2021 Oct 21
Law is Light is a series of trilingual legal discussions to shed light on the law. The Latin maxim “ignorantia legis neminem excusat” translates to ignorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In the sixth discussion, the programme focused on “Marriage laws”.
The discussion featured Attorney-at-Law, Maiza Azar, a visiting lecturer at Sri Lanka Law College.
When does Muslim law apply to an individual?
A Muslim is a person who follows Islam. S.2 of the Muslim Marriage and Divorce Act (MMDA) states that this Act shall apply only for the marriages, divorces and other matters connected therewith of those inhabitants of Sri Lanka who are Muslims. A Muslim can be a born Muslim or one who has converted.
What is the statute applicable when it comes to marriage?
The Muslim Marriage and Divorce Act No.13 of 1951. It has been amended from time to time.
Does the MMDA reflect the marriage laws given by the Prophet in Islam?
To a certain extent yes. Under Shariah law, for a marriage to be valid there are 5 requirements:
- The parties should have either the capacity to marry or the capacity to be married.
- Parties should agree to the marriage. The offer and the acceptance should be there.
- The formalities of the marriage should have been followed.
- There should be no legal impediments to the marriage.
- The Mahar should have been provided.
S.16 of MMDA states that the validity of a Muslim marriage does not depend on registration or non-registration. It should be governed by the Muslim law governing the sect to which the parties of such marriage belong.
There are provisions in the MMDA that are repugnant to the original Muslim law. An example is the the right to exercise polygamy and the Thalaq procedure. It is imperative to incorporate into the Act the conditions insisted upon by the Shariah for the exercise of polygamy. The provisions contained in the MMDA regarding the divorce have to also be carefully considered in the context of the increase in incidents of Thalaq. This has become a serious social problem in the absence of specific provisions in the Act.
According to MMDA, there’s no minimum age of marriage, but the religion insists upon the age of puberty. However, the MMDA allows the Quazi to give permission if she is under the age of 12. Is this a reflection of the accurate law that has to govern Muslim marriage?
The MMDA does not lay down a minimum age for marriage. The only provision of MMDA that deals with age is s.23, which prohibits the registration of any marriage contracted by a Muslim girl who has not attained the age of 12 years. This is unless the Quazi for the area in which the girl resides has, after an inquiry that he may deem necessary, authorised the registration of the marriage.
Shariah law does not prescribe a minimum age of marriage, but the concept of age of marriage is not unknown to the Shariah and Fiqh. There is explicit reference to age of marriage or puberty and age of discretion in the Quran. There are two concepts:
- Age or marriage or puberty.
- Age of discretion.
Puberty signifies the physical capacity and refers to the period a person’s sexual desires are aroused. This is a relative concept. Islamic jurists hold that the physical capacity by itself is not enough for a person to handle the responsibilities of a marriage. Hence sound judgment (age of discretion) is equally important.
The marriageable age is determined by attaining the age of marriage (puberty) and the age of discretion (sound judgment). However, there is an urgent need to establish a minimum age of marriage for the Muslims of Sri Lanka due to issues of abuse that have taken place in the recent past.
Is dowry a legal requirement for a Muslim marriage to be valid? (Mahr and dowry)
According to Muslim law, dowry is referred as Mahr. The concept we know as dowry under the general law is unknown to the Muslim law. According to Shariah law, dowry or Mahr is referred to the payment made by the bridegroom to the bride at the time of the marriage. And yes, the Mahr paid is a legal requirement under Muslim law. Under Shariah law, the dowry is a requisite to contract a valid marriage.
The parties could fix the quantum of the Mahr by mutual agreement, and the bride may expressly agree to waive her right to the dowry. The Mahr or dowry is the right of the bride.
However, where the obligation to provide the Mahr is not expressly excluded by the agreement, and the parties have not agreed on the amount of dowry, then the woman would become entitled to a proper dowry to be computed considering her beauty, fortune, understanding, virtue, her social position and her education.
Mahr maybe either prompt or deferred. The prompt dowry is payable immediately at the marriage taking place, and it must be paid on demand, and the registrar must record it on the marriage certificate. When the Mahr is differed, a woman can refuse to enter into a conjugal relationship until she receives the dowry.
Can a person subject to general law marry under Muslim law again?
A person who has contracted marriage under the general law cannot contract a second marriage under the Muslim law by making a unilateral conversion without obtaining a divorce from the District Court. Afterwards, he or she can convert to Muslim law and then contract a second marriage.
Can we discuss what happened in Abeysundara Vs. Abeysundara?
Christopher Abeysundara was married to Natali Abeysundara under the General Marriage Ordinance (GMO). He had a relationship with Kanthi Edirisinghe and instituted divorce action against his wife, which was dismissed by the District Court. Christopher and Kanthi converted to Islam and got married under the Muslim law. His first wife filed a case against him for bigamy. The Supreme Court held that the GMO recognises only monogamous marriages, and Christopher required a status conferring statutory obligations and liabilities that are pertaining to the GMO. By a unilateral conversion to Islam he cannot absolve himself of the statutory obligation of the first contract of marriage.
The law today is that if a person has contracted a marriage under the general law, they cannot make a unilateral conversion and contract a second marriage under the Muslim law without first dissolving the previous marriage.
If the the consent of the bride has been obtained by force under Muslim marriage, will that marriage be valid under Muslim law?
Yes, because the Wali has communicated the consent on behalf of the bride. The Wali’s consent at the time of the marriage is regarded as the bride’s consent. The bride has the right to repudiate the contract of marriage on a later date stating that it has been contracted against her wish, providing necessary evidence.
How many times is a Muslim man allowed to be married under Muslim law? And how many times can a Muslim woman marry?
A male can marry any number of wives, not exceeding 4 at a given time, but a female can only have one husband at one time. She can contract a second marriage if she had obtained a valid divorce or after the death of her husband after observing the Iddah ritual.
The right of a male Muslim to marry a plurality of wives is expressly permitted, but what is important is the admonishment that if the male is not able to deal justly (as mentioned in the Quran Surah Nisa), then he should stick to one. Marrying 4 wives is a ceiling and not a right.
Pro bono Secretary 2020-2021
The complete discussion is available on the ‘Law Students Association of Sri Lanka’ YouTube channel, in all three languages.
These laws are subject to change with future developments by the Legislature.