Aug 15, 2018

Resolve MMDA Issue Through Reasoning Not Confrontation



By Mass L. Usuf
Women are one half of society which gives birth to the other half so it is as if they are the entire society.
Ibn-Qayyim-Al -Jawziyya
 What is reasoning? Not all questions have a unified answer.  Therefore, reasoning helps to come closer to a reasonable answer. When engaged in reasoning, it becomes necessary sometimes to change attitude, thinking, idea, preoccupied notion, prejudice and obsession. This change can be facilitated by tools such as knowledge, understanding and consultation.
 The intention to achieve resolution should be foremost, with sincerity.  Being conscious about the objective is a salient characteristic subject to an important condition, which is, the willingness to modify objectivity to cater to greater interest. The reasoning that ‘the coin came up heads last time, so, it will come up tails next time’ is bad reasoning.  Thus, even in reasoning there is the good and the bad.
With us or against us
A few days ago, when the subject of the Muslim Marriage and Divorce Act (MMDA) came up in an unrelated conversation, a couple of people remarked pointing at me, “you belong to the other group!”  I responded “which group?” because I know that I do not belong to any group.  They said, “the group that opposes reforming MMDA”.  I was reminded of George Bush who famously said, “either you are with us or against us”.  He left no space in the middle. 
This is extreme thinking.  I did not pursue the conversation.  It was clear that parochiality reigned in their minds not reasoning. Anyway, if anyone says that there is opposition to reforms, it is an absolutely deceptive statement and a blatant lie.  No sane person would oppose reforming the MMDA since there are a few sections in that Statute that needs to be addressed. To be precise, among this few, the substantive law aspect is fewer and, the rest, administrative or procedural.
Is the woman responsible?
It is not good reasoning to prejudicially or speciously blame the MMDA exclusively.  There is some rationality in the claim that many womenfolk ignorantly contribute to the state of affairs they place themselves in. The law has given the woman certain rights and it is her responsibility to assert those rights. In most cases, there is unwillingness to do so and, when she consequentially suffers, hey presto, the MMDA is ‘nuked’. 
In fact, as a pro bono legal practitioner, especially to those who cannot afford access to justice, I have always spent time educating them about their rights under the MMDA.  When looking at the subject analytically, one discovers that the women are a major part of the problem.  For example, when advising a woman to make an application claiming maintenance from the husband, many respond with vengeance, “I do not want to beg for his money”.  When explained to her that this is not begging and it is her legal right, she would stubbornly respond, “even if I beg on the street, I will not stretch my hand for his money”. 
The final outcome is that she is the one who will suffer. There are instances where a marriage is, as stated in legal parlance, “irretrievably” broken down, I have advised to file divorce papers.  The woman would be reluctant to do so sometimes saying, “My children will not have a father”.  In instances, where it is said that you can get married again, the response has been, “what will people think?”. Many a times, I have told them, “you come seeking help but do not wish to assert the rights given by law and later cry that no one is helping you”.
 Deep inside me, I empathise with them because they are hurt, disappointed, sad and distressed.  Therefore, they are reacting in this manner.
 This leads us to the truth that everything is not MMDA only.  There are socio-cultural and psychological factors that influence the assertion of rights by the woman.  Personal law relating to marriage and divorce is not a dry log lying in the garden. 
It has to be viewed with the essence of human emotion and sentiments.  More so, when it applies to women, who, by nature are soft, affectionate, loving, caring, altruistic, tolerant and accommodative. Very seriously, no law reformation will be of any use unless this reality is understood and suitable remedial measures are taken to address them also.  It has to be borne in mind that the shariah law evolved taking these factors too into consideration.
 Blown out of proportion
Conflict of ideas is an inevitable phenomenon of human existence. This is why sane people look for common grounds by respecting and tolerating views of others.  For anyone coming to the negotiating table with a priori thinking this reasoning becomes an absolute difficulty.  Scepticism suggests if this issue has unwittingly been blown out of proportion.  However, like a child adamantly crying for his toy, whoever makes an unreasonable claim need to be corrected and educated. 
 We are living in the Eastern hemisphere where the culture and ethos are from ancient times governed by patria potestas (paternal power) and still continue to be so.  Therefore, an ingrained societal system cannot be deracinated by what some may call the parvenu slogans of a few. The socio-cultural homogeneity has benefitted the nucleus family unit and the society at large to remain integrated, strong and in good stead. Family values, morals and respect all have become part of the natural upbringing which has positively benefitted society and social life.
 Equal is not identical
 In this instance, I am not singularly referring to the Muslims but also the Sinhalese, Tamils and all the other people of Sri Lanka.  Our Eastern culture is based on endogamy and a patriarchal system. For example, where there is a conflict, ill-treatment or divorce the woman returns to her natal kin.  In this case, the pater familias (father) or the nearest agnate (brother) will provide her the necessary security and shelter.
 According to Islam, the woman has no financial obligations to the family even if she is earning double that of her husband.  The entire burden falls on the shoulder of the man.  It is the duty of the husband to provide for the wife and in turn the duty of the son to provide for the mother and the duty of the father to provide for the daughter and the duty of the brother to provide for the sister.
 Well then, who is enjoying rights at the expense of whom?  Who is it that must clamour for equality – man or woman? The Muslim woman must realize that to be perfectly human does not mean that man and woman should literally be identical in all respects.  The Quran states:
 “And the male is not like the female”. (Chapter 3 Verse 36)
This clarity leaves no room for argument or debate.  While in relation to matters of equality, the Quran specifically emphasises woman is no different from man in their deeds:
 “Whosoever does right, whether male or female, and is a believer, him verily we shall quicken with good life, and we shall pay them recompense in proportion to the best of what they used to do” (Chapter 16 Verse 97).
 By this, I am not upholding that patriarchy is the ultimate standard and that it is immutable.  What it represents is a statement of social reality.
Justice would demand that patriarchy should be susceptible to change where women are unreasonably or unfairly affected. The system of patriarchy can only function with the consent of women. One of the tools of the patriarchal system is economic dependence of the woman.  A shift in the attitudes of women who are earning clearly demonstrates the breaking away from such dependence.  This is very good as Islam recognizes the independence of the woman within the Islamic framework.
 “Do not covet the advantage which God has given some of you over others. To men belongs a share of what they have earned, and to women a share of what they have earned. And ask God for His grace” (Quran 4:32)
 While enjoying this independence, it will be prudent to continue with her duties and responsibility as a woman from a socio-religious-cultural perspective - the compassionate mother the beloved wife and the affectionate daughter. Especially because, she is not half of society but society itself: the one who is highly elevated.
 The prophet said:
 “ Stay with her (Mother), for Paradise is beneath her feet.”
(Sunan al-Nasāi)
 Community interest supersedes
 Our mothers, sisters and daughters suffer from lack of education, poverty and not having adequate financial support. Each of these has made them vulnerable.  If these are not addressed, even after the reforms matters will continue as is, giving only temporal satisfaction for those who were making a noise. The Indian and Pakistani experience clearly supports this state of affairs.
 MMDA is not a piece of legislation like the traffic laws.  The ramifications of the MMDA, as a law, have relevance to several areas some of which are highly sensitive.  This law has implications on the Muslims living in this country as a distinct ethnic community, their existence as a minority in a non-Islamic jurisdiction, the practise of religion of the community, the customs and traditions espoused since antiquity, the ethos of the community and so many other complex considerations. 

 Harmony and unity of the community supersedes all other considerations. In the greater interest of the community, even reforms to MMDA should be undertaken with judiciousness.  Wise counsel should prevail.
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