Eight years ago, Fathima Faika (45) lived out the story of a Hollywood blockbuster when she found her way to Malaysia to bring back her two sons, taken away from her by her ex-husband. Armed with no money, influence or power but simple raw determination packed in her tired little body, she brought them home. Her story captured the headlines and inspired all women out there.
But her biggest battle thus far has been fighting for maintenance of the children she rescued.
Living in a rented two-bedroom apartment in the interiors of Rajagiriya today, she trudges along from hospital to courts - the former to cure her own ailing body and the other to ensure that her children are given their due.
From dressmaking to selling used furniture, she has tried them all, she said. But having gone through a physically and mentally abusive marriage, her health is failing. She is too sick to work as hard.
Her ex-husband, Mohamed Shadath Naushad, she said, however, was doing very well for himself and lived a life of luxury.“Thus it is only fair that he spends at least for the basic needs of his children,” said Faika.
The only problem was that she was fighting against a system that was designed to oppose her. In the case of Muslims, cases of maintenance after a divorce are handled by the Quazi courts in Sri Lanka and since the inception of these courts, very few women have found justice in them.
“Initially I did not want to file for maintenance, because my brother helped me financially. But thereafter, he too had to look after his affairs.”
Case filed
On the brink of poverty, in April 2014, Faika filed a case for maintenance with the Borella North Quazi court.
A Quazi known as ‘Lawyer Marzook’ was in charge and having fought for custody, she had been fearful that she might have to share custody of her children if she applied for maintenance. “I spoke to the Quazi first and asked him whether I had to show the kids if I filed for maintenance. The Quazi assured me that custody was not a matter for his court but the district court,” she said.
Having been thus assured, Faika filed for maintenance from her ex-husband, but when the case was called up, her husband did not show up in courts. Thus the case was postponed. Quazi Marzook thereafter had issued notice to the Wellampitiya OIC (police division of the husband) to ensure that he turned up next time around.
Faika recalled that she personally approached the OIC Wellampitiya to appeal to him to deliver the notice and ensure that the husband received the notice. This is not the first time she had to follow up. In Quazi courts, if a notice is sent to the husband for failing to make payments or show up in courts, it becomes the duty of the wife to ensure that he receives the notice, at times even paying stamp, registration and stationery fees.
When Faika’s ex-husband did finally turn up in court, Marzook’s stance, she said had magically changed. The once sympathetic Quazi asked that she not be stubborn and accommodate the wishes of her abusive husband.
“He said the father was willing to give money and that I should allow him to have access to my children. He said he would recommend Rs. 30,000 per month for them. He also asked that I go to Dehiwela for marriage counselling, even though we were divorced. I am divorced, I don’t need counselling.”
Her case was postponed. Having no choice but to go for marriage counselling with her ex-husband, Faika returned more traumatised, but in the hope that she would get her maintenance payments.
“Marzook postponed the case again and when I asked for the court proceedings, he said, ‘Why do you need this? Why are you coming here? Go to district courts,” she said, adding, “But maintenance can only be heard in the Quazi court.”
Marzook’s Quazi court she recalled was like a “fish market with people shouting at each other in filth. Marzook would move parents and women to tears with his language.”
Maintenance
In 2015, the Borella North Quazi Court saw a new and kinder face in that of Khaled Moulavi. Faika once again explained to the new Quazi that she could under no circumstance grant access of her children to her ex-husband,
“He is not a good influence on them. He gave me and other women he has been with, an STD. He is also known to be a criminal. How can I have him influence them?”
Once again, her ex-husband did not turn up for hearings, despite various notices being sent, preferring instead to have the case postponed, each time for a period of six months.
Khaled Moulavi asked me if I was finally agreeable to a lump sum and let things go, but I said I could not do that because the children’s expenses keep increasing, she explained.
Khaled Moulavi thus advised that whilst the ex-husband would have to bear all the schooling expenses, he would have to provide, in addition, Rs. 25,000 for the elder child and Rs. 15,000 for the younger child.
The children attended a well-known international school in Colombo, at the insistence of the ex-husband at the custody hearing earlier, but he had refused to pay the fee which accompanied such expensive schooling.
Despite the ruling however, Faika was not paid maintenance by her ex-husband. Given that Quazi courts have very little power to enforce their rulings, they are often not taken seriously.
As no money came in even four months after the ruling, Faika approached the Quazi courts once again, and this time, the case was transferred to the magistrate’s court. At the magistrate’s court too, her husband failed to show up and after going through two hearings with him not showing up, the magistrate issued him notice to show up.
“My ex-husband keeps postponing the case for no reason. He keeps saying he did not get notice. He just likes to waste time. He has appealed the maintenance at the high court also. But does not show up.”
At the high court, it was ordered that the husband pay up the Rs. 160,000 he owed her for four months, but since that amount, no other maintenance has come. She has to thus once again go to courts to get the rest of the money.
“Maintenance cases should be finished as soon as possible. Children can’t starve in the house,” observed Faika. “It took close to three years to get Rs. 160,000 and I had to spend Rs. 300,000 to get that.”
Talaq or not
For the last 19 years, Faika has been struggling in the Quazi courts to have justice served to her and her children. She married in 1997 and her husband, having mentally and physically abused her, divorced her in 1999, but she later found that this too was not done properly by the relevant Quazi court and there was doubt with regard to her being divorced. The ex-husband had not uttered the word talaq (I divorce you) thrice as required, and her certificate did not have the judge’s signature on it.
This confusion led her to go back to him in 2002. Her second son was born in 2004. The abuse however continued and she left him once again. Her ex-husband, in the meantime, had married another woman in Kallady without registering the marriage.
“He would say that we are married, when it suited him, and divorced, when he wanted to get another. He would not register the other marriages and those women find it hard to apply for divorce or maintenance of their children, because the marriages were not registered,” said Faika.
MMDA reforms
Faika is not the first or last woman to undergo injustice at the hands of the Quazi courts. Countless women walk through its ill-equipped rooms and poorly led courts to find freedom.
In 2009, the Justice Ministry appointed a 19-member committee to look into reforms into the Muslim Marriages and Divorces Act (MMDA) (also MM&D Act). The Committee submitted their report in January 2018 - nine years later, with just 16 members left and opinion divided. The report has touched on the issues Faika has faced - from registration of marriages, divorces, maintenance and the appointment of qualified personnel to Quazi courts - so that the law is applied without prejudice. “There is general consensus within the community that the Quazi court and Quazis should be brought into the mainstream of the Sri Lankan judicial system and the status of the Quazi court and Quazis should be enhanced,” noted the report.
They recommend the following:
• The reduction of the number of Quazis from the current 64 to a number that may be considered adequate by the Judicial Service Commission, considering the volume of work.
• To make it financially viable to appoint permanent and full-time Quazis.
• To mandate that the primary function of the Quazi to be judicial and administrative with the reconciliatory function of the Quazi court being entrusted to trained counsellors and mediators.
• To have only attorneys-at-law with sound knowledge of Muslim law, appointed as Quazis.
• To empower the Judicial Service Commission to prescribe, by order published in the gazette, the qualifications and attainments necessary for appointment of a person as a Quazi.
• To renumerate Quazis sufficiently in keeping with the dignity of their office and to make it a permanent position and recognise it as a closed service with consideration for appointment into higher judicial office.
• Restructuring the Board of Quazis and making it more accessible to the provinces and having the chairman of the Quazi Appellate Court be a Muslim attorney-at-law with sound knowledge of Muslim law and possessed of such qualifications and attainments that may be prescribed by the Judicial Service Commission.
It was further unanimously recommended that the MM&D Act should also specifically provide that in making appointments to the Quazi Appellate Court, the Judicial Service Commission shall ensure that adequate representation is provided therein for men and women, and that any person who has previously held office as a member of the Board of Quazis or the Quazi Appellate Court shall be eligible for re-appointment to the Quazi Appellate Court for a fresh term of office.
To ensure greater gender equality in the law, they have also recommended:
(a) Ensuring adequate representation for Muslim men and women in the Muslim Marriage and Divorce Advisory Board as proposed in this Report.
(b) Removing the disqualification of women from holding office as Registrars of Muslim Marriage by deleting the word ‘male’ in Sections 8(1), 9(1) and 10(1) of the MM&D Act dealing with the appointment of Registrars of Muslim Marriage, Temporary Registrars and Special Registrars.
(c) Amending Section 15(1) of the Act by substituting for the words ‘male Muslims’ the word ‘Muslim’ and expressly providing that in making appointments to the Quazi Appellate Court (Board of Quazis), the Judicial Service Commission should ensure that adequate representation is provided for men and women in the positions stipulated in the MMDA.
When it comes to registration of marriages, opinion has been split with regard to making it compulsory. Whilst the majority have asked that it be made compulsory, a minority section of the group has asked that a penalty be enforced instead on the husband if it is not registered.
The majority have also asked that the bride be allowed to sign the marriage certificate, signifying consent to the marriage.
Moreover, the Committee in general agreed to the following:
(1) Every Registrar of Muslim marriages maintain, in the prescribed form, a current index of the contents of every book and register kept by him, except where it is otherwise provided by regulation; and every entry in such index shall be made, so far as practicable, immediately after he has made an entry in the book or register.
(2) Every Registrar of Muslim marriages shall keep all registers, books and indexes until they are filled up and shall then forward them for record to the District Registrar.
(3) Except as provided in this Act, no person other than a Registrar of Muslim Marriages shall keep any book or register which is or purports to be a register of Muslim marriages maintained under this Act.
(4) The Registrar General may inspect or cause to be inspected, from time to time, the books and the registers required to be kept under this Act by any Registrar of Muslim Marriages and may entertain and hear any complaints against any Registrar of Muslim Marriages about his conduct or in respect of any such books or registers or entries therein.
(5) Where a Registrar of Muslim Marriages leaves the area for which he is appointed, or resigns his office, or where his appointment is terminated, he or, in the event of his death, his legal representative, shall forthwith deliver his records, books, registers, and indexes to the District Registrar and on failure of such delivery, the District Registrar shall take possession of them after following the due process.
When it comes to polygamy, one of the most contentious issues in the reform process, the Committee asked that the “male Muslim be restricted from contracting a second or subsequent marriage without the prior approval of the Quazi.”
They also recommend that the Quazi look into the following:
(a) whether the applicant is living with, and justly and adequately maintaining and caring for, his present wife or wives;
(b) whether the applicant is looking after his children born to his wife or wives in a just and equitable manner;
(c) whether the applicant is capable of dealing justly and equitably with his intended wife and his other wife or wives; and
(d) whether the applicant has the financial capacity to maintain and provide suitable and independent residence in accordance with his and her social standing for his intended wife, and any children that might be born to such intended wife.
The minority faction interestingly has also suggested that pre-nuptial contracts be allowed when certifying the marriage, so as to allow the woman to specify whether she is open or not to the man taking another wife.
Maintenance
A compensatory mechanism known as mata’ta has been recommended by the committee where a marriage has been dissolved on the ground of any matrimonial fault of the husband.
They ask that the: (a) the means of the husband including his monthly income; (b) the social and economic standing and educational attainments of the wife; (c) the age of the husband and that of the wife; (d) the duration of the marriage; (e) the availability of other means of support for the wife; (f) the number of children falling within the custody and care of the husband and/or the wife; (g) the conduct of the parties to the marriage during the pendency of the marriage; and (h) any other circumstances that may be relevant in making a reasonable assessment of requirements of the wife after divorce” be looked into when deciding on the mata’ta.
Where there is any dispute as regards the means of monthly income of the husband, the burden of proving the same shall be on the husband. In every such case, maintenance, in accordance with the order, shall be payable from the date on which such claim was made.
A maintenance fund run by a Board of Management is also recommended for women whose husband’s cannot grant maintenance.
Further they asked that “wherever possible, to require the filing of proceedings in the Quazi court within the division in which the wife resides, and formulating service procedures which will ensure that the rules of natural justice will be strictly followed.”
Greater powers of enforcement
To ensure that the orders to the Quazi are taken seriously, the Committee recommended “imposing a duty on every police officer and grama niladhari to aid and assist the Quazi court and the Quazi Appellate Court in compliance with any order that might be made in the exercise of their jurisdiction and powers, particularly in regard to the service of notices, summons, or other process, or for the execution of any warrant of arrest that may be issued by the Quazi court or Quazi Appellate Court as the case may be under this Act, and for the Deputy Inspector General of Police and the divisional secretary who has jurisdiction over an area, to ensure that every police officer and grama niladhari of the area respectively, aids and assists the Quazi court and the Quazi Appellate Court in the exercise of their jurisdiction and powers under this Act.”
The Committee’s report and recommendations however remain on the desk of Justice and Prison Reforms Minister, Thalatha Athukorale. Sources indicate that the Minister has directed that the Committee come to a unanimous view on all recommendations, despite the report having the support of the majority of members.
To have unanimous agreement on any issue is near to impossible in the country, and thus it is widely believed that the Minister will not be preparing any amendments to the MM&D Act any time soon.
Repeated attempts to contact Minister Athukorale on the report went answered.
On September 15, Faika’s case will once again be taken up in the Board of Quazis in order for the final judgement to be delivered, but Faika is not sure whether she would have justice served this time around too.
“Muslim laws only seem to apply to women. When women talk, they say we are disgracing our culture but when we have to go through the suffering in court, no one is there,” said a disappointed Faika, as she asked all those who objected to reforms to attend a hearing at a Quazi court to witness firsthand the suffering of countless Muslim women disadvantaged simply by the origins of their birth.
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