REPORT OF THE COMMITTEE APPOINTED TO CONSIDER AMENDMENTS TO THE MUSLIM MARRIAGE AND DIVORCE ACT VOL. I REPORT OF THE COMMITTEE WITH ALL ANNEXURES FOREWORD As the Chairman of the Committtee of Experts appointed by the then Minister of Justice and Law Reform, Hon Milinda Moragoda to suggest amendments to the Muslim Marriage and Divorce Act, No. 13 of 1951, it is my duty to thank the then Hon. Minister, as well as all those Hon. Ministres of Justice who succeded him, including the current Minister of Justice and Foreign Employment Hon.Thalatha Athukorale, for all the support provided to the Committee to complete its enormous and time-consuming task. The work involved was not easy, particularly in view of the sensitive and complex issues that arose for deliberation and the diversity of opinion held by the Muslim community in Sri Lanka and the members of this Committee, in regard to some of these issues. However, in view of the fact that these issues affect the very life of all men and women, who may be driven by matrimonial strife, to seek redress from the Quazi Court and its appellate bodies in order to resolve their disputes which also affected their families, their children and society at large, these issues had to be considered in great depth from both the shariah and pragmatic perspectives. This Report is the product of the commitment, concern and hard work of the members of this Committee, who had fully co-operated with me despite acute differences of opinion that arose, most of which have fortunately been resolved. Hence, it is my duty to thank all members of the Committee for their dedicated work and tolerance. Law reform is no easy task, and is undertaken to meet the challenges faced by society from time to time. The work of this Committee was no exception, and there is much more to be done for implementing the major reforms recommended in earnest by this Committee. I would therefore, on behalf of all members of the Committee, request the Hon. Minister to take all necessary action to have the recommendations of the Committee implemented as proposed in this Report. Justice Saleem Marsoof, PC Chairman of the Committee i TABLE OF CONTENTS I – Recommendations dated 20th December 2017 of Hon. Justice Saleem Marsoof PC (Chairman), Ms. Dilhara Amarasinghe (Secretary), Hon. Suhada Gamlath PC, Deshabandu Mrs. Jezima Ismail, Prof. Sharya Scharenguvel, Mrs. Faleela Be Jurangpathy, Mr. Razmara Abdeen, Ms. Safana Gul Begum and Mrs. Sharmeela Rasool. 1. Introduction 1 2. Historic Context of Muslim Matrimonial Law Reform 3 3. The Terms of Reference, the Procedures Adopted and the Issues Deliberated by the Committee 11 4. The Theoretical Basis for Law Reform and the Approach Adopted by the Committee 20 5. Summary of Recommendations 30 6. Detailed Recommendations 53 7. Schedule 1 156 8. Schedule 1 A 179 [ 9. Schedule 2 183 10. Schedule 3 187 11. Schedule 3A 189 12. Schedule 4 192 13. Schedule 5 194 Annexures A, B, B 1 to B13 to the said Recommendations. ii II – Recommendations dated 21st December 2017 of Mufti M.I.M. Rizwe, Ash-Sheikh M.M.A. Mubarak, Hon. Justice A.W.A Salam, Hon. Justice Mohammed Mackie, Mr. Shibly Aziz PC, Mr. Faisz Musthapha PC, Dr. M.A.M. Shukri, Mr. Nadvi Bahaudeen and Mrs. Fazlet Sahabdeen 1. Subsatantive Law 1 2. Reform of the Quazi 3 3. Polygamy 4 4. Registration of Marriage and the Requirement of a Wali 5 5. Age of Marriage 6 6. Mataa’ 7 7. Apprearance by Lawyers before Quazi Courts 7 8. Upgrading the Status and Standard of Quazis 7 Annexure iii REPORT OF THE COMMITTEE APPOINTED IN 2009 TO CONSIDER AMENDMENTS TO THE MUSLIM MARRIAGE AND DIVORCE ACT In the Name of God, the Most Gracious and the Most Merciful. 1. Introduction For the ease of reference, this Report is divided into six parts. Part 1 seeks to provide a general introduction and will deal with the appointment of this Committee, its membership and its secretariat. Part 2 will attempt to put the Report in context and outline the history of Muslim Matrimonial Law Reform in Sri Lanka. Part 3 will outline the terms of reference of the Committee, the procedures adopted for the deliberations of the Committee and the issues deliberated by it, and Part 4 will summarize the theoretical basis for law reform and the approach adopted by the Committee. Part 5 is a simplified summary of the recommendations of the Chairman and the members of the Committee and Part 6 consists of the detailed reasoning justifying the said recommendations. 1.1 The appointment of this Committee and its Secretariat 1.1.01 After the enactment of the Muslim Marriage and Divorce Act No 13 of 19511(hereinafter also referred to as MM&D Act), two government appointed bodies2 and one civil society initiated committee3 had deliberated on the reform of the matrimonial law applicable to the Muslims of Sri Lanka and had made recommendations. The Chairman of this Committee had also made certain recommendations for the reform of the law in the concluding chapter of his book entitled The Quazi Court System in Sri Lanka and its Impact of Muslim Women.4 None of these recommendations have been implemented by the government, and the law is substantially in the same state as it stood at the time of its initial enactment in 1951. 1.1.02 This Committee was appointed by the former Minister of Justice and Law Reform Hon. Milinda Moragoda, with the approval of the Cabinet of Ministers, to consider and recommend amendments to the existing MM&D Act. The letters of appointment dated 30th July 2009 (a copy of which is annexed to this Report marked Annexure A) issued to each member of the Committee by 1Muslim Marriage and Divorce Act No. 13 of 1951 as amended by Act No. 31 of 1954, Act No. 22 of 1955, Act No. 1 of 1965, Act No. 5 of 1965, Act No. 32 of 1969, Law No. 41 of 1975 and Act No. 24 of 2013. 2 The first of these was the Commission on Marriage and Divorce chaired by Mr. A.R.H. Canekeratne Q.C and the second was a Committee appointed in 1990 by the then Hon. Minister of State for Muslim Religious and Cultural Affairs under the Chairmanship of Dr. A.M.M. Sahabdeen. 3 The civil society initiated Committee appointed in 1972 was chaired by Dr. H.M.Z Farouque, a former Registrar- General, who was also well known for his academic credentials. 4 Saleem Marsoof, The Quazi Court System in Sri Lanka and its Impact on Muslim Women (2001 edition), published by the Muslim Women’s Research and Action Forum (MWRAF), Chapter VIII (Conclusions) pages 71 to 74, accessible at: https://www.academia.edu/30277198/The_Quazi_Court_System_in_Sri_Lanka_and_its_Impact_on_Muslim_Women 1 the Hon Minister of Justice stated that since a review of the Muslim personal law and the system of Quazi Courts require urgent revision, this Committee comprising of eminent persons in the field should consider and present reforms to this area of law. The Committee appointed by the Minister consisted of the following members:- 1. Hon. Justice Saleem Marsoof PC, former Judge of the Supreme Court (Chairman), 2. Hon. Justice A.W.A. Salam, former Judge of the Court of Appeal, 3. Hon. Suhada Gamalath PC., Solicitor General, former Secretary to the Ministry of Justice and Law Reform, 4. Mr.Shibly Aziz, PC, former Attorney General and former President of the Bar Association of Sri Lanka, 5. Mr.Faisz Musthapha, PC, former Deputy Director of Public Prosecutions, 6. Professor Sharya Scharenguivel, Professor of Law, University of Colombo, former Executive Director of the Centre for Human Rights Studies, 7. Hon. Justice Mohammed Mackie, Judge of the Civil Appellate High Court and former Assistant Secretary to the Judicial Service Commission, 8. Mr.S.M.A. Jabbar, Chairman of the Board of Quazis, who passed away on 25th February 2012. Mr. Nadvi Bahaudeen, Attorney-at-law, who was appointed as the Chairman of the Board of Quazis, took his place in the Committee. 9. Dr M.A.M. Shukri, Director, Jamiah Naleemiah, 10. Ash-Shiekh Mohaummad Magdoom Ahamed Mubarak, former President and current Secretary of Jamiyyathul Ulama, 11 Ash-Shiekh Mohammad Ibrahim Mohummad Rizwe Mufti, President of Jamiyyathul Ulama, 12. Deshabandu Mrs. Jezima Ismail, former Member of the National Committee on Women and the Human Rights Commission of Sri Lanka, 13 Mrs. Faleela Be Jurangpathy, Commissioner, Mediation Boards Commission, and former Principal of Muslim Ladies College, Colombo 4, 14. Razmara Abdeen, Attorney-at-Law, 15. Mrs. Safana Gul Begum, Attorney-at-Law, former Member of the Muslim Women’s Research and Action Forum (MWRAF), 16. Mrs. Fazlet Shahabdeen, Attorney-at-Law, 17. Mrs. Sharmeela Rassool, Attorney-at-Law and National Project Coordinator, Access to Justice Project, UNDP, 18 Mr. A.H.G. Ameen, Attorney-at-law (who passed away on 26th November 2015), and 19. Mrs. Dilhara Amarasinghe, Additional Secretary to the Ministry of Justice and Law Reform (Secretary). 2 1.1.03 The Ministry of Justice was represented in the Committee by Mr.Suhada Gamalath PC., Solicitor-General, who was the Secretary to the Ministry of Justice and Law Reform at the time this Committee was appointed and Mrs. Dilhara Amerasinghe, Additional Secretary to the Ministry of Justice and Law Reform, who also functioned as the Secretary to the Committee. Mr. A.K.D.D. Arandara, who was then an Assistant Secretary to the Ministry of Justice and Law Reform, was appointed as Joint Secretary to the Committee and did not attend the deliberations of the Committee but performed a coordinating role.