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Child Marriage in Islamic Law: Difference between revisions
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The terms used in the hadiths are ''udkhilath'' and ''bana biha'', and these words do not permit any meaning other than "engaged in sexual intercourse with her" in the contexts where they are used. Crucial to the facilitation of asexual re-readings of these passages are tendentious English translations (particularly those of Dr. Muhsin Khan) as well as a general and perhaps understandable unwillingness to admit that Muhammad could have slept with or [[Rape in Islamic Law|raped]] a nine year old. | The terms used in the hadiths are ''udkhilath'' and ''bana biha'', and these words do not permit any meaning other than "engaged in sexual intercourse with her" in the contexts where they are used. Crucial to the facilitation of asexual re-readings of these passages are tendentious English translations (particularly those of Dr. Muhsin Khan) as well as a general and perhaps understandable unwillingness to admit that Muhammad could have slept with or [[Rape in Islamic Law|raped]] a nine year old. | ||
===Child Marriage and Muhammad's Companions=== | ===Child Marriage and Muhammad's Companions=== | ||
{{Main|Child Marriage and Muhammad's Companions|She's too young}}Due to the commonplace nature of child marriage in the 7th century (both inside and outside of Arabia), many of [[Sahabah|Muhammad's companions (sahabah)]] also engaged in child marriage. Most notable among these were [[Umar ibn Al-Khattab|Umar b. al-Khattab]] (the second [[Rashidun Caliphs|"rightly guided caliph]]"), who married Umm Kulthum when she was between 10-12 (although some sources report she was just 5<ref>"'Umar asked 'Ali for the hand of his daughter, Umm Kulthum in marriage. 'Ali replied that <nowiki>'''</nowiki>she has not yet attained the age (of maturity)<nowiki>'''</nowiki>. 'Umar replied, 'By Allah, this is not true. You do not want her to marry me. If she is underage, send her to me'. Thus 'Ali gave his daughter Umm Kulthum a dress and asked her to go to 'Umar and tell him that her father wants to know what this dress is for. When she came to Umar and gave him the message, he grabbed her hand and forcibly pulled her towards him. 'Umm Kulthum asked him to leave her hand, which Umar did and said, 'You are a very mannered lady with great morals. Go and tell your father that you are very pretty and you are not what he said of you'. With that 'Ali married Umm Kulthum to 'Umar." Tarikh Khamees, Volume 2, p. 384 ('Dhikr Umm Kalthum') and Zakhair Al-Aqba, p. 168</ref>), and [[Ali ibn Abi Talib|Ali b. Abi Talib]] (Muhammad's cousin and the fourth "rightly guided caliph"), who [[She's too young|married Fatima]] (Muhammad's daughter) at the age of 9. | {{Main|Child Marriage and Muhammad's Companions|She's too young}}Due to the commonplace nature of child marriage in the 7th century (both inside and outside of Arabia), many of [[Sahabah|Muhammad's companions (sahabah)]] also engaged in child marriage. Most notable among these were [[Umar ibn Al-Khattab|Umar b. al-Khattab]] (the second [[Rashidun Caliphs|"rightly guided caliph]]"), who married Umm Kulthum when she was between 10-12 (although some sources report she was just 5<ref>"'Umar asked 'Ali for the hand of his daughter, Umm Kulthum in marriage. 'Ali replied that <nowiki>'''</nowiki>she has not yet attained the age (of maturity)<nowiki>'''</nowiki>. 'Umar replied, 'By Allah, this is not true. You do not want her to marry me. If she is underage, send her to me'. Thus 'Ali gave his daughter Umm Kulthum a dress and asked her to go to 'Umar and tell him that her father wants to know what this dress is for. When she came to Umar and gave him the message, he grabbed her hand and forcibly pulled her towards him. 'Umm Kulthum asked him to leave her hand, which Umar did and said, 'You are a very mannered lady with great morals. Go and tell your father that you are very pretty and you are not what he said of you'. With that 'Ali married Umm Kulthum to 'Umar." Tarikh Khamees, Volume 2, p. 384 ('Dhikr Umm Kalthum') and Zakhair Al-Aqba, p. 168</ref>), and [[Ali ibn Abi Talib|Ali b. Abi Talib]] (Muhammad's cousin and the fourth "rightly guided caliph"), who [[She's too young|married Fatima]] (Muhammad's daughter) at the age of 9. Even Muhammad's future wife Hafsah's first marriage had already happened by the age of 10, when she joined her first husband on the emigration from Mecca to Abyssinia.<ref>"Most accounts claim that the young Ḥafṣah was already a widow at the time of her marriage to the Prophet. Her previous husband was Khunays b. Ḥudhāfah al-Sahmī, one of the earliest Meccan converts to Islam. Fleeing persecution in Mecca, Ḥafṣah emigrated to Abyssinia with Khunays ca. 617, when she was ten years of age, and they returned to the Hijaz after Muḥammad’s hijrah to Medina in 622."<BR />Sean Anthony and Catherine Bronson [https://www.academia.edu/15066116/ Did Ḥafṣah bint ʿUmar Edit the Qurʾan? A Response with Notes on the Codices of the Prophet’s Wives], Journal of the International Qurʾanic Studies Association 1 (2016), p. 97</ref> | ||
Baugh details a number of early stories of companions marrying and giving their minor daughters and sons in marriage that were frequently discussed by jurists (for example the marriage of Umar ibn al-Khattab to Umm Khaldum, the daughter of Ali and Fatima), though she says there is little indication that any of these marriages were more than unconsummated contractual unions.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 38-42</ref> | Baugh details a number of early stories of companions marrying and giving their minor daughters and sons in marriage that were frequently discussed by jurists (for example the marriage of Umar ibn al-Khattab to Umm Khaldum, the daughter of Ali and Fatima), though she says there is little indication that any of these marriages were more than unconsummated contractual unions.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 38-42</ref> | ||
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{{Quote|al-Umm 6:232 by Shafi'i, translated by Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 134|If a man is contractually married to a woman upon the like of whom the sexual act can be performed, even if she is not pubescent, and she allows him to visit with her (khalat baynahu wa-bayna al-dukhūl ʿalayhā) or her family allows them to be together (if she is a virgin) (khallā ahluhā baynahu wa-bayna dhālik in kānat bikran), and she is not prevented from visiting him (lam tamtaniʿ min al-dukhūl ʿalayhi), he must pay her maintenance, just as it would be incumbent upon him if he had had sex with her (idhā dakhala bi-hā), for the withholding is from his side.}} | {{Quote|al-Umm 6:232 by Shafi'i, translated by Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 134|If a man is contractually married to a woman upon the like of whom the sexual act can be performed, even if she is not pubescent, and she allows him to visit with her (khalat baynahu wa-bayna al-dukhūl ʿalayhā) or her family allows them to be together (if she is a virgin) (khallā ahluhā baynahu wa-bayna dhālik in kānat bikran), and she is not prevented from visiting him (lam tamtaniʿ min al-dukhūl ʿalayhi), he must pay her maintenance, just as it would be incumbent upon him if he had had sex with her (idhā dakhala bi-hā), for the withholding is from his side.}} | ||
Ibn Mundhir (d. 930 CE), a prominent jurist of the Shafi'i school, criticised the | Ibn Mundhir (d. 930 CE), a prominent jurist of the Shafi'i school, criticised the Hanbali use of the Aisha hadith (see below) and then sets out the Shafi'i view: | ||
{{Quote|Al-Ishraf by Ibn al-Mundhir, translated in Carolyn Baugh, ''Minor Marriage in Early Islamic Law'' p. 179|[Ibn al-Mundhir said:] Our opinion is other than this: If she reaches [nine years of age] and does not possess the body and strength [that would allow her to] tolerate a man, her family may keep her away from him (li-ahlihā manʿuhā minhu). And if she is not yet nine, and she possesses the body and strength that would tolerate a man, they should not keep her away from him.<BR /> | {{Quote|Al-Ishraf by Ibn al-Mundhir, translated in Carolyn Baugh, ''Minor Marriage in Early Islamic Law'' p. 179|[Ibn al-Mundhir said:] Our opinion is other than this: If she reaches [nine years of age] and does not possess the body and strength [that would allow her to] tolerate a man, her family may keep her away from him (li-ahlihā manʿuhā minhu). And if she is not yet nine, and she possesses the body and strength that would tolerate a man, they should not keep her away from him.<BR /> | ||
And al-Shāfiʿī said, “If the bride is husky (jasīma), and others of her type (mithluhā) tolerate sexual intercourse, it means they should be allowed to be together (khuliyya baynuhu wa baynuhā). If she cannot tolerate that, then her family should prevent her until she can tolerate sex.”}} | And al-Shāfiʿī said, “If the bride is husky (jasīma), and others of her type (mithluhā) tolerate sexual intercourse, it means they should be allowed to be together (khuliyya baynuhu wa baynuhā). If she cannot tolerate that, then her family should prevent her until she can tolerate sex.”}} | ||