By Mass L. Usuf (Courtesy Author)
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.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.
“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.
Super Safeguards for the woman
In addition to the above, Section 25 (2) states if the Guardian does not communicate the bride’s consent such a marriage is not valid and will not be registered.
A further safeguard is seen in Section 26 (1) and (2) with regard to the Guardian.
Under 47 (2), the bride can make a complaint against the Guardian if he unreasonably withholds his consent to her marriage. This complain can be made directly by the woman or even by someone on behalf of her (note the additional protection). If necessary, the Quazi can dispense of the Guardian requirement altogether and grant permission for the bride to get married.
Moreover, if a bride wants to get married and she has no Guardian the law empowers the Quazi to dispense with that requirement and authorise her marriage. Vide. MMDA, Section 47 (3).
As far as signing is concerned, the instances of signature are under Sections 18 (1) and 19 of the Act. Section 18 (1) is the declaration made as per Form II (by the bridegroom) and Form III (by the Wali-guardian) of the First Schedule to the Act. These two forms effectively inform of the marriage to be solemnised and declaring that the particulars (name, address, etc.) furnished are true and correct. Therefore, neither the bridegroom nor the Guardian sign it signifying consent. It is only to attest the correctness of the details provided. The bridegroom signs because he is the person who provided his details.
Section 19 of Muslim Marriage and Divorce Act require the bridegroom, the two witnesses, the Guardian and the registrar to sign on the statement of particulars entered in the register and not as consent.
Here too, a safeguard for the woman is provided in a proviso to Section 18 (1) where the bride must sign if the declaration is made by a Guardian who is other than her father or paternal grandfather. This again is not signifying consent but attesting the declaration of details.
If the bride has a grievance, Section 40 provides for a complain procedure against the Registrar of Marriages.
Despite all of the above, if written consent is still insisted upon, suitable amendment can be made. Objectively, nothing substantial can be achieved except for increase in paper work.
2. MMDA treats Muslim women as minors, who even as adults are unable to marry without the permission of the guardian
If Muslim women are treated as minors how is it that Islamic law allows them to own and transact with their wealth, businesses and properties, all by themselves?
Take a real-life example where a boy and a girl have fallen in love. Obviously, both like each other but yet they would want the blessings of each of their parents before marriage. When it comes to marriage, every daughter is part of the loving and closely knit family unit. Even a Sinhala or Tamil parent will play a major role in their daughter’s marriage. The parental guardianship responsibilities demand that they must ensure the partner is suitable, of good character and several other factors before giving permission for their daughter to get married. A loving and obedient daughter however much educated she may be, will mostly respect the decision of the parents. It is the same parental guardianship that is prevailing under the MMDA too. In fact, it goes further and under Section 47 (2) safeguards the woman’s interest if hindered by the parent unreasonably.
Prophet had said: “There is no marriage except with a guardian and two witnesses of good character.” (Classed as saheeh by al-Albaani in Saheeh al-Jaami’ no. 7557).
3. No legal representation
Section 74 of the MMDA bars an Attorney at Law from appearing on behalf of a party or a witness before the Quazi. The Quazis have been functioning for the past half a century without legal representation from both sides. Legal representation would mean invoking other procedural laws like the Civil Procedure Code, Evidence Ordinance etc. The Quazis are not trained like secular lawyers but knowledgeable in the areas of Islamic marriage and divorce. Legal representations may ultimately complicate what is presently a simple procedure. Additionally, it can even cause the dreaded law’s delay. It may be emphasised that there is no legal representation for both males and females. Conclusion, there is no violation of any gender equality rights.
This is an area that is best left alone. The proviso to this Section however, permits legal representation at any proceedings before the Board of Quazis.
4. Muslim women should have the right to be appointed as Assessors, Quazis, Marriage Registrars, and to Board of Quazi
These are matters requiring selective reforms based on the ethos of Muslim society and practicality. There is provision in the MMDA for the Quazi to empanel three Assessors. In order to regularise and ensure that women are also appointed as Assessors, amendments may be made to that effect. In my view, it will be helpful for the Applicant and the Respondent and it should be done.
As for the appointment of Women as Registrar of Muslim Marriages under Section 8 of the Act, there can be practical constrains on her. She may have to travel at night to officiate the nikah ceremony. Culturally and traditionally, the nikah ceremony takes place in the presence of an all-male environment. Moreover, most of the nikahs are done in the mosque. If she is in a state of menstruation she may be excused from entering the mosque. If she is pregnant, that will cause her discomfort. She also may have to go on maternity leave. Or, if she is in Iddah (waiting period) she will not be able to carry out her duties for a long period. She will find it difficult to execute her functions smoothly and it may be burdensome for her. This is not discrimination but consideration and concern for the woman.
The Judicial Service Commission under Section 12 may appoint a Quazi. The appointment of a female Quazi is a matter open for consultation. Practically, the task for her may be difficult especially, when it comes to divorce. The parties are generally, hostile to each other. One of the big challenges will be to handle cantankerous, aggressive and rustic men. Even male Quazis sometimes have been abused and threatened by the husband or males from the wife’s side. At the time of pregnancy will the female Quazi be able to endure these conditions. It also begs the question as to how it will affect her mental health and that of the child she is carrying. Long maternity leave following pregnancy and iddah matters can be the other disadvantages. This is not necessarily like a normal desk job or a regular court environment. Discretion is the better part of valour.
Section 15 provides for the appointment of Members to the Board of Quazis. Provisions should be made to accommodate women who are suitably knowledgeable in Islamic law and the secular law (Attorney at Law), to sit as members of the Board of Quazis. This is a more formal court environment and there are other members also who will be sitting.
Positive reforms are required, inter alia, to provisions relating to (a) administration (b) procedure (c) qualifications for Quazi (d) matters which are alien to the Islamic law and (e) provisions which must be included in the Act. By the way, reforms are needed not only to the MMDA but to several of the substantive and procedural laws in our legal system. For the Muslim women who allege discrimination, please derive comfort from the verse below:
“Never will I allow to be lost the work of any of you, whether male or female; you are of one another.” (Qur’an 3:195)
For the Muslim men reflect on Verse 135 of Chapter 4:
“O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves, or your parents, or your kin, be he rich or poor, Allah is a Better Protector to both (than you) ….” (The Quran)
Finally, even if Article 16 (1) of the Constitution is repealed, there must be a suitable Article in the constitution protecting the Muslim Personal Law because as stated earlier, it is unique and directly connected to the faith.