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In any civilised society, marriage is a sacred union and, thus, should be consensual on both the sides to marriage. None the less, within the Muslim communities one can see how minor girls are given in marriage to adult men. When a girl below 18 years cannot reasonably be expected to have sufficient understanding of the nature of marriage and its consequences, whether such marriage should be allowed within our legal order becomes rather contentious.
Under section 363(e) of the Penal Code (Amendment) Act, No.22 of 1995, "A man is said to commit 'rape' who has sexual intercourse with a woman with or without her consent when she is under 16 years, unless the woman is his wife who is over 12 years of age and is not judicially separated from the man".
The above penal provision clearly buttresses the status quo arising from the Muslim Marriage and Divorce Act, No.13 of 1951 which allows marriage between minor girls and adult men. For instance, section 23 of the Muslim Marriage and Divorce Act provides that "Notwithstanding anything in section 17 of the Act, a marriage contracted by a Muslim girl who has not attained the age of 12 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". Therefore, there's no minimum age of marriage under the Muslim marriage laws in Sri Lanka.
Cultural sensitivities cannot be accepted as a valid excuse for Sri Lanka's failure to conform to her international obligation to recognise the 'right to consent to marriage' and, legislative measures should be taken to address this very issue and to impose a minimum age of marriage on all Muslim women on par with those women governed under the general marriage laws.
Under section 363(e) of the Penal Code (Amendment) Act, No.22 of 1995, "A man is said to commit 'rape' who has sexual intercourse with a woman with or without her consent when she is under 16 years, unless the woman is his wife who is over 12 years of age and is not judicially separated from the man".
The above penal provision clearly buttresses the status quo arising from the Muslim Marriage and Divorce Act, No.13 of 1951 which allows marriage between minor girls and adult men. For instance, section 23 of the Muslim Marriage and Divorce Act provides that "Notwithstanding anything in section 17 of the Act, a marriage contracted by a Muslim girl who has not attained the age of 12 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". Therefore, there's no minimum age of marriage under the Muslim marriage laws in Sri Lanka.
Cultural sensitivities cannot be accepted as a valid excuse for Sri Lanka's failure to conform to her international obligation to recognise the 'right to consent to marriage' and, legislative measures should be taken to address this very issue and to impose a minimum age of marriage on all Muslim women on par with those women governed under the general marriage laws.
