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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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Recruiting academics to state universities – beset by archaic selection processes?

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by Kaushalya Perera

Time has, by and large, stood still in the business of academic staff recruitment to state universities. Qualifications have proliferated and evolved to be more interdisciplinary, but our selection processes and evaluation criteria are unchanged since at least the late 1990s. But before I delve into the problems, I will describe the existing processes and schemes of recruitment. The discussion is limited to UGC-governed state universities (and does not include recruitment to medical and engineering sectors) though the problems may be relevant to other higher education institutions (HEIs).

How recruitment happens currently in SL state universities

Academic ranks in Sri Lankan state universities can be divided into three tiers (subdivisions are not discussed).

* Lecturer (Probationary)

recruited with a four-year undergraduate degree. A tiny step higher is the Lecturer (Unconfirmed), recruited with a postgraduate degree but no teaching experience.

* A Senior Lecturer can be recruited with certain postgraduate qualifications and some number of years of teaching and research.

* Above this is the professor (of four types), which can be left out of this discussion since only one of those (Chair Professor) is by application.

State universities cannot hire permanent academic staff as and when they wish. Prior to advertising a vacancy, approval to recruit is obtained through a mind-numbing and time-consuming process (months!) ending at the Department of Management Services. The call for applications must list all ranks up to Senior Lecturer. All eligible candidates for Probationary to Senior Lecturer are interviewed, e.g., if a Department wants someone with a doctoral degree, they must still advertise for and interview candidates for all ranks, not only candidates with a doctoral degree. In the evaluation criteria, the first degree is more important than the doctoral degree (more on this strange phenomenon later). All of this is only possible when universities are not under a ‘hiring freeze’, which governments declare regularly and generally lasts several years.

Problem type 1

Archaic processes and evaluation criteria

Twenty-five years ago, as a probationary lecturer with a first degree, I was a typical hire. We would be recruited, work some years and obtain postgraduate degrees (ideally using the privilege of paid study leave to attend a reputed university in the first world). State universities are primarily undergraduate teaching spaces, and when doctoral degrees were scarce, hiring probationary lecturers may have been a practical solution. The path to a higher degree was through the academic job. Now, due to availability of candidates with postgraduate qualifications and the problems of retaining academics who find foreign postgraduate opportunities, preference for candidates applying with a postgraduate qualification is growing. The evaluation scheme, however, prioritises the first degree over the candidate’s postgraduate education. Were I to apply to a Faculty of Education, despite a PhD on language teaching and research in education, I may not even be interviewed since my undergraduate degree is not in education. The ‘first degree first’ phenomenon shows that universities essentially ignore the intellectual development of a person beyond their early twenties. It also ignores the breadth of disciplines and their overlap with other fields.

This can be helped (not solved) by a simple fix, which can also reduce brain drain: give precedence to the doctoral degree in the required field, regardless of the candidate’s first degree, effected by a UGC circular. The suggestion is not fool-proof. It is a first step, and offered with the understanding that any selection process, however well the evaluation criteria are articulated, will be beset by multiple issues, including that of bias. Like other Sri Lankan institutions, universities, too, have tribal tendencies, surfacing in the form of a preference for one’s own alumni. Nevertheless, there are other problems that are, arguably, more pressing as I discuss next. In relation to the evaluation criteria, a problem is the narrow interpretation of any regulation, e.g., deciding the degree’s suitability based on the title rather than considering courses in the transcript. Despite rhetoric promoting internationalising and inter-disciplinarity, decision-making administrative and academic bodies have very literal expectations of candidates’ qualifications, e.g., a candidate with knowledge of digital literacy should show this through the title of the degree!

Problem type 2 – The mess of badly regulated higher education

A direct consequence of the contemporary expansion of higher education is a large number of applicants with myriad qualifications. The diversity of degree programmes cited makes the responsibility of selecting a suitable candidate for the job a challenging but very important one. After all, the job is for life – it is very difficult to fire a permanent employer in the state sector.

Widely varying undergraduate degree programmes.

At present, Sri Lankan undergraduates bring qualifications (at times more than one) from multiple types of higher education institutions: a degree from a UGC-affiliated state university, a state university external to the UGC, a state institution that is not a university, a foreign university, or a private HEI aka ‘private university’. It could be a degree received by attending on-site, in Sri Lanka or abroad. It could be from a private HEI’s affiliated foreign university or an external degree from a state university or an online only degree from a private HEI that is ‘UGC-approved’ or ‘Ministry of Education approved’, i.e., never studied in a university setting. Needless to say, the diversity (and their differences in quality) are dizzying. Unfortunately, under the evaluation scheme all degrees ‘recognised’ by the UGC are assigned the same marks. The same goes for the candidates’ merits or distinctions, first classes, etc., regardless of how difficult or easy the degree programme may be and even when capabilities, exposure, input, etc are obviously different.

Similar issues are faced when we consider postgraduate qualifications, though to a lesser degree. In my discipline(s), at least, a postgraduate degree obtained on-site from a first-world university is preferable to one from a local university (which usually have weekend or evening classes similar to part-time study) or online from a foreign university. Elitist this may be, but even the best local postgraduate degrees cannot provide the experience and intellectual growth gained by being in a university that gives you access to six million books and teaching and supervision by internationally-recognised scholars. Unfortunately, in the evaluation schemes for recruitment, the worst postgraduate qualification you know of will receive the same marks as one from NUS, Harvard or Leiden.

The problem is clear but what about a solution?

Recruitment to state universities needs to change to meet contemporary needs. We need evaluation criteria that allows us to get rid of the dross as well as a more sophisticated institutional understanding of using them. Recruitment is key if we want our institutions (and our country) to progress. I reiterate here the recommendations proposed in ‘Considerations for Higher Education Reform’ circulated previously by Kuppi Collective:

* Change bond regulations to be more just, in order to retain better qualified academics.

* Update the schemes of recruitment to reflect present-day realities of inter-disciplinary and multi-disciplinary training in order to recruit suitably qualified candidates.

* Ensure recruitment processes are made transparent by university administrations.

Kaushalya Perera is a senior lecturer at the University of Colombo.

(Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.)

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Talento … oozing with talent

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Talento: Gained recognition as a leading wedding and dance band

This week, too, the spotlight is on an outfit that has gained popularity, mainly through social media.

Last week we had MISTER Band in our scene, and on 10th February, Yellow Beatz – both social media favourites.

Talento is a seven-piece band that plays all types of music, from the ‘60s to the modern tracks of today.

The band has reached many heights, since its inception in 2012, and has gained recognition as a leading wedding and dance band in the scene here.

The members that makeup the outfit have a solid musical background, which comes through years of hard work and dedication

Their portfolio of music contains a mix of both western and eastern songs and are carefully selected, they say, to match the requirements of the intended audience, occasion, or event.

Although the baila is a specialty, which is inherent to this group, that originates from Moratuwa, their repertoire is made up of a vast collection of love, classic, oldies and modern-day hits.

The musicians, who make up Talento, are:

Prabuddha Geetharuchi:

Geilee Fonseka: Dynamic and charismatic vocalist

Prabuddha Geetharuchi: The main man behind the band Talento

(Vocalist/ Frontman). He is an avid music enthusiast and was mentored by a lot of famous musicians, and trainers, since he was a child. Growing up with them influenced him to take on western songs, as well as other music styles. A Peterite, he is the main man behind the band Talento and is a versatile singer/entertainer who never fails to get the crowd going.

Geilee Fonseka (Vocals):

A dynamic and charismatic vocalist whose vibrant stage presence, and powerful voice, bring a fresh spark to every performance. Young, energetic, and musically refined, she is an artiste who effortlessly blends passion with precision – captivating audiences from the very first note. Blessed with an immense vocal range, Geilee is a truly versatile singer, confidently delivering Western and Eastern music across multiple languages and genres.

Chandana Perera (Drummer):

His expertise and exceptional skills have earned him recognition as one of the finest acoustic drummers in Sri Lanka. With over 40 tours under his belt, Chandana has demonstrated his dedication and passion for music, embodying the essential role of a drummer as the heartbeat of any band.

Harsha Soysa:

(Bassist/Vocalist). He a chorister of the western choir of St. Sebastian’s College, Moratuwa, who began his musical education under famous voice trainers, as well as bass guitar trainers in Sri Lanka. He has also performed at events overseas. He acts as the second singer of the band

Udara Jayakody:

(Keyboardist). He is also a qualified pianist, adding technical flavour to Talento’s music. His singing and harmonising skills are an extra asset to the band. From his childhood he has been a part of a number of orchestras as a pianist. He has also previously performed with several famous western bands.

Aruna Madushanka:

(Saxophonist). His proficiciency in playing various instruments, including the saxophone, soprano saxophone, and western flute, showcases his versatility as a musician, and his musical repertoire is further enhanced by his remarkable singing ability.

Prashan Pramuditha:

(Lead guitar). He has the ability to play different styles, both oriental and western music, and he also creates unique tones and patterns with the guitar..

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Special milestone for JJ Twins

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Twin brothers Julian and Jason Prins

The JJ Twins, the Sri Lankan musical duo, performing in the Maldives, and known for blending R&B, Hip Hop, and Sri Lankan rhythms, thereby creating a unique sound, have come out with a brand-new single ‘Me Mawathe.’

In fact, it’s a very special milestone for the twin brothers, Julian and Jason Prins, as ‘Me Mawathe’ is their first ever Sinhala song!

‘Me Mawathe’ showcases a fresh new sound, while staying true to the signature harmony and emotion that their fans love.

This heartfelt track captures the beauty of love, journey, and connection, brought to life through powerful vocals and captivating melodies.

It marks an exciting new chapter for the JJ Twins as they expand their musical journey and connect with audiences in a whole new way.

Their recent album, ‘CONCLUDED,’ explores themes of love, heartbreak, and healing, and include hits like ‘Can’t Get You Off My Mind’ and ‘You Left Me Here to Die’ which showcase their emotional intensity.

Readers could stay connected and follow JJ Twins on social media for exclusive updates, behind-the-scenes moments, and upcoming releases:

Instagram: http://instagram.com/jjtwinsofficial

TikTok: http://tiktok.com/@jjtwinsmusic

Facebook: http://facebook.com/jjtwinssingers

YouTube: http://youtube.com/jjtwins

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