by Smriti Daniel
Published Yesterday · 05:30 pm. Updated Yesterday · 10:55 pm.
An ongoing reform process holds out hope for the campaign against child marriage, marital rape and other anti-woman practices under Muslim Personal Law.
Since 2014, Hasanah Cegu Isadeen has met with and interviewed some 700 Sri Lankan Muslim women. A lawyer, independent researcher and activist, Cegu is haunted by the stories she has heard.
She has met women who were married as young as 12 and forced into sex by their adult partners before they had even attained puberty. One woman described to Cegu how she was married off against her will. Plucked off the playground, she was dressed and carried to the marriage hall by her guardians. “I screamed and protested, and no one listened,” she told Cegu. “The ceremony went on. At night, I cried, I screamed, and that man was on me. No one came.”
Another woman recalled fighting her husband’s decision to take another wife. In retaliation, the man put out a burning beedi on the stomach of his three-year-old daughter. A quazi court – a religious court, based on the Muslim law Shariah, of which the quazi is judge – later refused to make him pay maintenance.
Cegu, who keeps records and notes of all these meetings, said it took time to win the women’s trust. But every encounter convinced her of the urgent need for change. And right now, she said, she sees a unique window of opportunity.
Sri Lanka is deep in the process of Constitutional reform. Coming after the end of a nearly three-decade-long civil war, the new Constitution is primarily seen as an attempt to address the deep schisms between the country’s ethnic communities and to find a way forward. But for some activists, the reform process also needs to address other long-standing grievances.
Muslim women’s groups have been advocating for reform of the Muslim Marriage and Divorce Act for many decades, and at least four official committees have been set up since the 1970s to look into this matter. Last week, the Muslim Personal Law Reforms Action Group released a statement noting that a 16-member Muslim Personal Law Reforms Committee headed by retired Supreme Court judge Saleem Marsoof was yet to submit its report seven years after it was set up in 2009.
“When men talk about Muslim issues, they don’t talk about reforming Muslim Personal Law," said Cegu. "They talk about land rights and reconciliation, they talk about how Muslims should unite and pray for Palestine and Syria, but no one wants to talk about the women suffering in our community.”
Muslim groups and women have approached the Public Representations Committee on Constitutional Reforms, and activists seem to largely agree on what the issues are: The divorce process unfairly favours men, polygamy is allowed without condition (or even the wife’s knowledge) and the amount of maintenance paid to a wife is arbitrary and seems to hinge on the subjective judgements of various quazi courts. Under the Muslim Marriage and Divorce Act, women are not allowed to become marriage registrars, quazis or jurors, or serve on the board of quazis. Because these are state-salaried and tax-funded positions, it is worrying to see legal discrimination being allowed on the basis of sex.
The issue of child marriage, in particular, remains a difficult one. According to the Sri Lankan Penal Code, sexual intercourse with a girl below 16 years of age, with or without her consent, amounts to statutory rape. However, the provision does not apply to married Muslim girls under the age of 16 and above the age of 12.
Data of registered Muslim marriages from just four DS [divisional secretariat] divisions in two eastern districts collected by Cegu and her colleague, researcher Hyshyama Hamin, reveals over 143 cases of underage marriage in 2014 and over 118 cases for the first few months of 2015 alone. In addition to case data, information from marriage registrations, maternal units in hospitals and research on child marriage shows both child marriage and child pregnancies are prevalent.
“Girls who marry young are at a higher risk of reproductive and maternal health problems given their lack of bodily maturity and decision-making over sexual, reproductive choices and family planning,” Hamin told Scroll.in, adding that these women are also at greater risk of gender-based violence such as domestic violence and marital rape.
“It is the state’s responsibility to establish one minimum age of marriage for all citizens, and not compromise on this in the name of culture and religion,” she said.
To address these issues, activists said Article 16(1) of Sri Lanka’s Constitution of 1978 had to be repealed. In essence, 16(1) holds that all ‘written and unwritten laws’ that existed prior to that Constitution are valid and operative, regardless of whether these are inconsistent with the fundamental rights granted to all citizens. These written and unwritten laws include the likes of the Kandyan Marriage Ordinance of 1954, Thesavalamai Pre-Emption of 1948, and the Vagrants Ordinance of 1842. However, it is the Muslim Marriage and Divorce Act enacted in 1951 that is the focus of much ire. Experts say it has made second-class citizens of the country’s Muslim women, and that it has made possible an ongoing violation of fundamental rights.
However, some conservative elements within the community are fighting the reform process. “There is a division in the Muslim lobby,” said Sudarshana Gunawardana, executive director of Rights Now Collective for Democracy.
“Some in the community have an under-siege mentality, they are concerned that their traditional values are being challenged or undermined.”
He said women were losing out because they were not represented by a political party in the way ethnic minorities are.
Sri Lankan Muslims have also had to contend with racist rhetoric from fundamentalist Buddhist groups, and there is concern that these revelations will only be used to attack the community. But activists are unwilling to keep sacrificing women on the altar of the greater good.
“They are expecting 100% consensus, which they are not going to get,” said Faizun Zackariya, co-founder of Muslim Women’s Research and Action Forum. “For me, the community is not a homogenous entity, but I believe the ground-level support for this change is there.”
Zackariya noted that staunch conservatives hold that the Muslim Marriage and Divorce Act is based on Shariah law and cannot be reformed, which is untrue since the Act embraces local customs. For instance, it recognises kaikuli (dowry), which is forbidden in Islam and is considered anti-Shariah.
“I feel this is no longer a religious issue, but that this is a political issue,” she said.
Attorney-at-law Ermiza Tegal pointed out that the process of Constitutional reform and the public consultation process have created room for Muslim women to come forward. “If Article 16 is not repeated in the new Constitution, it will only create a space for reform to be asked for and pursued,” she said, pointing out that the community will itself still have to confront and grapple with these issues.
“As the law stands, it does not allow women who are most affected to fight back – under this law, we are not even treated as equals,” she said. “There is a lot of work that has to be done. This is only the first step.”