Islamic principles of Justice and

Human rights necessitate changes to

the MMDA

AFP PHOTO / ISHARA S.KODIKARA, via Asia Times

DR. FARZANA HANIFFA AND OTHERS on 05/02/2017

Reform of Muslim family law across the globe has taken
onboard the need to establish womens rightful position
within the Islamic framework.
 The message of egalitarianism in the Quran was an impetus
for the progress of women during the period of revelation.
Reforms that give women their due rights have often been
stymied by the use of Hadiths without adequate emphasis
on Takrij (examination and evaluation).
Sri Lankan Muslim women too must be urgently granted the
equitable status guaranteed for them by the Quran and
Sunna.
Reform of the MMDA is required to establish the principles of
Justice and Human rights that form the bedrock of the
message of Islam.
We the undersigned, members of the Lanka Minaret April
6th Group, welcome the renewed interest around reforming the
Muslim Marriage and Divorce Act of 1951(MMDA).

The issues faced by those directly affected by the MMDA and the
Quazi court system have been well documented [1] and the
demand to reform goes back to more than 50 years. [2] The
government appointed Committee led by Justice Marsoof has
been working on recommendations for reform since 2009.

The questions that are dominating the current discussion on

reforms in Sri Lanka are ones that have been addressed by
Muslim communities throughout the world. Many have instituted
reforms in consonance with the spirit of the Quran and Sunna that
are in keeping with the transformed context of the contemporary
world. Tunisias Code of Personal Status (1956) instituted the
earliest and most far- reaching legal changes to family laws in the
Arab world. Turkey adopted 1030 progressive amendments to
their Civil Code in 2001 with Morocco adopting one hundred
amendments to their Family Law in 2004.
The expansion of womens rights within the family was
established in the family laws of Algeria, Lebanon, Egypt, Jordan,
Palestine, Kuwait, Bahrain, Syria, Libya, the UAE, Iraq, Qatar,
Oman, and Iran. These changes have been driven by movements
to establish womens rightful position within an Islamic
framework. The reform process in Sri Lanka, too, must be
informed by these international precedents.

We contend that changes to the MMDA and a reformation of the

Quazi court system in Sri Lanka are urgent to ensure Sri Lankan
Muslim womens equitable status as granted to them by the
Quran and Sunna. Most importantly we contend that the reforms
are required to establish the principles of Justice and Human
rights that form the bedrock of the message of Islam.

In our support for the reforms we would like to emphasize the

following.

The Quranic message regarding Women

The message of egalitarianism in the Quran was an impetus for

the progress of women during the period of revelation and
immediately thereafter. The Qurans re-positioning of womens
status was radical for seventh century Arabia and the principle of
equality was meant to be a seed that would grow and inspire and
transform society by according women their due status. However,
the reasoning that was required to extend this principle of
egalitarianism throughout history into our modern era was
overshadowed by interpretations and commentaries that paid
little attention to the early positive articulation of womens social
position. In recent times however, the Qurans promise of
egalitarianism is slowly being reasserted globally in the minds,
hearts and consciences of Muslims and it is being embraced today
by the Sri Lankan Muslim community as well.

The use of Hadith in support of positive reform

Reforms that give women their due rights have often been
stymied by the use of Hadiths without adequate emphasis on
Takrij (examination & evaluation of Hadith). One of the most
controversial issues in Muslim Personal Law is the age of
marriage. The debate on this issue has been dominated by a
particular hadith and the position that has been taken based on
that hadith, goes, not just against International Human Rights &
the Rights of Children but most importantly goes against the
broader implications of individual responsibility outlined in the
Quran.[3] The re-examination of secondary source materials has
revealed the inaccuracy of the said Hadith and reforms in the light
of this new information have taken place in a large number of
Muslim countries and communities.

Another Hadith attributed to Abu Bakara has been used against

the empowerment of Muslim women.
[4]
This has recently been mentioned in relation to the Sri Lankan
debate as well. Reexamination of this hadith has shown that it is
questionable on the basis of isnad or transmission; the reliability
of the person transmitting the hadith being suspect. Further, its
use in jurisprudence is limited by the fact that it is attributable
only to one source (Ahad). Analogical reasoning and contextual
analysis has also asserted that this Hadith cannot be thought to
refer to women in leadership positions in general. The Quran, on
the contrary provides the possibility of seeing women as leaders
through the example of Bilquis the Queen of Sheba (Sura 27) who
is referred to in very salutary terms. The prominence of Muslim
female leaders across the world from the early Islamic empires
onwards has also demonstrated the fallacy of the argument
against female leadership. We therefore invoke the return to the
ideals of the Quran and Sunna that saw Muslim women as
leaders, engaging equitably in open debate and their full
participation in early Islamic society as the principles that should
steer contemporary thinking on the position of women in Islam.

Sri Lanka needs to be guided by bold interpretations which

embody the principles of equality, individual and collective
responsibility and thereby giving Muslim women the most
progressive rulings in keeping with the spirit of the Quran and
Sunna. This must be done by understanding the Maqasid-al Sharia
(objectives of Sharia) and by giving effect to the legal principle of
Maslaha (public interest).

The issue of the Madhabs (Islamic Schools of Law)

We also submit that the practice of rigid & dogmatic alignment

(Taqlid) to one particular Madhab (Islamic Schools of Law ) is a
stumbling block to the reform process. The principle of Ray
(rational discretion) has been recorded as approved by the
Prophet(sal) and was used to justify strategies such as Takhayyur
(exercising preference) and Talfiq (patching) in the early twentieth
century, and continue today.[5]

The principles of Ijthihad (critical thinking & independent

judgement) and Qiyas (analogical reasoning) are slowly being
mobilized for Muslim Personal Law reform in the modern era.
These developments have enabled the reinterpretation of source
texts and the basing of jurisprudence on lesser known texts when
necessary to understand contextual and social changes. Such
efforts have been especially important where there is Ikhtilaf
(disagreement among madhabs).
Overt sectarianism is unequivocally condemned in the Quran and
Sunna. The four eminent jurists themselves revoked Taqlid or
blind following and stated that their rulings are subject to further
examination of sources and re-interpretations. As such, the
reformation of Muslim personal law all over the world has taken
this into account when justifying its move away from some
positions taken by the jurists.

Based on the above, we support and call for the following reforms:
1.1 The MMDA must reflect the
application of the state stipulated age of
18 years as minimum age of marriage
for all. In calling for this amendment we
1. Age also recognise the existence of
of underage marriages as a social problem
marriag among vulnerable communities across
e Sri Lanka and urge that any review of
the age of marriage be undertaken on
the basis of the best interest of the
individual and as per the license allowed
in the Quran and Sunna.
2.1 Ensure that no marriage can be
2. legally entered into without full and free
Marriag consent of bride and groom-which is
e expressed by them in person and in the
contract presence of the authority competent to
s solemnize the marriage before
witnesses
2.2 All Muslim marriages to be
registered to be legally valid
2.3 As intimated in principle in the
Quran and not disavowed in the Sunna,
MMDA should recognize and allow for
both parties to the marriage to mutually
 draw up pre-nuptial contracts prior to
marriage registration. Matters such as
polygamy or right of a wife to continue
in her profession can be stipulated in
the contract prior to marriage.
3. 3.1 MMDA must make mandatory
Divorce provision for payment of Mataa in all
safegua cases of talaq and fasah divorces as per
rds Quran verse 2:241.
3.2 All possible measures must be
taken to prevent the abuse of the male
right to polygamy. Men contemplating
multiple marriages must do so with a
resource base that meets with the
approval of an authorized quazi and of
the previous wives. All previous and
active marriages must continue to be
recorded in the marriage certificate.
4.1 We call for a complete overhauling
of the Quazi Court system. We call for
4. Quazi upgrading the Quazi court to the status
Court of a District court and its jurisdiction to
reforms include additional related issues such as
maintenance and custody of
minor children.
2. The appointment and supervision of
Quazis must at a minimum, include the
following:
Women should be eligible to be
appointed as Quazis as members
of the Board of Quazis, Marriage
Registrars and Assessors.
Appointments of Quazis should be
 made on the basis of an agreed set
of competencies including that the
Quazi be qualified as an attorney
at law.
All Quazis should undergo
compulsory judicial training in the
reformed MMDA with regular
updating on issues of gender
sensitivity and ethics.
There should be a systematic
oversight mechanism implemented
by the Judicial Services
Commission
We urge that both Sri Lankan legislators and Muslim religious
authorities take the above into account and speedily bring about
the long overdue changes to the MMDA.

Signatories

Mr.Hanif Yusoof, Dr.Farzana Haniffa, Mr.Faizal Salieh, Mr.Faizel

Haddad, Mrs.Silma Ahamed, Mr.Ismeth Majeed, Mrs.Florine
Cassim Marzook, Mr. Adel Hashim, Mrs.Niroza Hussain and Mr.
Faiz-ur-Rahman

###
See Hyshyama Hamin and Hasanah Cegu Issadeen (2016)
[1]

Unequal Citizens: Muslim Womens Struggle for Equality and

Citizenship in Sri Lanka. Available at
https://www.oursplatform.org/resource/unequal-citizens-muslim-
womens-struggle-justice-equality-sri-lanka/
 Women claiming rights and spaces: Activism to reform Muslim
[2]

personal law in Sri Lanka. Muslim Womens Research and Action

Forum (2014).

The Sahih Hadiths quote Aisha(ral) as stating that she was 6

[3]

years old when she married the Prophet(sal). However, research

and scholarship dating from 1920 reexamining related Hadith,
Tafseers and Seerahs has refuted this claim quite
comprehensively.

The Hadith is quoted as saying Those who entrust their affairs

[4]

to a woman will never know prosperity, and was first refuted by

Moroccan Sociologist, Fatema Mernissi (1991)in The Veil and the
Male Elite New York: Basic.

These strategies were first used in relation to the 1917 Ottoman

[5]

Law of Family Rights, they were subsequently used in two early

Egyptian personal status laws in 1920 and 1929 with Morocco
using them in the formulation of its first Family Law of 1958.
Posted by Thavam