Tuesday, 25 October 2016

The Unfounded Cry For Equality; Perspectives On Article 16 (1) And Muslim Marriage & Divorce Act Reforms

O mankind, indeed We have created you from male and female, and have made you into nations and tribes, that you may know one another. Indeed, the most honoured of you in the sight of Allah is the most righteous. Indeed, Allah is Knowing and Acquainted” ~ [Quran 49:13]

This is a universal statement that clearly wipes out discrimination of all forms. A man or a woman is honoured not because of gender, nationality, colour, race, creed, caste, language or ethnicity but for his/her Righteousness. In Islam, there can never be discrimination between the sexes in relation to their rights and duties. Ipso facto the claim from some quarters about gender inequality is not sustainable.

Prima facie the Western feminist ideology from which even our folks derive inspiration may look attractive and promising. A deeper scientific analysis involving physiology, psychology, morality, socio-economy and other disciplines would reveal some of these ideals as superficial embellishments lacking in real substance. One of the fundamental weaknesses in this development is the lack of proper understanding and appreciation of the differences in the natural dispositions of each. In fact, the struggle in the West is for identicalness or uniformity between man and woman. It is this thought that has been given credence world over under the wrong label ‘Equality’.

Equal or Identical?

Wedding in Islam1One has to distinguish between the terms equality and identicality. To illustrate: The value of two five hundred rupee notes equals a thousand rupees. But, the two five hundreds are not identical to a single thousand rupee note.

Man and woman are equal as human beings but they are not identical. Their individual nature and dispositions are all not the same. These facts have to be recognised and acknowledged when speaking about the rights and duties of women. If not, it will only do harm to the woman and the society at large. This is one area where the Islamic viewpoint on gender equality or women’s rights differ from the Western idea. It is through the appreciation of this distinction inter alia, that Islamic law has based its notion of the rights and duties of woman and man. From this perspective it is fair to say that Islam has not ignored the concerns about the status of women.

Nobel Laureate and world-famous French physiologist, surgeon and biologist Alexis Carrel in his well-known book he acknowledges the fact that men and women, according to the law of creation, have been made differently, and adds that these differences and dissimilarities make their duties and rights dissimilar.

“ …[B]etween the two sexes are irrevocable differences. And it is imperative to take them into account in constructing the civilized world.” (L’Homme, cet inconnu – Man, The Unknown, 1935).
Under the title “Men and Women”, Will Durant writes “The function of the woman is to serve the species, and the function of the man is to serve the woman and the child. They may have other functions also, but wisely subordinate to these; it is in these fundamental and half unconscious purposes that nature has placed our significance and our happiness…. The woman’s nature is to seek shelter rather than war; and in some species the female seems quite without the instinct of pugnacity. When she fights directly it is for her children.” (ibid. p.119)

Harmonising Sensitivities

The relevance of Article 16 (1) (see below) of the Constitution is complex and has an impact on several substantive legislations and Personal Laws predating the 1978 constitution. Therefore, it is a legal provision which cannot be simply ignored without broader consensus. The constitutional pundits are busy debating that Article 16 (1) undermines the supremacy of the constitution. Others are engaged in finding an equilibrium between constitutionalism and a heterogeneous society nurtured on centuries of customs, traditions and a self-identity.

The harmonisation of customary laws, personal laws and gender equality is a delicate exercise. It may even extend to the conflation of a number of different sociological, economic, political and community issues. A precise mechanism, respecting cultural sensitivities, community histories and relationships, will have to be developed with care and caution.

When linking 16 (1) (see below), as advocated via the media, to the Muslim Marriage and Divorce Act of 1951 (MMDA) some factors of greater relevance have to be identified. Firstly, not to constrict it to a ‘Muslim’ only view but to a broader national level concern. Secondly, taking cognisance of the sensitivities of the historical, cultural, customary and traditional beliefs of other communities viz. the Jaffna Tamils and the Kandyan Sinhalese. Thirdly, the MMDA and the much hyped gender inequality.

Distinct Personal Law

The Muslim Marriage and Divorce Act has to be distinguished at the outset from the other two Personal laws namely, The Thesavalamai Law and the Kandyan Law. Of the three, the MMDA is the only personal law that is derived from the principles of another jurisprudence, the Islamic Law, eclectically incorporated into the MMDA along with some customs e.g. Kaikuli (Section 97 of MMDA). So the MMDA is not a totally pure representation of the Sharia law relating to the subject. While harmonising the personal laws by themselves present enough complications, to find a workable solution between two divergent jurisprudences compounds the efforts.

Without indulging in a constitutional evaluation of Article 16 (1) (see below), it is relevant at this point to address some of the concerns raised by those who feel that their gender equality rights are being violated by the MMDA.

1. Women are often mistreated by incompetent Quazis and the jurors of the courts; Women are verbally abused and threatened. Quazis are sometimes biased against women.

This is a valid grievance. In fact, many a times even men are abused by them. Some of the Quazis are unfit to serve in that capacity which according to Islamic law is a highly responsible and dignified position. One wonders if the Judicial Service Commission which appoints Quazis is aware of this? However, it is not the end of the road for the women. There is an appellate procedure starting from the Board of Quazis up to the Supreme Court. Moreover, under Section 43 of MMDA, the Board of Quazis have the power to call for the records of the proceedings and examine it for any illegality, impropriety or irregularity. There are several instances when the order of the Quazi has been quashed upon appeal. For example, in Mohamed Afzal v Saeeda Banu BQ/4439 (2009) a de novo inquiry was ordered because of the likelihood of bias on the part of the Quazi as he was related to the Respondent. Ironically, in this case the bias was against the man.

Verbal abuse and threatening are more of an ‘administrative’ issue. Even in the Police Station such harassments take place. In fact, men are more harassed than women. Whether in the Quazi court or the Police Station such acts should be condemned. The victim can make a complain to the Judicial Service Commission.

Article 16 (1) of the Constitution states:

“All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.”

It is not written or unwritten law in the MMDA that a woman may be mistreated by Quazis and jurors. Nor is it the law that a woman can be abused or threatened. As such, 16 (1) is no bar for the assertion of anyone’s rights. There is clearly no violation of any gender equality rights. If one can establish sufficient, valid and substantial grounds, even the prospect of an infringement of fundamental rights application can be explored.

2. Another grievance is that the Act does not stipulate a minimum age of marriage.

Marriage of those under 18 years may raise eyebrows. This is the emotional response to it. Let us analyse it realistically and objectively. It is clear that sexual maturity should determine readiness for marriage and not the age. An immature 18-year-old girl is not fit for marriage while a matured 16-year-old girl would be eligible for marriage. Matured or immatured, how many girls under 18 years have had sexual encounters with friends, relations, neighbours, even incestuous relationship. Is not this the reality? In this case, which is the better option illegal sexual intercourse with no rights whatsoever or a legalised relationship which also gives her rights and protection of the law. In addition, they get social recognition and the reputation of the family safeguarded.

In the United States, 46 percent of all high school age students, and 62 percent of high school seniors, have had sexual intercourse; Almost nine million teens have already had sex. According to the National Center for Health Statistics, USA in the years 2011–2013, 44% of female teenagers (4.3 million) aged between 15–19 had experienced sexual intercourse. UK ranks first and has the highest teenage pregnancy rate in Western Europe. Number of birth rate: 30 per 1000 population.

Love Affair And Pregnancy

Take for example a girl 15 years of age and a boy nearly 18 years. They had a love affair which culminated in sexual intercourse. Now the girl is pregnant. Both parents come to know about this and want them to get married. American colloquialism would call it a typical shotgun wedding to avoid embarrassment. Though both their parents and families are willing to take care of them and support them tragically, the law will not allow them to get married because they are not 18 years old.

The law is not only denying this young couple the opportunity to legitimise their relationship but also depriving the baby to be born from being a legitimate offspring. How can the mental state of the boy, the girl, their respective parents, their friends, relations and the society be reconciled when the law is standing between the boy and the girl? The Appeal Court case of Gunaratnam V The Registrar General (CA NO. 1031/01) would be an interesting read.

If they were Muslims, they could have married under the MMDA which does not specify a minimum age of marriage. Which law is then more beneficial? However, Section 23 of the Act prohibits the registration of marriage of a Muslim girl below the age of 12 years except with the approval of the Quazi.

In a report submitted by Sri Lanka to the Committee on the Elimination of Discrimination against Women (Convention on the Elimination of All Forms of Discrimination against Women – CEDAW) it states: “On a positive note, although there is no minimum age of marriage recognized by statute (MMDA) under the Muslim personal law, instances of child marriages among the community are not known to be frequent in current times. Between 1996 and 2003 there was a steady decline in the number of Muslim females under 16 years who contracted marriages. (13 November 2009, CEDAW/C/LKA/5-7)

In fact, in 2003 out of 17,593 Muslim marriages only 80 were 16 years of age. Percentage wise it is much below 1%. In fact, not even 0.5 %. (Source: Registrar General’s Department)

Child Marriages

A study on, ‘Post war trends in child marriages in Sri Lanka’ lists several causes namely: Adolescent teenage pregnancy, poverty, breakdown of the social structure, multiple displacements and communities in IDP camps. (Fokus Women, January 2015). The special interest category for such marriages are love affairs. A study conducted by Viluthu showed that 62.9% of underage marriages stemmed from love affairs between the couple.

It is relevant to note that all of these marriages are not from the Muslim community. Nor does the non-stipulation of minimum marriageable age in the MMDA anything to do with this. This is a purely socio-cultural phenomenon evolving based on the need and circumstances of the different communities. It also has nothing to do with religion. In passing, the 62.9% underage romantic couples in the above study were all not necessarily Muslims. As per the study, 12 percent of unmarried males between 15 and 17 favoured pre-marital sex.

Some people are painting a demonic picture about the MMDA under the guise of gender inequality. MMDA reforms, is it required? Of course, it is required. More about reforms will follow in the next part. (Mass Usuf)

To be continued…

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