The Importance of Fiqh al-Aqalliyyat in Reforming Muslim Family Laws: A Study Focused on the Muslim Marriage and Divorce Act of 1951

Abstract

The provisions contained in the Muslim Marriage and Divorce Act (MMDA) of 1951 have been subject to widespread criticism, due to facilitating child marriage, the absence of any compulsory consent of the spouse, and institutionalizing gender discrimination in divorce and judicial practice. Those elements are incompatible with the international human rights standards (including CEDAW and CRC) and Islamic principles of justice (Adl) and mercy (Rahmah). This paper analyzes Fiqh al-Aqalliyyat (Islamic jurisprudence of Muslim minority) as a valid solution to justifying comprehensive reform. This paper demonstrates that the MMDA is a hybrid man made and colonial era code (descended from a Dutch implemented code of 1770) and is therefore subject to ijtihad using Usul al-Fiqh methods (particularly the Maqasid al-Shari'ah of higher objectives). Some principles like Maslaha (public interest), and Tayseer (ease) are entirely reform supportive including requiring a minimal age of marriage of 18 and the right of equality in divorces. The findings recommend practical legal and institutional changes based on the Fiqh al-Aqalliyyat to reorient the MMDA with the core values of Islam and the Sri Lankan principles of equal citizenship.