Photo courtesy of Muslim Mirror

“… since the Prophet was a human being who, unlike God, is subject to mundane historical processes, his legacy cannot exist outside the context of human mediation and human authorial process. The authenticity and genuineness of the Prophet, from the point of view of Islamic theology, is exactly his humanness. The Prophet does not interact with history as a God, but as a part of the normal human dynamics. This necessarily means that the Prophet’s moral and normative presence exists within a historical context. This normative presence is represented and contested by the historical context, but the historical context cannot and does not embody the full truth or reality of the moral experience. Consequently, in terms of evaluating the activities of the interpretive communities formed around the text of the Sunnah, the pertinent issue is the extent to which the interpretive communities reflect, understand or incorporate the historical context of the authorial enterprise. The interpretive community is bound to take account of the authorial enterprise with all its historical permutations in order to understand the appropriate balance between the historical author (the Prophet) and the various authorial voices that provided the context for the historical author,” wrote Khaled Abou El Fadl in “Speaking in God’s Name: Islamic Law, Authority and Women.” The sentiments and argument expressed in this quotation lies at the heart of the current controversy over reforming the Muslim Marriage and Divorce Act (MMDA) of 1951.

Sri Lankan Muslim women’s battle to liberate themselves from subjugation by a male dominated socio-cultural milieu and gain equality of status in matrimonial rights is a late 20th century but growing phenomenon. Their battle is currently centred in fighting to reform MMDA, which in its current form is disproportionately male biased and was passed in 1951 by a legislature of men. Although there have been some changes to that Act since 1954, they are mostly procedural in nature and did not address the core issue of its gender imbalance. Since Muslim women were denied secular education for a long time and remained unrepresented in their community’s decision-making institutions, MMDA’s masculinity remained virtually unchallenged. But not anymore. Time and circumstance have changed and the law should change accordingly.

In Islam, marriage is a theologized social institution and Muslim theologians of different schools of jurisprudence have compiled with their respective sets of rules and regulations with little consideration to the historical context on which the textual foundation of their juridical thoughts was based. From the 14th century pioneering Muslim sociologist Ibn Khaldun to 20th century Muslim modernist scholar and philosopher Fazlur Rahman, a number of Muslim reformists have pointed out at the failure of interpretive communities “to reflect, understand or incorporate the historical context of the authorial enterprise”. Contextualization of the text and textualization of the context is a parallel process that should be undertaken before advancing arguments based on the Quran and the sunnah (sayings and practices of Prophet Muhammad). Matrimonial rules and regulations constructed on the basis of shariah and fiqh are actually a human endeavour and that too by men and men only but stamped with a divine seal to give those stipulations an element of sacred sanctity. Religious leaders when faced with challenges to these rulings readily seek shelter under this pseudo-sacred canopy. That exactly what is happening in the current controversy over MMDA reforms. Engineered by a misogynic Mullah organization called the All Ceylon Jamiyyathul Ulema (ACJU), a mercenary group of Muslim parliamentarians are on a warpath to defend the masculinity of MMDA on grounds of their shallow understanding of shariah and fiqh.

The demand for changes to MMDA gained momentum with the turn of the 21st century and what sparked that momentum could be a subject for separate discussion. What matters for the present is the growth of a number of organized Muslim women action groups such as Muslim Women Development Trust (MWDT), Islamic Women’s Association for Research and Empowerment (IWARE), Women’s Action Network (WAN) and Muslim Personal Law Reform Act Group (MPLRAG). These are organizations by a class of educated and professional Muslim women who are mostly lawyers, academics, researchers and social activists and they are sufficiently qualified and knowledgeable enough to challenge the narrow theology that circumscribed the MMDA.

It was in 2009 after repeated discussions with and requests from prominent Muslims that the then Minister of Justice Milinda Moragoda appointed a committee of 16 members including three Muslim women under the chairmanship of Justice Saleem Marsoof. The fact that only three of those 16 members were Muslim women to represent nearly 50 percent of Muslim population was itself an index of the inherent male bias in that composition. However, apart from a group of legal professionals, a couple of members from the conservative ACJU, which is regrettably and historically a men only organization of theologians, and one Arabic scholar, there was hardly any modernist Muslim thinker or scholar in that panel who were well versed in the field of Islamic modernity and sociology. This was a significant absence, which hardly anyone noticed at that time although it was claimed later that the “committee consists of erudite personalities in the calibre of reputed scholars, renowned lawyers and other professionals”. After nine years of gestation however, the committee submitted its long awaited report in January 2018 amid internal dissension, accusations and counter accusations. It was also a time when the yahapalana government was reaching the end of its tenure and political parties were readying for a new election.

The committee was split into two factions, a majority led by the ACJU represented the views of theological conservatism, while a minority led perhaps by the chairman himself and supported by the three women stood for women rights. The bones of contention revolved around the following: fixing a minimum age limit to marriageable couples, written consent of the bride before marriage, the institution of polygamy and appointment of female judges to Qazi courts. In this controversy the role of the ACJU was crucial because of its widespread influence in the community through its network of mosques and madrasas and their respective trustees and administrators. It was the ACJU’s pressure brought upon Muslim parliamentarians with a hidden threat of canvassing against them at the forthcoming elections were they to support the report that finally sabotaged the reforms. The then woman Minister of Justice, Talatha Athukorale, shrewdly passed the buck to Muslim MPs and kept away from the controversy. In the end, the committee report ended up in the archives and the controversy prolonged. Recently, a new report signed by 18 Muslim MPs, all men, was submitted to the Minister of Justice. This report with the usual prejudice against women rights obviously carries the support of the ACJU. Muslim women are once again up in arms and this time they have the backing of an enlightened team of educated and professional Muslim men.

There is obviously an inherent fear about women among religious conservatives and their misogyny rests on two verses from the Holy Quran (verses 2:228 and 4:34) and a controversial saying attributed to the Prophet of Islam. In the first verse (as translated by Yusuf Ali) that deals with divorce is a statement to the effect that “men have a degree (of advantage) over them” and in the second, “men are the protectors and maintainers of women…Therefore, the righteous women are absolutely obedient, and guard (in the husband’s absence) what Allah have given them guard,…As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (next) refuse to share their beds, (and last) beat them (lightly)”. According to the saying attributed to the Prophet, which has several versions, “no people will succeed who entrust their affairs to a woman”. It was this saying that was used by the Mullahs to turn Muslim voters against supporting Sirimavo Bandaranaike’s SLFP in 1970s and later in Pakistan against Benazir Bhutto. This particular saying is attributed to the Prophet’s companion Nufay bin al-Harith known as Abu Bakrah al-Thaqafi, who was a late convert to Islam and died in 672. He was reported to have told in the Prophet’s presence that a woman had taken power in Persia and on hearing him the Prophet had responded with the words quoted above. This report has been accepted as authentic and is found in the famous collection of Al-Bukhari. However, there is doubt about the character of Bakrah, who was accused as a slanderer and punished by the second caliph Umar. The caliph had refused to consider him as a credible witness in legal cases. Having analyzed the character of Bakrah in detail and discussed other issues relating to this subject El Fadl argues that “this tradition has very limited competence and that the work of the interpretive communities has limited precedent-value to our contemporary interpretive communities”.

The failure to contextualize this evidence and modernize shariah and fiqh has led to the oppressive status of Muslim women in many Muslim societies and it is that failure which is again denying women the right to hold judicial position in the Qazi courts of Sri Lanka also. The same contextualization issue dominates polygamous marriages. Such marriages are justified on the basis of verse 4:3 in the Quran, which says, “If ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two, or three or flour; but if ye fear that ye shall not be able to deal justly (with them), then only one …”. This was a verse revealed at an exceptional time of wars when a number of married men were killed in the battle field and their children orphaned. But orthodoxy has taken the verse out of its context and argues its case for polygamy. Need for brevity prevents from going into detail with examples to show how a decontextualized Quranic verse has created intolerable matrimonial life to thousands of Muslim women in different parts of the world. The document signed by the mercenary MPs permits polygamous marriage under “strict” conditions. What are those conditions and who is going to monitor them? Mullahs who are unable to fend for themselves are reported to be having multiple wives both inside and outside the country.

On the question of bride’s consent these MPs, while agreeing to allow the bride to place her signature on the contract document, still insist that a male guardian should attest that signature. Why a male? Why shouldn’t a female attest that signature? If they insist on a male then let us have two signatures, one male and the other female. Even on the minimum age requirement the proposed reform is failing to legally define that age, which allows room for child marriages. It is time this masculinization of MMDA be rejected and women’s demands are given priority.

One wonders whether any of these male parliamentarians have had access to the flood of scholarly research carried out and published by Muslim women scholars on Islamic theology and modernity. These scholars are continuing a trend started by Mu’tazilite thinkers in the 10th and 11th centuries before it was halted by the rise of orthodoxy in 12th century. Without cataloguing the contributions of Muslim women scholars, it is worth noting that their critical and penetrating insight into Islamic religious thought and knowledge with impeccable command over classical Arabic has won worldwide recognition. The practical impact of their research and publications is demonstrated by a number of constructive initiatives by women activists. In some countries Muslim women are building their own mosques, officiating as imams and conducting daily prayers for even mixed congregations, delivering sermons on Fridays and on days of Eid, acting as marriage celebrants and adjudicating marriage disputes.

It is indeed too radical to expect such changes to take place any time soon in Sri Lanka. But it is an unstoppable wave. However, it is time that the current Minister of Justice reject the latest move by an ACJU-Muslim MPs coalition to masculinize MMDA, listen to the voice of protest from Muslim women and accommodate their sensible and progressive suggestions.