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Muslim divorce law in Sri Lanka

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Divorce is distasteful to anyone but it needs to be considered as an option

‘Law is Light’ is a trilingual legal project to shed light on the law. The Latin maxim ‘ignorantia legis neminem excusat’ translates to ‘ignorance of the law is not an excuse’. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In the 5th discussion, the program focused on ‘Divorce laws in Sri Lanka’. The discussion featured Attorney-at-Law, Safana Gul Begum.

What are the types of divorces according to the Muslim Marriage and Divorce Act of Sri Lanka (MMDA), and their grounds?

The MMDA governs marriages, divorces and other related matters concerning Muslims citizens of Sri Lanka. There are three types of divorce.

i. Initiated by the husband, called Talak (or Talaq)

There are no grounds for a husband to pronounce Talak on his wife, he can simply go to the Quazi court and in the presence of two witnesses and the Quazi, pronounce Talak. According to Islamic principles there are three forms of Talak: Talak Ahsan (one pronouncement and three reconciliation efforts within three months), Talak Hassan (three pronouncements and three reconciliation efforts within three months) and Talak ul Biddat (triple Talak at a time within one month reconciliation effort). But only the Ahsan form of Talak exists in Sri Lanka.

ii. Initiated by the wife: Fasah (or Fasakh) and Khula

Without the consent of the husband the wife can obtain Fasah but she has to have grounds. Fasah divorce can be obtained on grounds of ill-treatment (physical, verbal or mental), fault (an act or omission, for example non maintenance or desertion) and non-fault (inability to maintain, leprosy, insanity and impotence of the husband). In the case of impotence, it must have been so from before marriage. In Khula there need not be grounds for a wife to obtain a divorce. The wife has to receive the husband’s consent to get the divorce and she has to pay him compensation.

iii. Divorce on mutual consent

Can a person who is married under the MMDA obtain a divorce under general law of Sri Lanka?

No. According to the General Marriage Registration Ordinance (GMRO) or Civil Procedure Code, Muslims of Sri Lanka are prohibited from marrying under the GMRO. If the marriage is contracted under the MMDA it has to be dissolved according to the MMDA.

What is the procedure to file for divorce? Is the divorce procedure the same for both men and women, under the MMDA?

The divorce has to be filed at the Quazi in the area where the wife resides. Pronouncement of Talak is an inherent right of a Muslim man, without the mention of any reason, and the Quazi has to allow him to pronounce Talak.

In Fasah divorce, the wife has to prove grounds with evidence. Her evidence alone is insufficient; they have to be corroborated by two other witnesses on her behalf. We see that there is no equality in divorce procedure under the MMDA.

Can a woman file for divorce if she finds out that her husband married a second time without her knowledge or consent?

S.24(1) of the MMDA defines the duties cast on a husband who opts for a second or subsequent marriage. Thirty days before the marriage, he has to notify the Quazis to the areas where his previous wife or wives reside, the area where he resides and the area where his future wife resides. That is the only duty mentioned, with regard to the husband. According to the statutory law, the husband does not require the consent of his present wife. Thereby it cannot be grounds for divorce for a wife.

Can a Muslim woman enter into a marriage under the term that the husband cannot marry a second time and in the event he does, that she will file for divorce?

There is no specific provision in the MMDA but there is a type of Talak, referred to as Talaq-e-tafweez, which is not practised in Sri Lanka. This type of Talak affords the wife the right to pronounce Talak on the husband, a right delegated by her husband either prior to or after the marriage, on violation of any terms or conditions. For example, if there is a condition between husband and wife, that if the husband enters into a second or subsequent marriage, the wife can pronounce Talak on him, the wife can do so if he violates this condition.

Can a lawyer accompany a client to the Quazi court on behalf of the client’s divorce case?

No. S.74 of the MMDA prohibits a lawyer from appearing for or representing any party at the Quazi Court. But it is possible in the Board of Quazis.

Does the husband have to maintain the wife after divorce?

S.47 (1) (d) MMDA states that there is a three-month iddat period after the divorce and the husband is duty-bound to maintain his wife during this period. If the wife is pregnant during the divorce, the husband has the legal duty to maintain the wife until she gives birth. Other than that there is no maintenance after the divorce, no alimony like GMRO in MMDA.

But under Islamic principles a divorced wife is entitled to consolatory payment, called Matha after the divorce.

What happens to children whose parents get divorced?

The sole liability to maintain the children lies with the father; female children until they get married and male children until they are gainfully employed.

Custody matters are handled by the District Court of Sri Lanka and as the Upper Guardian, the courts give emphasis to the best interest of the children.

There is an ongoing debate on the subject of consent for marriage in Sri Lanka. If either of the two individuals getting married (the man or the woman) does not consent, such a marriage is null and void, according to the teachings of the Prophet. There is also a consensual aspect with regard to the father of the one to be married, as the father has to sign the marriage contract. There are two types of consent here. Can you explain how each is perceived in Sri Lankan culture and how effective both types of consent are.

According S.25 of MMDA, as per the Shafi sect, the bride’s Wali’s (marriage guardian) consent is a mandatory requirement for a valid marriage. The Act mentions that the consent of the bride has to be obtained, but there is no procedure to prove that consent was obtained. In the case of the Hanafi sect, the Wali’s consent is not required, the woman can sign the marriage certificate herself.

If a woman claims that she was forced into marriage, which was signed by the Wali, will such a marriage be null and void? According to the Prophet’s teachings, a marriage which a woman is forced into is null and void. In other words she does not need to seek a divorce as the marriage did not exist to begin with. Is it the same under the MMDA?

No, it is not.

The complete discussion is available on YouTube channel ‘Law Students Association of Sri Lanka’, in all three languages. These laws are subject to change with future developments by the Legislature.

(Compiled by Zeenath Zakir Pro Bono Secretary 2020-2021)



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Virulence of identity politics underscored by rising India-Pakistan tensions

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Injured tourists in Indian-administered Kashmir. (AP Photo)

In the wake of the ‘leave India’ order issued to all Pakistani nationals in India by the Indian centre, the authorities in India’s Madhya Pradesh are reportedly up against a troubling dilemma with regard to what they must do with the offspring of Pakistani fathers and Indian mothers. In other words, of what nationality are they: Indian or Pakistani?

Such challenges could be confronting quite a few states in India in view of the likely widespread presence of mixed origin children in the country but the tangle helps to also highlight the harmful impact identity politics are continuing to wield on India, South Asia’s most successful democracy. Given its official democratic and secular identity, India would need to steer a policy course on this question that would indicate a rising above narrow nationalistic politics by the centre.

It is in fact a testing time for India. Given its democratic credentials the observer would expect the Indian centre to take a broad, humane view of the matter and allow the children to stay on in India, since the situation is not of the children’s making. If eviction orders are issued on the children as well narrow identity politics could be said to have won in India. However, this is entirely a matter for the central government and would be resolved by it in keeping with what it sees as its national interest currently. Hopefully, India’s enlightened national interest would be heeded.

Such policy dilemmas over a person’s true national identity, decades into India’s ‘political independence’, point to the persistence of challenges central to nation-making in the country. But such challenges are continuing to be faced by the entirety of South Asia as well.

All over the region, divisive identity politics are continuing to challenge the credentials of those states that are claiming to be democratic. Would they say ‘no’ emphatically to those political forces that are championing narrow ethnic, religious and language identities, for example, and steer a policy course that would be faithful to secularism and equity in all its dimensions?

This is the question and it could be of course posed to Sri Lanka as well, whose current government is claiming to work towards the establishment of a polity that is free of ethnic and religious nationalism. Democratic opinion in Sri Lanka would like to have concrete evidence that it is genuinely committed to these ideals.

Thus is a re-visit of the founding ideals of India and other democracies of the region being prompted by the current crisis in India-Pakistan relations. The conflict ideally ought to prompt democracies to question to what degree they are truly democratic and take the necessary measures to put things right on that score.

If nation-making in the truest sense has occurred in South Asia we of the region would not be having on our hands the currently endemic and wasting identity-based conflicts and wars. Nation-making is rendered possible when equity in all its respects is practised by states. It is the surest means to national integration and unity. The majority of states of South Asia are nowhere near these goals.

The fillip it may provide identity based discord in the region could be counted as one of the relatively slow-acting but dangerously insidious effects of the present India-Pakistan confrontation. The current, dangerous war of words between the sides, for instance, would only serve to intensify the populist perception that the region is seeing a vastly invigorated Hindu India versus Islamic Pakistan polarity. However, in the immediate term, it is a hot war that ought to be guarded against.

As mentioned in this column last week, a regional initiative towards resolving the conflict would prove ideal but since SAARC is currently in a state of virtual paralysis, Commonwealth mediation emerges as the next best option to explore in working out a negotiated solution.

Unfortunately, UN mediation, although desirable in this crisis is unlikely to prove entirely effective in view of the possibility of the major powers using such intermediation to further their partisan interests. Going forward, the UN General Assembly would need to take note of these considerations and figure out as to how it could play a constructive role in peace-making and insulate itself against interference by major powers.

Comparatively, the Commonwealth of Nations could prove more balanced in its managing of the confrontation. This is on account of the formation being widely representative of the developing world and its main interests. However, well-meaning groupings and individual states that have generally insulated themselves to big power manipulations could prove effective in these peace-making efforts as well. The need is for an in-gathering of countries that place peace in South Asia above partisan, divisive interests.

Given India’s major power status and its crucial economic interests worldwide it could be justifiably surmised that the April 22nd terror attack on civilians in Indian-administered Kashmir was deliberately planned to cause the greatest harm to India. The setback India’s tourism industry may suffer, for instance, should be taken cognizance of.

Besides, the strategy was also to ignite another round of religious riots in India and outside. Given these considerations it should not come as a surprise if the Indian political leadership sees it to be in India’s interests to initiate a tough response to the attack.

However, a military response could prove extremely costly for India and the region, as pointed out in this column last week. The negative economic fallout from a new India-Pakistan war for the region and the world could be staggering. The disruptions to the supply chains of the countries of the region from such an outbreak of hostilities, for instance, could be prohibitive and bring the countries of the region to their knees.

A crucial need is for politicians in both India and Pakistan to think beyond their short term interests. Quick military action could yield some perceived short term gains for these politicians but in the long run the South Asian region would be reverted to the position that it was in, in the mid- forties of the last century: a region dismembered and divided against itself.

Stepped-up peace efforts by civilian publics on both sides of the divide could prove enormously beneficial. Besides other things, these civilian groupings need to work tirelessly to curb the fatal influence identity politics wield on politicians and publics.

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The Broken Promise of the Lankan Cinema: Asoka & Swarna’s Thrilling-Melodrama – Part IV

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Swarna / Manorani

“‘Dr. Ranee Sridharan,’ you say. ‘Nice to see you again.’

The woman in the white sari places a thumb in her ledger book, adjusts her spectacles and smiles up at you. ‘You may call me Ranee. Helping you is what I am assigned to do,’ she says. ‘You have seven moons. And you have already waisted one.’”

The Seven Moons of Maali Almeida

by Shehan Karunatilaka (London: Sort of Books, 2022. p84)

(Continued from yesterday)

Swarna’s Obsession with Manorani

Swarna was clearly fascinated by Manorani Sarwanamuttu. She has noted the striking, angled close-up photograph of Manorani’s face, eyes closed, head thrown back, dressed in a black sari with a large white print and her hair held in place as usual with a spray of Jasmine, at the public cremation of Richard’s body on an open pyre. A brilliant public theatrical riposte, fearless. I think Lucien de Zoysa was standing beside her.

Swarna mentions a detail she observed during one of her four visits to meet Manorani, beginning in 1996, dressed with her hair tied in a low knot adorned with Jasmine flowers as Manorani usually did, as some Tamil women do. She said that she saw Manorani ‘gulp down her tears (kandulu gilagatta).’ Her response to what she saw clearly puzzled her as a Sinhala mother. So, her response in enacting her as Rani was to offer the opposite in her portrayal of Manorani. In her rendition of Asoka’s Rani (Queen) she indulged in a limited melodramatic gestural repertoire, perhaps imagining that Manorani had ‘repressed’ her sorrow. Therefore, she, Swarna, was doing her a favour by finally enabling the ‘return of the repressed,’ through her Melodramatic rendition of her Rani.

A Cosmetic Tamilness

The red pottu functioned as the seal for the white scroll invitation to the premier and in the advertisement to dot the ‘I’, in Rani. As well, a close-up of Rani pasting on a red pottu after having delivered a baby, emphasises it as a marker of difference. This is a cosmetic use of Tamilness without any idea of the multi-ethnic Ceylonese social milieu in which she grew up.

Used adjectively,Cosmetic’ implies superficial measures to make something appear better, more attractive, or more impressive but doesn’t change anything structurally.

The saris worn by Swarna as Rani and her styling are clearly chosen by her as she has a professional knowledge of Indian handloom cotton saris which she once sold at an exclusive boutique in Colombo. Interestingly, young women emulated Swarna’s excellent taste in a certain Indian look which is very flattering too. There is a lovely photograph of her with a pottu and draped in Indian cotton sari with a choker necklace, a low-key elegance. It is also the look that Shyam Benegal, coming to film from advertising, popularised with Shabana Azmi in their films together; a ‘Festival of India’ look. This styling was part of the ‘fiction’ determined by Swarna and her tastes and had no relationship to Manorani and her tastes. It’s the marketability of a rather exotic and strange (aganthuka she said) upper-class woman, dressed up as a ‘Tamil,’ that appears to have been the main ‘design objective’ in choosing costumes and accessories.

al Melodramatic Scene Construction

Asoka’s ‘fictional’ (Prabandhaya) scenes and narration are composed using melodramatic devices; coincidences, sub-plots, climaxes, sudden reversals, revelations and the like. Here I am engaging Asoka on his own terms, arguing that his ‘fiction’ as fiction, has not been constructed well. That is to say, that the ‘fictional world’ Asoka has constructed is not believable, feels false in the way many of our early melodramatic genre films felt artificial. It is wholly inadequate to create the violent political context for the main story.

But those simple films never claimed the status of art, their simplicity, their sarala gee, their naive characters, part of their faded charm. There are Sinhala film fans who are professional journalists I have listened to online, who still express their deep love of those films, the song sheets, hearing them on radio and records, that whole cinematic experience.

Rani with its orchestral score for solemn moments, Rani pacing up and down, smoking furiously at troubled moments, framed at the window with smoky mood lighting, are all hackneyed devices which fail to express a sense of interiority, they are just ‘cosmetic’ superficial, cliched gestures of a hundred melodramas globally. Swarna’s Rani’s drunken dance scene with Richard and his friends has a forced quality, stagy. Rani’s driving scene looked like a drive in a studio with a projected white wall as the outside, again felt unreal and pointless except to show that she dared to go into a kade to buy cigarettes. The play within the film of Asoka’s much-loved Magatha felt very clunky, therefore for specific melodramatic plot points; ‘Rani’s irritation with Sinhala theatre and the opportunity to see Gayan being assaulted without stopping to help as mother and son drove back home. Then the same moral is underscored, as simplistic melodramas always do, when her own neighbours also don’t do anything when they see Richard being abducted.

This kind of melodramatic moralism does a disservice to the intelligence and sophistication of those Lankans who created the multi-ethnic Aragalaya/Porattam/Struggle in 2022, who have appreciated immensely Manuwarna’s film Rahas Kiyana Kandu both in Lanka and here in Australia. Rani’s Christianity is used again to stage a symbolic scene with the stained-glass window image of ‘the sorrowful mother Mary holding her son’s body’, and to recite the famous biblical lines which are quite inappropriate for the context. Absalom was a traitor to his father King David and fought against him and died in battle. King David spoke those lines when his son died. It has no connection with a mother’s relationship to her murdered son who wasn’t guilty of anything. It’s just a cheap ‘poetic’ touch that sounds solemn, a ‘cosmetic’ use of the Hebrew Bible.

Sinhala cinema time and time again makes a female character Christian when she behaves ‘badly’ that is, sexually promiscuous, takes an independent initiative, as though Christianity with its ‘western values’ are the cause of behaviour considered immoral from the point of view of the good Sinhala Buddhist girl. A popular male critic went so far as to say that Rani shows Lankan men that there is nothing wrong with women drinking and smoking.

Talking of girls, the sub-plot line with the sweet and innocent young girl whose child is delivered by Rani is straight out of Melodrama which often needs an ‘innocent girl stereotype’ to contrast her with another kind of femininity, worldly, lax. The orchestration of the coincidence of a birth with Richard’ death through ‘parallel montage’ is one of the staple editing devices of Melodrama and police thrillers. The innocent young mother’s sentimental story about the crush she has on Richard and the relationship between Rani (who has been friendless) and her over time feels tacked on, artificial, to find a ‘bitter-sweet’ melodramatic narrative resolution on the beach, with ‘HOPE’, writ large.

Perhaps this is why when a well-prepared young Lankan Australian podcaster with a special interest in acting, interviewing Swarna, attempted to ask her about the criticism back home about the construction of the character of Rani, she sharply interrupted him in mid-sentence, to say, ‘those things are not worth talking about, a waste of time … we have made a good film, well directed, edited…’.

Swarna’s normally affable manner changed, and the interviewer politely agreed with her and she went on to conduct the interview herself, informing us of screening several of her films at a festival in Calcutta. The implication of this arrogant move is that an actor with that record couldn’t possibly have made a dud.

It’s just not cool for actors to praise their own films. Let the public, critics, academics and cinephiles make their judgements which are their democratic prerogative, pleasure and professional work. The critical reception has been unprecedented and the Social Science Journal, Polity’s special Issue on Rani is essential reading.

I do wish Swarna Mallawarachchi many more moons (than the 7 Moons destined for Maali Almeida), to explore what Eugenio Barba called The Secret Art of the Performer. In Shehan Karunathilaka’s The 7 Moons of Maali Almaida (which provided the epigraph for my piece), this phantom figure Maali plays multiple roles of the actor called Richard de Zoysa. Notably, that of Malinda Albert Kabalana, in the ‘In-between Worlds’ haunted by the phantoms of Rajani Thiranagama and the multitude of anonymous victims of that era of political terror in Lanka.

Shehan had clearly read Martin Wickramasinghe’s Yuganthaya and seen Lester’s film, where Richard de Zoysa played the idealist son Malinda Albert Kabalana to Gamini Fonseka’s conservative, capitalist father. He has also done a formidable amount of research into recent Lankan political history and then transformed that History into an Allegory. Melodrama as a genre structurally, simply does not have the formal power that inheres in Allegory to represent History in ruins, unless one has been able to create, as Fassbinder did, a Brechtian Melodramatic Cinema. If not, one ends up exploiting political histories of violence and suffering, to create thrillingly sensational Melodramas that play well to the box office but are freighted with emptiness. It is Frederick Jameson, the highly influential Marxist Literary critic, who once said that the best of ‘Third World Literature’ was allegorical, thinking of Marquez’ One Hundred Years of Solitude and closer to home, Rushdi’s Midnight’s Children.

I hope Swarna will allow herself some time to reflect on the Dr Manorani Sarwanamuttu that her own phantasy-Rani has suppressed. Perhaps she has played the formidable roles of the angry and the furious, ‘avenging women’ for too long. Vasantha who studied ‘true crime’ deeply, also astutely showed us through Swarna as a mature woman in Kadapathaka Chaya, where the relentless pursuit of ‘REVENGE’ can lead an individual. And we see its results at a national scale in these eras of terror. In this process of taking stock, Swarna might also think a little about Rukmani Devi and perhaps hunt down the booklet she had written called Mage Jivitha Vitti. ‘Vitti is different from ‘Jivitha Kathava’. In this way she just might begin to understand deeply, affectively, as only an actor worthy of that name can, the reserve, dignity, grace, lightness, joy and yes, the sense of theatre, with which Dr Manorani Saravanmuttu and Rukmani Devi faced the many ‘slings and arrows of outrageous fortune’ as professional women of Lanka who were also Tamil. (Concluded)

by Laleen Jayamanne

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A piece of home at Sri Lankan Musical Night in Dubai

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The much-anticipated Sri Lankan Musical Night was held recently in the heart of Downtown Dubai, at the Millennium Plaza Hotel.

Reports indicate that the venue was transformed into a vibrant enclave of Sri Lankan culture, unifying the power of music and the enduring spirit of the Sri Lankan diaspora.

The band DOCTOR, from Sri Lanka, was very much in the spotlight, blending traditional Sri Lankan melodies with contemporary rhythms, evoking nostalgia and delight among the audience.

In addition to Lanthra Perera’s vibrant performance, the supporting artiste, too, made it a happening scene with their energetic and exciting vocals; Sajitha Anthony, I’m told, mesmerised the audience with his soulful voice; Rajiv Sebastian, a crowd favourite, both here and abroad, displayed his professionalism and energetic presence on stage; Nushika Fernando’s captivating act was widely applauded. Sudewa Hettiarachchi did the needful as compere.

Sri Lankan Musical Night was organised by DJMC Events in collaboration with Event partners Chaminda De Silva and Romesh Ramachandran.

The band DOCTOR

DJMC Events Chairman Dunstan Rozario’s vision and dedication were vividly evident in every aspect of this show. His passion for creating cultural platforms that unite communities through entertainment resonated throughout the evening, setting the tone for an event dedicated to unity and celebration.

Beyond the musical performances, the occasion served as a dynamic gathering for the Sri Lankan community in the UAE. Attendees, from long-time expatriates to recent arrivals, found common ground in shared songs and stories, creating an atmosphere imbued with warmth and belonging.

Feedback from attendees was overwhelmingly positive, with widespread enthusiasm for more culturally enriching events in the future. One attendee aptly captured the essence of the evening, stating, “Tonight, we didn’t just listen to music; we felt a piece of home.”

DJMC Events plans to build on this momentum, further promoting Sri Lankan culture in the UAE and internationally.

Plans are already being laid out for future happenings to celebrate and preserve Sri Lanka’s rich cultural heritage.

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