A GREY PAPER ON MUSLIM

MATRIMONIAL LAW

Saleem Marsoof PC
Former Judge of the Supreme Court of Sri Lanka

The power of the lawyer is in the uncertainty of the law.

Jeremy Bentham

1
Grey is neither black nor white, but somewhere in between. There are many grey
areas in the law which give the politicians something to argue about, the lawyers their
vast fortunes, the judges their blues and the law students the jitters. In this paper
(which we may call a ‘grey paper’ as white papers are produced exclusively by those
policy makers who eventually add to those grey areas), the focus will be on the grey
areas in the Muslim matrimonial law that prevails in Sri Lanka. Eventually, it is hoped
that we will soon have a white paper intended to remedy some at least of the maladies
that are highlighted in this paper; meanwhile, grey which as a colour is lovely, can
equally be exciting.

Applicable Law: A Dazzling Grey

Have you ever suspected that the law applicable to decide on the validity of a
marriage between persons professing Islam (generally known as “Muslims”) and even
the dissolution thereof in Sri Lanka could be a dazzling grey? As provided in the
Muslim Marriage and Divorce Act of 19511, the validity or invalidity of a Muslim
marriage or divorce should be determined according to “the Muslim law governing the
sect to which the parties to such marriage or divorce belong.”2 It is further provided in
that Act that “in all matters relating to any Muslim marriage or divorce, the status and
the mutual rights and obligations of the parties shall be determined according to the
Muslim law governing the sect to which the parties belong.”3 The reference to “Muslim
law” here is obviously to the principles of sharia’t law enshrined in the Holy Quran,
Hadis, Ijma and Qiyas.4

The two great sects of Islam are the Sunni and Shiah sects. The former is divided into
four different sub-sects or schools of law (known as mazhab), named after the jurists
who founded them, namely, the Hanafi, Maliki, Shaffie and Hanbali schools. The
Shiah sect, is in turn divided into three major sub-sects, known as Ithna‘Ashari,
Ismaili (which includes the Dawoodi sub-school to which the Bohras belong) and
Zeydi.5 However, our courts have interpreted the term “sect” as being equivalent to a
sub-sect or school of law, and that as Sri Lankan Muslims largely belong to the
Shaffie sub-sect “the Shaffie doctrine is generally applicable”6 and a party should be
presumed to be a Shaffie unless there is evidence to the contrary.7

1
Muslim 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 and Law No. 41 of 1975.
2
ibid., Section 16.
3
ibid., Section 98(2).
4
These are the main sources of sharia’t law. The ‘Holy Quran’, which is of divine origin, and Hadis,
which consists of the sayings and conduct of the Prophet Muhammad as reported by his companions,
are the primary sources. If there be any question of law that cannot be resolved by reference to these
two sources, resort can be had to Ijma, which means the consensus of the imams, and Qiyas or
analogical reasoning.
5
For an extremely interesting exposition of the various sects and schools of Muslim law, see,
C.G.Weeramantry, Islamic Jurisprudence: An International Perspective (1988 edition), Chapter 4
pages 46 to 58. For a brief description, see, L.J.M.Cooray, An Introduction to the Legal System of Sri
Lanka (1991 edition) page 132.
6
Affefudeen v Periatamby, (1912) 14 NLR 295 at page 300 per Middleton J.
7
See, Mangandi Umma v Lebbe Marikar, (1908) 10 NLR 1; Marikkar v Marikkar (1916) 18 NLR 446;
Mohamedu Cassim v Cassie Lebbe, (1929) 29 NLR 136; In re Nona Sooja (1931) 32 NLR 63; Ummul
Marzoona v Samad (1979) 79 NLR 209.

2
From a pragmatic point of view, the most important problem that arises from this state
of the law is one of application. For purposes of illustration let us take a marriage
between a Shaffie bride and a Hanafi groom, the validity of which marriage has to be
determined “according to the Muslim law governing the sect to which the parties to
such marriage belong,”8 and ponder upon some of the issues such a marriage can give
rise to. Firstly, if the bride marries without the approval of the wali or Quazi, is the
marriage valid? On the reasoning of A.L.M.Haniffa vs. A.A.Razack9 the bride had no
capacity, but should the groom according to whose school of law the marriage is
obviously valid, be permitted to challenge it? Secondly, let us suppose that the bride’s
wali approved the marriage, but there were only one male and two female witnesses at
the nikah ceremony. According to Hanafi law the marriage is valid.10 But according to
Shaffie law, the marriage is void.11 Since the validity of the marriage has to be
determined according to the law of the sect to which the parties belong, should the
matter be decided by applying the Hanafi law or Shaffie law?12

This is one of the most striking grey areas in our matrimonial law. It should be
remembered that a school of thought such as the Shaffie school, is merely a ‘way’ or
mazhab and cannot strictly be treated as a sect13. One obvious result of equating a
sub-sect or school of thought to a sect is that an adherent of a particular mazhab such
as the Shaffie school will be rigidly bound by the teachings of that school, and will
not have the freedom to deviate from these precepts unless he declares himself to be a
follower of a different school of thought.14 It is questionable whether such an
inflexible approach can be reconciled with the spirit of the mazhabs themselves
particularly in the context that Imam Shaffie himself was a student of Imam Malik,
and had his only son instructed by none other than Imam Hanbal. It is said that Imam
Shaffie was born on the very day Imam Abu Hanifa departed this world, and in a
biographical sketch of Imam Shaffie it is narrated that-

“Al-Shafii admired men of learning; he considered that there was none so

perfect as Imam Malik in knowledge, but for whom and Sufyan b. Uyaina, he
said, hadith would have disappeared in the Hijaz; though his teachings
differed from Imam Abu Hanifa’s, he once remarked, “in matters concerning
Fiqh all of us are followers of Imam Abu Haniffa.” When he spent a night in
the shrine of Imam Abu Hanifa, he led Isha and Subhu prayers as a Hanafi,
omitting to recite Bismilla aloud or Qunut at Subhu, and explained that he

8
Section 16 of the Muslim Marriage and Divorce Act, supra note 1.
9
(1959) 60 NLR 287; See also, Abdul Cader v Razik (1953) 54 NLR 201 (PC)
10
Tahir Mahmood, The Muslim Law of India (1982 edition) page 53.
11
A.R.I.Doi, Shariah: The Islamic Law (1984 edition) page 138.
12
One cannot obviously utilise the rule contained in Section 2 of the Matrimonial Rights and
Inheritance Ordinance No. 15 of 1876 for the resolution of this problem as the said provision will
apply only where there is a valid marriage between the parties, the very question that arises for
determination in the illustration. Furthermore, the said provision will not apply when the man and
woman belong to the same race or nationality. See, Manikka v Peter (1901) 4 NLR 243 and
Bandaranayake v Bandaranayake (1924) 24 NLR 245.
13
Hamilton A.R.Gibb, Mohammedanism (1955 edition), page 82; H.M.Z.Farouque, Muslim Law in
Ceylon: An Historical Outline, 4 MMDLR 1 page 26, footnote 67.
14
See, A.L.M.Haniffa vs. A.A.Razack (1959) 60 NLR 287; Abdul Cader v Razik (1953) 54 NLR 201
(PC) See, Section 25(1) of the Muslim Marriage and Divorce Act, supra note 1

3
 acted so out of respect for the Imam Abu Hanifa in whose presence they
were.”15

It has also been suggested that the rigid classification of persons as the followers of
the Hanafi, Maliki, Shaffie and Hanbali ‘sects’, or rather sub-sects, is not consistent
with certain Quranic injunctions.16

It is quite obvious that the judicial equation of sub-sects or schools of law with sects
would give rise to knotty problems in Sri Lanka, where there is a fair number of
followers of Imam Abu Haniffa in the predominantly Shaffie Muslim community.
Problems of this kind may be minimised by treating the great mazhabs such as
Shaffie, Hanafi, Maliki and Hanbali as schools of law, so that the diversity of the
applicable Muslim law in Sri Lanka will be confined to Sunni and Shiah law. The
Courts could then select the best out of the teachings of the various imams belonging
to both these sects adopting an eclectic approach (takhayur) to produce a rich blend of
Sunni and Shiah law.

But, one of the most obvious obstacles to such an approach would be Section 25(2)
of the Muslim Marriage and Divorce Act which legislatively equates mazhabs with
sects by seeking to clarify the law relating to a “woman belonging to the Shaffie sect.”
This provision should be suitably amended if it is considered prudent to adopt such an
eclectic approach, but even then it will be necessary to provide in Section 16 what law
will apply to determine the validity of a marriage between two Muslims if one is a
Sunni and the other a Shiah.

Essentials of Marriage: Some Splendid Grey

Under sharia’t law, for a marriage to be regarded as valid (sahi) the following
requirements should be satisfied:-

(1) The parties should have either the capacity to marry or the capacity to be
married;
(2) The parties should agree to the marriage;
(3) The formalities of marriage should have been followed;
(4) There should be no legal impediments to the marriage; and
(5) The dower (mahr) should have been provided.17

Generally a marriage is either valid or void, and there is nothing in between.

However, principles of sharia’t law postulate a splendid grey (fasid) between the dull
black and white of a valid (sahi) and a void (batil) marriage. For the lack of a more
appropriate tag, such a marriage is called an ‘irregular’ or ‘voidable’ marriage (fasid).
The distinction between a marriage which is batil and fasid is said to depend on the
nature of the impediment to the marriage which prevents it from being valid. These
impediments may be of two kinds:-

15
Mapillai Alim, Fat-hud-Dayyan fi Fiqhi Khairil Adyan, (Translated by Saifuddin J. Aniff-Doray)
(1963 edition) page 534.
16
See, Holy Quran (Edited by Abdullah Yusuf Ali) Sura Al-An’am VI: 159. See also, Saleem Marsoof,
Fallacies of Muslim Law (1996-1997) Meezan page 63 at page 66.
17
For a detailed consideration of these essentials, see Saleem Marsoof, The Muslim Law of Marriage
(2005) Meezan page 1.

4
 (a) permanent impediments which vitiate a marriage altogether and render it
absolutely and incurably void (batil)18; and

(b) temporary impediments which are transcendent in nature, which make the
marriage temporarily void (fasid)19with the potentiality of becoming valid
upon the removal or correction of the impediment in question.

To illustrate the distinction with an example, the second marriage of a Muslim woman
whose first marriage is still subsisting is absolutely and incurably void (batil) and
would not become valid even on the death of the first husband, as the subsistence of
the first marriage was a permanent impediment to any subsequent marriage. On the
other hand, in the case of a Muslim man, the Holy Quran permits him to “marry....two
or three or four.”20 The Shaffie doctrine enunciated in Minhaj-et-Talibin is that-

“A marriage concluded by a free man with five wives at once is null as regards
all of them; but if he married them one after the other, the fifth alone is
void.”21

Under Hanafi law, where a man who already has four wives marries a fifth, the
marriage with the fifth wife will be fasid, and would become valid upon the death or
divorce of one of the other wives.22 According to the jurists who are willing to admit a
little grey, a fasid marriage has the potential of becoming valid (sahi) upon the
subsequent removal or correction of such temporary impediment.23 This classification
is not followed by other jurists who claim that there can be only two types of
marriages, those that are valid and those that are void, and there is nothing in
between.24

As far as Sri Lanka is concerned, the Hanafi concept of fasid will be applicable only
if we are willing to select the best out of the teachings of the four great imams
belonging to the Sunni sect adopting an eclectic approach (takhayur). As already
noted, such an approach could produce a rich blend of law providing greater
flexibility to legal reasoning, but the judicial equation of “sect” with “sub-sect” or
school of law (mazhab) may prove to be a major stumbling block in this regard.

18
Such a marriage does not create any civil rights and obligations between the parties and the offspring
of such a union are illegitimate.
19
A fasid marraige has no effect before consummation, but after consummation some legal
consequences ensue viz (a) The wife is entitled to mahr; (b) The wife is bound to observe the iddat
of divorce, but not of the death; and (c) The offspring are legitimate.
20
Holy Quran, (Translated by Marmaduke Pickthall) Sura Nisaa IV: 3; See, also Attorney-General v.
Reid. (1963) 65 NLR. 97; (1964) 67 NLR. 25. Cf. Queen v. Obeysekera (1889) 9 S. C. C. 11; Katchi
Mohamed v. Benedict (1961) 63 N.L.R. 505. For the legal effect of a subsequent polygamous
marriage on the original monogomuus marriage, see, Abdoulie Drammeh v. Joyce Drammeh, 4
MMDLR. 203 and Abeysundere v Abeysundere, (1998) 1 Sri LR 185.
21
See, Mahiudin Abu Zakaria Yahya Ibn Sharif en Nawawi, Minhaj-et-Talibin, Book. 33 Chapter II
Section 1 page 292.
22
Dr. V.P. Bharatiya, Syed Khalid Rashid’s Muslim Law (1996) page 81.
23
See, Mohanlal Dayalji Manek, Handbook of Mohomedan Law (5th Edition) 33. See also, Dr. Tahir
Mahmood, The Muslim Law of India, (1987) 46.
24
See, Al-Haj Muhammed Ullah, The Muslim Law of Marriage, (1990) 12.

5
Marriage with Non-Muslims: A Perlite Grey

As far as a Muslim woman is concerned, the rule is laid down in the Holy Quran in
black and white. She is prohibited from contracting a valid marriage with a non-
Muslim man irrespective of what religion or faith he belongs to. Referring to such
women in Sura Mumtahana Allah says-

“They are not lawful (wives)

For the Unbelievers, nor are
The (Unbelievers) lawful (husbands)
For them.” 25

Needless to say, such a marriage is void ab initio. The position is different in the case
of a Muslim man who is permitted to contract a valid marriage with a kitabia that is a
woman following a revealed religion such as a Christian or Jewess. In Sura Maida
Allah says-

“Lawful unto you in marriage

Are not only chaste women
Who are believers, but
Chaste women among
The People of the Book….”26

However, even a Muslim male is not permitted to marry an idolatress (e.g. a Hindu)
or a fire-worshiper. Sura Baqara27 contains a strict injunction against marrying
“Unbelieving women idolaters (mushrikathi) until they believe”. According to
Minhaj-et-Talibin, where an infidel of whatever religion is converted to Islam while
married to a woman whose religion is not founded upon some Holy scripture or is an
idolatress or a fire worshipper-

“…separation takes place immediately ipso facto, where the marriage has not yet
been followed by cohabitation. Otherwise, the continuation of the marriage
depends upon whether the woman embraces the faith before the end of the period
of her legal retirement.”28

There is a paucity of judicial decisions on this question. The only decided case
involved the marriage of a Muslim man to a Buddhist woman, which was held to be
void until she is converted to Islam.29 The distinction between a kitabia and a woman
who did not fall within the category of People of the Book (Ahl-al-Kitab), as well as the
question of idolatry, would have been of crucial importance in cases such as Attorney
General v Reid30 and Abeysundere v Abeysundere31 in which the parties to the first
marriage were Roman Catholics, there being no evidence in these cases as to whether
they practised idol worship. It is unfortunate that this aspect was not looked into by
25
The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Mumtahana LX:10.
26
The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Maida V:6.
27
The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Baqara II:221.
28
Mahiudin Abu Zakaria Yahya Ibn Sharif en Nawawi, Minhaj-et-Talibin, Book. 33 Chapter III
Section 1 page 295.
29
Official Assignee v Ma Hta Htwe, 1929 AIR (Rangoon) 35.
30
(1964) 65 NLR 97 (SC): (1966) 67 NLR 25 (PC).
31
(1998) 1 Sri LR 185.

6
any of the courts that heard these cases. In these cases the question arose as to the
validity of the second marriage of a man who had contracted such marriage after
embracing Islam with a woman professing Islam during the subsistence of the first
non-Muslim monogamous marriage. In the first of these cases, the Privy Council held
that the second marriage was valid. In the second case, the Supreme Court of Sri
Lanka took a contrary view and held that the second marriage was void due to the
subsistence of the first marriage. This is clearly contrary to principle. As has been
observed by Dr. Lucy Caroll–

“Although stipulations in a marriage contract may be perfectly valid and legal

under the Anglo-Muhammadan legal traditions of the subcontinent,
enforcement may, in many situations, pose a problem if the contract does not
itself provide for sanctions in the event of a breach of the agreed terms. If the
marriage contract contained simply a stipulation, for instance, that the husband
should not marry a second wife during the subsistence of the first union, the
stipulation would be valid but practically unenforceable. The husband could
not be prevented from marrying a second wife if the fancy took him and his
second marriage would be valid. The relief available to the first wife would be
extremely limited. The fact of breach of stipulation in a marriage contract
may, in appropriate cases, enable the wife to defeat her husband’s suit for
restitution of conjugal rights, and it may, in appropriate cases, enable her to
claim maintenance from her husband while refusing to live with him…A
stipulation in a Muslim marriage contract may, however, be enforced by
further provisions in the same contract delegating to the wife the right to
dissolve the marriage by talaq-i-tafwid should the husband contravene the
stipulation.”32(Emphasis added)

It is clear from the above passage that a marriage contracted in violation of a mere
contractual stipulation of monogamy would still be valid. It is trite law that the
subsistence of a previous marriage contracted between persons belonging to the
category of Ahl al-Kitab will not necessarily render void in the eyes of the sharia’t a
subsequent marriage entered into by the male party, even if such marriage was
contracted in violation of a stipulation contained in the first contract of marriage. This
clearly exposes the fallacy in the reasoning of the Supreme Court in the Abeysundere
case, which assumed that the existence of a prior marriage with a person belonging to
the Roman Catholic faith rendered void the second marriage contracted with a person
professing Islam. The said decision has been criticised on the basis that it has
overlooked applicable principles of the sharia’t and is also inconsistent with Sections
16 and 98(2) of the Muslim Marriage and Divorce Act.33 The Abeysundere decision
also gives rise to the question whether the second marriage should be treated as batil

32
Dr. Lucy Carroll, Talaq-i-Tafwid: The Muslim Woman’s Contractual Access to Divorce, (Lahore
1996) pages 55 to 56.
33
Supra note 1. See also, Saleem Marsoof ‘The Abeysundere Decision: An Islamic Perspective’, (1998-
1999) Meezan page 59. For other comments on this decision see, Dr. Lakshman Marasinghe
‘Monogamy, Polygamy and Bigamy; Abeysundere v Abeysundere – A Conundum’, (1998) Bar
Association Law Journal Vol. VII Part II page 44; Savitri Goonesekere, Muslim Personal Law in Sri
Lanka: Some Aspects of the law on Family Relations, (MWRAF, 2001) page 38; and Justice
K.M.M.B.Kulatunga, ‘Natalie Abeysundere v Christoper Abeysundere & another (1999) Bar
Association Law Journal Vol. VIII Part I page 109.

7
or fasid in the event of the first marriage coming to an end by reason of the death of
the first wife or as a result of a divorce.34

Registration of Marriage & Divorce: A Little Indium Grey

The sharia’t has prescribed various formalities for marriage and divorce, but
registration is not one of them. Registration is only a device introduced by modern
legislation to facilitate the proof of a marriage or divorce. It is expressly provided in
the Muslim Marriage and Divorce Act of 195135 that a certified copy of the entry in
the marriage or divorce registers maintained under the said Act “shall be accepted and
received in all courts as the best evidence of the marriage or divorce.”36

Among Sri Lankan Muslims there is a very small proportion of people who insist that
registration of marriages and divorces would not be in the spirit of the sharia’t, and
refuse to take steps to register these important events despite the fact that they affect
the status of the parties. This raises the issue as to whether such registration is
required by the law, and how the law deals with non-compliance. The answer to the
first of these questions is that while the failure to register a marriage or divorce does
not render the marriage or divorce invalid, those responsible for the omission may
have to face serious sanctions. It is expressly provided in Section 16 of the Muslim
Marriage and Divorce Act of 1951 that the validity of a Muslim marriage or divorce
does not depend on “registration or non-registration” but should be determined
according to “the Muslim law governing the sect to which the parties to such marriage
or divorce belong.”37 However, the same legislation makes it compulsory to register
any marriage or divorce coming under the purview of the Act.

The obligation of causing the registration of the marriage is imposed by the Muslim
Marriage and Divorce Act on the bridegroom, the wali of the bride and the person
who conducted the nikah ceremony,38 and the failure to do so is deemed to be an
offence under the Act.39 Section 32 of the Act expressly empowers the District
Registrar, after due inquiry, to register a marriage that has not been registered or to
rectify any particulars in a marriage registration that is erroneous. All this is terribly
straightforward, or as I prefer to put it, black and white.

But even a mundane issue such as registration can have a grey lining, and what is
somewhat grey relates to the registration of divorce. The Muslim Marriage and
Divorce Act vests the obligation of registering a divorce exclusively on the officiating
Quazi,40 but does not make the failure to register a divorce an offence under the Act.
However, the Act makes it an offence to aid or assist “any Muslim to obtain or effect
or register a divorce otherwise than in accordance with the provisions of this Act.”41
The ambit of this provision is very much a grey area in our law, as it is not clear

34
See, Saleem Marsoof ‘The Abeysundere Decision – Legislative Intervention Imperative’ (2005)
Meezan 73 at page 84.
35
Muslim Marriage and Divorce Act No. 13 of 1951 supra note 1.
36
ibid., Section 71.
37
ibid., Section 16.
38
ibid., Section 17(3).
39
See, Section 17(5) and 17(6) of the Muslim Marriage and Divorce Act, supra note 1. Penalties that
may be imposed by Court are specified in Sections 81 and 86 of the said Act.
40
See, Section 29 of the Muslim Marriage and Divorce Act, supra note 1
41
ibid., Section 81(b) and Section 83.

8
whether it is intended to penalise those (not being Quazis) who aid or assist in the
process of effecting traditional forms of divorce such as talaq hasan, talaq ahsan and
talaq-ul-bidaat42 which may be sanctioned by “the Muslim law governing the sect” to
which the parties belong and are expressly kept alive by Section 16 of the Act. It is
noteworthy that in terms of Section 32 of the Act the District Registrar may register
an unregistered divorce where an application is made by either of the parties to the
divorce, or by the issue or lawful representative of any such party, if after hearing
such evidence as may be adduced, he is satisfied that such divorce was in fact
effected. This provision is intended to enable the registration of unregistered
marriages and divorces, and it is significant to note that it is expressly provided that
on receipt of an application the District Registrar shall notice “the officiating or other
priest or registrar or Quazi before whom the marriage or divorce, as the case may be,
was contracted or effected and any other person whom he may consider expedient to
hear” to show cause why such application should not be granted. Does this mean that
despite the clear provision in Section 27 of the Act that a husband desiring to divorce
his wife shall comply with the procedure laid down in the Second Schedule to the Act,
he could still go through a traditional form of divorce with or without the assistance of
a priest or other person who is not a Quazi, and proceed to have the divorce registered
under Section 32?

Talaq Procedure: A Panoramic Grey

The sharia’t recognizes four modes for the termination of marriage. A marriage may
be dissolved through a pronouncement of divorce by the husband (talaq), grant of
divorce by the Quazi at the instance of the wife on proof of fault of the husband
(fasah), grant of divorce for repugnance on payment of compensation by the wife
(khula) and grant of divorce with mutual consent of the parties (mubarat). Talaq is the
most unpalatable of these four modes, as it can be performed without payment of any
compensation to the wife, and it is a unilateral act of the husband which can only be
mitigated by reconciliation. It is noteworthy that Rule 3 of the Second Schedule to the
Act specifically provides that “the Quazi shall not record the alleged reasons for
which, or the alleged grounds upon which, the husband seeks to pronounce the talaq”

Section 27 of the Muslim Marriage and Divorce Act of 1951 43 provides that where a
husband desires to divorce his wife, the procedure laid down in the Second Schedule
to the Act should be followed. Was the intention of the legislature to replace the
traditional modes of divorce such as talaq hasan,44 talaq ahsan45 and talaq-ul-
bidaat,46 with the Second Schedule Procedure, or was the objective simply to lay
down a uniform statutory procedure for divorce, without in any way rendering invalid
or ineffective the traditional modes of divorce? The procedure contained in the

42
These forms of divorce are discussed under the heading ‘Talaq Procedure: A Melancholy Gray’.
43
Supra note 1.
44
Talaq Hassan consists of three pronouncement of divorce made during three successive periods of
purity (tuhr). The spouses may reconcile at any time before the third pronouncement, but the divorce
becomes irrevocable upon the third pronouncement being made.
45
Talaq Ahsan consists of a single pronouncement of divorce made during a period of purity. The
divorce is revocable during iddat but becomes irrevocable on completion of the period of iddat.
46
Talaq-ul-Bidat consists of three pronouncements of talaq made on one and the same occasion during a
period of purity clearly indicating an intention to dissolve the marriage irrevocably. The
pronouncement becomes instantaneously irrevocable. This is also known as the 'triple divorce' and is
not looked upon with favour by the Jurists.

9
Second Schedule is somewhat different from the procedure that existed under the
Muslim Marriage and Divorce Registration Ordinance of 1929. In Nansoora v Sithi
Jaria47 the Board of Quazis observed that the Ordinance only provided a procedure
for the hasan type of talaq. Dr. M.S. Jaldeen has expressed the view that the Second
Schedule of the Act of 1951 has also adopted talaq hasan as the effective mode
applicable to Sri Lankan Muslim males.48 However, this view was not followed by
Justice Ameer Ismail in Mohamed Farook Khan v A.H. Moomin and Others49 in
which his Lordship held that “The Rules in the Second Schedule prescribe a
procedure for the ahsan form of talaq as it has reference only to the pronouncement
of a single talaq”.50

At first glance it might appear that the rules contained in the Second Schedule
supersede the procedures traditionally associated with various forms of talaq, but one
should not lose sight of Section 16 of the Act which proclaims that “Nothing
contained in this Act shall be construed to render valid or invalid, by reason only of
registration or non-registration, any Muslim marriage or divorce which is invalid or
valid, as the case may be, according to the Muslim Law governing the sect to which
the parties .... belong”. In Nansoora v Sithi Jaria the Board of Quazis made the
following pertinent observation in the context of the former Muslim Marriage and
Divorce Registration Ordinance which is equally applicable to the interpretation of
the present Act:-

“The Muslim Marriage and Divorce Registration Ordinance does not in the
least abrogate the Muslim Law of Marriage and Divorce but it only provides a
procedure ....... A person who fails to register a divorce which has been
authorised by a permit issued under the Ordinance is guilty of an offence, so is
every Muslim who aids or abets another Muslim to obtain or effect a divorce
otherwise than in accordance with the provisions of the Ordinance. A divorce
effected otherwise than in accordance with the provisions of the Ordinance
will therefore be valid and good under the Muslim Law, subject however to
the penalty imposed under the Ordinance. Moreover the validity or invalidity
of a divorce does not depend upon its registration or non-registration. Where a
divorce is valid under Muslim Law its non-registration under the provisions of
the Ordinance does not make it invalid”.51

We are therefore left with the puzzle: Is there any contradiction between Section 16 of
the Act, which seeks to preserve the sharia’t law, and Section 27 read with the
Second Schedule to the Act which seeks to lay down a procedure for divorce? Is the
procedure laid down in the Second Schedule the exclusive procedure for divorce, as
Section 27 seems to suggest? If so, is such procedure an adaptation of talaq hasan,
talaq ahsan or talaq-ul-bidaat? If the procedure set out in the Second Schedule is not
the exclusive procedure for talaq, and it stands side by side with the traditional forms
of talaq mentioned above, is a divorce carried out in terms of the Second Schedule
valid if it does not conform to any of the traditional forms of talaq? This is something
that requires urgent clarification.

47
(1945) MMDR III, 40.
48
See, M.S. Jaldeen, The Muslim Law of Marriage, Divorce and Maintenance in Sri Lanka, page 39.
49
(1994) Bar Association Law Journal Reports, Volume V page 80.
50
ibid page 81.
51
(1945) MMDR III, 40 at pages 44 - 45.

10
Another contemporary problem is the ease with which talaq can be performed and
registered in Sri Lanka and the absence of any express provision in the Act for the
payment of mathah52 to the wife. In recent times, most of the Quazis have followed an
“enlightened” approach of refusing to register talaq pronouncements unless and until
some reasonable compensation was paid to the wife, or at least some meaningful
provisions were made for her and the children, despite the fact that there is no express
mention of mathah in Section 47(1) of the Muslim Marriage and Divorce Act where the
powers of a Quazi are enumerated.

This led the Court of Appeal in Tuan Muthaliph Tuan Nazar v M. Fathima Minna and
Another53 to hold that an order for payment of mathah by a Quazi Court was contrary to
law and ought to be quashed. Justice Anil Gooneratne, who sat alone in this application
for a writ of certiorari, was mindful of the fact that Section 47(1) is an “inclusive
provision” and it is expressly provided in Section 98(2) of the Act that “the status and
the mutual rights and obligations of the parties shall be determined according to the
Muslim law governing the sect to which the parties belong”. However, after a careful
examination of the provisions of the Act in the light of the principles of sharia’t law,
Justice Gooneratne concluded that the Act does not confer jurisdiction to a Quazi Court
to make an award of mathah to a divorced woman in the absence of express provision in
the Act. In arriving at his decision, his Lordship emphasised that if the legislature
intended to introduce the concept of mathah into the Act, it could have done so very
easily over the years.

It is noteworthy that the Supreme Court has granted special leave to appeal against the
decision of the Court of Appeal in Tuan Muthaliph Tuan Nazar v M. Fathima Minna
and Another and the matter is still pending in the apex Court. There is no controversy in
the sharia't law in regard to the fact that a husband who chose to terminate his marriage
by a unilateral pronouncement of talaq, should show some kindness and mercy to his
divorced wife. In fact, the Holy Quran commends the husband to part with his estranged
wife “on equitable terms”54.

A Committee of Experts appointed by the then Minister of Muslim Affairs chaired by

Dr. M.M Sahabdeen, had recommended that Section 47(1) of the Muslim Marriage and
Divorce Act be amended to provide for an award of mathah in favour of the divorced
woman. The Committee had noted that such a measure would certainly discourage
talaq,55 which is being resorted all too frequently leaving divorced women very much in
the lurch and adding to the social insecurity and injustice prevalent in the system. It is
unfortunate that this and other beneficial recommendations of this Committee have not
so far been implemented by legislative action.

52
This is a divorce granted by a Court at the instance of the wife on the proof of some fault of the
husband which is recognised by Muslim law as sufficient to terminate the marriage.
53
CA Application 531/2008 (CA Minutes dated 13.6.2013).
54
The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Talaq LX : 2.
55
See, Report of the Committee Appointed by the Hon. Minister of State for Muslim Religious and
Cultural Affairs to Recommend Amendments to the Muslim Marriage and Divorce Act and the
Wakfs Act, paragraphs 2.29 and 2.30 (pages 26-28). The author was a co-opted member of this
Committee.

11
Fasah and Other Forms of Divorce: A Melancholy Grey

Where a wife wishes to obtain a fasah divorce56 from her husband, Section 28(1) of
the Muslim Marriage and Divorce Act refers her to the procedure laid down in the
Third Schedule. An important distinction between the procedure contained in the
Second Schedule and the procedure contained in the Third Schedule is that the former
does not envisage adjudication on disputed facts, apparently because the law confers
on the husband the absolute right to talaq with no questions asked. On the other hand,
an applicant for a fasah divorce is required to prove ill-treatment by the husband or
“any act or omission on his part which amounts to a ‘fault’ under the Muslim law
governing the sect to which the parties belong”.57

The inquiry relating to an application by a wife for a fasah divorce has to be held by
the Quazi with the assistance of three Muslim assessors. It has been held that the
failure to empanel assessors in a case of fasah divorce is fatal to the validity of the
proceedings.58 It is expressly stated in Rule II of the Third Schedule that “the Quazi
shall maintain a record of the proceedings in the case and shall enter therein the
statements made on oath or affirmation by the wife and her witnesses and by the
husband ….and his witnesses” It is also provided that the record of every such
statement shall be read over by the Quazi to the person who has made it and shall be
signed by such person.

The Board of Quazis noted in Zain v Subaitha, “in the absence of pleaders in a Quazi
Court, it would be incumbent on the Quazi to maintain the records very faithfully.”59 In
Sameen v Noor Saffiya60 the Board of Quazis held that although a wife should have two
witnesses to support her application for divorce, these witnesses need not necessarily be
Muslims. Some Quazis have failed to observe the requirement of maintaining proper
records of proceedings, and consequently cases have been sent back to the Quazis by the
Board of Quazis for trial de novo. In one case it was observed by the Board of Quazis
that the parties were not allowed to call material witnesses,61 and cross-examination is
either not permitted62 or allowed to be conducted in the most scandalous manner. This
has not only aggravated the dispute but has also caused unnecessary bitterness among
the spouses and their families. Analysis of statistics relating to the disposal of
applications for divorce provided by the Quazis themselves show that a greater
percentage of applications filed by wives seeking fasah divorces have been delayed
before the Quazis. Case studies reveal that Quazis have attempted to obtain the consent
of the husband for granting the fasah divorce without proceeding to inquire into the
merits of the case in terms of the Third Schedule. If, as is usually is the case, the
husband’s consent is not forthcoming, the Quazis persuade the husband to pronounce
talaq on the wife, thereby adding insult to injury. Quazis may be resorting to such
obnoxious procedural malpractices due to lack of facilities to conduct judicial inquiries
as required by the Third Schedule, but this cannot be a legitimate excuse for tacitly
rejecting fasah applications. Such travesty of justice can only be mitigated by appointing
56
This is a divorce granted by a Court at the instance of the wife on the proof of some fault of the
husband which is recognised by Muslim law as sufficient to terminate the marriage.
57
See Section 28 and the Third Schedule of the Muslim Marriage and Divorce Act, supra note 1.
58
See Fareed v Jesima (1967) MMDR V, 65, Compare, Fareed v Jesima (1967) MMDR V, 63.
59
Zain v Subaitha 5 MMDR 51 at page 52.
60
(1960) MMDR V, 6.
61
See, Zain v Subaitha 5 MMDR 51.
62
Abdul Salam v Sohara Umma 5 MMDR 56.

12
competent and committed persons to function as Quazis and enhancing the resources and
facilities available to them to efficiently deal with such cases.

khula and mubarat divorces are concerned, the applicable procedure appears
As far as
to be a modification of the procedure set out in the Third Schedule. It is expressly
provided in the Muslim Marriage and Divorce Act that “where a wife desires to effect
a divorce from her husband on any ground not referred to in subsection (l) of Section
28, being a divorce of any description permitted to a wife by the Muslim law
governing the sect to which the parties belong, the procedure laid down in the Third
Schedule shall be followed so far as the nature of the divorce claimed in each case
renders it possible or necessary to follow that procedure.”63 This provision clearly
demonstrates the intention of Parliament to preserve the various forms of divorce
known to sharia’t law while seeking to conform as far as possible to the procedures
laid down in the Act.

Another grey area in the law concerns talaq-i-tafwid. As under Muslim law a marriage is
a civil contract, the parties “may agree on the terms of the contract, and if the terms are
of a reasonable nature and are not opposed to the policy of the law, they will be
binding.”64 The parties may therefore incorporate into the marriage contract any terms
that are not repugnant to the basic principles of Islam and morality. For example, the
condition that the husband will not remove the bride from her native town65 or that the
couple will make the bride’s residence their matrimonial home,66 are clearly in accord
with the sharia’t. So would be a condition that the husband shall not keep a concubine.67

It has been held that a stipulation in a marriage contract to the effect that the husband
shall not marry a second wife during the subsistence of the first marriage68 or shall not
take a second wife without the consent of the first,69 is consistent with Islamic morality.
In the opinion of most jurists, it is lawful to provide in the marriage contract that the
husband’s power to pronounce divorce would stand delegated to the wife in the event the
husband violates such a condition.70 This form of divorce is known as talaq-i-tafwid. A
pronouncement of divorce made by a wife, under authority delegated to her by the
husband, is deemed to be an act of the husband himself and has the effect of dissolving
the marriage without the intervention of a court.

There is, however, no mention of talaq-i-tafwid in the authoritative Shaffie text Minhaj-
et-Talibin,71 and it has been observed that there are many difficulties in accommodating
the concept of talaq-i-tafwid into the statutory framework existing in Sri Lanka.72

63
Section 28(1) of the Muslim Marriage and Divorce Act, supra note 1.
64
per Canekeratne J in Noorul Naleefa v. Marikar Hadjirar (1948) 48 NLR 529 at 532.
65
See, Maulana Sayed Saeed Akhtar Rizvi, Islamic Law Relating to Marriage, (Mombasa 1967), page
23.
66
See, Muhammad Yasin v Mumtaz Begum 1936 AIR (Lahore) 716. Compare, Imam Ali Patwari v
Arafatun Nessa 1914 AIR (Calcatta) 369; Khatun Bibi v Rajjab 1926 AIR (Allahabad) 615.
67
See, Meer Ashruf Ali v Meer Ashhad Ali (1871) 16 Weekly Reporter (Sutherlands) 260.
68
See, Muhammad Amin v. Amina Bibi 1931 AIR (Lahore) 134.
69
See, Sainuddin v Latifannessa Bibi, (1919) Indian Law Report 46 Calcatta 141.
70
See, Mst. Bafatan v Abdul Salam 1950, 1950 AIR (Calcatta) 308. See also, K.N.Ahmed, The Muslim
Law of Divorce, (New Delhi, 1978) pages 201-204.
71
See, Mahiudin Abu Zakaria Yahya Ibn Sharif en Nawawi, Minhaj-et-Talibin.
72
See, Saleem Marsoof, The Quazi Court System in Sri Lanka and its Impact on Muslim Women,
(MWRAF, 2001) pages 43-47 for a detailed discussion of this issue.

13
Enforcement of Orders of Quazis: A Profound Grey

The most profound grey in the realm of matrimonial law can be encountered when
one looks at the enforcement of orders of Quazis. In terms of Section 47(1) of the
Muslim Marriage and Divorce Act73, the Quazi has the power to inquire of into and
adjudicate upon (a) any claim by a wife for the recovery of mahr; (b) any claim for
maintenance by or on behalf of a wife; (c) any claim for maintenance by or on behalf
of a legitimate child74; (d) any claim by a divorced wife for maintenance until the
registration of the divorce or during her period of iddat, or, if such woman is pregnant
at the time of the registration of the divorce, until she is delivered of the child; (e) any
claim for the increase or reduction of the amount of any maintenance ordered under
this section;(f) any claim for kaikuli;(g) any claim by a wife or a divorced wife for her
lying-in expenses; (h) any application for mediation by the Quazi between a husband
and wife; (i) any application for a declaration of nullity of marriage either by a
husband or by a wife; and (j) any application for authority to register the marriage of a
girl below twelve years of age.

Obviously, the Quazi enjoys wide powers to make diverse orders under Section 47,
but he is required to hold a proper judicial inquiry before making an order. The
procedure to be followed by the Quazi is laid down in the Fourth Schedule to the Act.
The prescribed procedure is very similar to summary procedure under the Civil
Procedure Code. It is expressly provided that “the provisions of Rule 11 in the Third
Schedule as to the record of proceedings shall apply so far as may be in the case of
inquiries held under the Rules in this Schedule”.75 There is no provision for assessors
in the Fourth Schedule, and the Board of Quazis has summarily dismissed an
argument based on the failure to empanel assessors in a maintenance case.76

It is relevant to note that in terms of the original Section 65 of the Muslim Marriage
and Divorce Act77, any order for the recovery of mahr and kaikuli has to be enforced
as a decree of the Court of Request. Any other sum awarded by a Quazi or the Board
of Quazis, such as an award of maintenance, has to be recovered as a fine imposed by
the Magistrates Court according to Section 64 of the Act. With respect to the recovery
of mahr and kaikuli in terms of Section 65(1) of the Act, there is a great deal of
uncertainty as the Court of Requests which is specified as the recovery court in the
original version of the Act, has now been abolished. There are conflicting judicial
decisions and academic opinion in regard to the question whether the certificate has to
be filed in the District Court or Primary Court. Apart from this issue, the other
difficulty pertaining to the recovery procedure is that where the person against whom
an order for recovery of mahr or kaikuli is not possessed of assets, there is no
provision to recover such amount as a fine and, conversely, where the person against
whom maintenance has been awarded is living abroad or is absconding, it is not
possible to recover the money by seizing any seizable assets he may be having in Sri
Lanka. Another drawback seems to be that he cannot make an order with respect to

73
Supra note 1.
74
Including any claim for maintenance by or on behalf of an illegitimate child, where the mother of
such child and the person from whom maintenance is claimed are Muslims. Vide Section 67(1)(cc)
of the Act.
75
Rule 7 of the Fourth Schedule to the Muslim Marriage and Divorce Act, supra note 1.
76
See, Fareed v Jesima (1967) MMDR V. 63 at 64.
77
Supra note 1.

14
the custody of children even if the issue arises in the context of divorce or nullity
proceedings. This is a great pity as our Courts have consistently held that any question
relating to the custody of a Muslim child should be decided according to the
principles of sharia’t law and not the Common law.78

These are profound gray areas of the law which can only be rectified by legislative
intervention. It is desirable to consider amending Section 47 of the Muslim Marriage
and Divorce Act to confer on the Quazi the power to make custodial orders in the
course of or at the conclusion of matrimonial proceedings, and to amend Section
65(1) to clarify the recovery court for mahr and kaikooli and to provide greater
flexibility in regard to choice of the method of enforcement.

Concluding Greys

The objective of this grey paper was to stimulate thought and action for the reform of
the Muslim matrimonial law applicable in Sri Lanka which suffers from fundamental
flaws. Most of the problems highlighted in this paper, as has been demonstrated, arise
from the deficiencies in the statutory framework within which the sharia’t rules
operate, and the failure of the Courts to appreciate and give effect to the wisdom of
the sharia’t. Most of these shortcomings can be remedied by appropriately amending
the relevant statutory provisions or by replacing the existing legislation with a new code
which will set out the applicable law in a simple and accurate manner. While
codification has the advantage of eclectic choice and clarity, it will require a great
deal of work by competent and dedicated draftsmen, and could also lead to
Constitutional snags.

78
In re Aiza Natchia 1860 – 62 Ramanathan 88; Hudji Marikar v. Ahamade Lebbe 1860 – 62
Ramanathan 144 (1962) 1 M.M.D.L.R. 9; Re application of Wappu Marikar and his wife
Ummaniumma (1912). 14 N.L.R 225 (1962) 1 M.M.D.L.R 52; the unreported decision cited by
Drieberg J in Junaid v Mohideen (1933) 34 N.L.R 141 (1962) I .M.M.D.L.R 112, 114; Mohideen v.
Sithy Katheeja (1958) 59 N.L.R 570; Hameen v. Malika Baby (1968) 70 N.L.R. 405.

15