CHILD MARRIAGES AND OTHER ABUSES AMONG MUSLIMS OF SRI LANKA

By Justice Saleem Marsoof PC*

A - Introduction

This paper will focus on the much controverted and written about question of child marriage1, which is
inherently related to the urgent need to establish a minimum age of marriage for the Muslims of Sri Lanka
and to the related issues of abuse that have taken center stage in the currently topical debate on the
reform of the Quazi Court System and the Muslim Marriage and Divorce Act of Sri Lanka (MMDA) 2.

Etymologically speaking, “marriage” had nothing to do with “age”, though the latter represents the last
three letters of the word “marriage” and the question of age of marriage has now become a hot topic in
the MMDA debate. The word “marriage” is derived from the Middle English word3 “marriage”, which first
appeared in 1250–1300 CE, which in turn may be traced to the Old French, “marier” (to marry), and
ultimately Latin, “marītāre”, meaning to provide with a husband or wife and “marītāri”, which means
getting married. The history of marriage shows that it has evolved over the centuries from a manifestation
of power, money and survival to a union based on mutual love and respect.4

In this context, it is important to note that the MMDA does not have any provisions laying down a
minimum age of marriage, and child marriages are considered lawful5. Section 16 of the MMDA provides
that-

“Nothing contained in this Act shall be construed to render valid or invalid, by reason only of
registration or non-registration, any Muslim marriage or divorce which is otherwise invalid or
valid, as the case may be, according to the Muslim law governing the sect to which the parties to
such marriage or divorce belong.”(emphasis added)

* The author who is a President’s Counsel and former Additional Solicitor-General of Sri Lanka, has considerable
judicial experience, having been the President of the Court of Appeal of Sri Lanka (March 2004–January 2005) and
Judge of the Supreme Court of Sri Lanka (January 2005-December 2014). He is currently a Judge of the Supreme
Court of Fiji. The author acknowledges with gratitude the assistance received from Dato’ Shyamala Alagendra,
Advocate and Solicitor of the High Court of Malaysia, and currently Assistant Director of Public Prosecution of Fiji,
in the preparation of this paper. However, the views expressed in the paper are entirely those of the author.
1
Much has been written about the minimum age of marriage and child marriage in Sri Lanka. See for instance, S.
Goonesekere and H. Amarasuriya, Emerging Concerns and Case Studies on Child Marriage in Sri Lanka (UNICEF,
2013) accessible at: https://www.unicef.org/srilanka/2013_Child_Marriage_Case_Studies.pdf, G. Chandrasekera,
A Minimum Age of Marriage for all Citizen in Sri Lanka, (Women’s Education & Research Centre, 2017)
http://www.wercsl.org/establishing-a-minimum-age-of-marriage-for-all-citizens/, Amina Hussain, The Age of
Reason, the Age of Marriage, Sunday Times (9 April 2017) http://www.sundaytimes.lk/170409/plus/the-age-of-
reason-the-age-of-marriage-236073.html, BBC News, The Wounded Victims of Sri Lanka’s Child Marriage Law (20
June 2017) https://www.bbc.com/news/world-asia-39898589 and Bisthan Batcha, Child Marriage in the Muslim
Sri Lankan Community (31 October 2017), https://bisthanbatcha.wordpress.com/2017/10/31/child-marriage-in-
the-muslim-sri-lankan-community/
2
Muslim Marriage and Divorce Act No. 13 of 1951 as amended by Act No. 31 of 1954, Act No. 22 of 1955, Act No.
1 of 1965, Act No. 5 of 1965, Act No. 32 of 1969, Law No. 41 of 1975 and Act No. 24 of 2013.
3
“Middle English” is the English that was in vogue between the 12 th and 15th centuries.
4
See, Marriage, a History (2005), https://www.psychologytoday.com/intl/articles/200505/marriage-history
5
See, Mukamadu Lebbe vs Mohamado Tamby 1 Muslim Marriage & Divorce Law Report (hereinafter cited as
M.M.D.L.R.) 40 and Muheidenbawa vs Seylathumma 2 M.M.D.L.R. 53.

1
Applying the above quoted provision, in Sideek v Shiyam6, the Board of Quazis held that the registration
of a marriage contrary to the principles of shariah and the provisions of the Act is a nullity and of no force
or avail in law, and conversely, according to the said provision, if a marriage is valid according to the
Muslim law of the relevant sect, its validity will not be affected by the non-registration of the marriage. It
is noteworthy that Section 98(2) of MMDA provides that “in all matters relating to any Muslim marriage…,
the status and the mutual rights and obligations of the parties shall be determined according to the
Muslim law governing the sect to which the parties belong.” It is clear that, subject to the other provisions
of MMDA, the validity of a marriage and its consequences fall to be determined by principles of Shariah
and Islamic fiqh,7 under which child marriages are considered valid and lawful.8

In any discussion of child marriage and it is implications, it will be important to bear in mind that the
United Nations Convention on the Rights of the Child defines a “child” as “every human being below the
age of eighteen years.”9 Reference must also be had to Article 16 of the Convention on the Elimination of
All Forms of Discrimination against Women,10 which has been ratified by Sri Lanka, which states that “[t]he
betrothal and the marriage of a child shall have no legal effect, and all necessary action, including
legislation, shall be taken to specify a minimum age for marriage….”It is noteworthy that as long ago as in
1937, the Board of Quazis, which is the appellate body to which appeals and applications for revision from
Quazis have to be made under the MMDA, had the opportunity to consider some of the leading decisions
and orders of the Quazi Courts concerning child marriage, and was constrained to observe in
Muheideenbawa v Seylathumma, that “in the best interest of the Muslim Community this social evil
should be eradicated by the creation of public opinion”11

It is manifest from the Report of the Committee appointed to consider and recommend amendments to
the Muslim Marriage and Divorce Act12, that the two important factors that prevent a realistic estimate
being made of the number of existing child marriages in Sri Lanka are, firstly the fact that most of them
are unregistered and the Registrar General does not have any data regarding such marriages, and
secondly, the prevalence of the practice of overstating the age of the bride when such marriages are
contracted13. Bisthan Batcha, using 2012 Census figures, has come to the conclusion that nearly 6% of the

6
Sideek v Shiyam, [ 2006] 1 Board of Quazis Law Reports 129.
7
For the meaning of fiqh and the correlation between shariah and fiqh, see Saleem Marsoof Malahah Mursalah as
a basis for Muslim Law Reform in Sri Lanka, Meezan (Law Students’ Muslim Majlis, (2017) Vol 51 p. 32. See also,
Razmara Abdeen, Sectarianism in Islam, Meezan (Law Students’ Muslim Majlis, (2017) Vol 51 p. 179.
8
See, Mukamadu Lebbe vs Mohamado Tamby, supra note 5; Muheidenbawa vs Seylathumma, supra note 5.
9
Art. 1 of the UN Convention on the Rights of the Child, which was adopted in 1989 in terms of General Assembly
resolution 44/25 of 20 November 1989 and became binding on all member states of United Nations except the
United States in 1990. For detailed discussion of the Convention, see Part D of this article.
10
UN Convention on the Elimination of All Forms of Discrimination against Women adopted on 18 December 1979
and accessible at: https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx
11
See, Muheideenbawa vs Seylathumma, 2 M.M.D.L.R. 53 at page 55. The Quazi Board of Quazis consisted of M.H.M.
Shamsudeen Esq, M.C. Abdul Cader Esq, M.I.M Haniffa Esq and M.M. Maharoof Esq.
12
This Committee is also known as the MMDA Committee or the Marsoof Committee. Its report is accessible at:
https://www.moj.gov.lk/web/index.php?option=com_content&view=article&id=114&Itemid=230&lang=en
13
ibid., paragraphs 6.7.09 to 6.7.11 at pages 86 to 90. A more user-friendly version of the Report may be accessed
at the hyperlink towards the end of the article entitled “MMDA - Colombo Telegraph Leaks Complete Saleem

2
estimated 117,048 Muslim female children aged between 12 – 17 years, were either married, widowed,
divorced or separated, which is by no means a “negligible” number.14 The MMDA Committee, in its
Report15 has adverted to the fact that in 2016, no less than 1777 marriages involving brides between 12
and 17 years were registered, and has gone on to observe16 that-

“Judging by the reports of abuse of the provisions of the Muslim law, particularly the propensity
of not registering marriages involving young girls or supplying wrong dates of birth to the
Registrars at the time of registration, these figures of registered marriages may be described as
the trip of the iceberg, and the problem of sexual abuse and exploitation of young women goes on
unabated. It is therefore time to act.”(emphasis added)

B - Age, the Age of Majority and the Age of Marriage

As the saying goes, “age is no barrier to marriage”, and it has been often said that this saying applies to
Muslim marriages as well. Age is something that one gains without effort, and as time goes on, one sees
marriage in the horizon. When to marry, if at all, and whom to marry are matters of choice, but in the
Shariah, marriage becomes obligatory when there is a chance of falling into sin17. However, it is important
to remember that the law in general, as well as Muslim law, in particular have certain rules regarding age,
and it may be useful to refer to some of them.

The Evidence Ordinance18 does not generally preclude any child from testifying in a court of law. However,
section 118 of the said Ordinance provides that All persons “shall be competent to testify unless the Court
considers that they are prevented from understanding the questions put to them, or from giving rational
answers to those questions” by reason of their “tender years” or such other circumstances. However, in
regard to criminal liability, the Penal Code19 does provide protection to juvenile offenders by specifically
providing in section 75 thereof that nothing is an offence which ”is done by a child under twelve years of
age.”20 More significantly, section 76 of the Penal Code provides that nothing is an offence which “is done
by a child above twelve years of age and under fourteen, who has not attained sufficient maturity of
understanding to judge the nature and consequence of his conduct on that occasion.”21

Marsoof Committee Report” (2 July 2018) at: https://www.colombotelegraph.com/index.php/mmda-colombo-

telegraph-leaks-complete-saleem-marsoof-committee-report-leaked-report-redacted-incomplete-and-distorted/
14
See, Bisthan Batcha, Child Marriage in the Muslim Sri Lankan Community, supra note 1.
15
Supra notes 12 and 13 at paragraph 6.7.10 pages 87 to 89, particularly in Table B.
16
ibid., paragraph 6.7.10 at page 89.
17
Al Islam.org, Importance of Marriage in Islam, at: https://www.al-islam.org/islamic-marriage-handbook-syed-
athar-husayn-sh-rizvi/importance-marriage-islam
18
The Evidence Ordinance No. 14 of 1895, as subsequently amended.
19
The Penal Code No. 11 of 1887, as subsequently amended.
20
It is noteworthy that this provision as it originally stood, provided for a liability threshold of “eight years”, which
was increased to “twelve years” by a recent amendment by section 2 of the Penal Code (Amendment) Act No. 10
of 1918.
21
This provision too was amended by section 3 of Act No. 10 of 1918 substituting for the words “eight years of age”
that was then in the Penal Code, with the words “twelve years of age” and also replacing the words “under twelve”
with the words “under fourteen”.

3
As regards civil liability, the general threshold for liability of a minor child is the attainment of majority,
which threshold is crossed according to section 2 of the Age of Majority Ordinance22, by “the attainment
of eighteen years”, which in most jurisdictions is regarded as the stage at which a minor reaches
adulthood. The Roman-Dutch Law regards unassisted contracts (that is those that are not entered into by
the father or other guardian of a minor on behalf of the minor) as void against the minor, and under
English law they are deemed to be voidable at the instance of the minor. Prior permission of Court is
required for any transaction relating to land or other immovable property belonging to a minor is to be
valid and binding on the minor. Of course, a minor may attain majority at a younger age by “operation of
law”23 The most important mode of attaining majority by operation of law known to the Roman-Dutch
Law was the grant of the status of “major” through the issue of Venia Aetatis24, which is a licence that
certifies the emancipation of the grantee from his minority status.

In terms of the Registration of Marriages Ordinance, which is better known as the General Marriages
Ordinance25, a minor child may not enter into a valid marriage without the consent of his or her father, or
if he is dead or under legal incapacity or is overseas and is unable to make known his consent, without the
consent of the mother or other guardian.26 Of course, as provided in section 3 of the Age of Majority
Ordinance, a person may attain majority “by operation of law” and may be able to marry unassisted by
the father, mother or other guardian.

The only provision of MMDA that deals with “age” is section 23 of the Act, which prohibits the registration
of any “marriage contracted by a Muslim girl who has not attained the age of twelve years…unless the
Quazi for the area in which the girl resides has, after such inquiry as he may deem necessary, authorised
the registration of the marriage”. This provision does not prohibit the valid solemnisation of such a
marriage without the Quazi’s authority, and as already seen, section 16 of MMDA expressly enacts that
non-registration of a shariah consistent marriage in accordance with the provisions of MMDA will not
render the marriage void despite the failure to register such a marriage being an offence. This means that
a person may contact a valid marriage with a child, however young the child may be, if he does not want
to have the marriage registered. Of course, in doing so, he runs the risk of being convicted of the offence
of the failure to have the marriage registered, for which he will have to pay a nominal fine, but the
marriage will still remain valid. In effect, as far as the current provisions of MMDA are concerned, age is
not a barrier to marriage.

C - Sects, Bulugh, Rushd and the question of Minimum Age of Marriage

The concept of “age of marriage” is not altogether unknown to the shariah and fiqh, and in fact there is
explicit reference to bulugh an-nikah (‫ح‬ ََ ‫ )بَلَغُوا النِّكَا‬in the Holy Quran, but before looking at this matter in
greater detail, it is necessary to first understand the nature, characteristics and ramifications of sects or
madhabs, otherwise it will be difficult to analyze the issues involved.

22
The Age of Majority Ordinance No. 7 of 1865 provided that a person would be a major upon attaining 21 years of
age, which was amended by Act No. 17 of 1989 substituting 18 years in place of 21 years as the age of majority.
23
ibid., section 3.
24
A document issued by a prince or sovereign by virtue of which a person Is entitled to act as if he was of full age.
25
The Marriage Registration Ordinance also known as the General Marriages Ordinance No. 19 of 1907, as
subsequently amended.
26
ibid., section 22.

4
The two great sects of Islam are the Sunni and Shiah sects, and the former consists of four ‘schools of
thought’ (madhab), namely, the Hanafi, Maliki, Shaffie and Hanbali schools, and the Shiah sect too is
divided into three major schools, known as Ithna Ashari, Ismaili (which includes the Dawoodi sub-school
to which the Bohras belong) and Zeydi.27 It is worth noting that section 25(1) of MMDA has equated the
Shaffie school to a sect by referring to it as “Shaffie sect” and Sri Lankan courts have taken the view that
since Sri Lankan Muslims largely belong to the Shaffie sect, “the Shaffie doctrine is generally applicable”28
and that a Muslim party should be presumed to be a Shaffie unless there is evidence to the contrary.”29

As already noted, the validity or otherwise of a Muslim marriage or divorce must be determined by
reference to the “Muslim Law of the sect to which the parties belong”30. This is despite the fact that, most
Muslims in Sri Lanka either do not adhere to any sect or madhab, or are in fact unaware of, or are
indifferent to, the existence of various sects or madhabs, and are in effect, sect-less. In fact, the
classification of persons into sects or rigid divisions on the basis of madhabs is inconsistent with the Holy
Quran Surah Al-An’am 6:159, in which Allah says to our beloved Prophet Muhammad (PBUH)-

“As for those who divide

Their religion and break up
Into sects, thou hast
No part in them in the least:
Their affair is with God:
He will in the end
Tell them the truth
Of all that they did.”31
(emphasis added)

This is indeed a strong warning to all those who break up religion into sects and make rigid classifications
according to the madhab to which a party to a dispute belongs, forcing such persons to “convert” from
one madhab to another to avoid an inconvenient rule. Herein lies the main justification for seeking the
amendment of section 16 of MMDA to make it shariah compliant. It must be stressed that, there is no
objection to any Muslim preferring to follow the teachings of any particular school of thought on his or
her own volition, but what is objectionable in section 16 in the eyes of Allah Subhanahu wa Thaala, is the
strict division of persons into one sect or madhab or another, for the purpose of applying principles of
Islamic law, which in effect takes away the flexibility of the teachings of various madhabs and not only
divides or classifies the umma into various sects or schools of thought, but also prevents ijtihad.

27
For an extremely interesting exposition of the various sects and schools of Muslim law, see C.G. Weeramantry,
Islamic Jurisprudence: An International Perspective, (1988), pages 46 – 58.
28
Affefudeen v Periatamby (1912) 14 NLR 295 at p.300 per Middleton J.
29
See, Mangandi Umma v Lebbe Marikar (1908) 10 NLR 1; Marikkar v Marikkar (1916) 18 NLR 446; Mohamedu
Cassim v Cassie Lebbe (1929) 29 NLR 136; In re Nona Sooja (1931) 32 NLR 63; Ummul Marzoona v Samad (1979)
79 NLR 209.
30
See, section 16 of the Muslim Marriage and Divorce Act (MMDA), supra note 1. See also notes 6 and 7 supra and
the accompanying text.
31
Holy Quran Surah Al-An’am 6:159 (Abdullah Yusuf Ali Translation).

5
Apart from the above mentioned serious flouting of a clear commandment of the Holy Quran, there are
also great difficulties in applying section 16 of MMDA, foremost among them being the question whether
section 16 is applicable at all to a person who does not abide by the teachings of any sect or madhab.
Further difficulties concern the pragmatic issues that arise when one has to determine the validity of an
inter-sect or inter-madhab marriage.32

As noted already, the concept of “age of marriage” is not altogether unknown to the shariah and fiqh. It
is evident from the Holy Quran 4:5, Surah Nisaa that those in charge of orphans who are “weak of
understanding” by reason of their tender age, are encouraged to feed and clothe them out of their own
property, and to speak to them words of kindness. In the very next verse, namely Holy Quran 4:6, those
in charge of orphans are commanded to-

“Make trial of orphans

Until they reach the age
Of marriage; if then ye find
Sound judgment in them,
Release their property to them.”33
(emphasis added)

It is significant to note that the Arabic term that is used in the above quoted verse to refer to the “age of
marriage” is bulugh an-nikah (‫ح‬ ََ ‫ )بَلَغُوا النِّكَا‬which means puberty. In the same verse there is also a reference
to the concept of “sound judgment” that is attained at the “age of discretion” which in Arabic is known as
rushd (‫)ر ْشدًا‬,
ُ and which falls in line with the concept of the age of majority.

Puberty (bulugh) signifies physical capacity and refers to the period at which a child’s sexual desires are
aroused. This period differs for males and females, as well as from region to region and even person to
person. For girls, puberty may be reached between 9 to 12 years, and for males it takes a little longer, and
ranges from 12 to 15 years.34 Islamic jurists hold that physical capacity by itself, is not enough for a person
to handle the responsibilities of marriage, and hence, sound judgment (rushd) is equally important. It is
noteworthy that Wood Renton CJ in Marikar v Marikar et al35 and Gratiaen J in Asanar v Hamid36 relied
on Ameer Ali37to hold that if a minor child “should not be discreet at the age of puberty, he or she is
presumed to be so on the completion of the eighteenth year, unless there is any direct evidence to the
contrary.”

32
These problems are discussed in detail in the Report of the Committee appointed to consider and recommend
amendments to the Muslim Marriage and Divorce Act, supra notes 12 and 13, paragraphs 6.6.06 to 6.6.07 pages
75-76.
33
Holy Quran Surah Nisaa 4:6 (Abdullah Yusuf Ali Translation).
34
The Beginning of Sexual Life: Bulugh and Rushd, Al-Islam.org, https://www.al-islam.org/religion-al-islam-and-
marriage/beginning-sexual-life-bulugh-and-rushd
35
Marikar v Marikar et al, (1916) 18 NLR 481 at 482.
36
Assanar v Hamid, (1948) 50 NLR 102 at 104
37
Muhammadan Law Vol II pages 467 to 468.

6
In this context, it is worth noting that the fact that the onset of maturity of intellect or sound judgment
(rushd) is a gradual process has been recognised in the general law as well, wherein as already noted, a
Judge is granted a discretion by section 118 of the Evidence Ordinance in deciding whether the evidence
of a child of tender years may be acted upon, and a similar discretion is allowed to the Judge by section
76 of the Penal Code in determining the criminal liability of a child between 12 and 14 years.

The fact that under the general law, majority which signifies among other things the right to vote and
participate in democratic governance, the competence to marry without the assistance of parents or
guardians and other ramifications of adulthood including the full capacity to enter into contracts and
other transactions and be fully bond by them, is attained at the age of 18, shows that the capacity to take
criminal responsibility in regard to one’s acts and omissions is the lowest level of maturity which then
progresses to full capacity which comes only with the intellectual attribute of discretion (rushd) associated
with adulthood. Of course, there may be persons older than 18 years whose mental state may be deficient
as in the case of persons who suffer from insanity and other psychological conditions that will require
continued protection under the law and require the guidance and assistance of a guardian (wali) even
beyond the age of majority.

D - The Convention on the Rights of the Child

Before considering the implications of Holy Quran Surah Nisaa 4:5 in greater detail and arriving at what is
ideally the minimum age of marriage for a Muslim, it may be worth the while to have a brief look at the
UN Convention on the Rights of the Child, which is binding on Sri Lanka38, and which defines a “child” in
the following manner:-

“For the purposes of the present Convention, a child means every human being below the age of
eighteen years unless under the law applicable to the child, majority is attained earlier.”39
(emphasis added)

Although there is no consistent definition of the term “child” in the legislation of other nations in our
neighborhood40, as far as Sri Lanka is concerned, the term has been defined in section 10 of the
International Covenant on Civil and Political Rights (ICCPR) Act41 as “a person under the age of eighteen
years”. What is of relevance in the context of minimum age of marriage and child marriage is that in terms
of the said Act, every child has the right to have his or her birth registered and to have a name42 and to be

38
See, Fact Sheet at: https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-11.en.pdf
39
Art. 1 of the UN Convention on the Rights of the Child, which was adopted in 1989 in terms of General Assembly
resolution 44/25 of 20 November 1989 and became binding on member states of United Nations except the US in
1990. The text of the Convention is accessible at: https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
40
The term “child” was defined in the Child marriage Restraint Act of 1929 of (Pakistan as a male under 18 years of
age and a female under 16 years and in the Prohibition of Child Marriage Act 2006 of India as a male or female
below 18 years. There is no definition of “child” in the Administration of Muslim Law Act 1968 (Singapore), but
according to section 96(4) of the said Act as amended by Act No. 29 of 2008 only a male or female above 18 years
of age may lawfully enter into a contract of marriage, subject to the power of the Kadi under section 96(5) to
solemnise the marriage of a girl below 18 in special circumstances. Rules made under the said Act now require the
parties to a marriage also follow a preparatory course when either of the parties is a minor below the age of 21.
41
International Covenant on Civil and Political Rights (ICCPR) Act No. 56 of 2007.
42
ibid., section 5(1)(a).

7
protected from maltreatment, neglect, abuse or degradation.43 Furthermore, the Act provides that in all
matters concerning children, whether undertaken by public or private social welfare institutions,
courts, administrative authorities or legislative bodies, the best interest of the child shall be of
paramount importance.44

E - Child Marriage

It is important to note that the term “child marriage” connotes two different types of marriage:

(a) the marriage of a child who has not attained puberty (bulugh), which is contracted by the
marriage guardian (wali) with or without the consent of the child; and

(b) the marriage of a who has attained puberty (bulugh), contracted by the child with or without
the approval of the marriage guardian (wali), or by the wali (with or without the consent of
the child).

There seem to be no controversy that according to the Muslim law applicable in Sri Lanka, a child whether
male or female, is capable of being given in marriage by its marriage guardian (wali) in the exercise of his
power of matrimonial guardianship (known as jabr) before it attains puberty (bulugh), but a male child
who has attained puberty is said to possess the capacity to marry on its own. According to the Maliki and
Hambali schools of thought, only the father can exercise jabr, but under Shaffie and Hanaffi law the power
extends to other “paternal kindred”.45

Although Islamic jurists are unanimous that a male child is capable of entering into to matrimonial bonds on
his own after attaining puberty (bulugh), there is some juristic disagreement when it comes to a female child.
While according to the opinion of Imam Abu Haniffa, a female child who has attained puberty may marry on
her own, it is not so in the opinion of Imam Shaffie. The rigid view of the Shaffie school was reflected in Minhaj
et Talibin by Imam Nawawi in the following words:-

“A father can dispose as he pleases of the hand of his daughter, without asking her consent, whatever
her age may be, provided she is still a virgin. It is, however, always commendable to consult her as to
her future husband; and her formal consent to the marriage is necessary if she has already lost her
virginity. Where a father disposes of his daughter’s hand during her minority, she cannot be delivered
to her husband before she attains puberty.”46

Section 25 of MMDA has mitigated the rigors of the Shaffie doctrine by enacting specifically that-

“25. (1) For the avoidance of doubt it is hereby declared that no contract of marriage of a woman
belonging to the Shaffie sect is valid under the law applicable to that sect, unless—
(a) a person entitled to act as her wali—

43
ibid., section 5(1)(c).
44
ibid., section 5(2).
45
For the Shaffie view, see Nawawi, Minhaj Et Talibin, Book 33, Chapter I, Section 4, at 285. For the opinions of the
Hanafi, Maliki and Hambali scools, see Hamilton, Hedaya Volume, I, Book II. Chapter II, 36-37.
46
Nawawi, Minhaj Et Talibin, Book 33, Chapter I, Section 4.

8
 (i) is present at the time and place at which the contract is entered into; and

(ii) communicates her consent to the contract and his own approval thereof; or

(b) the Quazi has under section 47, authorized the marriage and dispensed with the necessity
for the presence and the approval of a wali.

(2) A marriage which is invalid under the law referred to in subsection (1) shall not be registered
under this Act.”(emphasis added)

Section 25 specifically deals with the marriage of a woman as opposed to a girl, in regard to whom specific
provision has been made in section 23 of MMDA. This provision is quoted below:-

“23. Notwithstanding anything in section 17, a marriage contracted by a Muslim girl who has not
attained the age of twelve years shall not be registered under this Act unless the Quazi for the area
in which the girl resides has, after such inquiry as he may deem necessary, authorized the
registration of the marriage.”(emphasis added)

It is safe to assume that the contrast is between a girl who has not attained the age of 12 years, which is
the outer limit of the period within which a girl attains puberty, and a woman who is a grown-up female
above the age of 12 years. Hence, it may be concluded that section 25 was comparatively progressive in
the sense that it made it compulsory to consult a woman above 12 years of age, in regard to her consent
to a marriage, and section 23 was somewhat protective to the extent that it required the Quazi’s approval
for the registration of a marriage of a girl below 12 years of age.

There is also some difference of juristic opinion in regard to the right of a child to repudiate a marriage
contracted prior to it attaining puberty. The Hanafi law gives the child the “option of puberty” (khyarul -
bulugh) to repudiate the marriage on attaining puberty where the marriage was contracted by a marriage
guardian (wali) who was neither the father or paternal grandfather of the child. The “option of puberty”
is strictly a Hanafi law concept47 and there is no reference to it in Shaffie texts such as Minhaj-et-Talibin.
However, the option was successfully (but questionably) invoked in Muheideenbawa v Seylathumma48
which involved Shaffie parties, but it has been held in later cases that a child marriage of Shaffie parties
will continue even after the girl so given in marriage attains puberty, as under Shaffie law she has no
option of repudiating it.49 It was in view of the stringent rule of the Shaffie scholars that the Board of
Quazis in the course of its judgment in the Muheideenbawa case called upon the Muslim Community to
rally round to eradicate the “social evil” of child marriage through the creation of public opinion, a
somewhat daunting task considering the community’s backwardness in education and attitudes.

47
K.N. Ahmed, Muslim Law of Divorce (1978) 142.
48
Muheideenbawa v Seylathumma 2 MMDLR 53.
49
Nabisa Umma et al. v Salih 2 MMDLR 118.

9
F – Analysis of Sri Lankan case law on Age of Majority, Age of Marriage and Age of Discretion

The question of age of majority, age of marriage and age of discretion has been dealt with by our Courts
in the past. It will be useful to have a glimpse of the Sri Lankan case law in the context of the question
whether a minimum age of marriage should be imposed by legislative reform, and if so what is the suitable
age for this purpose. In discussing these cases it would be important to bear in mind that they were
decided prior to 1989 when the age of majority was reduced from the attainment of 21 years to 18 years,
which is the current age of majority in terms of the Age of Majority Ordinance50. Central to this discussion
will be the concepts of puberty (bulugh) and discretion (rushd) which were considered in outline in the
previous section of this article in the context of the Holy Quran Surah Nisaa 4:6.

A good starting point for an analysis of Sri Lankan case law on the subject would be the decision of the
Supreme Court in Marikar v Marikar et al.51 In this case, the the paternal uncle of a boy aged 17 sought
an injunction on the basis that he was the marriage guardian (wali) of the boy, to prevent the father of a
girl giving her in marriage to the boy with the consent of the boy’s mother but without the plaintiff’s
approval, the father and the paternal grandfather of the boy being dead. The District Court refused relief
to the plaintiff, and on appeal, the Supreme Court upheld the decision of the lower court. Wood Renton
CJ expressed his opinion as follows:

“No relative except a father or paternal grandfather has the power of contracting any marriage
for a boy or a girl under the age of puberty [Wilson's Digest of Anglo-Muhammadan Law, third
edition, p. 410, s. 403]. The plaintiff's action fails, therefore, on this ground alone. But, in my
opinion, it fails upon another ground also. Ceteris paribus, capacity to marry under
Muhammadan law is dependent on the attainment of puberty, provided - a condition satisfied
by the evidence in the present case - that the pubes has also reached the age of discretion.”52
(emphasis added)

De Sampayo J, in his concurring judgment, stated that he would dismiss the appeal on the basis that the two
most affected persons, namely the boy and girl in question, were not parties to the case, but went on to set
out his own views in regard to capacity to marry under Muslim law in the following manner:-

“Now, the age of capacity is the attainment of puberty, which is settled at fifteen years of age. This
is sometimes, spoken of as the age of majority also, because, as a rule, capacity and majority
coincide. But it is clear from the recognized text-books on the Muhammadan law that they are not
necessarily the same, and that there are, so to speak, two kinds of majority: one is majority for the
purposes of marriage and is the same as puberty, and the other is majority in the general sense,
which is conditional on the possession of “discretion”, that is to say, sufficient judgment for

50
The Age of Majority Ordinance, supra note 22, provided that a person would be a major on attaining 21 years of
age, which was amended by Act No. 17 of 1989 substituting 18 years in place of 21 years as the age of majority.
51
Marikar v Marikar et al, supra note 35.
52
ibid., at p 482.

10
 managing property and conducting business. The latter kind of majority cannot be attained before
fifteen years of age, and may not be even then, if the minor has no “discretion”.…. According to
Muhammadan law, therefore, not only has Cader Saibo Marikar [the boy in question] attained the
age of “majority” and become capable of contracting himself in marriage, but the authority of the
plaintiff as guardian, if any, has ceased. But some difficulty arises out of the provisions of the [Age
of Majority ] Ordinance No. 7 of 1865, which fixes the legal age of majority at twenty-one years. In
my opinion the Ordinance has regard only to the attainment of legal majority for general purposes,
or the majority which under the Muhammadan law is conferred by “discretion”, and does not affect
the age of capacity for purposes of marriage.”(emphasis added)

In Narayanan v Saree Umma et al53 which involved a mortgage bond which was put into suit against two
persons professing Islam, one of the defendants took up the position that he was under the age of 21
years at the time of entering into the bond, and was therefore a minor within the meaning of the Age of
Majority Ordinance54. The District Judge held that since the said defendant had married prior to entering
into the bond, the Roman-Dutch law rule as to majority being attained by marriage applied to
Muhammadans as well, and gave judgment against the second defendant. On appeal, the Supreme Court
took the view that the learned District Judge had erred, and while holding that a Muslim does not attain
majority through marriage, decided that the Age of Majority Ordinance applies to Muslims since they are
not expressly excluded from its purview. It is important to note that in rejecting a submission made by
Mr. A. St. Y. Jayawardene on behalf of the plaintiff that since under the Muslim law, a person who has
reached the age of discretion (rushd) was able to bind himself by contract, he could do so still, whether
he be regarded as a major or not, de Sampayo J., with whom Loose J. concurred, also referred to his
opinion in Marikar v Marikar et al quoted above and observed that-

“Now, the general rule which incapacitates a minor from entering into an obligation accords with
justice, and is eminently suitable to the circumstances of all the people in Ceylon. This, I think,
furnishes one reason for not accepting Mr. Jayawardene's argument, and there is another. The
capacity to transact business and to enter into contracts depends upon the attainment of
“majority” in the sense of the Muhammadan law. But the period of majority has been fixed by the
Ordinance at twenty-one years of age even as regards Muhammadans, and consequently no such
business can be transacted now by a Muhammadan under the age of twenty-one years. I think
the plain object of the Ordinance, when it so fixed the age of majority, is to continue the legal
disability of a person up to that age.”

Another decision worthy of consideration is that of the Supreme Court in Asanar v Hamid55, in which the
question that arose was whether the plaintiff, who had received a gift of land (by Deed P1) from his father
when he was 12 years old, was bound by a purported sale of the said land (by Deed P3) executed in favour
of the defendant when he was just over 19 years old and married, though not technically a major being
below the age of majority of 21 years. Gratiaen J. (with whom Dias J. concurred) answered the question

53
Narayanan v Saree Umma et al (1920) 21 NLR 439.
54
The Age of Majority Ordinance, supra note 22.
55
Assanar v Hamid, supra note 36.

11
in the affirmative, and in the course of his judgment, differed from the view expressed by de Sampayo J
in Narayanan v Saree Umma that a Muslim cannot attain majority by operation of law prior to completing
the then prevailing age of majority of 21 years. For the purposes of his decision, Gratiaen J relied on
section 3 of the Age of Majority Ordinance56, which provided as follows:-

“Nothing herein contained shall extend or be construed to prevent any person under the age of
twenty-one [now eighteen (18)] from attaining his majority at an earlier period by operation of
law” (emphasis added)

It was Gratiaen J’s opinion that since the plaintiff in all the circumstances of the case, had conducted
himself in a manner to show that he had acquired the requisite intellectual maturity and discretion, he
was de facto emancipated by the attainment of that degree of maturity that is usually associated with
majority and its attribute of soundness of mind (rushd), and he thereby become a major by operation of
law. His Lordship observed-

“The question is whether a Muslim minor can, in accordance with the personal law by which he is
governed, be emancipated on the happening of some event before he reaches the age of twenty-
one years, and thereby attain his majority “by operation of law” within the meaning of section 3.
The scope of the Ordinance had been considered by a Divisional Bench of this Court in Muttiah
Chetty v. Dingiri. “The intention”, said Chief Justice Hutchinson, “appears to have been to abolish
any local law or custom which fixes any other age than twenty-one as the age of majority, but
without prejudice to any rule by which a person may on the happening of any event attain
majority by operation of law irrespective of his age”. In accordance with this very clear ruling, it
follows and it had never been disputed that a minor who is governed by the Roman Dutch Law
can, notwithstanding the provisions of the Ordinance, become emancipated before he is twenty-
one on the happening of any event which is regarded by that system of law as determining the
patria potestas.”57

The next decision that is relevant to this survey is that of the Supreme Court in Abddul Cader v Razik58
which is interesting because in this case a Shaffie bride who was only 15 years and 2 months old, had
contracted her marriage having “converted” herself to the Hanafi sect (madhab) and appointing her own
wali in order to avoid the requirement of obtaining the approval of her father in circumstances where he
was strongly opposed to the marriage. Swan J., with whom Jayatileke CJ agreed, adopted the opinion of
de Sampayo J. in Narayanan v. Saree Umma et al,59 and held that the conversion to Hanafi sect was
genuine and that the nikah was valid. On appeal, the said decision of the Supreme Court was affirmed by
the Privy Council in A.H.M. Abdul Cader v A.R.A Razik et al. 60 in which Lord Cohen, in setting out the
opinion of the Privy Council, made the following pertinent observations:-

56
The Age of Majority Ordinance, supra note 22.
57
Assanar v Hamid, supra note 36 pages 105-6. The Latin term patria potestas refers to the paternal power, which
in Arabic is equivalent to the power of jabr.
58
(1950) 52 NLR 156.
59
Narayana v Saree Umma et al, supra note 53.
60
(1952) 54 NLR 201.

12
 “There remains for decision only the first point. Mr. Pritt admits that under the Mahommedan
Law as laid down in the text books a Hanafi girl who attained the age of puberty does not require
a wali and may appoint whom she chooses to act as wali, but he contends that this provision
has not been incorporated into the law of Ceylon. He founds himself on the Mahommedan
Code of 1806 which purported to record the usages of the caste in force in that year and in
particular on Article 64 which provides that “a person wishing to marry, application must be
made to the bride’s father and mother for their consent ”. But the Code of 1806 has been
repealed; ….the place of those sections which dealt with marriage and divorce has been taken
by Ordinance No. 27 of 1929 as amended by Ordinance No. 9 of 1934(Cap. 99). Section 50 of
Cap. 99 reads as follows:—

“The repeal of sections 64 to 102 (first paragraph) inclusive of the Mohammedan Code
of 1806 which is effected by this Ordinance, shall not affect the Muslim Law of
marriage and divorce, and the rights of Muslims thereunder ”.

Mr. Pritt argued that notwithstanding this provision their Lordships must look at the
repealed Code and on any matter covered by it must treat the code as laying down the
Mahommedan law which was incorporated into Ceylon. He found himself bound to admit
that where the code was silent on any matter, recourse should be had to text-books for the
relevant Muslim Law, but he argued that unless the code was ambiguous on the point under
consideration, recourse to the text-books on any matter covered by the code was not
permissible. He relied on the observations of Schneider A.J. in Rahiman Lebbe and Anr. v.
Hassan Ussan Umma and others where he said that recourse to treatise is only had “to
elucidate some obscure text in our written Mohammedan Law or in corroboration of
evidence of local custom ”. Their Lordships think that this was too narrow a limitation even
when the Code was in force but in any event they agree with the Supreme Court that the
argument cannot prevail now that the code has been repealed.”61

The few judicial decisions considered above show how the Sri Lankan courts have grappled with the
question of minimum age of marriage in the backdrop of the important verse in the Holy Quran found in
Surah Nisaa 4:5. In Marikar v Marikar et al, supra, Wood Renton CJ interpreted the said verse perfectly
well when he observed that the capacity to marry is dependent on the attainment of puberty (bulugh),
provided that person concerned has also reached the age of discretion (rushd). The view of de Sampayo J.
expressed in his concurring judgment in that case and in his later judgment in Narayanan v. Saree Umma
et al, wherein he distinguished between two kinds of majority, the one relating to the capacity to marry,
which was deemed to have been attained at puberty (bulugh) and majority in the general sense, which is
conditional on the possession of “discretion” (rushd), “that is to say, sufficient judgment for managing
property and conducting business”, appears to be contrary to common sense and public policy since it
does not seek to distinguish between puberty (bulugh), which is the age at which a child first experiences
sexual desires, and the age of discretion (rushd) which is the age at which the child can comprehend the

61
ibid., at page 203.

13
responsibilities of marriage and be regarded as competent to enter into a contract of marriage. Nor does
it accord with the notion explained in the Holy Quran, 4:21 Surah Nisaa that the contract of marriage is a
“solemn covenant”, as opposed to the Christian concept that a marriage is a sacrament, and signified by
the practice of expressing such covenant through the contract making formula of an offer (ijab) to marry
and the acceptance (qabul) thereof in the presence of witnesses at a nikah ceremony.

It is also relevant to note that the Privy Council in A.H.M. Abdul Cader v A.R.A Razik et al sanctioned the
“conversion” of a Muslim from one sect (or madhab) to another in order to overcome the problems that
had arisen from the rigid classifications of persons governed by Muslim law according to the sect or
madhab they belong to, without making any effort to resolve the questions that could arise in determining
the validity of marriages of persons belonging to different sects or madhabs and those who do not adhere
to any sect or madhab (sect-less Muslims), which problems, it is believed, can only be solved by amending
section 16 and other connected provisions of MMDA by deleting all references to sects or madhabs.

G – Maslahah Mursalah

In this state of authority, the question that would arise in the mind of any lawyer is whether the principle
of maslahah musralah, which means “public interest” or “public benefit”, may be adopted to resolve some
of the questions that arise in the context of child marriage. For this purpose, it is necessary to understand
the role the concept of maslahah mursalah plays in shaping up or developing associated concepts such as
“Shariah”, “Fiqh” and “Usul al-Fiqh” so as to provide them with the dynamism that is essential to meet
modern day challenges. 62 It is trite law that the concept of maslahah mursalah may be utilized where
there is no clear and explicit guidance in regard to any matter in the Holy Quran and Hadith, and there is
no consensus of Juristic opinion that may be regarded as Ijma.63 As Kamali observes64 the concept of
maslahah mursalah refers to-

“…..unrestricted public interest in the sense of its not having been regulated by the Law giver
insofar as no textual authority can be found on its validity or otherwise. It is synonymous with
isthislah, and is occasionally referred to as maslahah mutlaqah on account of its being undefined
by the established rules of the Shariah.” (emphasis added)

62
See generally, Nyazee, Islamic Jurisprudence, Malaysian Edition 2003 (The Other Press) and Kamali, Principles of
Islamic Jurisprudence, Islamic Texts Society,Cambridge, UK (1997 reprint). On maslaha mursalah, see Abdulmalik,
Maslaha Al Mursalah; the Concept, Sources, History and Benefits as a Source of Islamic Law,
https://www.academia.edu/6236476/Maslaha_Al_Mursalah_the_concept_sources_history_and_benefits_as_a_
source_of_Islamic_Law, pages 6 to 7. See also, Marsoof, Maslahah Mursalah as a Basis of Muslim Law Reform in
Sri Lanka, [2016-17] Meezan Vol. 51 page 32.
63
Ijma is the third source of Islamic Law after the Holy Quran and Hadith, and means unanimous opinions of the
Imams. Where in regard to any matter there is no clear guidance in Quran and Hadith, and there is no Ijma,
maslahah mursalah, as an aspect of Ijtihad, becomes applicable.
64
Kamali, supra note 62, page 267.

14
If one thing is clear, the question of minimum age of marriage is fertile terrain for the use of maslaha
muslahah, since as already seen, there is only one reference to it in the Holy Quran, Hadith being
ambiguous, and no Ijma.

While the Holy Quran Surah Nisaa 4:5 clearly shows that Shariah law recognizes the concept of “age of
marriage”, which is believed at least by Hanaffi jurists, to be reached when a child attains puberty
(bulugh), but in this respect, Imam Shaffie differs from Imam Abu Haniffa in holding that, at least in the
case of a girl, the attainment of puberty (bulugh) does not confer on her the capacity to marry on her own.
This difference of juristic opinion between these two great Imams on the interpretation of the above
quoted verse in Surah Nisaa, provides an opportunity to apply the concept of maslahah mursalah to
decide how the law should be reformed and applied. It is significant to note that in the above quoted
verse, the guardian is commanded not to give over any property belonging to an orphan until the orphan
is possessed of “sound judgment” (rushd). Since both capacity to marry (or to be given in marriage by the
wali) and mahr (dower) are essential ingredients of a contract of marriage, the above quoted verse does
raise the question as to whether the said verse was intended to prevent the handing over of mahr to a
child being given in marriage until the child is possessed of sound judgment (rushd), which may be
regarded as being attained between the ages of 16 and 18, and presumed by our courts, as already noted
in Marikar v Marikar et al.,65 and Asanar v Hamid66, to be attained at the age of eighteen. As Wood Renton
CJ observed at page 482 of his judgment in Marikar v Marikar et al., the “capacity to marry under
Muhammadan law is dependent on the attainment of puberty, provided ……. that the pubes has also
reached the age of discretion.” This adoption of the criteria of the age of discretion (rushd) as a pre-
requisite of legal competence to enter into the matrimonial bond and takeover the responsibilities of
marriage and parenthood, is consistent with the Shariah and also public policy.

The question whether it is unlawful for a man to be married according to the Muslim law of the “sect to
which the parties belong”, to a girl below 12 years of age without the approval of the Quazi and without
registering the marriage (the validity of which marriage will be recognized by section 16 read with section
23 of the MM&D Act) was considered by the Supreme Court of Sri Lanka in Mukamadu Lebbe v Mohamado
Tamby. In the course of his judgment, Moncreiff, A.C.J. expressed doubt as to whether Section 363 of the
Penal Code67 which made it an offence to have intercourse with a female under 12 years of age, was intended
to apply “to a case of this kind.”68 However, the Muslim Law Research Committee69 has adopted the opinion
of Professor H.M.Z. Farouque that “a man commits the offence of rape if he has sexual intercourse with a girl
below twelve years of age even if she is his wife and irrespective of her consent”.70

It is noteworthy that the legal position has been clarified by an amendment the Penal Code has undergone in
1995,71by which section 363(e) has been amended to read as follows:-

65
Supra note 34.
66
Supra note 35 .
67
The Penal Code, Ordinance No. 2 of 1883, as subsequently amended.
68
1 M.M.D.L.R. 40,42
69
In its report published in (1978)4 Colombo Law Review 57, 60.
70
H.M.Z.Farouque, ‘Muslim Law in Ceylon’, 4 M.M.D.L.R. 1, 12.
71
The Penal Code (Amendment) Act No. 22 of 1995.

15
 “A man is said to commit “rape” who has sexual intercourse with a woman under circumstances
falling under any of the following descriptions-

(e) with or without her consent when she is under sixteen years of age, unless the woman is
his wife who is over twelve years of age and is not judicially separated from the man.”
(Empahsis added)

In view of this amendment, there cannot be any doubt that even the lawful husband of a Muslim girl below
the age of twelve shall be guilty of rape, if he has sexual intercourse with her. This will make it imperative to
consider amending section 23 of MMDA, which is in conflict with section 363 (e) of the Penal Code.

Dr. Ahamed Ibrahim has outlined some of the ill effects of child marriages in the following words:-

“Early marriages mean that the girls are not quite ready for married life. They will be poorly educated
and if there is any trouble between the parties, the girls will be at a disadvantage. If the marriage
breaks up, she will not be able to go out and earn a living for herself. Eventually it is the children who
suffer because the mother being poorly educated and improperly trained is unable to bring up the
children properly and adequately according to modern standards”.72

Hyshyama Hamin and Hasanah Segu Isadeen, have commented, on some of the serious issues child
marriages can give rise to. They say-

According to women volunteers who assist affected women, one of the main reasons that
husbands seek divorce from wives who are minors is because they are “unfit to have sex” and
“unable to do housework”. The plight of young girls who are divorced becomes precarious.
Education of young women and girls who get married early is more often than not discontinued,
thereby significantly limiting their higher educational and economic opportunities. This compels
them to be highly susceptible to grave financial difficulties in the event that husbands are unable
or unwilling to provide maintenance, in case of death of husbands, polygamy, divorce or
abandonment.73

Professor Savitri Goonasekara has pointed out that “since Sri Lanka became a party to the U.N. Convention
on Consent to Marriage and the Minimum Age of Marriage, 1962 under which Sri Lanka is bound to take steps
to abolish such customs, ancient laws and practices that conflict with the said Convention, there is a “clear
basis for introducing reforms even if they conflict with traditional concepts of the Muslim Law in Sri Lanka”.74
What is probably of greater concern to Muslims of Sri Lanka is whether such reform could be accommodated
within the Shariah, and the procedure in section 23 of the MMDA has provided a means of reconciling the
principles of the Shariah with the needs of society with due regard to the best interests of the child. In this

72
World Muslim League, Volume III No. 1 63-64.
73
Hyshyama Hamin and Hasanah Segu Isadeen, “Unequal Citizen: Muslim Women’s Struggle for Justice and Equality
in Sri Lanka”, page 8.
74
Savitri Goonasekara, “Sri lanka Law on Patent and Child” (1987) at p. 318.

16
context, it is worth stressing, as Abdulala Maududi does, that in regard to “such affairs, the function of the
legislature is to understand the principles and fulfil the intention of the law-giver”.75

It has been noted that child marriages could be rationally justified in exceptional circumstances, such as when
there is a philanthropic person willing to marry an orphan girl who has no one else to look after her needs
including the need to provide her with education. Adoption, in the sense sanctioned by Islam76, may be a
better way of dealing with such situations. The justification often advanced for giving female children in
marriage when they are too young to even comprehend the responsibilities of marriage and motherhood, is
the poverty of their parents, and if they are orphans, the difficulties in taking care of them and providing them
with food, shelter, health care and education. It is also argued that when these children grow up, it will be
more difficult to find them suitable partners, as they become less attractive to suiters.

These arguments overlook the collective and continuing responsibility of the community to help those in
need, through zakat and sadaqa, and the fact that even though a marriage guardian (wali) is empowered by
the teachings of the Shaffie school of thought (madhab) to give away their daughters in marriage before they
attain the age of discretion (rushd), they too would find it difficult to help these girls when they are deserted
or divorced by their husbands, and they are unable to help themselves due to their immaturity and lack of
education or other skills. It is feared that in these circumstances, these girls may be driven by their
circumstances to lead lives of ill repute.

Considering the above, the question may be posed as to whether the fiqh relating to the minimum age of
marriage may be developed through the concept of maslahah mursalah in the public interest so as to
regard the attainment of the age of eighteen as the age at which a male or female may ordinarily be
capable of entering in to a contract of marriage, as an attribute of majority. The protective powers of the
marriage guardian (wali) would naturally come to an end when a child reaches the age of majority and
embraces adulthood, unless the major suffers from some incapacity such as insanity. This does not mean
that the major’s relationship with his or her parents would necessarily be severed or a bride will be
deprived of her privilege of being contracted in marriage by her father or other guardian as her wali at
the nikah ceremony. It only means that the approval of the wali of a bride will no longer be an essential
legal pre-requisite at the nikah ceremony. If the law is reformed in this manner and the minimum age of
marriage is fixed at eighteen years to coincide with the attainment of majority, the question arises as to
how section 23 should be amended. Although section 23 of MMDA, as it stands at present, is applicable
only to a girl below 12 years of age, it is felt necessary to amend section 23 to include within its ambit a
boy or girl below 18 years, and to expressly prohibit the solemnization and registration of a marriage of a
person below 18 years, unless the Quazi Court has exceptionally approved the marriage on the basis of
the best interest of the minor child concerned. However, it is desirable to have a lower limit for the grant
of approval for such marriages, and it is considered best to provide in section 23 that the Quazi’s power

75
Abdulla Maududi, “Islamic Law and Constitution’, (1960) 78.
76
See further, Saleem Marsoof, Adoption of Children in Islam and the Muslim Law of Sri Lanka, [2008] Meezan pages
1 to 5 accessible at: https://www.academia.edu/34554763

17
to grant approval for a minor child’s marriage should not be exercised unless and until such child has
attained 16 years of age.

In fact, there is already some consensus emerging in the Muslim community on the urgent need to amend
section 23 of MMDA in the said lines to empower the Quazi to inquire into and authorize such marriages
of children between 16 and 18, where appropriate, in the best interest of the child in question. This
suggestion has been made on the basis that it will then give the opportunity for a child to complete its
education at least up to the General Certificate of Education (Ordinary Level) Examination before it is
given in marriage. These reforms will then be both consistent with the Shariah as well as the Constitution
of Sri Lanka and other applicable statutory provisions, such as the Age of Majority Ordinance, and also
accord with Sri Lanka’s international obligations under the Convention on the Elimination of All Forms of
Discrimination against Women and the Convention on the Rights of the Child. The proposed reforms will
also give due weight to the protection of the intellect (aql), which is one of the five essentials objectives
of Shariah under the concept of the Maqasid Al-Shariah, the other four objectives of the Shariah being
the (1) preservation of the self, or one’s Identity; (2) the protection of one’s religion (Deen); (3) the
preservation of one’s lineage or pedigree and (4) the protection of one’s property or wealth .77 Conferring
on the Quazi Court the power to authorize in exceptional circumstances the marriage of a person between
the ages of 16 and 18 in the best interests of the person concerned will avoid the existing inconsistency
between the provisions of the Muslim Marriage and Divorce Act (MMDA), the Constitution of Sri Lanka
and other statutory provisions.

H - Conclusions

The age of marriage is not a mirage, as some claim. It is a reality that is adverted to in the Holy Quran,
Surah Nisaa 4:6. However, at what age majority and its attribute of capacity to marry without the approval
of a parent, guardian or court is attained, has not been explicitly laid down in the Holy Quran. It is this
omission, that has given rise to juristic disagreement between Imam Abu Haniffa and Imam Shaffie in this
regard. Perhaps a minimum age of marriage was not clearly prescribed in the Holy Quran since Allah
Subhanavuva Thallah, in His wisdom, intended to provide flexibility in this regard for national Rulers or
Legislatures to prescribe a suitable age consonant with the needs of the time and place. As Amina Hussan78
has observed,

“In ancient societies, pubescence was the age of marriage. Even as far back as 1275 there is a
documented instance in England, when Sir Edward Coke determined that the age of marriage was
the age of consent. At that time the age of marriage was 12. Life expectancy in many primitive
and medieval societies was short by today’s standards. Men had a life expectancy of between 30

77
The five ultimate objectives of the Shariah consist of the preservation of (1) the self, or one’s Identity; (2) reason
or one’s intellect (akl); (3) one’s religion (Deen); (4) one’s property or wealth; and (5) one’s lineage.See, Dar Al-Ifta,
Maqasid Al-Shari’ah accessible at: http://www.dar-alifta.org/Foreign/ViewArticle.aspx?ID=499&CategoryID=3. For
a clear explanation, see also Shaya’a Othman, Shariah and Maqasid al-Shariah – A Brief Overview, accessible at:
http://islamicstrategymanagement.blogspot.com/p/maqasid-al-shariah.html
78
Amina Hussain, The Age of Reason, the Age of Marriage, Sunday Times (9 April 2017), supra note 1.

18
 and 50 years and with so many women dying either through illness or in childbirth, it would have
been surprising if they lived even that long. Therefore, it would have been considered practical in
many ancient societies to consider marriage as being acceptable once the boy and girl hit
puberty.”(emphasis added)

With improved health standards, life expectancy has considerably increased, and the growing
complexities and demands of modern societies have made it incumbent on those who contemplate
matrimony and parenting to prepare themselves to take on new responsibilities through education, skills
development, personality and intellectual growth and generally greater preparedness for marriage. This
makes it essential to resolve the existing conflict between the provisions of the Muslim Marriage and
Divorce Act (MMDA)79 and the Constitution of Sri Lanka, the Age of Majority Ordinance80 and the Marriage
Registration Ordinance.81 The MMDA provisions which do not lay down a minimum age of marriage, have
come into conflict with not only section 363(e) of the Penal Code but also the public interest. Abuses
arising from child marriage are facilitated in practice by the provisions in MMDA that permit marriages to
be validly solemnized without registering the same, and the prevalent practice of falsifying the ages of
children for the purpose of registering marriages of children of tender years, which are statutory loopholes
that need to be speedily remedied. There is urgent need to protect children and young persons from these
social evils by amending the relevant legislative provisions.

In conclusion, it is necessary to point out that the United Nations International Children's Emergency Fund
(UNICEF) has, in one of its recent publications, described child marriages as a “fundamental violation of
human rights”, as a “form of violence against children” and which “can lead to a lifetime of disadvantage
and deprivation.” It has documented statistics that show that South Asia has the highest rates of child
marriage in the world. According to its findings, 45 percent of all women aged 20-24 years reported being
married before the age of 18. Almost one in five girls (17%) are married before the age of 15.82 However,
the menace of child marriage is not confined to South Asia, and may be conceived as a global problem83,
though very much more prominent and noticeable in South Asia region due to the greater numbers
involved. In fact, there are also reports of cross-border child marriages and abuse, and in one recent case,
a 41 year old Malaysian man took a Thai Muslim girl who was only 11 years old, as his third wife. The nikah
took place in one of the three southern provinces of Thailand, where the strict Thai child protection laws
that made it an offence for anyone to marry and have sex with a girl under 17 years, do not apply. The
newly-wed couple crossed over to Malaysia as husband and wife on the same day, causing a national
outcry in Parliament and protests on the streets. In Malaysia, a man can legally marry girls under 18 only

79
Supra note 2.
80
Supra note 21.
81
Supra note 24.
82
See, UNICEF, Child Marriage, accessible at: https://www.unicef.org/rosa/what-we-do/child-protection/child-
marriage. For a related link, see: https://www.unicef.org/protection/57929_58008.html
83
According to a Humanium Report, in the United States more than 3 million cases of child abuse are reported. A lot
of them have been subject to physical violence, and almost 10 % of these have been sexually abused. The
Humanium Report which highlights child abuse country by country is accessible at: https://www.humanium.org
/en/child-marriage/?gclid=EAIaIQobChMItZ6Z9sel3QIVkjUrCh0JDAxvEAAYAiAAEgJ0M_D_BwE

19
with the approval of the Syariah Court, and the Malaysian man involved in this notorious case who
pleaded guilty to polygamy and conducting the marriage without the court’s permission, was fined 1,800
Ringgits. The imam who conducted the nikah in this case had got the man to promise that he will not have
sex with the girl until she attained age, but medical examinations conducted in Malaysia showed that the
man did not keep his promise. As far as Thailand was concerned, there was no issue, as cross-border child
marriages are lucrative business, not only for imams who conduct nikah ceremonies but also for the
facilitators of such unions.84

There is a tendency among Sri Lankan intellectuals to side step problems of this kind that affect the
Muslims of Sri Lanka on the basis that child marriages and abuse are essentially global issues, and it is not
reasonable for international bodies and activists to demand reform only in Sri Lanka. While there is some
superficial merit in this way of thinking, and there is considerable global awareness and even international
initiatives to deal with the problem on a global scale, all that we can do as a community is to put our house
in order when we can. After all, those who are affected by the loopholes in the law that have facilitated
child marriages and abuse among Muslims in Sri Lanka, are our own children.

84
Reported in the Guardian by Hannah Ellis Peterson under the title The Dark Secret of Thailand’s Child Brides,
accessible at the following link: https://www.theguardian.com/world/2018/sep/01/thailand-malaysia-muslim-
child-forced-marriage

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