Why We Need To Keep Muslim Personal Law With The Much Needed Reforms

By Asiff Hussein –OCTOBER 2, 2021

Asiff Hussein

The Muslims of our country have always felt they are very much part of our nation. The multi-ethnic, multi-cultural and multi-religious environment of Sri Lanka with its tradition of tolerance and understanding of the other has contributed to this inclusive attitude in no mean measure.

As such it is sad to see sinister attempts being made to deprive the country’s Muslims of their personal laws which govern civil matters like marriage, divorce and inheritance. Other communities like the upcountry Sinhalese and Jaffna Tamils also have their customary laws in the form of Kandyan Law and Thesavalamai, but strangely nothing is spoken about repealing or radically reforming these legal systems.

These customary laws as much as Muslim Personal Law (MPL) have co-existed in the country for centuries without creating any division or social discord in the least. Personal laws, like language and other cultural markers, are very much part of all these communities, adding so much vigour and vibrancy under that time-tested adage “Unity in Diversity” that forms the very lifeblood of our beautiful nation with all its wonderful variety and has stood us in good stead all these years. These customary laws, as much as Muslim personal law, do not infringe on the rights of others. They never have and never will, which is why they have survived this far.

However, unlike these traditional usages, MPL has an added dimension, because it has a religious foundation. It is grounded in the Islamic faith and reflects religious obligations to one’s family among other things. The fact that even our colonial rulers recognized the right to our personal laws without any obligation or commitment to do so, speaks much of the importance it holds in Muslim hearts. To repeal it or radically transform it so that its entire purpose is lost will only serve to isolate and marginalize the country’s Muslims, with its many social and political implications. After all, no Muslim would be willing to forgive or forget those who deprived them of this much cherished personal law that means so much to them. Any party or government that does so, will have to face severe political repercussions because it is bound to antagonize every single segment of those who profess the Islamic faith. Fools rush where angels fear to tread.

This is not to say that our Personal Law, as reflected in the Muslim Marriage and Divorce Act (MMDA) does not need reforms. It certainly does. This is exactly why the Justice Saleem Marsoof Committee was constituted- to come up with a final solution that would particularly address the rights and concerns of women. There is certainly a need to amend the MMDA such as requiring the written consent of the bride, recognising her legal capacity to marry at her own discretion by appointing an agent in lieu of agnate guardian if she so chooses and enter into prenuptial contracts with her intended husband. Any reasonable Muslim would agree to such changes, because they are very much part of the Islamic faith as well.

However, there have been some very unsavoury developments of late that threaten to undermine the whole objective and purpose of MPL, which is to safeguard the institution of marriage and the family, which as we all know is the very foundation of a healthy society. Two such changes that were recently included in a cabinet decision in a very arbitrary manner and in total disregard to the sentiments of the community was to abolish polygamy and Quazi courts that adjudicate in the matter of Muslim marriages and divorces. These two proposals were never part of the JSM recommendations and it has now come to a state where even those who dearly wanted reforms are very much against these proposed changes, and with good reason.

Quazi courts are not law courts as they are sometimes made out to be, but perhaps may be better described as quasi judicial bodies that adjudicate on Muslim family law with a view to effect reconciliation between the parties. This is why it has been proposed to rename these as Muslim Family Conciliate. Their existence is not only important to the Muslim community due to religious and sentimental reasons, but also because they do not involve a costly and lengthy litigation process in matters like divorce unlike conventional law courts. It is in fact, a very cost effective way to settle family disputes.

As for polygamy, this is something that has been part of Muslim law for centuries and is in fact embedded in the Islamic faith. It must however be stated that this is not an arbitrary right given to a Muslim male. It comes with many conditions attached including equal treatment of all co-wives. It could be best described as a concession to human nature, a concession that seeks to eliminate vices so common in our society today such as prostitution, mistresses and brothels along with their ill effects such as venereal diseases and destruction of the family.

It could also be viewed as a social mechanism to preserve the family since males who have recourse to it, would be less likely to divorce their first wives for reasons best known to them, especially those that affect their sex lives such as frigidity or desire to have offspring, that is if the wife proves to be infertile.

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