Marriage law reforms: Need of the hour

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There is a strong call among the citizens of Sri Lanka for legal reforms to ensure that no citizen is discriminated in the legal system. In the recent past, several studies were undertaken including the ‘One Country, One Law’ Task Force, which was established to further study the draft Acts and amendments that had already been prepared by the Ministry of Justice and propose suitable amendments. However, the Government, taking into consideration the submissions by different stakeholders,decided to conduct further studies.

In this regard, the Ministry of Justice can now take a look at the practices in Muslim majority countries such as Indonesia, Malaysia, Pakistan, and Bangladesh, as well as in countries like India, where Muslims are the second largest community.

Earlier this month, the Indian President appointed Justice Uday Umesh Lalit as the 49th Chief Justice of India. Justice Lalit’s appointment stole extra limelight because he was a member of the five-member Supreme Court bench that gave a landmark judgment on Muslim marriage law two years ago. In a path-breaking judgment with 3-2 majority rule, the five-Judge constitution bench ruled the practice of divorce through instant ‘triple talaq’ as “void,””illegal,”and “unconstitutional.”

While then Chief Justice J.S. Khehar and Justice S. Abdul Nazeer were in favour of putting on hold the judgment for six months and asking the Government to come up with a law to that effect, Justices Kurian Joseph, R.F. Nariman, and Uday Umesh Lalit held the practice as violative of the Constitution.

In Sri Lanka, the Government took a decision to amend Muslim personal laws immediately after elected to power in November 2019 and instructed the Justice Ministry to study Muslim laws as well as Kandyan and Thesavalamai personal laws.

There is consensus that Sri Lanka has a variety of laws, some of which are archaic and need reform. Muslim activists and women’s rights organisations have for years been calling for reforms.

The Cabinet of Ministers, stressing the need for reforms, stated in 2020 that under the common law governing the marriage and divorce of the citizens of Sri Lanka, it has become appropriate to provide them with alternative opportunities to govern the marriage and divorce of people of the Muslim community as well.

In 2020, a presidential proclamation said under fundamental rights, no citizen should be discriminated against in the eyes of the law or given any special treatment on the grounds of nationality, religion, caste, or other grounds. This was in line with the promise of a method of implementing nationally and internationally recognised humanitarian values that would ensure that all citizens are treated alike under the law.

The Bar Association of Sri Lanka (BASL) too stressed the need for this concept when the existing laws serve its stated objective. The Constitution itself provides a framework for the legislative process, which is supplemented by other laws and by the Standing Orders of Parliament. There already exist,within the framework of the Constitution, the law, and Standing Orders adequate mechanisms for the purpose. The BASL was of the opinion that the institutions and study groups of legal professionals established under the Constitution and the law, including Parliament and the Ministry of Justice were sufficient for preparing a new legal draft.

When he was Minister of Justice, legal luminary Ali Sabry proposed to amend the Civil Procedure Code and the Civil Procedure Code which contain the Marriage Procedure enabling Muslims to get married through the Marriage Registration Ordinance. It was pointed out that Muslim women do not sign their own marriage contract, but rather a Bride’s ‘Wali’ (Male guardian of the bride) signs in her place.Several activists pointed out such practices lead to forced marriages.

Subsequently, a proposal was submitted to Parliament to increase the marriageable age to 18, permit Women Qazis to conduct marriages, and allow Muslim women to sign their marriage contract. A ten-member advisory committee too was appointed to amend the Constitution based on the said proposals.

Sri Lankan laws are largely based on Anglo-Roman-Dutch laws. But when it comes to personal laws, there are laws for specific communities. They include the Thesavalamai law or a collection of the ‘Customs of the Malabar Inhabitants of Jaffna,’ the Jaffna Matrimonial Rights and Inheritance Ordinance,the Muslim Marriage and Divorce Act, the Muslim Intestate Succession Ordinance, the Kandyan Marriage and Divorce Act, the Kandyan Succession Ordinance, the Kandyan Matrimonial Rights and Inheritance Ordinance, and the Mukkuva law, which governs the fishermen community of Tamils in the East, specifically in Batticaloa. Instead of such a plethora of laws, there should be a single law for all citizens of Sri Lanka.

By Sugeeswara Senadhira