Muslim women intimidated in male dominated Qadhi courts


One Sri Lankan female Muslim lawyer, having read my book on the Shari’ah law and my views on discrimination of women, confided in me the fear and apprehension felt by Muslim women seeking recourse in the Sri Lankan Qadhi Courts. The Attorney-at-Law, who wants to remain anonymous for the present, highlighted the plight of several Muslim women who were subjected to divorce proceedings in the Qadhi Courts, left with little children in their hands without any support declared to be provided for them or the children by the Qadhi Court. The lady was nevertheless quick to point out that she was not finding fault with the Qadhi’s, but with an antiquated system that prevents representation of divorce parties by women lawyers.

The system has been so set up that all the Qadhi’s are men who are not necessarily lawyers. Muslim women who are naturally ‘submissive’ do not present their case, which might contain intimate details of their sexual life leading to the divorce. Being intimidated by the presence of men from the Qadhi down to the estranged husband and their family, the poor women have no choice but to accept what the Qadhi metes out. Their reluctance to be represented by male lawyers is understandable.

A friend of mine now living in Australia has brought to my notice the case of a 14-year-old Muslim girl from the Eastern Province of Sri Lanka, having been forced to give up her schooling and given in marriage in the year 2014. After a very short period (a few months) the girl applied for divorce initiated by her – This is called a "fasah" divorce – at the Qadhi courts, claiming severe sexual torture by her husband. It has come to light that the Qadhi (Judge) had sought to interrogate the girl for two hours asking her specific details about the sexual violence, instead of dealing with the matter in a sensitive and appropriate manner; thus causing serious psychological trauma for the girl leading up to an attempt at suicide and severe depression thereafter. Similar cases have been reported from India and Pakistan.

The lady lawyer, who confided in me these difficulties, said this is just one of the many cases where Muslim women and young girls are directly affected by the discriminatory provisions within the 1951 Muslim Marriage and Divorce Act, and a male dominated sub-par Qadhi court system set up under the Act.

The 1951 Act, which may have been useful at the time, contained several provisions which from today’s standards definitely violate the rights of Muslim women, and restricts access to justice, due process and redress.

A committee of several lawyers and intellectuals was set up when Azwer was Minister of Muslim Affairs to look into the 1951 Act and suggested reforms. Incidentally, this committee was also male dominated. Nothing seems to have happened from that effort, except perhaps expenditure of tax payers’ money. At presently, there is another committee headed by former Judge, Saleem Marsoof – Muslim Personal Law Reforms Committee -- consisting of 16 members, three of whom are Muslim women. It is believed that this committee has also forwarded its report, but what it contains is as yet a mystery as the report has not been released. Women’s groups fear that the report might contain support for their concerns, which might be considered detrimental to male domination as hitherto practised by Muslim elders.

Major concerns about the discriminatory nature of the Muslim Marriage and Divorce Act of 1951 have been highlighted in respect of the following issues:

1. Disallowing women’s participation as Qadhi’s or representation in Qadhi court cases by women lawyers;

2. Legally allowing and condoning child marriages. The Act does not stipulate the minimum age of marriage as 18 years, but allows the Qadhi to permit child marriages of under age children.

3. Written consent from the bride is not mandatory, providing a legal platform for forced marriages.

4. Provision for the wife and child maintenance on a divorce being granted is decided not in accordance with the needs, but arbitrarily by the Qadhis.

5. Allowing the practice of polygamy without the requirement of consent from the wife or wives the man is already married to, without inquiry into consent and financial ability.

The above are only some of the major points of concern that need immediate and urgent addressing by the Ministry of Justice.

Of course, there is an appeals procedure from a Qadhi’s decision to the Board of Qadhis up to the Supreme Court, where representation by women lawyers is permitted. The Board of Qadhis is also male dominated while the Supreme Court may contain female judges. This however is a cumbersome, expensive process, which most of the divorcee women victims can ill afford. There is no legal aid for such cases.

The number of Muslim marriage divorces and the suffering imposed on women have been time and again highlighted by women’s action groups, said Attorney-at-Law Shanaaz Mahuroof, but with no effect. "If the situation is to be curtailed or reversed, the Muslim Marriage and Divorce Act 1951 must be immediately amended taking into account these concerns," said Mrs. Mahuroof. The 1951 Act has served its purpose; it is now definitely out of date.

Dr. M. Haris Z. Deen


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