Sri Lanka has a population of approximately 22 million people. In terms of broad religious identity, the majority is Buddhist (70.01%) and there are 12.5% Hindus, 6.2% Roman Catholics, 1.4% Christians and 9.7% Muslims.http://www.statistics.gov.lk/pophousat/cph2011/pages/activities/reports/finalreport/finalreporte.pdf The Muslim population broadly draws from five ethnic groups – Sri Lankan Moors, Coastal/Indian Moors, Malays, Borahs and Memons and also reflects several divisions along sect (Sunni, Sufi), political groups (Thabligh Jamaat, Jamaate Islami, Jamathus Salma, Thawheed) and non-governmental organizations (SHABAB, IIRO, IRO, CIS, MFCD etc). The Islamists reformists movements originated mainly from South Asia (India and Pakistan) or the Middle East.https://ices.lk/wp-content/uploads/2016/04/ICES-Fracturing-Community_WEB_final.pdf
Information About Muslim Family Laws And/or Practices In Sri Lanka
Laws governing Muslim Marriages
The law that governs marriages between Muslims is the Muslim Marriage and Divorce Act of 1951 (MMDA). This compels Muslims to marry under it and the general Marriage Ordinance excludes Muslims from choosing to marry under the general law.
Equality under the Law
The MMDA does not treat men and women as equal partners in marriage.
- There is no provision for women to place their signature/thumbprint and express their consent. It is the wali (closest male guardian) of the bride who signs;
- There are unequal provisions of substantive requirements and procedure for divorce. Under talak divorce a man can divorce his wife unilaterally and without giving notice directly to the wife, while a wife under fasah divorce is required to give notice, and prove matrimonial fault on the part of the husband including with evidence of two witnesses.
Minimum Age of Marriage
As per section 23 of the MMDA the marriage of a girl below the age of 12 could be registered with the consent of the Quazi. Solemnization of a marriagehttps://www.mmdasrilanka.org/studyrelease-unequal-citizens/ without the authorization of the Quazi is still considered a valid marriage (See Section 16, MMDA). This in effect means that there is no minimum age of marriage for girls.
Unequal Divorce Provisions
- The pronouncement of Talak divorce does not require the presence of the wifehttps://mplreformsdotcom.files.wordpress.com/2016/12/unequal-citizens-study-hyshyama-hamin-hasanah-cegu-isadeen1.pdf as a result of which there are instances where the wife is unaware of her husband’s intention to divorce until the Quazi informs her of it.
- A fasah divorcehttps://mplreformsdotcom.files.wordpress.com/2016/12/unequal-citizens-study-hyshyama-hamin-hasanah-cegu-isadeen1.pdf (initiated by a Sunni wife without the consent of the husband) requires the wife to prove a matrimonial fault. Such fault includes ill treatment, cruelty, domestic violence (including verbal abuse), failure to maintain and desertion etc. At least two witnesses should corroborate the evidence of the wife. (MMDAhttp://www.commonlii.org/lk/legis/consol_act/mad134294.pdf, Third Schedule, Paragraphs 10 and 11) On the contrary in the case of a Talak divorce (initiated by the husband and available to men of all sects and madhabs) there is no requirement for a reason or just causehttps://www.mmdasrilanka.org/unequal-divorce/ to be recorded.
- As the Hanafi school of thought and the Shia sect do not recognize women’s right to divorce, women of the stated madhab and sect do not have the right to initiate divorcehttps://www.mmdasrilanka.org/unequal-divorce/. Divorce in such circumstances will be granted only with the ‘permission’https://mplreformsdotcom.files.wordpress.com/2016/12/unequal-citizens-study-hyshyama-hamin-hasanah-cegu-isadeen1.pdf of the husband.
- There is no provision enabling wives to appealhttps://www.mmdasrilanka.org/unequal-divorce/ the granting of a Talaq divorce while husbands can appeal a fasah divorce on procedural technicalities before the Board of Quazi, thereafter the Court of Appeal and Supreme Court.
Positive Feature(s) Under Muslim Family Law
- The Quazi system can be accessed in one’s language of choice which is mostly Tamil among the Muslim population.https://www.mmdasrilanka.org/imagining-a-family-court-system/
- Services are required to be provided for free. This means costs are mainly related to travel.ibid
- The Quazi is supposed to adopt an inquisitorial approach and actively gather the required information from the parties.ibid
- Legal representation is not permitted before a Quazi which means that a) parties can speak for themselves b) they can understand what is taking place before them and what is being said.ibid
- Divorce can be obtained by mutual consent unlike under the general marriage law where fault on the part of a spouse should be proved in court.ibid
- Divorce before the Quazi can be obtained within a shorter time period (when uncontested) in comparison to that before the District Court under the General Law.ibid
Administration Of And Access To Justice On Marriage And Family Matters
- Cases that come under the MMDAhttp://www.commonlii.org/lk/legis/consol_act/mad134294.pdf are decided by the Quazi. There are 65 Quazi courts in Sri Lanka.
- Quazis are appointed by the Judicial Service Commission. Section 12 of the MMDA states that a Muslim male of “good character and position and of suitable attainments” can be appointed for the post. In 2021, the Judicial Service Commission through a gazette laid out the criteria for minimum qualification which specified the education required and age.Ermiza Tegal and Hasanah Cegu Isadeen, Inside the Quazi Courts of Sri Lanka (2021, Change Humanitarian Org) access – https://drive.google.com/file/d/10UYKJohr1Ampa5RSrXkol1qZaitU9D52/view
- The Quazis have a limited schedulehttps://www.mmdasrilanka.org/imagining-a-family-court-system/ to hear cases which can be changed at their discretion. As lawyers are not permitted to represent parties, in reality women are silenced by the Quazi. Quazis are often accused of making unjust decisions and there have been complaints before the JSC of certain Quazis soliciting bribes and of corruption.
- An order by the Quazi can be appealed before the Board of Quazi (Section 60, MMDA), thereafter the Court of Appeal and then the Supreme Court.
Constitutional Provisions and National Legislation
The Sri Lankan Constitutionhttps://www.parliament.lk/files/pdf/constitution.pdf guarantees equality and non-discrimination (Article 12). However, Article 16(1) of the Constitution states that all existing laws shall be valid despite any inconsistency with the fundamental rights Chapter of the Constitution. Sri Lanka also does not have judicial review of legislation post enactment. Therefore, the MMDA remains valid and operative though the lived realities of Muslim women demonstrates that several provisions violate the equality clause in the Constitution.
Other National Laws
- Muslim women can seek remedies under the Prevention of Domestic Violence Act, No 34 of 2005 Acthttps://www.refworld.org/pdfid/4c03ba2f2.pdf. In practice, Muslim women from particular areas do not use it as they are not assisted by the police to file applications. The Quazi does not have the jurisdictionhttps://www.dfat.gov.au/sites/default/files/country-information-report-sri-lanka.pdf for domestic violence cases and anecdotal evidence suggests that Quazis often do not address domestic violence as a serious concern.
- The Penal Code of Sri Lankahttp://hrlibrary.umn.edu/research/srilanka/statutes/Penal_Code.pdf does not recognize marital rape as an offence. As per section 363(e) where a man has sexual intercourse with a woman who is under sixteen years of age he is considered to have committed the offence of rape irrespective of whether the woman has consented. However, this particular section excludes protection where the woman is over twelve years and below 16 years and she is married to the man, unless they are judicially separated. The minimum age of marriage for everyone except Muslims is 18 in Sri Lanka. In such a context this exclusion in the Penal Code refers to the marriage of underage Muslim girls. The section excludes the statutory rape protection to Muslim girls. Further, as judicial separationhttps://mplreformsdotcom.files.wordpress.com/2020/06/mplrag-cedaw-shadow-report-muslim-womens-issues-in-sri-lanka.pdf is not recognized for Muslims, where a talak divorce is filed the wife has to stay at the husband’s residence for three months until the final pronouncement of divorce, during which she is not protected by the Penal Code from forced sexual intercourse.
- Other Laws
- Kandyan Marriage and Divorce Act (1952)http://www.commonlii.org/lk/legis/consol_act/mad132209.pdf: Kandyan Sinhalese can marry under this law. However, unlike the MMDA where Muslims cannot opt out of it, Kandyans can choosehttps://island.lk/law-and-marriage/ to register their marriage under the General Law.
- General Marriage Ordinance No 19 of 1908https://www.srilankalaw.lk/Volume-V/marriage-registration-ordinance.html
- Jaffna Matrimonial Rights and Inheritance Ordinance No 01 of 1911http://hrlibrary.umn.edu/research/srilanka/statutes/Matrimonial_Rights_and_Inheritance_Ordinance_(Jaffna).pdf: Contains the law relating to matrimonial rights of the Tamils governed by the Tesawalamai in relation to property and inheritance.
Regional or International Human Rights Principles
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Sri Lanka has ratified CEDAW in 1981https://mfa.gov.lk/overview/ and its Optional Protocol in 2002ibid without any reservationshttps://unstats.un.org/unsd/gender/Data/Whether%20or%20not%20reservation%20to%20article%2016%20of%20CEDAW.xlsx.
The last CEDAW review took place in February-March 2017.
Links to CEDAW reports that refer to Muslim family laws and practices
- Sri Lanka Shadow Reports by
- National Reports
- Introductory Statement by the Secretary, Ministry of Women and Child Affairs at the presentation of CEDAW 8th periodic report
Links to Concluding Observations That Refer to Reform of Muslim Family Laws and Practices
- CEDAW’s Concluding observations on the Eighth Periodic Report of Sri Lanka (2017)
- Ninth periodic report submitted by Sri Lanka (2021)
Links to Musawah’s CEDAW reports on Sri Lanka
Any other relevant regional or international treaty or convention signed by Sri Lanka
Sri Lanka is a party to the Convention on Rights of the Child (CRC)
- Alternative Report submitted by MPLRAG on issues and challenges faced by Muslim Girls in Sri Lanka for the examination of Sri Lanka’s State Party’s Fifth and Sixth Combined Periodic Report under Article 44 of the Convention on the Rights of the Child.
- Concluding observations by the Committee on the Rights of the Child on the combined Fifth and Sixth Periodic Reports of Sri Lanka.
Sustainable Development Goals (SDG)
Key Resources About Muslim Family Law
By local researchers, activists and civil society groups
- Position papers by the Muslim Personal Law Reform Action Group (MPLRAG) on issues such as polygamy, maintenance, obtaining a fasah divorce, unequal divorce, women as Quazis, minimum age of marriage etc.
- List of key resourceshttps://www.mmdasrilanka.org/resources-on-mmda/ related to the MMDA are listed on the MPLRAG website.
- Hyshyama Hamin & Hasanah Cegu Isadeen, Unequal Citizens: Muslim women’s struggle for justice and equality in Sri Lanka (2016)
- Research papers by Justice Saleem Marsoof
By government agencies/committees
- The split report of the committee appointed in 2009 to consider amendments to the Muslim Marriage and Divorce Act (2018)headed by Justice Saleem Marsoofhttps://groundviews.org/wp-content/uploads/2018/05/MMDA-Report-Redacted.pdf.
National Groups and Campaigns Working on Muslim Family Law
- Muslim Women’s Action Forum (MWRAF) has been involved in Muslim family law reform initiatives since the 1980s and has been engaged in directing research, advocating with policy makers and engaging with grassroots organization including through provision of legal aid
- Grassroot level campaign initiatives have been undertaken by the following organizations:
- Muslim Women’s Development Trust (MWDT) in Puttalam
- Islamic Women’s Association for Research and Empowerment (IWARE) in Batticaloa
- Women’s Action Network (WAN) in Mannar
- MPLRAG has an ongoing campaign since 2017 to reform the Muslim Marriage and Divorce Act (MMDA). The most recent initiative was the #LetHerSign campaign in June 2021.
Key organisations working on one or more Muslim family law related issues at community or national level
Muslim Marriage and Divorce Ordinance passed into law
Muslim Marriage and Divorce Act (MMDA) passed into law
Marriage and Divorce Commission chaired by Mr. A.R.H.Canekeratne Q.C. recommends reforms to the general law on marriage and divorce and also the MMDA
The Muslim Law Reform Committee chaired by Registrar-General, Dr. H.M.Z. Farouque recommends some substantive reforms to the MMDA
Minister of State for Muslim Religious and Cultural Affairs appoints the Muslim Law Reform Committee chaired by Dr. A.M.M. Sahabdeen recommends some substantive reforms to the MMDA
Cabinet appointed 2009 Committee to consider amendments to the Muslim Marriage and Divorce Act chaired by Justice Saleem Marsoof. Recommendations of the majority of the Committee reflect the most progressive substantive reforms made, including a minimum age of marriage, appointment of women to administrative and judicial office, requirement of consent and signature of the bride at the registration of the marriage, recognition of the payment of ma’taa
Muslim Members of Parliament reportedly agree to a minimum age of 18, mandatory registration, mandatory signature of the bride, female Quazis etc.
1. Muslim MPs backtrack on some of the progressive positions decided in July including changing their stance on 18 as the minimum age for marriage by making an exception to those between 16-18 years of age who marry with the approval of the Quazi, 2. Cabinet of Ministers approves reforms to MMDA, jointly submitted by Ministry of Justice and Ministry of Muslim Religious Affairs
Minister of Justice submits memorandum for MMDA reforms to Cabinet; Seeks Cabinet approval to instruct Legal Draftsperson to draft legislation incorporating progressive reforms
Ministry of Justice appoints a 10 member advisory committee headed by Attorney-at-Law Shabry Haleemdeen to advise the Minister of MMDA reforms
Cabinet of Ministers instruct legal draftsperson to amend the MMDA to remove the Quazi system of adjudication and abolish polygamy
Ministry of Justice appointed Committee (Dec 2020) to advise Minister on MMDA reforms submits report and draft amendments to the Minister
(Report is not public – Summary was publicized in the press release at the handing over of the report). Substantive reforms include introducing a minimum age of 18 yrs for marriage, brides consent and signature to be obtained at the registration of the marriage.
The Cabinet approved amendments necessary to the Civil Procedure Code No 02 of 1889 to enable Muslims to marry under the Marriage Registration Ordinance, No. 19 of 1907
This country page was prepared by Ermiza Tegal and Amra Ismail of Muslim Personal Law Reform Action Group, (MPLRAG) Sri Lanka as a collaboration under the Campaign for Justice in Muslim Family Laws.