RELIGION-SRI LANKA: Marriage By Conversion Ruled Out

By Feizal Samath Reprint | | Print |

Feizal Samath

COLOMBO, Feb 15 1998 (IPS) - Sri Lankan men, who wish to marry a second time without divorcing their first wife, often opt for an easy way out — by converting to Islam which permits polygamy.

Many men, mostly from the middle and upper classes of Buddhist Sri Lankan society, have resorted to this practice and — never mind what the wife says or feels — contracted a second marriage after changing their religion.

But in a landmark judgement in December last year, Sri Lanka’s highest court put a halt to this now-accepted way to a second marriage, to the satisfaction of women’s rights activists across the island nation.

A three-judge bench of the Supreme Court ruled that a once- married non-Muslim could not convert to Islam and marry a second time without dissolving his previous marriage.

But because the Supreme Court restricted itself to the issue of bigamy only, the judgement has also created some confusion.

Questions are being asked about the impact of the Court ruling on the legitimacy and inheritance rights of children born of second marriages. And the legal rights of their mothers.

It is also likely to open the door to a string of court cases by women who have been deserted by their husbands for another woman. “I think many women who have undergone this humiliation will go to court now,” said Savithri Wijesekera, legal consultant at Women In Need (WIN), a private group that helps battered spouses and other women.

“Marriages by conversion” are quite common. Many prominent Sri Lankans have converted to Islam only to take a second wife. Among them are parliamentarians, former ministers, diplomats and even a well-known test cricketer.

Sri Lankan couples are wed under the General Marriages Ordinance or personal law which applies to Buddhists and Christians. Hindus have their own personal laws. The Ordinance states that “no marriage shall be valid when either of the parties contracted here have not dissolved the previous contract.”

What the Supreme Court did was to overturn a court ruling of 33 years, under which the marriage of non-Muslims who convert was recognised as legal. A charge of bigamy could not be brought against a non-Muslim who had married a second time under Muslim law, after conversion.

December’s judgement was greeted with loud hurrahs by not only women activists and affected spouses, but also the island’s Muslim community (7 percent of the total 120 million people) who felt their law was being abused by non-Muslims just so they could marry a second time. The island’s Buddhist population are the majority, 70 percent, while Hindus are roughly 15 percent.

Islam permits polygamy only when a man can show he will be able to take care of all his wives and their children, observes M.B.M. Zubair, a government official who sees himself as an authority on Islamic law. In his opinion, “polygamy is an exception and not the rule,” in modern times.

According to a Muslim lawyer, “People merely use the convenience of Muslim law to marry a second time without divorcing their first wife. They don’t practice Islam afte that. Nor do they adopt Muslim names.”

Journalist and lawyer, Kishali Pinot Jayawardene, commenting on the verdict in a newspaper article titled ‘Turmoil or Triumph’ said the judiciary seems to have finally woken up to the social reality. Previously “judges (were) too obsessed by legal technicalities to care about social realities,” she wrote.

She wondered if the judgement should not have been a “trifle more sensitively” drafted. “What of the children born of the second marriage, now declared void?” she asked.

The government will have to step and sort out the many issues left hanging in the Supreme Court judgement, legal experts concluded at a well-attended public meeting in Colombo last month.

“A new law will have to deal with previous marriages contracted by conversion and the status of children of a second marriage,” one lawyer said. The overwhelming opinion is that children should not be penalised for the sins of their elders.

At the same time, the Supreme Court judgement has also swung the spotlight on the very strict laws governing divorce in the country, which has been used time and again as the reason for men choosing the easy way out and converting to Islam.

Sri Lankan courts only allow divorce on grouds of adultery,

cruelty, incompatibility, and other reasons, but not on the basis of “mutual consent”.

In addition, a divorce case could take years to be settled by courts, and for most women who are dependent on their husbands, the struggle for maintenance through the courts is both time consuming and exhausting.

December’s court ruling provoked renewed calls for liberalised divorce procedures which would then eliminate the need for “marriages by conversion”.

But the idea was shot down by several women’s activists who argued that Sri Lankan men would use the less stringent divorce laws to their advantage, to abandon their wives on the flimsiest of pretexts.

RELIGION-SRI LANKA: Marriage By Conversion Ruled Out

By Feizal Samath Reprint | | Print |

Feizal Samath

COLOMBO, Feb 15 1998 (IPS) - Sri Lankan men, who wish to marry a second time without divorcing their first wife, often opt for an easy way out — by converting to Islam which permits polygamy.
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