Child Marriage in Islamic Law: Difference between revisions

Child marriage and sexual activity between adults and children are sanctioned by Islamic law and were practiced by Muhammad and his companions. As is the case within all contexts where sexual activity is permitted in Islam - namely, marriage and slavery - female consent is not required and the category of "rape" does not exist (even while the category of "rape" exists outside these contexts). The only restriction on sexual activity with children of any age within the contexts of marriage and slavery is that the child should not come to severe physical harm as a consequence of the encounter ("mental anguish", as such, is not considered, and consent is regardless irrelevant). Consequently, men are advised to avoid vaginal penetration with their child wives and female slaves if they are too small to endure such activity, although other forms of sexual activity with such children are permitted. "Thighing", explicitly discussed by Islamic jurists, is one such variety of alternative sexual activity that men may engage in with their child wives and female slaves if they are too small to endure penetration.

In scripture

Child marriage in the Quran

The Qur'an permits child marriage. Verse 4 of Surah 64 provides guidelines regarding divorce a wife who has not yet menstruated. This verse refers to the Iddat (العدة‎), which is a waiting period a female must observe before she can remarry. According to this verse, the stipulated waiting period for a divorced girl who has not yet menstruated is three months.

Muhammad's marriage to Aisha

Aisha (‘Ā’ishah, c. 613/614 –c. 678)^[1] or عائشة, (also transliterated as A'ishah, Aisyah, Ayesha, A'isha, Aishat, or Aishah) was married to Muhammad at the age of 6 or 7, and the marriage was consummated by Muhammad, then 53, at the age of 9 or 10 according to numerous sahih hadiths.^{[2][3][4][5][6]} Due to concerns about child marriage this topic is of heavy interest in modern apologetic literature and public discourse.

Marriage at a young age was not unheard of in Arabia at the time, and Aisha's marriage to Muhammad may have had a political connotation, as her father Abu Baker was an influential man in the community.^[7] Abu Bakr, on his part, may have sought to further the bond of kinship between Muhammad and himself by joining their families together in marriage via Aisha. Egyptian-American Islamic scholar, Leila Ahmed, notes that Aisha's betrothal and marriage to Muhammad are presented as ordinary in Islamic literature, and may indicate that it was not unusual for children to be married to their elders in that era.^[8]

Revisionary disputations on her age

The age of Aisha was not disputed by earlier scholars but a surge of some modern Islamic scholars have made attempts to advance the idea that Aisha was older than nine lunar years at time of the consummation of her marriage to Prophet Muhammad. Sahih hadiths of Aisha's own testimonies are taken to be mistaken, and indirect sources and disputed dating techniques are used to calculate different ages. These diverse techniques have led to several conflicting ages to be proposed for Aisha at the time of consummation, including 12, 14, 15, 17, 18 and 21 years of age.

These revisionary perspectives can be broadly categorized into five categories, including those that: (1) discredit Hisham ibn Urwah and the Iraqi narrators, (2) use non-sahih information to overturn otherwise sahih hadiths, (3) use indirect evidences in preference of direct testimonies, or (4) use ‘loose' dating and aging in preference to specific dates and statements of age. These revisionary approaches are, however, generally not accepted by mainstream Islamic establishments.

Revisionary disputations on the word "consummate"

In a hadith in Sahih Bukhari, Aisha says that she was married to Muhammad at the age of six and that Muhammad consummated the marriage when she reached the age of nine. The implications of this and similar hadiths have recently been contested by some modern Islamic scholars who attempt to advance the idea that the verbiage used in this hadiths does not in fact refer to sexual consummation. While such a reading has no historical/linguistic or traditional precedent, it has nonetheless achieved some popularity. However, these re-readings, like those re-readings which attempt to advance a different age for Aisha, have generally not been accepted by mainstream Islamic establishments.

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 raped a nine year old.

Child Marriage and Muhammad's Companions

Due to the commonplace nature of child marriage in the 7th century (both inside and outside of Arabia), many of Muhammad's companions (sahabah) also engaged in child marriage. Most notable among these were Umar b. al-Khattab (the second "rightly guided caliph"), who married Umm Kulthum when she was between 10-12 (although some sources report she was just 5^[9]), and Ali b. Abi Talib (Muhammad's cousin and the fourth "rightly guided caliph"), who married Fatima (Muhammad's daughter) at the age of 9.

In Islamic Law

The Encyclopedia of Unanimous Islamic Rulings says: “Scholars have unanimously agreed that it is permissible for a father to marry off his minor daughter without her consent.”

The Encyclopedia lists 14 classical scholars who reported the consensus about this, such as Ibn Abdul Barr (d.1071 AD) who said: “Scholars have unanimously agreed that a father can marry off his minor daughter without consulting with her”.

The Encyclopedia explains the basis for this consensus:

Al-Nawawi (d.1277 AD) in his commentary on Sahih Muslim, laid out the view of all four major legal schools on the minimum age of consummation of marriage:

Mukhtasar Khalil is a major book in the Maliki legal school which is one of the four major legal schools. Al-Kharashi (d.1690) said in his commentary on this book:

Many scholars say that a husband is obliged to provide for his wife only if she lets him have sex with her. This notion caused a discussion amongst scholars on the issue of a wife who’s too young to endure sex, with some scholars saying the husband in this case isn’t obliged to provide for her because he can’t have sex with her. The following quote falls within this context: Kanz Al-Daqa’iq is a major book in the Hanafi legal school. Al-Zayla’i (d.743 AH) said in his commentary on this book:

A fatwa collection issued by the Ministry of Religious Endowments and Islamic Affairs in Kuwait, included the following fatwa:

In the wider late antique millieu

Roman law, and, as early as the 8th century, Byzantine law both forbade marriage to girls below the age of puberty, which they fixed at twelve and thirteen years of age, respectively. The law was not entirely successful in eliminating such marriages. The penalty for seducing a girl below this age was that the man's nose was slit and she was given half his property. Jewish and Islamic law by contrast were far more permissive of men contracting and consumating marriage with pre-pubetal girls.^[10]

In the Muslim world today

Child Marriage in the Muslim World

Child marriage under the age of 18 and 15 is common in many Islamic countries, as well as in many predominantly Christian African countries, India, Latin America and the Caribbean.^[11] A number of factors are associated with the practice, including poverty, family honor and religious and customary laws.^[12] Child marriage is legal under Islamic law, and where the practice is prohibited by civil law, such marriages are sometimes carried out by independent Imams who allege to be loyal to the Sharia alone. In these countries, child marriages are especially common among rural populations where girls well below the age of puberty may be wed by their guardians to older men to various ends, including the preservation of the family and girls' 'honor'.

This practice has even been observed among the Muslim populations of non-Muslim countries, such as the United Kingdom^[13] and the United States.^[14]

In countries including Yemen, Bangladesh, Iran, and Northern Nigeria, attempts at reforming laws and banning child marriages have been opposed and stopped on the grounds that such a ban would be un-Islamic.^{[15][16][17][18][19]} Malaysia has even passed new laws which explicitly allow for the practice of child marriages among Muslims on religious grounds.^[20]

Relevant quotations

Quran and tafsir

Hadiths

See also

• Aisha's Age

• Rape in Islamic Law

• She's too young

External links

• A Complete Guide to Pedophilia in Islam

• Photo Op: Child Brides in Afghanistan

References