THE MUSLIM LAW OF SRI LANKA

-with especial emphasizes on marriage law

By – Zacky Ismail Undergraduate of Law, University of Colombo.

ISLAMIC LAW? MUSLIM LAW? MOHAMMADAN LAW?

qWhat is “Islam”?ØOne of the major religion of the world.Ø Islam is a code of conduct which shows the

way of life.Ø It helps the man to distinguish what is morally

beautiful, that must be done & what is morally ugly must not be done.

ØFor this we have a law or “shariat” “shariat” – the road to the watering

place(lit) “shariat”-Canon Law of islam

SOURCES OF ISLAMIC LAW vHistorical sources1. QUARAN- word of God: Allah’s commandments.2. SUNNAH- the practice of the prophet. (hadiths is the story of a

particular occurrence; sunnah the rule of law deducted from it.)

3. IJMA- consensus of opinion among the learned of the community;4. QUIYAS- analogical deduction

5.v Subsidiary sources Legal Text of Islamic Jurist- FYZEE,MULLA,AMEER ALI & TYABJI Islamic Law-Schools of thought

vSome other sources Pre- Islamic customs Some element of Roman law Evidence of the retention of the customs of different peoples &

country; “ada” or “urf” Some element of English law; that is “justice”, equity and good

conscience, A.A.Fyzee; Outlines of MohammadanLaw; 21.pp

Shariat – Fiqh

Shariat- Allah’s commandmentsFiqh- the science of Islamic Law is the

knowledge of one’s rights & obligations derived from the Koran or the Sunnah of the prophet or consensus of opinion among the learned (Ijma) or anological deduction (quiyas).

SCHOOLS OF ISLAMIC LAW

• - ( SUNNI leadership based on democratic)authority

( ); , , .Hanafi juristic preference Lebanon Syria Iraq ( ); , , .Maliki public interest Tunisia Algeria Morocco ( & ); , , , Shafi logic reason Egypt Malaysia Indonesia

Sri Lanka ( ); .Hanbali tradition Saudi Arabia

– ( SHIA leadership based on prophetic)Authority

, .Iran Yemen . . 1 Ithna 3 Ismailis . .2 Ashari 4 Zaydis

q & Difference based on Political economical .cultural reasons

MUSLIM LAW OF SRI LANKA Islamic law- Muslim law Muslim law is pure personal law; no territorial

requirement. Based on religion; “the law of the land is in

theory the law of the religion”

qSOURCES OF MUSLIM LAW IN SRI LANKA Statutes Local custom General principles of Islamic Law Judicial decisions

qStatutes qPresent relevant legislation on Muslim Law in Sri Lanka

Muslim Intestate Succession Ordinance No 10 of 1931.

Muslim Marriage and Divorce Act No 13 of 1951. Muslim Mosques and charitable Trust and Waqfs

Act No 51 of 1956.

ØRex vs. Miskin Umma (1925) 26 NLR 330 1806 Code – as a very rough codification of certain

portions of a very great system of Jurisprudence.

ØBandirala vs. Mariumma Natchia (1912) 16 NLR 235. “Where the provisions of the code are clear; effect

must be given to them even if they appear to clash with the well established principles of Islamic jurisprudence”

Local Custom ØAbdul Rahman vs. Ussan Umma (1916) 19 NLR

175Ennis J“Islamic law applies only so far as it is consistent

with the usages of the Mohammedans in Sri Lanka.”

“The Muslim law applied in Sri Lanka contains usages & customs peculiar to local Muslims & which do not form a part of the Islamic system of jurisprudence”

Ex;- Cheedanam & Kaikooly.

Muttalibu vs. Hameed (1950) 52 NLR 97;“The Mohammedan law of India or other places does

not necessarily obtain in Sri Lanka”ex:- Benami Transaction. 

Genaral Principles of Islamic Law Ibrahim Saibu vs. Muhamadu 3 NLR 116 “The general principles of Islamic Law form part of the

Muslim law applicable to Muslims of Sri Lanka only in so far as such principles have been adopted through legislation or custom”

 Muslim Marriage and Divorce Act No 13 of 1951.

Sec. 16 validity or invalidity of Muslim marriage or divorce is

ascertained according to the Muslim Law governing the sect to which the such parties belong.

Ø  Mohideen vs. Sulaiman 59 NLR 227 “The primary source of Muslim law in Sri Lanka are local

legislation & judicially recognized customs” As per series of judgments Islamic Principles can only be

applied where; To explain obscure provisions of local legislation of Muslim law-

“casus omissus” In support of a valid custom among Muslims in Sri Lanka, Where there is no statutory provision, or local custom, or such

principle of Islamic jurisprudence which may be restored to as supplementing local sources of Muslim law

 To which extent……………………ØPerera vs. Khan (2 Ball 188)“It cannot be said that whole the Legal principles of

Islamic jurisprudence would be applied for Sri Lankan Muslims.”

ØAhamadu Lebbe vs. Marikkar (1890) Custody- to matrimonial grand mother.  

APPLICABILITY OF COMMON Law FOR SRI LANKAN MUSLIMS.

q criminal law.q other general law relating to land, contract, administration, constitution etc.v Some exceptions- Law relating to gift,Ø Weerasekara v. Peiris “If a Muslim did not intend to make a donation under Muslim

law but intended to make a gift known to R/D/L should apply in construing its validity.”

 BUT ………………..Ø Gouse v. Gouse (1988) 1 SLR 25 Sharvananda CJ. “an adopted son has no right of inheritance

since the principle of Muslim law based on the Quaran, is that one must be a consanguine relative of the deceased to become entitled to inherit the property of the deceased; there should be actual or natural parentage, not legal parentage over other people’s children in order to found a claim for inheritance under the Muslim law” 

APPLICABILITY OF MUSLIM LAW IN SRI LANKA

qTo whom: - based on the faith of a person.ØKhan v. Marickar 16 NLR 425 De Sampayo J. “the Muslim law is applicable to all

Muslims and immigrants from India known as Coastal moors and also to Afghans”

qWho is to be considered a Muslim? No question about particular race or community, but

whether or not he professes the Islamic faith.ØNaranthakath v. Parakkal (1922) 45 Madras 986 “The essential doctrine of Islam is that there

is one God and that Mohamed is the prophet”

This is the minimum criteria of belief.

ØSkinner v. Orde (1871) 14 M.I.A 309 If evidence is led to show that the conversion is not

genuine, the burden shifts to the person who allegedly professes; it to rebut the evidence.

No hard and fast rule can be laid down, circumcision or observances of Mohammedan ceremonies are relevant fact.

  Therefore Muslim law applies to all Muslims, whether

they are so by birth or conversion.

ØAbesundere v. Abesundere (1998) 1 Sri LR 185

Over ruled the AG v. Reid Held “although a person was free to change his faith, such

person could not by unilateral conversion cast off the statutory obligations that directly arose from the previous marriage”

MUSLIM LAW RELATING TO MARRIAGE

MARRIAGE-“Nikah” “A Muslim marriage is a religious duty as well as a

contract” M.A

qureshi. Prophet Mohamed (PBUP) said, “I also marry women. So he, who does not follow my

tradition in religion, is not from me (not one of my followers). (Hadiths)

 qMuslim Marriage and Divorce Act No 13 of 1951. Sec. 16

Validity or invalidity of Muslim marriage or divorce is ascertained according to the Muslim Law governing the sect to which such parties belong

Validity of Muslim Marriages does not depend on Registration

 

Sec. 98 (2) v All matters relating to any Muslim marriage or

divorce shall be determined according to the Muslim law governing the sect to which the parties belong.

 ØAffifudeen v. Periyathamby (1912) 14 NLR 295“It is presumed that the all Sri Lankan Muslims are

Shaffies”

ØA.L.M Hanifa v. A.A Razak (1959) 60 NLR 251 Dispute was settled according to the Hanafi sect

ESSENTIALS OF MUSLIM MARRIAGES  

Capacity to marry or the capacity to be married

AgreementFormalities (Nikah ceremony)No Legal impedimentsThe dower (mahr) should have been

provided. 

Capacity to marry or the capacity to be married

Persons who are sound mind and have attained majority have the capacity to contract marriage on their own.

Age of majority=age of pubertyØRahuman v. Yasin (1941) 2 MMDLR 12 Lack of such evidence- minimum age is 15 MMDA does not specify the age But……………….. Sec. 23 Marriage of girl who has not attained the age of twelve not

to be registered without quazi’s permission.ØLebbe v. Mohamado Thamby (1901) 1

MMDR 40child marriages under Muslim law was accepted

BUT…… It has been suggested that the penal section- (Sec 363 0f penal code No. 2 of 1883 as

subsequently amended by the Sec 12 0f Act No 22 of 1995,)

Would apply with respect to a Muslim girl below the age twelve.

“A man commits the offence of rape if he has sexual intercourse with a girl below twelve years of age even if she is his wife and irrespective of her consent”

See, Saleem Marsoof, the Quazi Court System in Sri Lanka and its impact on Muslim women, (MWRAF,2001) page22

Marriage guardianship Wali- Wilayat al jubrqMuslim male- of sound mind is capable of contracting a marriage

on his own upon attaining puberty,(irrespective of the sect)

Muslim Female Shafi sect- though women above the age of

puberty – must obtain approval of her wali (25) 1 MMDA

Hanafisect- women above the age of puberty – would not required such approval.

Unreasonably withholding consent by Wali Sec 47 (2) A Quazi’s power to dispensing with the necessity for

the presence or the consent of a wali.ØAlim v. Musthafa (1938) 2 MMDLR 65 

THE AGREEMENT The bride’s consent to the marriage.Sec 25 (1) a; Bride should communicate her consent to the wali Practically this section is discarded, Muslim Women's Research and Action Front

Report in 1988 “Thus we feel the necessity to obtain the formal

consent, by the signature of the woman on the marriage contract.”

ØAkkeerathamby Muheideenbawa v. Seylathumma 2 MMDLR

“a girl, who had been given in marriage by her father without her knowledge has the right to rescind the marriage upon attaining age”

ØYaseen v. Noor Naeema 3 MMDLR 53 The earlier ground was rejected.

 THE FORMALITIES OF MARRIAGE

  Sec. 16 MMDA

Validity or invalidity of Muslim marriage or divorce is ascertained according to the Muslim Law governing the sect to which such parties belong

Validity of Muslim Marriages does not depend on RegistrationØ Uthumancandu v. Alimancandu4 MMDLR 149  

Sec. 17 MMDA

q Duty to register the marriage -bridegroom, the Wali, the Kathib The Nikah ceremony constitutes the essence of a Muslim marriage OFFER ACCEPTANCE (Ijab) (qabul) Bride groom Wali Khatib 2 witnesses 2 male / 1 male+ 2 female

Sec. 47 MMDAv Where a women has no wali, Quazi may make order authorizing the marriage. 

LEGAL IMPEDIMENTS TO MARRIAGE

Batil- void ab initio Polyandry

Consanguinity 80 (1), 80(2)

Affinity 80 (1), 80(2) Fosterage Marriage with an

infidel man

Marriage with an infidel woman

Polygamy Fasid- temporarily void Unlawful conjunction

Iddat

Ihram Talaq

- Batil void abinitio

Fasid- temporarily void

POLYGAMY IN ISLAMIC LAW

"If ye fear that ye shall not Be able to deal justly

With the orphans Many women of your choice,

Two, or three, or four; But if ye fear that ye shall not Be able to deal justly (with

them) Then only one, or (a captive) That your right hands possess. That will be more suitable

To prevent you From doing injustice."

You will never be able to do perfect justice between wives even if it is your

ardent desire, so do not incline to much to one of them(by giving her more

of your time and provision)so as to leave the other hanging(i.e. neither divorced no

married).And if you do justice , and do all that is

right and fear Allah by keeping away from all

that is wrong, then Allah is Ever oft-forgiving,

most merciful.

Holy Qur’an (Sura An-Nisah 04- 3)

Holy Qur’an (Sura An-Nisah 04- 129)

Qur’an insists upon the impartial treatment of co-wives in polygamous unions,

Sec. 24 MMDAqNotice of Second Marriage.üBefore 30 days To The Quazi for the area in which He resides, & His wife or each of his wives resides & The person whom he intends to marry

resides.

But……. Non compliance to this provision does not

affect the validity of second marriage. 

Memorandum submitted to the committee on proposed reforms to Muslim personal law

Muslim Women's Research and Action Front

q It categorically states that monogamy is the suitable choice. Misinterpretation of this verse to conclude that polygamy is permitted as a matter of routine is far form the truth.

q In many Muslim countries today, a wife is permitted to insert stipulations into her marriage contract restricting her husband's right to marry additional wives. In Iraq, Somalia, Singapore and two of the Malay states the husband who wishes to marry a second wife must first obtain the permission of the court.

q   An independent body be appointed (comprising both male & female representatives of both husband and wife) to decide whether the man contracting the second or subsequent marriagecould adhere to the principle of justice.

qJustice and equality in its essence would mean not only providing for material living but also in the emotional plane. Love and affection, being subjective factors, in our opinion the first wife would be the best judge as regards fair treatment by the husband. The wife could give her consent in the presence of two witnesses in a Quazi Court. Failure to get the first wife's consent should prevent the second marriage. qAny other form of guarantee that would ensure equality and justice as stated in Sura iv ­3 (Holy Qur'an), considering what is legitimate in the context of the current social climate.

qAn independent body be appointed (comprising both male & female representatives of both husband and wife) to decide whether the man contracting the second or subsequent marriagecould adhere to the principle of justice. 

  

THANK YOU!