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Unequal types and processes for divorce constitute one of the most problematic aspects of the current Muslim Marriage and Divorce Act (MMDA) 1951 of Sri Lanka. In June 2021, a government appointed Advisory Committee on MMDA reforms consisting of lawyers, experts and Islamic scholars, submitted their recommendations to the Ministry of Justice, including making the divorce regime under the MMDA more equal and fair for women and men. A Bill was drafted accordingly by the Ministry of Justice, equalizing the divorce processes for either spouse and ensuring uniform grounds for unilateral and mutual consent divorces by either party.
However, last week Muslim MPs presented a set of amendments to the draft law that categorically retain the discriminatory and highly unjust divorce processes under the MMDA as it currently stands.
Divorce under the current MMDA
The MMDA currently differentiates between the types, conditionality and procedures for divorce for men and women. Under the MMDA, husbands have the provision to proclaim Talaq divorces, while wives have the provision to obtain Fasah divorces.
Talaq (which translates as a proclamation of “I divorce you”) is a type of divorce that the husband initiates. Talaq does not require the husband to voice any specific basis or reason to divorce. Husbands can file for a divorce with complete discretion, one reason being that the husband was prevented from blaming the wife and from making public accusations against her.
In terms of process, the MMDA requires that the husband who seeks Talaq give notice to the Quazi (Muslim judge) of the area in which his wife resides. However, because the pronouncement of Talaq does not require the presence of the wife, women’s groups have reported many instances when the wife is unaware of her husband’s intention to divorce until the Quazi informs her after the divorce has been effected. Quazis do not consistently pursue mandatory mediation and there are many cases where Quazis have been strong-armed or bribed into finalizing divorce as quickly as possible, sometimes within a day. There are also many instances where Quazis have failed to inform the wives of the Talaq divorce.
Case studies reveal that Talaq is sought in situations of polygamous marriages. It is resorted to by men when maintaining multiple wives and families becomes burdensome. According to our research, women have come across cases where the Quazis have recommended divorce as an option for men unable to maintain their wives and families. In Talaq divorces husbands are required to provide maintenance during the confinement period; there are cases where Quazis have granted divorce before establishing payment of maintenance for children and without any compensation for harm, leaving women and their children in difficult and vulnerable situations financially and socially.
Fasah – divorce initiated by the wife
Fasah is a type of divorce initiated by a Sunni wife. She does not need the husband’s consent. It is a form of divorce based on a matrimonial fault of the husband. Fasah is the most frequent form of divorce under the MMDA. Grounds for Fasah include ill treatment, cruelty, domestic violence (including verbal abuse), failure to maintain and desertion and other grounds amounting to fault under “Muslim law governing the sect to which the parties belong” (section 24 of the MMDA). Fasah can also be obtained on non-fault grounds such as impotency and insanity.
When a wife initiates divorce under the MMDA, she needs to bring evidence of matrimonial fault, at least two witnesses from the wife’s side to corroborate the evidence and claims of the wife and has to attend multiple hearings. Quazis of different areas also add their own requirements such as asking for letters from a woman’s male guardian (father, grandfather or brother) to even take her application for divorce.
Under the MMDA, there is also a provision for the (unwritten) law of the sect to apply for Fasah divorces, which the Muslim MPs want to retain. From our 2016 research, according to the Quazi for the Memon community, there is no provision for Fasah divorce under the Hanafi madhab (school of Islamic thought/jurisdiction) or under Shi’a sect law that applies to the Bohra community.
Therefore, if a particular sect or madhab does not recognize divorce by wife, then women of those sects or madhabs cannot initiate divorce even on fault grounds and only Talaq divorce by the husband is recognized. In these instances, women would require permission from their husbands for divorce no matter the circumstance, even in cases of domestic violence or abuse. Therefore the provision for divorce is also not equal to women across sects or madhabs in Sri Lanka.
Within the first two months of marriage, a woman of a minority Shi’a sect who was married to a man from the same community experienced emotional abuse and controlling behavior from her husband, which culminated in physical abuse. Unable to continue being in such a marriage, she had to separate from her husband. Despite attempts at reconciliation, the woman decided that she would not return to the marriage given her adverse experiences but could not get a Fasah divorce under the MMDA as the law of the sect requires the consent of the husband for divorce, regardless of circumstance. She received strong support from her family, community and religious leaders in this regard, and they put immense pressure on her husband to consent to the divorce. However, despite this, the husband withheld the divorce for three years simply because he had the right to do so under the (unwritten) provisions in the MMDA pertaining to the sect law.
It is noted that many women do not have such overwhelming support from their families and will be resigned to stay in extremely cruel and abusive marriages if the law is not changed and the principles of kindness and compassion embodied in Islam do not guide reforms.
Divorces permitted under Sunni madhabs but absent in the MMDA
Mubarat is a divorce by mutual consent that is recognized by some madhabs of the Sunni sect but is not explicitly stipulated in the MMDA. Mubarat divorce, however, has been granted by Quazis based on Section 98 of the MMDA, which states that, “…all matters relating to any Muslim marriage or divorce, the status and the mutual rights and obligations of the parties shall be determined according to the Muslim law governing the sect to which the parties belong”.
Khula is when a wife can obtain a divorce if she is no longer happy in the marriage and she makes a compensatory payment to the husband. Muslim MPs are proposing that the MMDA includes Khula divorce, obtained only with the husband’s permission.
The requirement of the husband’s consent is highly problematic, as husbands can and often maliciously withhold their consent. While some Islamic scholars consider the husband’s consent mandatory, many other scholars argue that Khula is a wife’s right.
In Islamic law, a wife has the right to seek a Khula divorce without a husband’s permission. In Bangladesh, Pakistan, Egypt, Algeria and Mauritania, a husband’s consent is not required for a Khula divorce. In Bahrain, Jordan, Qatar, Singapore and UAE, the court can grant a Khula divorce regardless of whether the husband consents after assessing the application for divorce. In November 2022, the Kerala High Court in India reiterated that Muslim women have the absolute right to divorce through Khula,irrespective of whether or not their husbands’ consent.
The problems of retaining the current divorce regime
Fasah divorces constitute the highest number of divorces within the Sri Lankan Muslim communities. Quazis have also noted that under the MMDA, stringent due process has to be followed for Fasah divorces, failing which the divorce is rendered null and void. Husbands can appeal to the Board of Quazi and all the way up to the Supreme Court on the grounds of procedural error (for instance, not holding hearings) which, if proven, can overturn a Fasah divorce decision.
We personally know of Fasah divorce cases that are ongoing for more than seven years due to the appeal process, with the woman unable to move on with their lives, while husbands can enter into subsequent marriages including polygamous marriages.
As documented in our research, according to a representative of the Board of Quazis, if the wife has already remarried and has children after a Fasah divorce is granted and by the time it is overturned, the new marriage is voided and the children are considered illegitimate until the previous divorce case is resolved.
As the divorce regime under the MMDA stands now, Muslim women who are in abusive marriages face additional barriers and challenges in obtaining a divorce in terms of presenting evidence, witnesses and giving testimony before adjudicators. Women who have faced severe emotional abuse or psychological trauma and may not have ready witnesses to support their case face significant problems in obtaining a divorce.
Moreover, women and girls presenting their cases in hearings, which could range from non-maintenance to severe physical and sexual abuse, are put through the additional traumatic task of articulating to an all-male panel the members who are not professionally trained to evaluate and give judgement in such cases.
According to women activists, there are cases where husbands force, threaten or compel their wives to file a Fasah divorce. In a case study documented in our research, a husband wanted to divorce his wife yet did not want to pay compensation which he may be obligated to pay if he opted for a Talaq divorce. Instead, he resorted to severe physical assault and battery of his wife until she conceded to apply for a Fasah divorce. As per the conditions of Fasah divorce, she obtained no compensation, and there were no legal consequences for her husband. Such cases are common in instances where husbands want to marry for the second or third time but cannot financially maintain the first wife.
Amendments to the MMDA must be equal and fair
Keeping the current divorce regime intact will be the biggest downfall of any amendments to the MMDA because divorce is one of the main uses of the Act. Reforms to MMDA must ensure uniformity of divorce for husband and wife with valid grounds for divorce and an effective and efficient divorce process applicable to all Muslims regardless of gender, sect and madhab.
Amendments to the MMDA must ensure that divorce provisions are equal, fair and just for women and men. The following amendments are a priority:
- Similar conditions must be applied for obtaining Talaq and Khula divorces and the procedure for Talaq, Fasah, Khula and Mubarat divorce procedures must have parity and center the wellbeing and best interest of the families. These must mitigate all potential harm to any aggrieved party.
- The appeal process must be allowed for all forms of divorce, on substantive and procedural grounds and it must be time bound to prevent any laws delays.
- It is also highly discriminatory and harmful that different types of divorces apply to different segments of Muslim women based on sect or madhab. The types of divorce (including Fasah, Khula and Mubarat), grounds for divorce and effective and efficient process of divorce should be equally applicable to all Muslims governed by MMDA regardless of the sect or madhab to which the parties belong.