Child Marriage in Islamic Law: Difference between revisions

The major schools of Islamic jurisprudence were in agreement that a pre-pubescent child could be contracted in marriage by his or her father and without consent. They based this view variously on Muhammad's marriage to Aisha, the example of his companions, and the Quran (particularly Quran 65:4). The Maliki and Shafi'i schools even allowed a father to forcibly contract his daughter in marriage who had already reached puberty if she was still a virgin, despite hadith evidence indicating otherwise. The family were to hand over the betrothed wife for consummation of the marriage when they determined that the girl was now able to endure intercourse without physical harm rather than this being tied to any particular age (though Ibn Hanbal specified the age of nine due to the example of Aisha's marital consummation with Muhammad). Some Quranic commentators interpreted the Quran such that only females who had reached puberty can be contracted in marriage, though most thought that marriage of minors was permitted. The Byzantines around this time allowed girls to be married from the age of thirteen and the Persian Sassinids allowed marital consummation from the age of twelve.

Today, many modern Muslim countries have legislated to raise the minimum age of marriage, in many cases to the age of 16 or 18 for girls (though often with loopholes or with ineffective enforcement) and to prevent forced marriage, often in the face of opposition from Islamic scholars. Many Muslim campaign groups and charities have been involved in this process and continue to offer help to those at risk (see the article Forced Marriage which includes sources of help).^[1] In collaboration with activists, in 2019 the deputy Grand Mufti of al-Azhar University in Cairo issued a fatwa calling for marriage based on mutual consent with a minimum age set as 18.^[2] Unicef say that the prevalence of child marriages are decreasing globally but are nevetheless common (including among non-Muslim populations in some regions of the world).

The UN regards child marriage as a human rights violation and aims to eradicate it by 2030. A girl is vulnerable to spousal abuse and childhood pregnancy which greatly jeopardizes her health and future. Medical risks to vaginal sexual intercourse with very young include her hips being too narrow to safely give birth, and the risk mentioned by a few classical scholars of al-ifḍāʾ (fistula, tearing of the wall between the vagina and back passage).

In scripture

Child marriage in the Quran

Exegetes (Quranic commentors) and Jurists considered a number of Quranic verses when discussing the age of marriage. A significant verse was Quran 65:4, which concerns the Iddat (العدة‎) waiting period a woman must observe before she can remarry in order to avoid doubts about paternity in case she is pregnant (see Quran 2:228). The verse specifies the waiting period after divorce for females who for a range of reasons might not menstruate, for example the menopause. Among the scenarios mentioned in the verse are "those who have not menstruated". Jurists and exegetes (Quranic commentators) understood this as referring to those too young to have had their first periods. Another verse, Quran 33:49 explains that there is no waiting period if the former husband never consummated the marriage. On this basis, the verse was understood to permit pre-pubescent girls to be contracted in marriage.

At the same time, exegetes and jurists also considered Quran 4:6, which discusses the property of orphans who "reach [the age of] marriage" (balaghū l-nikāḥa). Some Muslim reformists today interpret this as setting pubescence as a minimum age for the marriage contract, though this was not the traditional interpretation (see below).

They also discussed a number of other verses giving commands about marrying women and slaves such as Quran 4:3 and Quran 24:32.

Tafsirs (Quranic Commentaries)

In her book, Minor Marriage in Islamic Law, Carolyn Baugh describes the opinions of Quranic commentators regarding the age of maturity for purposes of financial and legal responsibilities. They were particularly interested in Quran 4:6 quoted above, which mentions testing orphans until they "reach [the age of] marriage" (balaghu al nikah) before releasing them their property. They also discussed what counts as the "sound judgement" (rushd) in the same verse.^[3]

Baugh observes that many commentators such as al-Thalabi and al-Tabari before him (citing various companions) equated bulūgh l-nikāḥ (commonly translated "reaching [the age of] marriage", though nikāḥ more literally means consumation of marriage, or intercourse) in Quran 4:6 with bulūgh al-ḥulum ("reaching pubesence").^[4] Kecia Ali similarly observes that this identification was made by legal jurists as the point at which a father can no longer compel his son or daughter into a marriage contract - see the section on Islamic Law below. While jurists saw no solid indicator indicator in the Quran for an age of marriage, Baugh nevertheless suggests there may be some unequivocal evidence of a Quranic position on the age at which people may be married. She notes al-Tabari's argument that Quran 2:236-237 refers only to women (nisa) and not minors (although these verses imply a significant time gap between the marriage contract and consummation of the marriage, which is common with child marriages). Al-Qurtubi similarly argues regarding Quran 4:3 that the term nisa is used after a woman has reached pubescence.^[5] In fact the word nisa is used in the Quran for females in general in a number of other verses (see Child Marriage in the Qur'an).

Regarding Quran 65:4, Al-Tabari and al-Qurtubi include the opinion that "those who have not menstruated" means those too young to menstruate. Al-Tabari says, "The same applies to the ‘idaah for girls who do not menstruate because they are too young, if their husbands divorce them after consummating the marriage with them."^[6][7] Baugh though notes that al-Tabari and al-Qurtubi also report opinions that the verse refers to women whose menstruation has become disrupted. She observes that Ibn al-'arabi on the other hand is definitive that Q 65:4 applies to prepubescent girls (al saghira) and takes it as proof that a man may contract his prepubescent daughter in marriage, as does Ibn Qudama. ^[8]

The well known classical tafsirs of Ibn Kathir and al-Jalalayn are available in English and are quoted below. Both say that "those who have not menstruated" in Q 65:4 refers to the prepubescent (l-saghira). The traditonal circumstance of revelation for this verse narrates that Muhammad was asked about the 'iddah for "Those who are too young, those who are too old and those who are pregnant".^[9] Many other tafsirs make similar statements (See Child Marriage in the Qur'an). A large set of translated quotes attributed to various companions and successors and from various well known commentaries and jurist texts relating to this verse is also available online.^[10]

Abul A'la Maududi (d. 1979), who founded the Jama'at-i Islami movement, even went so far as to say that the verse proves consummation of marriage is permitted with pre-pubescent girls:

Muhammad's marriage to Aisha

Aisha (‘Ā’ishah, c. 613/614 –c. 678)^[11] 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.^{[12][13][14][15][16]} Due to concerns about child marriage this topic is of heavy interest in modern apologetic literature and public discourse. Aisha's early marriage to Muhammad also featured in the jurist Shafi'i's discussion of the right of a father to contract his virgin daughter in marriage. Her age of nine at consummation is alluded to in Ibn Hanbal's discussion of the same right and of the minimum age of marriage and consummation for orphans (see the section on consummation below as well as the article Forced Marriage). Later, even the other schools of jurisprudence joined them in using the Aisha hadith in discussions of compulsion.^[17]

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 Bakr was an influential man in the community.^[18] 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.^[19]

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^[20]), 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.

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.^[21]

Marriage of Minors in Islamic Law

Two books by academic authors are particularly notable on this topic: Slavery and Marriage in Islam by Professor Kecia Ali,^[22] and Minor Marriage in Islamic Law by Professor Carolyn Baugh.^[23] A large set of translated quotes from various well known exegetical and jurist texts relating to these matters is also available online.^[24]

Kecia Ali gives the following overview on the areas of juristic agreement and disagreement regarding compulsion (more detail is given below):

Carolyn Baugh similarly explains that there were some situations in which according to different schools of jurisprudence, consent to be given in marriage might or might not be required: the virgin pubescent (al-bikr al-bāligha), and non-virgin prepubescent (al-thayyib al ṣaghīra). Baugh questions later statements of consensus relating to this topic given disagreements such as these, though like Kecia Ali she states that there was agreement that consent was not required for a father to give his daughter in marriage if she was virgin prepubescent (al-bikr al-ṣaghīra).^[25]

The disagreement on the intermediate scenarios depended on whether the jurist believed that the legal rationale for compulsion was due to not having reached the age of majority, or because of virginity (regardless of age and development). For a more detailed discussion of the views of each school of jurisprudence regarding a father's right to compel his pre-pubescent and/or virgin daughter into a marriage contract as well as relevant hadiths, see the article Forced Marriage, which also explains how the hadith of Aisha's marriage was used. In addition, Baugh notes that Maliki and Shafi'i jurists said only the father (or grandfather) may marry off his pre-pubescent daughter, while Hanafis said that any guardian may do so in the case of orphans.^[26]

In his book The Distinguished Jurist's Primer (which is available in English translation), Ibn Rushd (d. 1198 CE; known in Europe as Averroes) wrote a detailed description of the points of agreement and difference between the schools of jurisprudence regarding the right of marital consent for girls who have reached majority (bulugh) or are still minors, and for girls who are virgins or non-virgins. He states:

According to Kecia Ali, Islamic jurists considered that the Quranic concept of "Bulugh, majority, was usually constituted by puberty, normally menarche for a girl and first nocturnal emission for a boy, though other signs of physical maturation could be taken into account." In the context of marriage, bulugh was when a son could contract his own marriage, as also the case with daughters according to the Hanafi school.^[27]

As mentioned above, this word "bulugh al-nikah" as well as "rushd" (sound judgement) occurs in Quran 4:6 in the context of releasing property to orphans. Like exegetes, jurists were very interested in defining these concepts, particularly for purposes of granting financial responsibility and the applicability of hadd punishments. The jurist Imam Malik even considered that rushd was necessary for releasing the bride's marriage gift (mahr).^[28] Baugh says that "Rushd, however, being ultimately highly subjective and intangible, was of significantly less legal value than bulūgh, a verbal noun denoting the attainment of sexual maturity".^[29]

Unlike the other schools of jurisprudence, Hanafis allowed the guardian of orphans (who do not have their father) to contract them in marriage before pubescence. They interpreted this from Quran 4:3 and Quran 4:127 combined with their belief that only prepubescents are called orphans.^[30]

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.” It 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:

Modernist scholars argue that there is a clear basis in hadith for consulting women before contracting them in marriage, regardless of age or virginity. See the article Forced Marriage for a more detailed discussion.

Consummation of such marriages in Islamic Law

Abu Hanifa

Reuben Levy, who was Professor of Persian at Cambridge University, writes, "No age limits have been fixed in Islam for marriage, and quite young children may be legally married, although a girl is not handed over to her husband until she is fit for marital congress. The Hanafite legal code lays down that a wife must not be taken into her husband's house until she reaches that condition. In case of dispute on the matter, between the husband and the bride's wali, who is her nearest male kinsmen and her guardian, the qadi is to be informed, and he is to appoint two matrons to examine the girl and report on her physical preparedness for marriage. If they decide she is too young, she must return to her father's house until she is declared fit."^[31]

Jurists generally discussed the age of marital consummation in the context of maintenance payments from the husband to the wife, which were linked to her availability for intercourse.

For Hanafis, a prepubescent wife is not entitled to maintenance from her pubescent husband "until maturity (hatta tablugh) for the withholding [of sexual intercourse] is from her and not from him".^[32]

Malik

For Malik, the age of intercourse is again significant due to it determining when a husband must start paying his young wife maintenance. For Malik, the male age of intercourse was the onset of nocturnal emission. For females, it is when she had come of age and could tolerate intercourse with men (tudrik wa tuṭīq al-rijāl).^[33]

Shafi'i

For Shafi'i, again consummation is discussed in the context of maintenance payments. A process is envisioned in which he is permitted to visit his wife, and eventually she reaches an age when she can visit him and intercourse normally occurs. Shafi'i further implies that intercourse is permitted before the wife has reached puberty, though the husband must from that time pay maintenance even if he chooses to wait longer:

Ibn Mundhir (d. 930 CE), a prominent jurist of the Shafi'i school, criticised the Maliki use of the Aisha hadith (see below) and then sets out the Shafi'i view:

Baugh notes on the same page regarding the translated word "husky", "Although semantically jasīma indicates large or fat, the idea is clearly to depict a girl with a bigger, more sexually-developed body." Although, as Baugh points out, these Shafi'i scholars did not suggest Aisha had this physical state at age nine, it may be relevant to point out that isolated fatwas have occasionally linked this concept to a hadith which states that Aisha's mother fattened her up before she was handed over to Muhammad at the age of nine:

Ibn Hanbal

Ibn Hanbal alluded to Aisha's age of nine at her marital consummation as the age at which orphans may be married and consummated, and the age at which a father must seek his daughter's permission before contracting a marriage.^[34] The later Hanbali scholar Ibn Qudama (d. 1223 CE) further cites Ibn Hanbal's opinion, which he says is based on the marriage of Aisha, that if a husband requests his minor spouse, she must be given to him if she has reached the age of nine: "[Her family] cannot keep her from him after the age of nine." Ibn Qudama is himself conscious of the risk of al-ifḍāʾ (fistula, tearing of the wall between the vagina and back passage) if the girl is still small. If she fears this, he says she may refuse intercourse and let her husband take pleasure from her in other ways.^[35]

Ibn Qudama is commonly cited today by Saudi scholars for his views on minor marriage. He cites consensus on the father's right to compel his virgin daughter into a marriage contract. Like so many other earlier scholars, in his view, the 'iddah waiting period for "those who have not menstruated" in Quran 65:4 was proof that prepubescent females could be married and divorced without consideration of their wishes. He also cites the marriage of Aisha and some marriages of companions to minors. Regarding when a bride should be delivered and consummation takes place, Baugh says that Ibn Qudama appeals to culture and the family's judgement. Further, Baugh says that "He quotes the view of Abū Yaʿlā again, who points out that 'girls are different' (annahunna yakhtalifna), and 'the possibility of sex with a prepubescent female depends on her condition and what she can tolerate'".^[36]

Later scholars

Ibn Taymīya (d. 1328 CE), who inspired the modern Salafi movement, is also clear that it is possible to compel a female minor to marry, though does not cite the Aisha hadith and denounces those who would compel a girl who has reached maturity into marriage.^[37]

Another later scholar, Ibn Qayyim (d. 1350 CE) on the other hand disagreed and was reluctant to offer support for marriage of minors generally.^[38] The early scholar Ibn Shubrumah (d. 761 CE) reportedly also held this view, considering Muhammad's marriage to Aisha to be an exception permitted only for him.^[39]

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, though like some other isolated fatwas of a similar nature, it does not seem consistent with earlier jurisprudence discussed above and in Baugh's book:

In the Wider Late Antique Milieu

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.^[40]

In the Sasanian period, middle Persian law provided that a girl might marry at the age of nine years and that consummation of the union need be delayed only until she reached the age of twelve years (there was one Persian jurist who allowed the marriage to be consummated at the age of nine if the girl was physically mature). If a girl refused all marriage offers by the age of fifteen she had committed a capital sin.^[41]

Child Marriage in the Muslim world today

In recent decades the legal age of marriage has been raised in most Muslim majority countries. Child marriage under the age of 18 and 15 is nevertheless still common in many Islamic countries, as well as in many predominantly Christian African countries, India, Latin America and the Caribbean.^[42] A number of factors are associated with the practice, including poverty, family honor and religious and customary laws.^[43] 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^[44] and the United States.^[45]

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.^{[46][47][48][49][50]} Malaysia has even passed new laws which explicitly allow for the practice of child marriages among Muslims on religious grounds.^[51]

Relevant quotations

Quran

Hadiths

See also

• Aisha's Age
• Child Marriage in the Qur'an
• Child Marriage in the Muslim World
• Forced Marriage
• Rape in Islamic Law

• She's too young

References