Muslim Feminists, Anti-Reformists, The MMDA & The Ground Realities

By Sabra Zahid –March 1, 2017

Sabra Zahid

The anti- reformist sections within the Muslim community, in relation to the Muslim Marriage and Divorce Act (MMDA), allege that the “Muslim feminists are stirring issues” “asking for all sorts of things”, “making a mountain out of a molehill”, “want to change the Shariah“, and other accusations. They also allege that the Muslim feminists have made it so detrimental to the point of no return that all that is left is “damage control”.

They fail to understand that the reform conversation did not just begin with the so called “Muslim feminists”. The call for reform and these conversations began over 50 years ago, with many movements and groups advocating for reforms and also with many committees appointed by successive governments albeit yielding no consequences. Those spearheading the reformist movements in the past, did so within the community and within the ‘Islamic frameworks’ and their understanding of Shariah law. When they said whatever that they said, it was always backed through Islamic jurisprudence and examples from related Muslim contexts. Nothing happened. No one listened to them. Not the government, not the Muslim politicians, not even the bodies (albeit unelected) representing the Muslims of this country. So the so-called “Muslim feminists” took it a step further, calling out that conservatives will use any excuse to retain the status quo, reminding everyone of the principles of equality and non-discrimination and framing the issues in a discourse about citizenship and rights of Muslims as Sri Lankans.

Those opposing reform speak of the infallibility of the Shariah. They quote Hadith (practices of the Prophet) and their interpretation of religious text, to support their side of the argument. In doing they continue to ignore the lived realities/ experiences of women and children; the stories and the numbers. When someone relates a story, aghast they would retort “subhanallah!“, “asthagfirullah!” in mock horror. All mere words. These non-reformist elements, assume that those administering the law are infallible, as perfect as the Prophet. So they oppose that safeguards should be put in place to prevent the abuse or the excesses of the law. They also go on the ridiculous notion that the MMDA is Shariah and to change the MMDA is to change the Shariah, failing to understand in the very essence that different types of law compromises the MMDA.

Their arguments on basic right-based issues are also shortsighted. For example on the age of marriage, or on the lack of a minimum age of marriage (under the MMDA girls younger than 12 can be given in marriage), one argument that a conservative scholar put forth was on the basis that it is for an ailing father of a 11 year old girl child to ensure her protection through a marriage. It is outrageous that no other viable alternative apart from marriage for an 11 year old for that matter can be thought of by these types. These types go on the assumption that a marriage will always work. What of the reality of the actual lived experiences of women who have been given in marriage at a young age, now divorced, with children, and no education or any source of income? What about the countless cases of young girls abandoned by their husbands for second wives and the domestic violence that ensues in many of these cases? The Unequal Citizen’s study stated that there are many cases where husbands divorce their young wives on the perverted basis that they are “unable to have sex or do housework”.

On Muslim men’s right to take multiple wives, conservatives draw the example of the Prophet, who entered into marriages of alliances, married widows, etc. They also somehow miss the point that, the Prophet, apart from through his first wife (who was a business woman, much older than him) never had any children through his other wives. Moreover, the prophet’s sons in law, did not take multiple wives while, married to his daughters either. In any case, these types support polygamy on the basis that widows, “etc” need the protection and the respectability that a marriage could give them, ignoring the reality that in practice this is not what happens. There are multiple cases of men marrying multiple wives at the expense of their wives and children. Almost always it is those who cannot afford to even maintain one wife, who, for whatever reason enters into multiple marriages. It is also only in very rare circumstances that the consent of the first wife or wives-to-be is sort for the subsequent marriages. There are also many cases, where women only find out only much later that their husbands have other wives.

When it comes to divorce, the conservatives types, state that the Islam has the most liberal laws when it comes to divorce, which they support through an incident where a woman during the Prophet’s time came upto the Prophet and said that she wanted a divorce, although she cannot pin it down to a particular reason and this the Prophet allowed. So that is the example shown. Of course under the MMDA, there are types of divorce available to women; fasah which is fault based, where the wife’s side of the story must be corroborated by witnesses, which again will be heard and determined by a male Quazi (judge), supported by an all-male jury. The other types of divorce available (mubarat, khula) all needs the consent of the husband or a repayment of funds to him. Contrast this with the option available to men, ie “talaq” which can be sought without stating reasons or undergoing any case hearings.

These anti reformist types argue that, Islam gave women rights, so much so that even if a woman earns and can afford it, she does not have to contribute to the household expenses, because that it is the responsibility of the husband. Similarly under the MMDA, maintenance of the wife and child is assumed where the wife is living with the husband. So a wife cannot seek maintenance during the period of marriage, even in instances where the husband does not support her, which is a reality that cannot be ignored. Under the MMDA, on divorce, maintenance is paid only upto the period of iddat and where a woman is pregnant, up until the baby is delivered. How does one expect, a woman with no education or income, married at a very young age, to deal with this kind of reality?

In terms of consenting to a marriage, the anti-reformist elements say that under the divine law a marriage devoid of consent is invalid. Under the MMDA, there is no safeguard to ensure that consent for marriage is in fact obtained from the girl. Under the MMDA this consent is communicated through the girl’s wali (guardian), and the MMDA always assumes that the wali in fact has the best interest of the girl. This best interest is despite what the girl wants for herself.

In terms of appointing women as Quazi’s and jurors, there are all sorts of arguments put forth, such as, women’s emotional instability due to menstruation, the inability of women to retain so much information in their brains, the inability to handle a brawl at the courts (“a male Quazi can call the police and handle it, but a woman will be afraid”) and so on. I have nothing to say there, except maybe ask these folks to visit the general courts of this country and see what goes on there.

These anti- reform elements, also blame the feminists for talking about Muslim personal laws when there are others problematic laws such as the Kandyan Law, and the Thesawalamai Law. Now for those who speak about Islam as a religion where women were “given rights” before any other women elsewhere, now I don’t see why they need to defend the problems that the MMDA poses or hold from reforming the Muslim personal laws on the basis that the other personal laws are problematic.

The government replying to experts on the UN Committee for Elimination of Discrimination Against Women (CEDAW) on 22 February 2017, made it sound like the government is now working on the recommendations of the Committee which was appointed in 2009 by the then Justice Ministry to look into Muslim Personal Law reforms. In the absence of proper information, there are all sorts of stories that, certain sections within the Committee are backing out from the process, and then again when those sections are questioned, they say that they have done their part and now they don’t know at which stage the process is at. This can be remedied if the entire process was transparent, with proper timelines being given and adhered to.

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