Five Bills presented to amend Muslim Marriage Laws

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Rose Kenny

Five bills were presented to parliament today, in the form of Private Member Bills by MPs Ven. Aturaliye Ratana Thero and UNP Kegalle District MP Dr. Thusitha Wijemanne to amend the Muslim marriage laws deeming the marriage of underage Muslim girls a crime.

MP Rathana Thero presented two bills one to amend the Marriages (General) Ordinance No. 19 of 1907, and another to repeal the Muslim Marriage and Divorce Act, No. 13 of 1951. The first bill would amend the Marriages (General) Ordinance No. 19 of 1907 by deleting the words “other than the marriages of Muslims” from its preamble. The second bill seeks to repeal the Muslim Marriage and Divorce Act, No. 13 of 1951.

The Bill titled Marriage Registration (Amendment) Act, No. of 2019 presented by MP Dr. Wijemanna seeks to remove the words ‘other than the marriages of Muslims’ from the Marriage Registration Ordinance No. 19 of 1907.

The second Bill by the same MP titled Bill to introduce the Minimum Age of Marriage Act in Sri Lanka says that the “child or underage marriage is an infringement of a young person’s right to education, development and security and as such, is considered a serious social evil that may render vulnerable the children of Sri Lanka to forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse:

WHEREAS that Sri Lanka guarantees equal protection of the law to all its people regardless of age, race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds:

WHEREAS the duty of the State owed to future generations to ensure that such future generations have the opportunity to learn, develop and grow to become a better and more prosperous society: and

WHEREAS of this Act to afford to all persons under the age of eighteen all possible protection of the law and to ensure that no person shall consent or decide on their behalf to enter them into a marriage and to introduce measures for the relevant organs of the State give full effect to the spirit and letter of this Act and thereby convey that the State is committed to the elimination of child marriage.

No marriage contracted after the coming into force of this Act shall be valid, unless both parties to the marriage have completed eighteen years of age.

(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage.

(2) Provided that an application for annulling a child marriage by a decree of nullity may be filed in the District court in the local jurisdiction in which the applicant resides and by only a contracting party to the marriage who was child at the time of the marriage.

(3) If at the time of filing an application, the applicant is a minor, the application may be filed through his or her guardian or next friend.

(4) The application under this section may be filed at any time but before the child filing the application completes two years of attaining majority.

(5) Every application under this section shall be made in writing and shall be signed by the applicant or the person making the application on his behalf and shall be free of any stamp duty. Every summons to a respondent or a witness shall also be free of stamp duty.

(6) Once an application is filed and Court is satisfied on the application that— (a) the applicant had not reached the age of 18 at the time the marriage was registered; and (b) that the marriage was registered, the Court shall make grant a decree of nullity of such marriage.

(7) While granting a decree of nullity under this section, the Court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments other gifts and money: Provided that no order under this section shall be executed unless the concerned parties have been given notices to appear before the Court and show cause why such order should not be passed.

(8) Where there are children born of the child marriage, the Court shall make an appropriate order for the custody of such children. While making an order for the custody of a child under this section, the welfare and best interests of the child shall be the paramount consideration to be given by the Court.

(9) An order for custody of a child may also include appropriate directions for giving to the other party access to the child in such a manner as may best serve the interests of the child, and such other orders as the Court may, in the interest of the child, deem proper.

(10) The Court may also make an appropriate order for providing maintenance to the child by a party to the marriage or their parents or guardians. Notwithstanding that a child marriage has been annulled by a decree of nullity under section 3, every child begotten or conceived such marriage before the decree is made, whether born before or after the commencement of this Act, shall be deemed to be a legitimate child for all purposes.

In this Act— (a) “child” means, any person who has not attained the age of eighteen; (b) “child marriage” means, a marriage to which either one or both party is a child; (c) “marriage” means, any marriage, including marriages contracted under and by virtue of the Kandyan Marriage and Divorce Act, No. 44 of 1952 as amended and marriages contracted between persons professing Islam; (d) “registrar” means, any District Registrar or Divisional Registrar as appointed in terms of the Marriage Registration Ordinance, Kandyan Marriage and Divorce Act and the Muslim Marriage and Divorce Act. 6.

Whoever commits an offence under this section shall be liable on conviction after summary trial before a Magistrate to the punishment and fine stipulated— (1) Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine not exceeding one hundred thousand rupees unless he proves that he had reasons to believe that the marriage was not a child marriage;

(2) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised including attending or participating in a child marriage, shall be punishable with rigorous imprisonment not exceeding two years and shall also be liable to a fine not exceeding one hundred thousand rupees;

(3) Any person who shall knowingly or wilfully make any false declaration to the relevant Registrar to the effect that either party has completed eighteen years of age where such party has not so completed eighteen years of age, shall be guilty of an offence punishable with simple imprisonment for any term not exceeding one year, or with fine not exceeding fifty thousand rupees, or with both. The provisions of this Act shall have effect notwithstanding anything contained in any other written law, and accordingly in the event of any conflict or inconsistency between the provisions of this Act and such other law, the provisions of this Act shall prevail over such other law.”

Another bill has been submitted by MP Dr. Wijemanna for the implementation of the aforementioned laws. The bill titled the Civil Procedure Code (Amendment) Act, No. of 2019 seeks to amend the Section 627 of the Civil Procedure Code to remove the words “between persons professing Islam” and replace such words with the words “in terms of the Muslim Marriage and Divorce Act.”