Muslim scholars push for consensus on Muslim Marriage and Divorce Act reforms by Ifham Nizam

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All Ceylon Jamiyyathul Ulama (ACJU) has urged the government and Justice Minister Ali Sabry, to re-evaluate the decisions made by the Cabinet on Muslim Marriage and Divorce Act (MMDA) by adopting an inclusive decision-making process.

ACJMU General Secretary Ash-Shaikh M. Arkam Nooramith said that while giving due consideration to the fundamentals of the religion on this matter, it is necessary to ensure that no one is served unjustly, the rights of all citizens of the country are honoured and that the multicultural diversity of the nation is upheld.

He said Muslim Family Laws were practiced in Sri Lanka throughout a history of more than 1,000 years in accordance with Islamic religious teachings and cultural practices.

“These customary laws were codified and implemented from the Dutch and English colonial eras as well as the post-independence period until today. They were subject to amendment as required from time to time after due consultation with Muslim interests,” he said.

“Islamic scholars/clergy agree that certain reforms are needed to the Muslim Marriages and Divorce Act especially addressing grievances of Muslim women.

“Since this matter concerns the religion followed by Muslims, our stance is that appropriate reforms are made considering the fundamental teachings of the religion after due consultation with concerned stakeholders. The ACJU has presented its submissions on necessary reforms to the prevalent Muslim Personal Laws on various occasions,” the group pointed out.

Attorney-at-Law M. Shihar Hassan said “We want changes in the system, not a repeal.” He said the Qazi system has its inherent faults because:

a) the qualifications and eligibility to become a Qazi is set at a minimum and very few qualified candidates are in the system.

b) their total allowance per month is around Rs. 13,000/- which is a pittance. Thus no qualified person wants to apply for these positions and waste their time.

c) there is nothing called an established Qazi Court. The courts sit on Saturdays in boutiques and the front verandahs of the Quazis’ homes.

d) Qazis aren’t appointed after training as in the cases of judges trained at the Judge’s Institute. In most instances Qazis aren’t lawyers and they do not know the law.

e) There is no proper disciplinary control of Qazis and as far as I know, a single officer runs all the affairs relating to the Qazi system at the Judicial Service Commission.

f) Qazis have no code of conduct and as such, there is no way of telling them how to conduct themselves.

g) Their job isn’t full-time or wholly judicial and they’re not deemed public servants and paid a proper salary. Thus they tend to do other jobs apart from being Qazis. This paves the way for conflicts of interest unbecoming of a person dispensing justice.

But a Qazi court grants divorces within a maximum of six months on 90% plus occasions. You need to spend nothing to file and obtain a divorce or maintenance. Nor do you necessarily have to retain a lawyer and pay for his services.

But in the regular courts a litigant spends a minimum of one or two years to get an uncontested divorce and more than five years for a contested divorce in the District Court. Divorce is expensive in the general court system. A minimum of Rs. 25,000 will have to be spent for a lawyer to start the case and each appearance costs money. It can vary depending on the lawyer and it can go up to millions.

Divorce in general law is granted only on three grounds: i) Adultery, ii) malicious desertion and iii) incurable impotence

“MMDA recognizes all of this as grounds of divorce and even recognizes sexual dissatisfaction as grounds for divorce even for women.”

He further said, “Almost all women including those who fight ferociously for reform want MMDA retained with whatever reforms proposed in the Justice Marsoof report.”

“We have advocated the appointment of women as judges in the Qazi system and we have won majority consent all round.

“Polygamy is already legal under the MMDA but a survey reveals that out of a sample of 19,000 odd Muslim marriages, only six men had two wives and none had more than two.”

“More than half the men I knew had mistresses after marriage,” he added.

“Maintenance is an issue in the Qazi system because basic principles are not properly set down and are not followed. Thus we urge that the general maintenance law applies to Muslims as well.”

“But mind you when I say the issues in general maintenance law and access to justice is at times trickier than MMDA. The next major issue is the minimum age of marriage. Almost everyone agrees that it should be 18-years. But with special permission of the court on specific instances, women above 16 can also be married is what’s proposed at the moment,”

“At present a ‘wali’ or a legal guardian has to sign on behalf of a bride at a registration with the bride not having to sign her marriage registration. We have advocated and all parties have agreed that this must go and women should be allowed to sign their marriage registration,” he said.

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Disclaimer: Muslim scholars push for consensus on Muslim Marriage and Divorce Act reforms by Ifham Nizam - Views expressed by writers in this section are their own and do not necessarily reflect point-of-view

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