Diaries Magazine

Women and the Law (The F Word: Let's Talk Feminism and Gender)

Posted on the 20 May 2019 by Sharasekaram @sharasekaram
(This piece first appeared as part of a weekly column for The Sunday Morning)
Over the last few weeks, among other discussions, we saw women’s rights being used as a common rhetoric to justify often racist or nationalist narratives. This is not new – women’s bodies, our rights, and lives have all too often been a battleground upon which these wars are played out. A commenter in a discussion on this topic argued that we as Sri Lankan women should be “grateful” that we are “allowed” more rights under the general law than Muslim women are as (they claimed) they belonged to a community that had a different set of laws that governed them unlike other Sri Lankans.
These ideas – both as a whole and in parts – by and large have been repeatedly used and shared in discussions as communal tensions and violence against the Muslim community rise and are justified. What I would like to explore this week are the inherent issues, problematic nature, and inaccuracy of the idea that somehow, women in the Sri Lankan Muslim community are worse off than other Sri Lankan women, particularly in the eyes of the law.
First, there is a deep-seated issue when women are asked to be grateful “at least” for what we have been given when you point out the flaws and discrimination that still exist. This is rooted in the notion that our rights and autonomy are still seen as something someone grants us – not as something we should inherently have without question. Another common form of this is also found through benevolent sexism where you hear comments or arguments such as I “allow” my wife/daughter/etc. to do “XYZ”, by those trying to show how liberal they are.
This completely fails to address the structural heart of the matter that women should be empowered to make decisions for themselves considering whatever they’d like to. Every person should have access to their rights; it is not something for others in power to give or take away. We shouldn’t have to be grateful that they are given, and the notion that it is something to be given and taken away is deeply patriarchal and sexist.
The second comes with the notion that our Muslim counterparts suffer under a legal framework that is not the same as the nation’s and treats women more poorly than the general law. In order to understand why this idea is problematic, we first need to understand the legal system that governs us here in Sri Lanka.
Our legal system is made up of a mixture of codified and common laws, and draws from various legal systems. Primarily, this is made up of Roman-Dutch law and English law as a result of our history of colonization.
However, we also have certain aspects such as marriage, divorce, and inheritance which are governed by personal and community-specific laws and apply to people depending on the community they belong to or the geographical area in which they live.
Of these community laws, the one facing the most scrutiny currently is the Muslim Marriage and Divorce Act (MMDA), which is applicable to Sri Lankans who are Muslims by virtue of birth and conversion to Islam.
Among other issues, it has been critiqued for the provision where there is no minimum legal age of marriage and allows children under the age of 12 to be married where special approval is given by quazis (magistrate or judge of a Sharia court).
Girls aged 12 can legally be married without this permission, unlike the Marriage Registration Ordinance (General) which has the requirement of 18. This is indeed a problematic law which has not gone silently unchallenged despite arguments and beliefs to the contrary. Muslim women activists have, despite facing backlash from their own communities, called for reform to this law, citing several issues. To say that no one raised their voices against the issue of child marriage in this case is a deep disservice to these brave and incredible women who have been fighting this battle for decades.
Secondly, it is also a common misconception that child marriage only takes place within the Muslim community in Sri Lanka as the law allows it. Activists and researchers have found that girls are in marriage before they turn 18 in several other communities as well – albeit by circumventing the law. In such cases, marriages either take the form of cohabitation and are legalised later or families falsify documents to facilitate the marriage. It is estimated that 2% of girls in Sri Lanka are married by the age of 15 and 12% are married before the age of 18. Interestingly, studies show that the median age at first marriage is lowest in Anuradhapura.
Wider spread than we know

The third issue is the assumption that it is only the MMDA and Muslim inheritance law that exist as “special community laws” that discriminate against women. Sri Lanka also honours the Thesavalamai law which is the traditional law of the Sri Lankan Tamil inhabitants of the Jaffna peninsula. The law in its present form applies to most Tamils in northern Sri Lanka and is applicable mostly to property, inheritance, and marriage.
This law too has issues that women face in its application – for example, while property can be written in a woman’s name, she is unable to sell, rent, or mortgage it without the permission of her husband or father. The third community law is Kandyan law, also known as Udarata law, which applies to Sri Lankans who are Buddhist and from the former provinces of the Kandyan Kingdom.
At present, it governs aspects of marriage, adoption, transfer of property, and inheritance, as codified in 1938 in the Kandyan Law Declaration and Amendment Ordinance. Similar to the MMDA, this law also allows for polygamy, although it does not apply to men and rather to women. The law has also been critiqued for its application of being used to disinherit women who, as said by the law, are no longer entitled to their inheritance once they are married.
It is also important to note that as activists and legal reform advocates have continually raised concerns, issues faced by Sri Lankan women within the legal system are not limited to personal and community laws. Under the general law, marital rape is not a crime, abortion even in the cases of rape and incest is denied, and only female sex workers face punishment and not their male clients, to name a few examples.
If it is truly women we care about, and not simply a rhetoric that serves our agendas or particular narratives, then we must acknowledge that we as a nation, a State, and as a people, have not given any of our women the full rights they are entitled to. This is not just the issue of a single community but of a nation as a whole. It is time we truly recognize that there is no justice until we are all equal, and we have many miles to go before we sleep.

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