only in my twenties that I began to ask why a Muslim woman does not sign her own marriage registration certificate. Why does she need a male? The simple answer is that Sri Lankan Muslim Personal Law states it has to be so. But today when Muslim women are asking for reform and the right, the permission, the privilege (for it has become a privilege to those who don’t have it) to sign their own marriage certificate, again there is the resistance to amending the Marriage Law. Again, it begs the question why? And here the answer is more simple. It means that if a Muslim woman can sign her own marriage certificate, it will also mean that she can arrange her own marriage and give herself in marriage without a male guardian.

I sometimes wonder whether it would have been less tragic if the law stated that a Muslim woman had to be given in marriage by her parents? Would that have made it slightly better, that a mother is also acknowledged as having a right over her child? I am not sure, it is still a reductive attitude towards children, but in our case our mothers have no rights over us. It is only our fathers, uncles, brothers, and sons who can sign and thus give us away in marriage. Even though the world has changed and patriarchy no longer the rule, for the Sri Lankan Muslim woman it is alive and well.

But Sri Lankan Muslim women are requesting for a change andthe Muslim community has been thrown into disarray at this request to amend the law. They are dismayed at the reaction, perhaps they see it as a rebellion and a Muslim woman not knowing her place. But how can an adult Muslim woman, who can vote for a government, practice medicine, hear legal cases, hold administrative positions, pay taxes and exercise all other rights in a civil capacity in this country not be able to sign her own marriage certificate? Isn’t there something wrong here?

Closely related to the subject of Muslim marriage is polygamy and it would be remiss of me if I do not address that as well. Despite the majority of Sri Lankan Muslim men enjoying monogamous marriages, I know from personal experience that in even the happiest of marriages, there are Muslim husbands who ‘joke’ with their wives that they can take another wife. And even though the wife may joke back with a broad smile and take it like a good sport, the reality is that Muslim husbands can take another wife, and their first, second, or third wife may not even know about it until long after the event, and there is nothing she can do about it. Polygamy has existed throughout the world in many cultures and countries. Even the last King of Kandy Sri Vikrama Rajasinha had many wives. It has generally been the privilege of royalty and rich men, during an era when women were trophies, acquisitions and strategic alliances. But fast track into the current times. We live in a world that is so modern, we can communicate with many people at the same time even if all of them are in different locations of the world. We can travel to a country thousands of miles away in just hours. We don’t need physical offices to work in, whether we are stock brokers, hoteliers, architects or motivational trainers; we can drop bombs over countries at the push of a button, we can perform surgical procedures through an opening as small as a button, we can send people into space. And women are capable of doing all of the above. And in this world, this era, this time, we permit polygamy – we allow one man to marry more than one wife. In Sri Lanka, most Muslims are not wealthy enough to afford many wives. So, again I ask why?  Is it to justify the moral legitimacy of a man to have sex with more than one woman. Because other than that, there is no other need. There is a saying attributed to Maimonedes, the 12^th century Jewish philosopher of Spain: Give a man a fish and you feed him for a day, teach a man to fish and you feed him for a lifetime. If the argument for polygamy is that the women need looking after by a man, I tell the Muslim men, don’t be afraid, teach your women to fish, then they can look after themselves and look after you.

Finally, there is the Muslim divorce. Of course, the civil divorce situation in Sri Lanka is not perfect either. It is expensive, it is long, it is mean spirited and ridiculous, but it also gives Sri Lankan women a chance to be heard, to state their cases and to try to get justice and fairness applied. In civil cases, no one is penalized just because they are women. Sadly, that is not the case for the Muslim woman who is either being divorced or wants a divorce. As long as female Qazis or judges are not included in the Qazi system, as long as triple talaq exists (which is saying talaq or divorce three times by a man giving no reason for the divorce) as long as a woman has to state her reasons for divorcing and the Muslim man does not have to, the system is blatantly unfair towards Muslim women.

So, I wonder why the Muslim community is so resistant to reforming Muslim personal laws? Many belonging to the community in their ignorance or indifference believe that the law is divine or Sharia and cannot be changed. However, if they were interested enough to research and read up on how the law was formulated, they will realize that very little of Sharia law is included in the Holy Quran. For instance in Muslim countries the punishment for adultery is stoning but that punishment is not found in the Holy Quran. In the Quran the punishment for adultery is 100 lashes (24:2) which means that Muslim scholars have interpreted Sharia differently from the Holy Book. The Holy Prophet died in 632 AD. It was only after his death that the caliphs began to codify and construct the law. Under the Ummayad and Abbasid dynasties in the eighth and ninth centuries, that is approximately 100 to 200 years after the Prophet’s death,  four schools of law developed – Maliki, Hanafi, Shafi and Hanbali. A further school of law the Zahiri has not survived into the modern era. Muslims of Sri Lanka are mostly governed by Shafi. But within each of the schools of law there are differences. Which is why if a Sri Lankan Muslim girl wants to marry a Muslim man without the permission of a male guardian, she can become a Hanafi and thus give herself in marriage. This means that laws have a certain flexibility and were never set in stone. It was a process of evaluation, interpretation, examination, study, and analysis.  If we Muslims of Sri Lanka are to continue to be governed under Muslim personal law, like those Islamic scholars before us who have tread the path centuries ago, we need to apply the law in the true Quranic spirit of fairness and justice. We need to see what works best for the Muslim community. The Muslim Marriage and Divorce personal law as it stands now, is neither fair nor just. As Muslims we need to reform it in the true Islamic spirit of being fair and just to all members of the community. And so I ask all Muslims, both men and women, please support the process for reform. It is important. It pertains to us, and it is good for our community.

Editors note: Also see our short video productions for compelling stories from women on the difficulties faced by them under the Muslim Marriage and Divorce Act (MMDA).