Political Wheeler Dealing & MMDA – Travesty Of Justice

By Abdul C Raashad –

A decade ago then Minister appointed a committee to examine the existing provisions in regard to Muslim Marriage and Divorce Act (MMDA) and to suggest/ recommend the amendments to the same. The normal practice is to invite all the stake holders and to obtain their input and then to formulate the recommendation and to submit a single report to the Minister. Nevertheless, it appears that the committee deliberated within the committee as there was disagreement in multiple areas. It eventually submitted two separate reports, which has caused serious concerns and turmoil within the committee.

The current Minister of Justice having accepted both reports was placed in a dilemma as to how to resolve the differences in the report. Had the Minister been capable of making a determination as to how the amendments to be made to MMDA, there was no reason for the Minister to await for a report for a decade. The Minister had an option to send both reports back to the committee and to require the committee to submit only one report. The Minister also had the option to appoint a new committee to go into the disputed areas and to recommend the manner in which those differences are to be reconciled. At this point of time acceding to the request made by ACJU the Minister referred the matters in issue to the members of the Muslim Parliamentarians.  

The committee could have averted this scenario had it acceded to the requests made to seek the input of the internationally renowned scholars. It is significant to mention that the well known scholar Dr. Yasir Qadir when approachedhad  agreed to assist the committee but for the reasons best known to the committee, his services were not obtained. In any event, if the committee had thought fit that some other scholars could have made a contribution it could have done so.

According to the information available the disputed areas seemingly are as follows:-

1. Mandatory Registration of Marriage

2. Minimum age of marriage fixed at the age of 18

3. Female Quazis and requiring Quazis to be Qualified Lawyers

According to some other sources in respect of other areas such as (iv) requiring the bride to place the signature in the Marriage Certificate (v) the procedure related to the practice of having more than one wife and areas of this nature serious difference are existing between the stake holders.

The upshot is with regard to the the actual place of a Muslim lady in Islam there seem to be disagreement between the majority of male members and the lady members of the committee.

In this writing an attempt is made to identify the role of the Muslim lady described by Prophet Muhammad (Sal).  

In the final sermon of the Prophet Muhammad (peace be upon him) in Dhual – Haj 9th day 10AH (6th March 632) is absolutely relevant. In the early part of the short sermon, Prophet Muhammad (Sal) stated that:

Quote:

“O People, it is true that you have certain rights with regard to your women, but they also have rights over you. Remember that you have taken them as your wives only under a trust from God with his permission.  Do treat your woman well and be kind to them for they are your partners and committed helpers.”

Unquote:

In Qur’an Surah 2 verse 223 Surah Baqarah it is stated as follows”-

Your wives are a tilth for you” so go to your tilth” and further he say “And fear Allah, and know that you are to meet Him” therefore emphasis that every man will have to be fair and reasonable to their wives”.

There are several Qur’anic verses emphasizing this principle.  

It is also significant that as per the orders of Allah, Prophet Ibrahim left his wife Hajarah with his infant child Ismail in a desert where no signs of presence of existence of human beings placing trust in Allah.  Today, this solemn place is visited by Muslims around the world to perform their Haj and Umrah. The well that produced uninterrupted water is referred to as Zam-Zam water.  When the infant Ismail started kicking the ground, Allah ordered the water to gush and it is significant that when Hajarah ordered to stop and stated Zam-Zam, Allah ordered the water to stop.  This is a classic incident Allah recognized the role of the woman.

The relationship of a husband and wife is lucidly expressed in Surah 9 verse 71 as “The men and women, are (helpers, supporters, friends, protectors) of one another”, hence, it could be concluded as a device order to treat a wife in equal status.

Furthermore, today during the speeches of the preaches they quote and rely on the Hadiths narrated by one of the Prophet Muhammad’s (sal) wife Ayeshah.  It is important to remember that in regard to the validity of the ablution Imams have expressed their views based on the narration of Ayeshah.  

In another Hadith emphasizing the importance between the Father and Mother of a Child, the Prophet (sal) stated first, second and third the Mother then the Father.

There are plenty of material to support the proposition that Islam has recognized the important role a Muslim lady has to play in the society.

It is noteworthy to mention that in many Muslim majority countries the Muslim ladies have been given their due place as opposed to Sri Lanka. It is evident that they have been appointed as Quazies and judicial adjudicators.  Is it our position that those appointments are unislamic?

One of the areas the difference exists is in relation to the minimum age of Marriage. Justice Tilakawardane and Justice Amaratunga in the Gunarathnam vs Registrar General’s case have arrive at a decision that unless both parties to a marriage have completed 18 years of age, the marriage cannot be registered. It is observed that in terms of section 23 of MMDA a marriage contracted by a Muslim girl who has not attended the age of 12 years shall not be registered unless the Quazi for the area in which the girl resides has after inquiry as he may deem necessary authorize the registration of the marriage. The stake holders want age 12 to be raised to 18.  he people who opposed rely on an argument that the marriage between Prophet and Ayeshah took place when Ayeshah was less than 18. The fact that they overlook is that a special permission was granted to only Prophet.  Since, Muslim believe the last Prophet is Muhammad (sal) and thereafter there is no Prophet established the fact this special privilege not bestowed on the others. It is also notable that Prophet firstly got married to a widow of 40 years. Therefore, one cannot argue that Muslim males should get married in this manner. It is the belief of Muslims that only in respect of performance of amal (worship) it is sunnah to follow not in respect of the other areas of his life. The manner he travels, the manner he live with less facilities and the manner he dressed according to the climate of the country.

The registration of marriage applies to all citizens of the country. It is the understanding of the writer that none of the religion requires registration of marriage. Nevertheless, it is essential to register a marriage to ensure that the birth of the children would be also registered and to issue birth certificates to enable the children to pursue their education, to obtain National Identity Cards and Passports to travel. Since there is no religious obligation to register the marriage, requiring the Muslim bride to sign the register will not cause any religious impediment.  Marriage is a contract, and accordingly both parties are required to understand the terms and conditions of the marriage and to intentionally agree to abide by the terms and conditions by placing their respective signatures. Unfortunately, many marriages are taking place in Masjids without the presence of the Muslim brides only to hear that they got married.  This is a serious violation of the principles of Islam and their fundamental rights. This is one of the reasons for the difference of opinion between the couple because when both parties were present and the marriage is solemnized and registered it is a great opportunity to advice not only to the couple but also to the other members of both families how they should move forward to keep the marriage without any interruption if there are any teething problem.

It is very unfortunate that the committee failed to consider Surah Nisa (4) verse 35 in which it advices how the dispute arises between the couple to be amicably reconciled.  If both parties are made to place their signatures in the marriage certificate, it is easy to adjust their differences according to this verse.  It is important the Qur’an has spoken about Arbitration/ reconciliation process 1400 years ago but unfortunately it has been not embodied in the MMDA and also in the recommendation also this issue has not been addressed. In so far Islam is concerned divorce is unacceptable without a valid reason. Today there are several divorces owing to not adhering to this Qur’anic verse. The law should be amended such a way that any difference between the married parties will have to be necessary endeavoured to be resolved according to this verse.  No one should be permitted to commence divorce proceedings in Quazi court without report from the Arbitrators functioning under Surah 4 verse 35. The arbitrators should engage in extensive discussion to reconcile the marriage. If eventually they consider that it is not possible to reconcile then they should submit an extensive report in which they should setout the areas in which both parties are not able to resolve and the Quazi will be able to accept the application only if a report of the Arbitrators is attached to the application. Quazi in the first place should discuss with the arbitrators and then he could hear the sides of the parties and endeavour to resolve in terms of section 47 (i)(h) of the MMDA. This is the area in which the assistance of a female Quazi is required. There may be issues where the female member of the applicant may not be comfortable to share with a male Quazi and therefore serious consideration should be given to a female Quazi to sit with the male Quazi to ensure that the female is not psychologically affected that her side of the case is unheard and therefore that grave injustice has happened to her because by nature the Muslim girls have been brought up not to share their personal issues with men.  

Another area in which the legislature will have to looked into is the argument for a man to have more than one wife is based on the Surah 4 verse 3. According to experts the words of the Qur’an are interpreted, the historical background in the period that was revealed will have to be taken into consideration.

According to Ibn Katheer a narration of Ayeshah whilst explaining the background of this revelation states “In the pre-Islamic times, the legal guardian of a good-looking, well-positioned orphan girl would marry her for her beauty and wealth but not give her a complete dowry (mahr), as he used to give to his other wives. This was a gross injustice.  So, Allah banned that, and said that if one could not be just and fair to orphan girls under one’s guardianship, one should not marry them at all but marry someone else. 

In any event, a careful reading of the verse clearly emphasizes the responsibility of the man to exercise reasonableness equality and fairness.

The recommendation made to regularize the 2nd, 3rd and 4th marriages is very much keeping in place with the principles of Islam. Whoever wishes to enter into contract of marriage 2nd, 3rd and 4th time will be required to serve formal notice to the 1st wife to enable the authority to ascertain as to whether or the applicant will be able to financially, morally, emotionally and physically able to support not only the 1st wife but also the children of the 1st wife and the additional wives. The argument that the husband will treat equally by providing basic necessities seem contrary to Islam.  In particular, the children best interest of the first wife essential needed to be taken into consideration atleast until they complete their education upto ordinary level the children emotional aspects will have to be looked into to ensure that those children will not be psychologically affected owing to the father’s decision to have a new family.

The upshot is not only the economic sense but also the emotional psychological impact of the 1st wife and children will have to be evaluated carefully before the permission is granted.  If not the system will facilitate unfairness, tyranny, suppression, prejudice, bigotry to many to the satisfaction of one person’s happiness.  

It is conspicuous and pronouncement by divine direction in Surah 17 verse 24 for the Children to pray for their parents as follows:-

“My Lord! Bestow on my parents, Your Mercy as they did bring me up when I was young”.  Therefore, it is evidence of affirmation that children when they pray for their parents as aforesaid it is extremely relevant and pertinent to be mindful that any injustice caused to the children will result in serious consequences.

Source:Colombo Telegraph

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