Midweek Review

Cat’s Eye
Muslim personal law and women

Muslim personal law in Sri Lanka, as Thesawalamai and Kandyan law and systems of personal law in other countries, discriminates against women. Certain provisions relating to marriage and divorce will be discussed to illustrate issues of concern to women. Although section 25 (1) (b) of the Muslim Marriage and Divorce Act states that the consent of the bride is essential to a marriage, in reality as her presence is not required when the marriage contract is concluded between the father or guardian of the bride and the groom, the consent of the bride is irrelevant to the conclusion of the marriage contract. In addition, the law does not make the bride’s signature on the marriage register mandatory. The woman therefore is robbed of the right to make a choice free from coercion and the ability to voice it. The non-registration of the marriage also places the woman in a vulnerable position as in the event of the breakdown of the marriage she may not be able to claim maintenance etc. if the husband challenges the validity of the marriage. Like Thesawalamai, Muslim law ceases to apply to women if they marry outside the community. While women are not allowed to marry non-Muslims under Muslim law, men are permitted to marry women of different faiths provided their "religion is heavenly revealed and has a book of faith", i.e. a person of Jewish faith or a Christian.

Statutory rape, polygamy, divorce

While Penal code amendments of 1995 increased the age of statutory rape from 12 to 16 years, the age of statutory marital rape of 12 years remained on the statute books. This provision is applicable only to Muslims as Muslim law allows marriage at 12 years. This legal loophole means that sexual intercourse with a girl over the age of 12 years and below 16 years would not be considered rape unless the wife is judicially separated. The issue of polygamy also requires some consideration. Sections 24 (1)- 24 (4) of the Muslim Marriage and Divorce Act of 1951 set out the conditions for polygamy. Accordingly, a man may marry up to four women as long as he is able to treat them equally. In order to take another wife the man must give notice to Quazi in his area, in the area his current wife/wives live and in the area his intended wife lives of his intention to marry. This notice has to be exhibited in all mosques of these areas and the Quazi has to issue a certificate of receipt of notice. While the law requires the man to give notice to the Quazi, the consent of the current wife is not required. Legal commentators have pointed out that as marriage is viewed as a contract both parties are in a position to stipulate conditions. For example, the woman can stipulate that her husband cannot take other wives. Yet, in reality it is hard to imagine a woman having the power to stipulate conditions when she might not have the power to even withhold her consent to the marriage.

It must be mentioned that in the area of divorce too the woman is discriminated with the husband given the right to unconditional divorce while the wife’s right is restricted. As Chulani Kodikara points out, although legal provisions exist to protect a woman against arbitrary pronouncements of Talaq (one particular form of divorce available only to the husband where he is able to obtain divorce with a simple pronouncement and without giving reasons), they have not been strictly adhered to by the courts which creates space for the husband to pronounce Talaq without giving notice to the Quazi courts and without the knowledge of the wife. In the case of Fasah (divorce granted to the wife without the consent of the husband), the woman has to show evidence of ill-treatment or fault and support her case with two witnesses.

Legal reform

When faced with discrimination of women by personal laws, many activists have called for legal reform. Yet, one has to be mindful that mere legal reform is inadequate to resolve this problem. The common assumption is that the law and legal processes are neutral and objective. This myth is perpetuated through beliefs that the law does not discriminate against any one sex or person and that the gender or sex of the person is irrelevant to the dispensation of justice. This has been challenged by many writers who have pointed out the many inherent biases and prejudices which plague the legal system and which adversely affect groups including women in numerous ways. Nivedita Menon states that "the very dynamic of law tends towards the fixing and universalizing of identity" whereby the legal discourse erases the particularities, ambiguities and contexuality.

Justice too has only one meaning and is based upon the assumption that the fixing of meaning and identity will result in a fair result. Contexuality and particularities are extremely important to women as they take complicated and individual experiences into account. We cannot therefore continue to view the law and legal processes as universal, or as a metanarrative as "the norms of justice are interpreted inadequately or non-inclusively." Doing so will result in the dominant meaning being passed off as universal while those voices on the margins and fringes of society being ignored. Menon argues that in post-colonial societies the value of indigenous discourses was diminished due to the establishment of law as the "only legitimizing discourse" which in some instances adversely affected the lives of women.

Disadvantaged

In this context the position of third world women is much worse. They are disadvantaged in two ways. In their own communities they may be subjected to discrimination and relegated to the private sphere. In addition, if they wish to be a part of the rights discourse they are forced to utilize the "western, rationalist language of the law." They are not in a position to negotiate their own methods of engaging with the system. They have to deal with the prejudices and biases of not only their own communities but also with those that the legal system has against women and other powerless groups. It must also be kept in mind that just as gender might prevent women from being active participants in public debate, race, class and ethnicity are also factors that might inhibit individuals and communities from engaging in public debate. Women from besieged communities who might have been subject to extensive state controls due to their race, ethnicity, class or a similar factor may take refuge in the private sphere of their ethnic/racial/class communities.

In its early days feminism sought refuge in "rights" which to the present continue to dominate the struggle to create space for women. Before we use "rights" as a tool for the empowerment of women it would be prudent to examine how they are constituted within the legal sphere. Rights too are considered to be universal and rely on the law and legal processes for enforcement. The language of rights therefore assumes the legal system to be neutral and objective. The language of rights assumes that individuals have the ability to make decisions unconstrained by the operation of extraneous factors. It assumes that every person makes a decision of his or her own will. The right to choose which plays a central role in the rights discourse has serious implications for women. In many instances women do not possess this right and in other instances the law and the rights discourse take a protectionist stance and deny the woman the right to choose. Many feminists have argued that in such cases the woman has to be denied the right to choose as due to structural and societal inequalities a woman’s right to choose is never free of external pressures and influences. In the case of personal law mere legal reform is inadequate to bring about the desired changes, as without change in the position of women and the way in which society views women, communities will find alternate ways to continue cultural and religious practices which discriminate against women.

Power to make choices?

Yet, there is also the argument that to begin with the assumption that a woman, even when seeking to act of her own will is actually not doing so, robs the woman of the power and right to make choices and decisions. Despite the nature of the intention, it is risky to assume that because the woman’s decision contravenes society’s or feminist’s notions of what is best for the woman it is not her own decision. This then is an area where women’s engagement with the law becomes complicated and not subject to generalizations. Another issue that needs to be looked at is the hierarchy of rights. The rights discourse gives prominence to "first generation rights", i.e. civil and political rights that operate in the public sphere. Many women however live out their lives in the sphere with minimal legal regulation, i.e. the so-called private sphere. Socio-economic rights which affect the lives of many women are relegated to the second tier with states only agreeing to "try their best" to ensure the protection of those rights. It cannot be denied that certain rights may have different consequences for men and women. For example the right to freedom of religion will adversely affect many women, as most religious laws and rules function to restrict women’s freedom. It is therefore evident that having blind faith in the law and the rights discourse will not necessarily be beneficial to women. What women need to do is look beyond these processes.

Diverse views on tradition and modernity

Many feminist writers acknowledge the benefits of the universal language of international law, and the right to choose which system of law one would like to governed by. But others have pointed out the complexities that can arise when engaging with universal values. As there are different forms of oppression that operate at different times, there could be instances where certain practices thought to be oppressive to women in one society might provide ‘relief’ to women in another context. As stated above human relationships and societal structures are complex and the multiple identities of women and the different spaces that they occupy at different times contribute to their particular position in the family or society.

In the case of women’s rights within the Muslim community, legal reform alone is inadequate to ensure that women have the power to make choices about their lives and the freedom to carry them through. Changing the law will not change the status of women in the eyes of the community which might feel targeted and therefore take social measures to ensure the continuation of their religious traditions to the detriment of women. In addition to legal reform it is also important to encourage voices within the community that advocate for change and "re-engage the local". Coomaraswamy defines this is as "recognition that there has to be a process whereby the women of a particular society learn to debate, discuss and iron out problems" with regard to their cultures. It is therefore important to approach this issue from a perspective that takes in to account not only cultural and religious traditions but also economic and social progress, progressive legislation and social change, as well as political participation in keeping with the times.


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