By Sugeeswara Senadhira/Ceylon Today
Colombo, July 19: The imperative to amend the Sri Lankan marriage and divorce law has been emphasized on various political, social and religious platforms. Despite stiff resistance from fundamentalist religious fringe groups: the vast majority, especially the youth and intellectuals, call for a radical transformation of archaic marriage laws.
Law Makers in Sri Lanka could learn lessons from recent judgments delivered in India: A Nation that’s forging fast towards modernity and people’s rights despite a heavy baggage of ignorance, illiteracy and antiquated religious beliefs and superstitions.
Justice Prathiba M. Singh announcing the verdict in a divorce case in the Delhi High Court on 7 July 2021, stated that “modern Indian society is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating and a Uniform Civil Code ought not to remain a mere hope”.
“The youth of India belonging to various communities, tribes, castes or religions who solemnize their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce,” the Court said.
“Codified statutes and laws provide for various protections to parties against any unregulated practices from being adopted. In this day and age, relegating parties to customary Courts when they themselves admit that they are following Hindu customs and traditions would be antithetical to the purpose behind enacting a statute like the Hindu Marriage Act, 1955.”
The Indian Special Marriage Act 1954 applies to all persons of all religions. This is a civil legislation and parties from all religions, caste or community can elect to marry under it. Divorce would then be governed by the Special Marriage Act 1954.
Kerala in the South is one of the Indian states which was under Marxist or socialist rule for several decades. The Indian Express of 16 July 2021, pointing out that in the past, the Kerala High Court has delivered many landmark judgments in relation to Muslims’ divorce, referred to another important judgment delivered recently. A Division Bench of the High Court was dealing with the issue of conditions in Khula divorce initiated by the wife. The legal issue before the Court was whether a Muslim wife, once she has decided to leave the marriage for reasons that she feels are appropriate, has the right to pronounce unilateral extra-judicial divorce through Khula against her husband.
Undoubtedly, without the intervention of courts, a Muslim woman can unilaterally divorce her husband if, by contract, the husband has delegated the right to divorce to his wife. The second method is divorce by mutual consent, through the process called Mubaarat. The right of a Muslim woman to divorce by way of Khula, wherein she decides to terminate the marriage, may be called wife-initiated Talaq. Till now, Ulemas have interpreted that Khula can be exercised only when the husband accedes to the wife’s request. If he refuses, the woman has no option but to approach courts of law under the provisions set out in the Dissolution of Muslim Marriage Act of 1939.
In Sri Lanka, there are many Muslims, mostly young women who find the 1907 Marriage Registration Ordinance, is discriminatory and needs to be amended. The ordinance applies to marriage between Tamils and between individuals of differing ethnic and religious communities is also under scrutiny. The general law or Kandyan law ordinance does not govern marriages contracted between Muslims. The Muslim Marriage and Divorce Act govern marriages between Muslim parties. The act specifies some requirements for a valid marriage; those requirements left unspecified are governed by the law of the sect to which the parties belong. The act does not specify a minimum age for valid marriage.
However, where a marriage involves a girl below age 12, the act requires consent of the Quazi (similar to a judicial officer, though legal training is not required) to register the marriage.
The right to Repudiate
Also, under Islamic law, a minor girl has the right to repudiate the marriage upon attaining puberty. Although courts have recognized this right, the issue of whether it is an unconditional right or available only when the marriage can be proved to be against the child’s interest remains open to debate. Furthermore, under the penal code, sexual intercourse with one’s wife who is under age 12 constitutes rape, though this provision has not been consistently applied by the courts.
The judgment given by the Delhi High Court last week favored the introduction of the Uniform Civil Code (UCC). The Court has said that Indian youth need not be forced to struggle with issues arising due to conflicts in various personal laws in relation to marriage and divorce.
While referring to several decisions of the Supreme court on the need for a Uniform Civil Code, including the historical Shah Bano case of 1985, the High Court said: “The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens a Uniform Civil Code ought not to remain a mere hope.” In the Shah Bano case, the Supreme Court had said that a common civil code would help the cause of national integration by removing disparate loyalties to laws having conflicting ideologies. It had also observed that the State was charged with the duty of securing a Uniform Civil Code for the citizens of the country. The High Court observed that the need for a Uniform Civil Code was reiterated from time to time by the Supreme Court. However, “it is unclear as to what steps have been taken in this regard till date”. The verdict highlighted the need for such a Code – ‘common to all’, which would enable uniform principles being applied in respect of aspects such as marriage, divorce, succession.
As Sri Lanka plans to take early steps to amend the marriage and divorce act to ensure one law for all citizens, it will be of interest for the lawmakers to study the Delhi High Court judgment calling for a Uniform Civil Code.