Qur'an, Hadith and Scholars:Child Marriage: Difference between revisions

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The hadith and sira tradition is very explicit about the fact that Muhammad [[Aisha's Age|married Aisha when she was six, and consummated the marriage when she was nine.]] As Muhammad is [[Uswa Hasana|"al-insaan al-kaamil"]]. This marriage was used by jurists of the Shafi'i and Hanbali schools in their discussions of compulsion of minors into marriage and the age of consummation, respectively (see [[Forced Marriage]] and [[Child Marriage in Islamic Law]]). Both the Qur'an and the hadiths have played an important role in legal and exegetical discussions on these topics, in particular Q. 65:4 which was generally understood to allude to divorced pre-pubescent wives. Though there was no minimum age for the marriage contract, Islamic law generally permitted a girl to live with her husband and consummate the marriage when she could tolerate intercourse without physical harm, which according to some jurists sometimes may be the case while she was still a minor.
Today, [[w:Marriageable_age|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).<ref>For example [https://www.mwnuk.co.uk/Forced_Marriage_7_factsheets.php Muslim Women's Network UK] and [https://preventforcedmarriage.org/forced-marriage-overseas-pakistan/ Tahirih Justice Center Forced Marriage Initiative]</ref> In collaboration with activists, in 2019 the deputy Grand Imam of al-Azhar University in Cairo issued a fatwa calling for marriage based on mutual consent with a minimum age set as 18.<ref>[https://www.theguardian.com/global-development/2019/jun/21/senior-islamic-cleric-issues-fatwa-against-child-marriage Senior Islamic cleric issues fatwa against child marriage] - Guardian.com</ref> 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).
 
==Qur'an==
==Qur'an==


===Surah 65:4===
===Surah 65:4===
{{main|Pedophilia in the Qur'an}}
{{main|Child Marriage in the Qur'an}}
The following verse allows sex with pre-pubescent girls who have not yet menstruated.
The following verse allows sex with pre-pubescent married girls who have not yet menstruated.


{{Quote|{{Quran|65|4}}|Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses (it is the same): for those who carry (life within their wombs), their period is until they deliver their burdens: and for those who fear Allah, He will make their path easy.}}
{{Quote|{{Quran|65|4}}|Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses (it is the same): for those who carry (life within their wombs), their period is until they deliver their burdens: and for those who fear Allah, He will make their path easy.}}
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====Tafsir====
====Tafsir====


Tafsirs on verse 65:4.
Tafsirs on verse 65:4.{{quote |1=Tafsir Ibn Kathir, Dar Taybah, vol.8 p.149 |2= يَقُولُ تَعَالَى مُبَيِّنًا لِعِدَّةِ الْآيِسَةِ -وَهِيَ الَّتِي قَدِ انْقَطَعَ عَنْهَا الْحَيْضُ لِكِبَرِهَا-: أَنَّهَا ثَلَاثَةُ أَشْهُرٍ، عِوَضًا عَنِ الثَّلَاثَةِ قُرُوءٍ فِي حَقِّ مَنْ تَحِيضُ، كَمَا دَلَّتْ عَلَى ذَلِكَ آيَةُ "الْبَقَرَةِ" وَكَذَا الصِّغَارُ اللَّائِي لَمْ يَبْلُغْنَ سِنَّ الْحَيْضِ أَنَّ عِدَّتَهُنَّ كَعِدَّةِ الْآيِسَةِ ثَلَاثَةُ أَشْهُرٍ؛ وَلِهَذَا قَالَ: {وَاللائِي ‌لَمْ ‌يَحِضْنَ}


{{quote |1=[http://www.tafsir.com/default.asp?sid=65&tid=54196 The `Iddah of Those in Menopause and Those Who do not have Menses (Qur'an 65:4)]<BR>Tafsir Ibn Kathir |2= The `Iddah of Those in Menopause and Those Who do not have Menses Allah the Exalted clarifies the waiting period of the woman in menopause. And that is the one whose menstruation has stopped due to her older age. Her `Iddah is three months instead of the three monthly cycles for those who menstruate, which is based upon the Ayah in (Surat) Al-Baqarah. [see 2:228] '''The same for the young, who have not reached the years of menstruation.''' Their `Iddah is three months like those in menopause. This is the meaning of His saying.}}


{{quote |1=[http://www.islamicstudies.info/tafheem.php?sura=65 Commentary on Qur'an Chapter 65:4]<BR>Sayyid Abul Ala Maududi, Tafhim al-Qur'an|2= Here, one should bear in mind the fact that according to the explanations given in the Quran the question of the waiting period arises in respect of the women with whom marriage may have been consummated, for there is no waiting-period in case divorce is pronounced before the consummation of marriage. (Al-Ahzab: 49). Therefore, '''making mention of the waiting-period for the girls who have not yet menstruated, clearly proves that it is not only permissible to give away the girl in marriage at this age but it is also permissible for the husband to consummate marriage with her.''' Now, obviously no Muslim has the right to forbid a thing which the Quran has held as permissible.}}
The `Iddah of Those in Menopause and Those Who do not have Menses Allah the Exalted clarifies the waiting period of the woman in menopause. And that is the one whose menstruation has stopped due to her older age. Her `Iddah is three months instead of the three monthly cycles for those who menstruate, which is based upon the Ayah in (Surat) Al-Baqarah. [see 2:228] '''The same for the young, who have not reached the years of menstruation.''' Their `Iddah is three months like those in menopause. This is the meaning of His saying.}}{{Quote|[https://al-maktaba.org/book/43/13681 The interpretation of Al-Tabari, mu'assasat Al-Risalah, vol.23 p.452]|{{right| (وَاللائِي ‌لَمْ ‌يَحِضْنَ) يقول: وكذلك عدد اللائي ‌لم ‌يحضن من الجواري لصغر إذا طلقهنّ أزواجهنّ بعد الدخول
}}
 
"And for those who haven't menstruated" means: The same applies to the Iddah for girls who do not menstruate because they are too young, if their husbands divorce them after consummating the marriage with them.}}{{quote |1=[http://www.islamicstudies.info/tafheem.php?sura=65 Commentary on Qur'an Chapter 65:4]<BR>Sayyid Abul Ala Maududi, Tafhim al-Qur'an|2= Here, one should bear in mind the fact that according to the explanations given in the Quran the question of the waiting period arises in respect of the women with whom marriage may have been consummated, for there is no waiting-period in case divorce is pronounced before the consummation of marriage. (Al-Ahzab: 49). Therefore, '''making mention of the waiting-period for the girls who have not yet menstruated, clearly proves that it is not only permissible to give away the girl in marriage at this age but it is also permissible for the husband to consummate marriage with her.''' Now, obviously no Muslim has the right to forbid a thing which the Quran has held as permissible.}}


{{quote |Shaykh Muhammad ibn ‘Uthaymeen, Majmoo’at As’ilah tahumm al-Usrah al-Muslimah, p. 61-63|Surah al-Talaaq 65:4:  
{{quote |Shaykh Muhammad ibn ‘Uthaymeen, Majmoo’at As’ilah tahumm al-Usrah al-Muslimah, p. 61-63|Surah al-Talaaq 65:4:  
If a woman does not menstruate, either because she is very young or old and past menopause, then her ‘iddah is three months, because Allaah says (interpretation of the meaning): “And those of your women as have passed the age of monthly courses, for them the ‘Iddah (prescribed period), if you have doubt (about their periods), is three months; and for those who have no courses (i.e. they are still immature) their ‘Iddah (prescribed period) is three months likewise.<ref>[http://www.islamqa.com/index.php?ln=eng&ds=qa&QR=12667 The ‘iddah of a woman divorced by talaaq] - Islam Q&A, Fatwa No. 12667</ref>}}
If a woman does not menstruate, either because she is very young or old and past menopause, then her ‘iddah is three months, because Allaah says (interpretation of the meaning): “And those of your women as have passed the age of monthly courses, for them the ‘Iddah (prescribed period), if you have doubt (about their periods), is three months; and for those who have no courses (i.e. they are still immature) their ‘Iddah (prescribed period) is three months likewise.<ref>[http://www.islamqa.com/index.php?ln=eng&ds=qa&QR=12667 The ‘iddah of a woman divorced by talaaq] - Islam Q&A, Fatwa No. 12667</ref>}}


{{Quote|1=[http://altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=74&tSoraNo=65&tAyahNo=4&tDisplay=yes&UserProfile=0 Qur'an 65:4]<BR>Tafsir al-Jalalayn|2= And [as for] those of your women who (read allā'ī or allā'i in both instances) no longer expect to menstruate, if you have any doubts, about their waiting period, their prescribed [waiting] period shall be three months, and [also for] '''those who have not yet menstruated, because of their young age, their period shall [also] be three months''' - both cases apply to other than those whose spouses have died; for these [latter] their period is prescribed in the verse: they shall wait by themselves for four months and ten [days] [Q. 2:234]. And those who are pregnant, their term, the conclusion of their prescribed [waiting] period if divorced or if their spouses be dead, shall be when they deliver. And whoever fears God, He will make matters ease for him, in this world and in the Hereafter.}}
{{Quote|1=[https://www.altafsir.com/tafasir.asp?tmadhno=0&ttafsirno=74&tsorano=65&tayahno=4&tdisplay=yes&userprofile=0&languageid=2 Qur'an 65:4]<BR>Tafsir al-Jalalayn|2= And [as for] those of your women who (read allā'ī or allā'i in both instances) no longer expect to menstruate, if you have any doubts, about their waiting period, their prescribed [waiting] period shall be three months, and [also for] '''those who have not yet menstruated, because of their young age, their period shall [also] be three months''' - both cases apply to other than those whose spouses have died; for these [latter] their period is prescribed in the verse: they shall wait by themselves for four months and ten [days] [Q. 2:234]. And those who are pregnant, their term, the conclusion of their prescribed [waiting] period if divorced or if their spouses be dead, shall be when they deliver. And whoever fears God, He will make matters ease for him, in this world and in the Hereafter.}}


{{Quote|1=[http://altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=73&tSoraNo=65&tAyahNo=4&tDisplay=yes&UserProfile=0 Qur'an 65:4]<BR>Tafsir Ibn Abbas|2= (And for such of your women as despair of menstruation) because of old age, (if ye doubt) about their waiting period, (their period (of waiting) shall be three months) upon which another man asked: “O Messenger of Allah! '''"What about the waiting period of those who do not have menstruation because they are too young?” (along with those who have it not) because of young age, their waiting period is three months."''' Another man asked: “what is the waiting period for those women who are pregnant?” (And for those with child) i.e. those who are pregnant, (their period) their waiting period (shall be till they bring forth their burden) their child. (And whosoever keepeth his duty to Allah) and whoever fears Allah regarding what he commands him, (He maketh his course easy for him) He makes his matter easy; and it is also said this means: He will help him to worship Him well.}}
{{Quote|1=[https://www.altafsir.com/tafasir.asp?tmadhno=0&ttafsirno=73&tsorano=65&tayahno=4&tdisplay=yes&userprofile=0&languageid=2 Qur'an 65:4]<BR>Tafsir Ibn Abbas|2= (And for such of your women as despair of menstruation) because of old age, (if ye doubt) about their waiting period, (their period (of waiting) shall be three months) upon which another man asked: “O Messenger of Allah! '''"What about the waiting period of those who do not have menstruation because they are too young?” (along with those who have it not) because of young age, their waiting period is three months."''' Another man asked: “what is the waiting period for those women who are pregnant?” (And for those with child) i.e. those who are pregnant, (their period) their waiting period (shall be till they bring forth their burden) their child. (And whosoever keepeth his duty to Allah) and whoever fears Allah regarding what he commands him, (He maketh his course easy for him) He makes his matter easy; and it is also said this means: He will help him to worship Him well.}}


{{quote |1=[http://altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=86&tSoraNo=65&tAyahNo=4&tDisplay=yes&UserProfile=0 Qur'an 65:4]<BR>Al-Wahidi, Asbab al-nuzul|2= (And for such of your women as despair of menstruation…) [65:4]. Said Muqatil: “When the verse (Women who are divorced shall wait, keeping themselves apart…), Kallad ibn al-Nu‘man ibn Qays al-Ansari said: ‘O Messenger of Allah, '''what is the waiting period of the woman who does not menstruate and the woman who has not menstruated yet?''' And what is the waiting period of the pregnant woman?’ '''And so Allah, exalted is He, revealed this verse”.''' Abu Ishaq al-Muqri’ informed us> Muhammad ibn ‘Abd Allah ibn Hamdun> Makki ibn ‘Abdan> Abu’l-Azhar> Asbat ibn Muhammad> Mutarrif> Abu ‘Uthman ‘Amr ibn Salim who said: “When the waiting period for divorced and widowed women was mentioned in Surah al-Baqarah, Ubayy ibn Ka‘b said: ‘O Messenger of Allah, some women of Medina are saying: there are other women who have not been mentioned!’ He asked him: ‘And who are they?’ He said: '''Those who are too young [such that they have not started menstruating yet]''', those who are too old [whose menstruation has stopped] and those who are pregnant’. And so this verse (And for such of your women as despair of menstruation…) was revealed”.}}
{{quote |1=[https://www.altafsir.com/tafasir.asp?tmadhno=0&ttafsirno=86&tsorano=65&tayahno=4&tdisplay=yes&userprofile=0&languageid=2 Qur'an 65:4]<BR>Al-Wahidi, Asbab al-nuzul|2= (And for such of your women as despair of menstruation…) [65:4]. Said Muqatil: “When the verse (Women who are divorced shall wait, keeping themselves apart…), Kallad ibn al-Nu‘man ibn Qays al-Ansari said: ‘O Messenger of Allah, '''what is the waiting period of the woman who does not menstruate and the woman who has not menstruated yet?''' And what is the waiting period of the pregnant woman?’ '''And so Allah, exalted is He, revealed this verse”.''' Abu Ishaq al-Muqri’ informed us> Muhammad ibn ‘Abd Allah ibn Hamdun> Makki ibn ‘Abdan> Abu’l-Azhar> Asbat ibn Muhammad> Mutarrif> Abu ‘Uthman ‘Amr ibn Salim who said: “When the waiting period for divorced and widowed women was mentioned in Surah al-Baqarah, Ubayy ibn Ka‘b said: ‘O Messenger of Allah, some women of Medina are saying: there are other women who have not been mentioned!’ He asked him: ‘And who are they?’ He said: '''Those who are too young [such that they have not started menstruating yet]''', those who are too old [whose menstruation has stopped] and those who are pregnant’. And so this verse (And for such of your women as despair of menstruation…) was revealed”.}}{{Quote|[https://al-maktaba.org/book/43/13681 The interpretation of Al-Tabari, mu'assasat Al-Risalah, vol.23 p.452]|{{right| (وَاللائِي ‌لَمْ ‌يَحِضْنَ) يقول: وكذلك عدد اللائي ‌لم ‌يحضن من الجواري لصغر إذا طلقهنّ أزواجهنّ بعد الدخول
}}


{{Quote|Tafsir Al-Tabari, 14/142|The interpretation of the verse "And those of your women as have passed the age of monthly courses, for them the 'Iddah (prescribed period), if you have doubt (about their periods), is three months; '''and for those who have no courses (i.e. they are still immature) their 'Iddah (prescribed period) is three months likewise". He said: 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.'''}}
and for those who haven't menstruated" means: The same applies to the Iddah for girls who do not menstruate because they are too young, if their husbands divorce them after consummating the marriage with them.}}In the following quote, the bold text translates as “They are those who haven’t reached the age of menstruation”. Tabrasi comments on the phrase “Wallaee Lam yahidhna” = “Those who have not menstruated yet” in the verse.
 
In the following quote, the bold text translates as “They are those who haven’t reached the age of menstruation”. Tabrasi comments on the phrase “Wallaee Lam yahidhna” = “Those who have not menstruated yet” in the verse.


{{quote |1=[http://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=3&tSoraNo=65&tAyahNo=4&tDisplay=yes&Page=7&Size=1&LanguageId=1 Qur'an 65:4]<BR>Tabrasi|2= {{right|
{{quote |1=[http://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=3&tSoraNo=65&tAyahNo=4&tDisplay=yes&Page=7&Size=1&LanguageId=1 Qur'an 65:4]<BR>Tabrasi|2= {{right|
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{{quote |1=[http://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=9&tSoraNo=65&tAyahNo=4&tDisplay=yes&Page=3&Size=1&LanguageId=1 Qur'an 65:4]<BR>Al-Shoukani, Fath al-Qadir|2= {{right|
{{quote |1=[http://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=9&tSoraNo=65&tAyahNo=4&tDisplay=yes&Page=3&Size=1&LanguageId=1 Qur'an 65:4]<BR>Al-Shoukani, Fath al-Qadir|2= {{right|
  { فَعِدَّتُهُنَّ ثَلَـٰثَةُ أَشْهُرٍ '''وَٱللاَّئِى لَمْ يَحِضْنَ } لصغرهن، وعدم بلوغهن سن المحيض،''' أي: فعدتهن ثلاثة أشهر }} }}
  { فَعِدَّتُهُنَّ ثَلَـٰثَةُ أَشْهُرٍ '''وَٱللاَّئِى لَمْ يَحِضْنَ } لصغرهن، وعدم بلوغهن سن المحيض،''' أي: فعدتهن ثلاثة أشهر }}
 
For those who are small and have not reached age (quoting the Qur'an) "for those female who have not menstruated, their waiting period is three months" i.e. their waiting period is 3 months. }}


====Hadith====
====Hadith====
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Quotes from Imam Bukhari's hadith collection, regarding verse 65:4.
Quotes from Imam Bukhari's hadith collection, regarding verse 65:4.


{{Quote|[http://bewley.virtualave.net/bukhari33.html Sahih Al-Bukhari, Chapter 68: Book of Tafsir]|'''CCCLXXXIV: The Tafsir of Surat at-Talaq'''<BR><BR>Mujahid said that "if you have any doubt" (65:4) means if you do not know whether she menstruates or not. Those who do not longer menstruate and '''those who have not yet menstruated, their 'idda is three months'''.}}
{{Quote|[http://bewley.virtualave.net/bukhari33.html Sahih Al-Bukhari, Chapter 68: Book of Tafsir]|'''The Tafsir of Surat at-Talaq'''<BR><BR>Mujahid said that "if you have any doubt" (65:4) means if you do not know whether she menstruates or not. Those who do not longer menstruate and '''those who have not yet menstruated, their 'idda is three months'''.}}


The following is from Bukhari's chapter introduction for chapter 39, Book an-Nikkah. It appears immediately before the first and only hadith of Chapter 39, {{Bukhari|7|62|64}} and can be seen in the Dar-us-Salam print edition, volume 7.
The following is from Bukhari's chapter introduction for chapter 39, Book an-Nikkah. It appears immediately before the first and only hadith of Chapter 39, {{Bukhari|7|62|64}} and can be seen in the Dar-us-Salam print edition, volume 7.
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The following is from Fath al-Bari, the most authoritative commentary on Sahih Al-Bukhari.
The following is from Fath al-Bari, the most authoritative commentary on Sahih Al-Bukhari.


{{Quote|1=[http://hadith.al-islam.com/display/Display.asp?Doc=0&Rec=7644 Al-Islam.com (Arabic)]|2= واللائي لم يحضن , فجعل عدتها ثلاثة أشهر قبل البلوغ ) ‏ ‏أي فدل على أن نكاحها قبل البلوغ جائز  
{{Quote|1=[https://www.islamweb.net/ar/library/index.php?page=bookcontents&ID=2847&idfrom=9381&idto=9382&flag=0&bk_no=52&ayano=0&surano=0&bookhad=0 Fath Al-Bari by Ibn Hajar]|2= واللائي لم يحضن , فجعل عدتها ثلاثة أشهر قبل البلوغ ) ‏ ‏أي فدل على أن نكاحها قبل البلوغ جائز  




"and those who never had menses, their prescribed period is three months before puberty, which indicates that giving her into marriage before puberty is permissible."}}
"and those who never had menses, their prescribed period is three months before puberty, which indicates that giving her into marriage before puberty is permissible."}}


====Recent fatwas====
Jurists struggled to reconcile their views on the right of a father to force his minor and / or virgin daughter into a marriage contract without her consent with the contents of the following hadith (which occurs in multiple similar versions):
 
{{Quote|{{Muslim|8|3307}}|Ibn Abbas (Allah be pleased with them) reported Allah's Messenger (ﷺ) as saying:
 
A woman who has been previously married (Thayyib) has more right to her person than her guardian. And a virgin should also be consulted, and her silence implies her consent.}}
 
==In Islamic Law==
{{Main|Child Marriage 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:{{Quote|1=Mawsu’at Al-Ijma’ Fil-Fiqh Al-Islami, Volume 3 by professor Zafir Al-Amri, first edition 2012, published by Dar Al-Fadhilah, Al-Maktabah Al-Shamilah, vol.3 p.144-147|2={{right| مستند الإجماع:
1-قوله تعالى: {يَئِسْنَ مِنَ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ} [الطلاق: 4].
وجه الدلالة: جعل اللَّه سبحانه وتعالى عدة اللائي لم يحضن ثلاثة أشهر، ولا تكون العدة ثلاثة أشهر إلا من طلاق في نكاح أو فسخ، فدل ذلك على أنها تزوج وتطلق، ولا إذن لها فيعتبر، وأن نكاحها قبل البلوغ جائز .
 
2- عن عائشة -رضي اللَّه عنها- قالت: تزوجني رسول اللَّه -صلى اللَّه عليه وسلم- لِسِتِّ سنين، وبنى بي وأنا بنت تسع سنين .
 
3- تزوج قدامة بن مظعون  -رضي اللَّه عنه- ابنة الزبير حين نَفِسَتْ، فقيل له، فقال: ابنة الزبير إن مت ورثتني، وإن عشت كانت امرأتي .
 
4- زوج علي -رضي اللَّه عنه- أم كلثوم ابنته وهي صغيرة عمر بن الخطاب -رضي اللَّه عنه- .
وجه الدلالة من هذه الأحاديث: أن عائشة، وابنة الزبير، وأم كلثوم بنت علي كنَّ صغيرات، وعندئذٍ لم يكنَّ في حال يعتبر إذنهن فيه
 
موسوعة الإجماع في الفقه الإسلامي، الطبعة الأولى 2012، المجلد الثالث من إعداد الدكتور ظافر بن حسن العمري، (3/ 147-144)
}}
 
 
1- Allah said: “And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated.” Quran 65:4
 
This verse says that the Iddah for those who haven’t menstruated is three months. And since that the Iddah is only prescribed in the case of divorce, this proves that:
 
A-She can marry and can get divorced.
 
B- Marrying her off before puberty is allowed.
 
C- Her consent is neglected.  
 
2- Ayisha said: “Allah's Messenger married me when I was six years old, and consummated his marriage when I was nine”.
 
https://quranx.com/Hadith/Muslim/USC-MSA/Book-8/Hadith-3309
 
3- Muhammad’s companion Qudamah Bin Math’un married the daughter of Al-Zubayr when she was born. He said: “If I die then the daughter of Al-Zubayr will inherit me. If I live then she will be my wife”
 
4- Ali, Muhammad’s cousin and the fourth caliph, married off his minor daughter Um Kulthum to Umar the second caliph.
 
These reports show that Ayisha, Al-Zubayr’s daughter and Ali’s daughter were minors which means their consent was unviable.}}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:{{Quote|1=[https://al-maktaba.org/book/1711/2085 Al-Nawawi, Al-Minhaj Sharh Sahih Muslim, published by Dar Ihya’ Al-Turath Al-Arabi, Al-Maktabah Al-Shamilah, vol.9 p.206]|2={{right|
وَأَمَّا وَقْتُ ‌زِفَافِ ‌الصَّغِيرَةِ الْمُزَوَّجَةِ وَالدُّخُولُ بِهَا فَإِنِ اتَّفَقَ الزَّوْجُ وَالْوَلِيُّ عَلَى شَيْءٍ لَا ضَرَرَ فِيهِ عَلَى الصَّغِيرَةِ عُمِلَ بِهِ وَإِنِ اخْتَلَفَا فَقَالَ أَحْمَدُ وَأَبُو عُبَيْدٍ تُجْبَرُ عَلَى ذَلِكَ بِنْتُ تِسْعِ سِنِينَ دُونَ غَيْرِهَا وَقَالَ مَالِكٌ وَالشَّافِعِيُّ وَأَبُو حَنِيفَةَ حَدُّ ذَلِكَ أَنْ تُطِيقَ الْجِمَاعَ وَيَخْتَلِفُ ذَلِكَ بِاخْتِلَافِهِنَّ وَلَا يُضْبَطُ بِسِنٍّ وَهَذَا هُوَ الصَّحِيحُ
 
شرح النووي على مسلم، دار إحياء التراث العربي، المكتبة الشاملة، ج9 ص206}}<BR>
Regarding the timing of the wedding of a minor wife and consummation of her marriage, if the husband and the minor’s legal guardian both agreed on something that doesn’t harm the minor then it’s done. If they disagree, Ahmad (the Imam of one of the 4 major legal schools in Sunni Islam) said that she is forced to be wed at the age of 9. Malik, Al-Shafi’i and Abu Hanifa (the remaining 3 Imams of the 4 major legal schools) said the timing is when she’s capable of enduring sexual intercourse which differs from one person to another and can’t be determined by age. This is the correct view.}}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:{{Quote|1=[https://al-maktaba.org/book/91/1009 Al-Kharashi, Sharh Al-Kharashi, published by Al-Matba’ah Al-Kubra, Al-Maktabah Al-Shamilah, vol.3 p.258]|2={{right|
وقوله وأمكن وطؤها أي بلا حد سن بل يختلف باختلاف الأشخاص ولا يشترط الاحتلام فيها كالرجل؛ لأن من أطاقت الوطء يحصل بها للرجل ‌كمال ‌اللذة
 
شرح الخرشي على مختصر خليل، المطبعة الكبرى الأميرية، المكتبة الشاملة، ج3 ص258
}}<BR>
“It’s possible to have sex with her” meaning there’s no specific age. Every person is different. And it’s not required for her to reach puberty because a man can receive full pleasure if the female can endure sex.}}Many scholars say that a husband is obliged to provide for his wife only if she lets him have sex with her. This notion causeda 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:{{Quote|1=[https://al-maktaba.org/book/33229/678 Al-Zayla’i, Tabyin Al-Haqa’iq, published by Al-Matba’a Al-Kubra, Al-Maktabah Al-Shamilah, vol.3 p.52]|2={{right|
قَالَ - رَحِمَهُ اللَّهُ - (وَصَغِيرَةٌ لَا تُوطَأُ) يَعْنِي لَا تَجِبُ لَهَا النَّفَقَةُ سَوَاءٌ كَانَتْ فِي مَنْزِلِهِ أَوْ لَمْ تَكُنْ، وَقَالَ الشَّافِعِيُّ لَهَا نَفَقَةٌ لِأَنَّهَا عِوَضٌ عَنْ الْمِلْكِ عِنْدَهُ كَمَا فِي الْمَمْلُوكَةِ مِلْكَ الْيَمِينِ
وَقِيلَ إنَّ الصَّغِيرَةَ إذَا كَانَتْ مُشْتَهَاةً وَيُمْكِنُ جِمَاعُهَا فِيمَا دُونَ الْفَرْجِ يَجِبُ لَهَا النَّفَقَةُ، وَلَوْ كَانَتْ الصَّغِيرَةُ تَصْلُحُ لِلْجِمَاعِ تَجِبُ نَفَقَتُهَا عَلَى الزَّوْجِ بِالْإِجْمَاعِ لِحُصُولِ الْمَقْصُودِ، وَاخْتَلَفُوا فِي حَدِّهِ فَقِيلَ بِنْتُ تِسْعِ سِنِينَ، وَالصَّحِيحُ أَنَّهُ ‌غَيْرُ ‌مُقَدَّرٍ ‌بِالسِّنِّ، وَإِنَّمَا الْعِبْرَةُ لِلِاحْتِمَالِ وَالْقُدْرَةِ عَلَى الْجِمَاعِ فَإِنَّ السَّمِينَةَ الضَّخْمَةَ تَحْتَمِلُ الْجِمَاعَ، وَإِنْ كَانَتْ صَغِيرَةَ السِّنِّ
 
 
تبيين الحقائق شرح كنز الدقائق للزيلعي، المطبعة الكبرى الأميرية، المكتبة الشاملة، ج3 ص52
}}<BR>
“A minor who can’t endure sex” meaning the husband isn’t obliged to provide for her whether she’s living in his home or not. Al-Shafi’i said that “the husband is actually obliged to provide for her since that providing for her is the price for owning her. It’s like how a man is obliged to provide for his slave girl”….Some scholars say if the female minor is (old enough) to be sexually desirable and it’s possible to have sexual acts with her except for intercourse, then the husband is obliged to provide for her. But if the female minor can endure sex, scholars have unanimously agreed that the husband is obliged to provide for her. Scholars have disagreed on determining the age when a minor can endure sex, with some saying it’s nine. What’s is correct is that age doesn’t matter. What matters is the capability to endure sexual intercourse; a fat big female can endure intercourse even if she’s of a young age.}}ِAl-Khatib Al-Sharbini (d.1570 ِAD), who was a scholar from the Shafi'i legal school, said in his commentary on "Al-Minhaj" by Al-Nawawi:{{Quote|1=[https://al-maktaba.org/book/11444/2034 Mughni Al-Muhtaj by Al-Sharbini (d.1570 AD), published by Dar Al-Kutub Al-‘ilmiyyah, vol.4 p.373]|2={{right|
وَيَحْرُمُ وَطْءُ مَنْ لَا تَحْتَمِلُ الْوَطْءَ لِصِغَرٍ أَوْ جُنُونٍ أَوْ مَرَضٍ أَوْ هُزَالٍ أَوْ نَحْوِ ذَلِكَ لِتَضَرُّرِهَا بِهِ، وَتُمْهَلُ حَتَّى تُطِيقَ، فَلَوْ سُلِّمَتْ لَهُ صَغِيرَةً لَا تُوطَأُ لَمْ يَلْزَمْهُ تَسَلُّمُهَا؛ لِأَنَّهُ نَكَحَ لِلِاسْتِمْتَاعِ لَا لِلْحَضَانَةِ، وَإِذَا تَسَلَّمَهَا لَمْ يَلْزَمْهُ تَسْلِيمُ الْمَهْرِ كَالنَّفَقَةِ
 
 
مغني المحتاج للشربيني (ت 977هـ)، دار الكتب العلمية، ج4 ص373
}}<BR>
It's forbidden to have sex with someone who can’t endure sex due to young age, illness or thinness because she would be harmed. She should wait until she can endure it. If a wife was handed over to her husband while she’s a minor who can’t endure sex then the husband isn’t obliged to take her because he married her for pleasure and not for custody. If he takes her then he’s not obliged to give her the dowry.}}In the 17<sup>th</sup> century, a group of Indian scholars authored a book that served as the basis for the Mughal empire legal system. This book says: {{Quote|1=[https://al-maktaba.org/book/21640/285 Mughni Al-Fatawa Al-Hindiyya by a group of Indian scholars in the 17th century, Al-Matba’ah Al-Kubra Al-Amiriyya, vol.1 p.287]|2={{right|
وأكثر المشايخ على أنه ‌لا ‌عبرة ‌للسن في هذا الباب وإنما العبرة للطاقة إن كانت ضخمة سمينة تطيق الرجال ولا يخاف عليها المرض من ذلك؛ كان للزوج أن يدخل بها، وإن لم تبلغ تسع سنين، وإن كانت نحيفة مهزولة لا تطيق الجماع ويخاف عليها المرض لا يحل للزوج أن يدخل بها، وإن كبر سنها وهو الصحيح
 
 
الفتاوى الهندية، المطبعة الكبرى الأميرية، ج1 ص287
}}<BR>
The majority of scholars say that age doesn’t matter. What matters is the ability. If she’s big and fat, can endure men and cannot fall ill from it (sex), then the husband can consummate his marriage even if she’s not nine years old yet. But if she’s thin and weak, and can’t endure intercourse, and can fall ill from it, then the husband isn’t allowed to consummate his marriage even if she’s old. This is the correct view.}}
 
==Recent Fatawa==
A fatwa collection issued by the Ministry of Religious Endowments and Islamic Affairs in Kuwait, included the following fatwa (though this and similar isolated fatwas are out of step with the Islamic legal tradition - see [[Child Marriage in Islamic Law]]):{{Quote|1=[http://www.fatawa.com/view/7436 Majmu'at Al-Fatawa Al-Shar'iyya, Fatwa no. 6058]|2={{right|
هل يصح عقد الزواج على الرضيعة ويجوز التمتع بها بالتقبيل وغيره -سوى الجماع- بما لا ‏يضرها؟
 
الجواب: إذا كان العقد مستوفيًا لشروطه الشرعية، فإنها تصبح به زوجته من كل الوجوه، ويحل له منها ‏النظر إليها ولمسها وتقبيلها، ولا يحل له جماعها حتى تطيقه من غير ضرر، فإذا أطاقته حل له منها ‏ذلك أيضًا.


December 2010 fatwa from popular Islamic website.
مجموعة الفتاوى الشرعية، فتوى رقم 6058
}}<BR>
Question: Is it allowed to marry a suckling baby and is it allowed to pleasure myself with her by kissing her and doing other unharmful acts excluding sex?
Answer: If the marriage contract fulfills the Islamic legal requirements then she’s considered to be his wife in all respects and he’s allowed to look at her, touch her and kiss her. He’s not allowed to have sex with her until she can endure sex without causing her any harm.}}December 2010 fatwa from popular Islamic website.


{{Quote|1=[http://www.webcitation.org/query?url=http%3A%2F%2Fwww.islamonline.net%2Far%2FIOLCounsel_C%2F1278406761316%2F1278406720653%2F%D9%87%D9%84-%D9%8A%D8%AC%D9%88%D8%B2-%D8%AA%D8%AD%D8%AF%D9%8A%D8%AF-%D8%B3%D9%86-%D8%B2%D9%88%D8%A7%D8%AC-%D9%84%D9%84%D9%81%D8%AA%D9%8A%D8%A7%D8%AA%D8%9F-&date=2011-02-03 Is it permissible to restrict the age at which girls can marry?]<BR>Submitted by Ahmad, IslamOnline, December 24, 2010|2=The Noble Qur'an has also mentioned the waiting period [i.e. for a divorced wife to remarry] for the wife who has not yet menstruated, saying: "And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated" [Qur'an 65:4]. Since this is not negated later, '''we can take from this verse that it is permissible to have sexual intercourse with a prepubescent girl'''. The Qur'an is not like the books of jurisprudence which mention what the implications of things are, even if they are prohibited. '''It is true that the prophet (PBUH) entered into a marriage contract with A'isha when she was six years old, however he did not have sex with her until she was nine years old''', according to al-Bukhari.}}
{{Quote|1=[http://www.webcitation.org/query?url=http%3A%2F%2Fwww.islamonline.net%2Far%2FIOLCounsel_C%2F1278406761316%2F1278406720653%2F%D9%87%D9%84-%D9%8A%D8%AC%D9%88%D8%B2-%D8%AA%D8%AD%D8%AF%D9%8A%D8%AF-%D8%B3%D9%86-%D8%B2%D9%88%D8%A7%D8%AC-%D9%84%D9%84%D9%81%D8%AA%D9%8A%D8%A7%D8%AA%D8%9F-&date=2011-02-03 Is it permissible to restrict the age at which girls can marry?]<BR>Submitted by Ahmad, IslamOnline, December 24, 2010|2=The Noble Qur'an has also mentioned the waiting period [i.e. for a divorced wife to remarry] for the wife who has not yet menstruated, saying: "And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated" [Qur'an 65:4]. Since this is not negated later, '''we can take from this verse that it is permissible to have sexual intercourse with a prepubescent girl'''. The Qur'an is not like the books of jurisprudence which mention what the implications of things are, even if they are prohibited. '''It is true that the prophet (PBUH) entered into a marriage contract with A'isha when she was six years old, however he did not have sex with her until she was nine years old''', according to al-Bukhari.}}
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===Married Aisha When She Was Six===
===Married Aisha When She Was Six===
{{main|Muhammad and the Clinical Definition of Pedophilia}}
{{main|Portal: Muhammad’s Wives and Consorts}}
Muhammad consummated his marriage with the 9 year old Aisha, while she remained pre-pubescent.  
Muhammad consummated his marriage with the 9 year old Aisha, while she remained pre-pubescent.  


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==Muhammad's Companions==
==Muhammad's Companions==
{{Main|Muhammad's Companions and Pedophilia}}
{{Main|Child Marriage and Muhammad's Companions}}


Umar the 2<sup>rd</sup> Caliph married Umm Kulthum at a time when she was 10-12 years old. Some sources say she was five years old.
Umar the 2<sup>rd</sup> Caliph married Umm Kulthum at a time when she was 10-12 years old. Some sources say she was five years old.
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{{Quote|1=[[:File:Bida alfawaid p603.jpg|Bada'i al-Fuwa'id of Ibn Qayyim, page 603]]|2="It was narrated by Ahmed that a man came to him that feared that he would ejaculate while he was fasting. Ahmed said: "What I see is that he can release semen without ruining the fast, he can masturbate using his hands or the hands of his wife, If he has an "Ammah" whether be it a girl or a little child, she can masturbate for him using her hands, and if she was a non-believer, he can sleep with her without releasing (his semen), if he released it in her, it becomes impermissible".}}
{{Quote|1=[[:File:Bida alfawaid p603.jpg|Bada'i al-Fuwa'id of Ibn Qayyim, page 603]]|2="It was narrated by Ahmed that a man came to him that feared that he would ejaculate while he was fasting. Ahmed said: "What I see is that he can release semen without ruining the fast, he can masturbate using his hands or the hands of his wife, If he has an "Ammah" whether be it a girl or a little child, she can masturbate for him using her hands, and if she was a non-believer, he can sleep with her without releasing (his semen), if he released it in her, it becomes impermissible".}}
{{Quote|Ibn ‘Abd al-Barr, Al-Istidhkaar, 16/49-50|The scholars are unanimously agreed that a father may marry off his young daughter without consulting her. The Messenger of Allaah married ‘Aa’ishah bint Abi Bakr when she was young, six or seven years old, when her father married her to him.<ref>[http://www.islamqa.com/en/ref/12708 Is it acceptable to marry a girl who has not yet started her menses?] - Islam Q&A, Fatwa No. 12708</ref>}}


{{Quote|Grand Mufti of Saudi Arabia, Sheikh Abdul Aziz Al-Sheikh|It is incorrect to say that it's not permitted to marry off girls who are 15 and younger. A girl aged 10 or 12 can be married. Those who think she's too young are wrong and they are being unfair to her. <br><br>We hear a lot in the media about the marriage of underage girls. We should know that Shariah law has not brought injustice to women.<ref>[http://www.cnn.com/2009/WORLD/meast/01/17/saudi.child.marriage/index.html?iref=newssearch Top Saudi cleric: OK for young girls to wed] - CNN, January 17, 2009</ref>}}
{{Quote|Grand Mufti of Saudi Arabia, Sheikh Abdul Aziz Al-Sheikh|It is incorrect to say that it's not permitted to marry off girls who are 15 and younger. A girl aged 10 or 12 can be married. Those who think she's too young are wrong and they are being unfair to her. <br><br>We hear a lot in the media about the marriage of underage girls. We should know that Shariah law has not brought injustice to women.<ref>[http://www.cnn.com/2009/WORLD/meast/01/17/saudi.child.marriage/index.html?iref=newssearch Top Saudi cleric: OK for young girls to wed] - CNN, January 17, 2009</ref>}}
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{{Quote|Grand Mufti of Saudi Arabia, Sheikh Abdul Aziz Al-Sheikh|Our mothers and before them our grandmothers married when they were barely 12. Good upbringing makes a girl ready to perform all marital duties at that age.<ref>Carlyle Murphy - [http://www.globalpost.com/dispatch/saudi-arabia/090416/child-marriage-case-showcases-deep-splits-saudi-society Child marriage case showcases deep splits in Saudi society] - GlobalPost, April 16, 2009</ref>}}
{{Quote|Grand Mufti of Saudi Arabia, Sheikh Abdul Aziz Al-Sheikh|Our mothers and before them our grandmothers married when they were barely 12. Good upbringing makes a girl ready to perform all marital duties at that age.<ref>Carlyle Murphy - [http://www.globalpost.com/dispatch/saudi-arabia/090416/child-marriage-case-showcases-deep-splits-saudi-society Child marriage case showcases deep splits in Saudi society] - GlobalPost, April 16, 2009</ref>}}


{{Quote|Skeikh Mohamed Ibn Abderrahmane Al-Maghraoui|A nine-year-old girl has the same sexual capacities like a woman of twenty and over.<ref>[http://www.ansamed.info/en/news/[email protected] Fatwa in favour of 9-year-old girl marriage, Polemics] - ANSA''med'', September 8, 2008</ref>}}
{{Quote|Skeikh Mohamed Ibn Abderrahmane Al-Maghraoui|The marriage of nine-year-old girls is not forbidden because according to the Hadith (the Prophet Mohammed's sayings), Mohammed married Aisha when she was only seven-years-old and he consummated his union when she was nine.


{{Quote|Sheikh Mohamed Ben Abderrahman Al-Maghraoui|The marriage of nine-year-old girls is not forbidden because according to the Hadith (the Prophet Mohammed's sayings), Mohammed married Aisha when she was only seven-years-old and he consummated his union when she was nine.<ref>[http://www.middle-east-online.com/english/?id=27880 Moroccan theologian: Muslim girls can wed at nine] - Middle East Online, September 15, 2008</ref>}}
A nine-year-old girl has the same sexual capacities like a woman of twenty and over.<ref>[https://www.maghrawi.net/arch?sid=408 Fatwa in favour of 9-year-old girl marriage] - 2008</ref>}}


{{Quote|1=[http://web.archive.org/web/20080127161338/http://islam.tc/ask-imam/view.php?q=6737 I would like to marry a woman who is 12 years old, her father and she has also agreed. What is your advise?]<BR>Islamic Q & A Online with Mufti Ebrahim Desai, Ask-Imam, Question No. 6737|2=According to the Shari'ah, if a girl is a minor (did not attain puberty), she may be given in marriage by her father. When she attains puberty, she has the right to maintain the marriage or discontinue the marriage. There is no age limit to be intimate with one's wife even if she is a minor.}}  
{{Quote|1=[http://web.archive.org/web/20080127161338/http://islam.tc/ask-imam/view.php?q=6737 I would like to marry a woman who is 12 years old, her father and she has also agreed. What is your advise?]<BR>Islamic Q & A Online with Mufti Ebrahim Desai, Ask-Imam, Question No. 6737|2=According to the Shari'ah, if a girl is a minor (did not attain puberty), she may be given in marriage by her father. When she attains puberty, she has the right to maintain the marriage or discontinue the marriage. There is no age limit to be intimate with one's wife even if she is a minor.}}  
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{{Quote|1=[http://www.islamqa.com/en/ref/1493/pedophile Ruling on marrying young women]<BR>Sheikh Muhammed Salih Al-Munajjid, Islam Q&A, Fatwa No. 1493|2=...it is permitted to contract marriage with a young girl and to hand her over to her husband to stay with him before she reaches adolescence.}}
{{Quote|1=[http://www.islamqa.com/en/ref/1493/pedophile Ruling on marrying young women]<BR>Sheikh Muhammed Salih Al-Munajjid, Islam Q&A, Fatwa No. 1493|2=...it is permitted to contract marriage with a young girl and to hand her over to her husband to stay with him before she reaches adolescence.}}


{{Quote|Dr. Ahmad al-Mu’bi, Saudi marriage officiant|You can have a marriage contract even with a 1-year-old girl, not to mention a girl of 9, 7 or 8.  But is the girl ready for sex or not?  What is the appropriate age for sex for the first time? This varies according to environment and tradition.<ref>[http://www.foxnews.com/story/0,2933,371581,00.html?loomia_ow=t0:s0:a16:g12:r3:c0.243972:b25445430:z10 Saudi Marriage Official Says 1-Year-Old Brides OK] - Fox News, June 2, 2008</ref><ref>[http://www.memritv.org/clip/en/1798.htm LBC TV (Lebanon) - June 19, 2008 - 03:08] - MEMRI TV, Video Clip No. 1798</ref>}}
{{Quote|Dr. Ahmad al-Mu’bi, Saudi marriage officiant|You can have a marriage contract even with a 1-year-old girl, not to mention a girl of 9, 7 or 8.  But is the girl ready for sex or not?  What is the appropriate age for sex for the first time? This varies according to environment and tradition.<ref>https://www.foxnews.com/story/saudi-marriage-official-says-1-year-old-brides-ok Saudi Marriage Official Says 1-Year-Old Brides OK] - Fox News, June 2, 2008</ref><ref>[http://www.memritv.org/clip/en/1798.htm LBC TV (Lebanon) - June 19, 2008 - 03:08] - MEMRI TV, Video Clip No. 1798</ref>}}


{{Quote|Sheik Mohammed al-Hazmi, a legislator in Yemen, 2009|Everything that is not forbidden is permitted.  [The new law in Yemen that set the minimum marriage age at 17] is a Western plot aimed at Westernizing our culture.  The West wants to teach us how to marry, conceive and divorce. This is cultural colonization that we reject.<ref>[http://www.foxnews.com/story/0,2933,516881,00.html Islamists Fight Yemen Law Banning Child Marriage] - Fox News, April 16, 2009</ref>}}
{{Quote|Sheik Mohammed al-Hazmi, a legislator in Yemen, 2009|Everything that is not forbidden is permitted.  [The new law in Yemen that set the minimum marriage age at 17] is a Western plot aimed at Westernizing our culture.  The West wants to teach us how to marry, conceive and divorce. This is cultural colonization that we reject.<ref>[https://www.foxnews.com/story/islamists-fight-yemen-law-banning-child-marriage Islamists Fight Yemen Law Banning Child Marriage] - Fox News, April 16, 2009</ref>}}


{{Quote|1=Sheikh Hamoud Hashim al-Tharihi, general secretary of the Vice and Virtue Committee and member of the Islah Party in Yemen|2=Because this happened to the Prophet, we cannot tell people that it is prohibited to marry at an early age.<ref>[http://news.bbc.co.uk/2/hi/middle_east/7711554.stm Child marriage and divorce in Yemen] - Jenny Cuff - BBC, November 6, 2008</ref>}}
{{Quote|1=Sheikh Hamoud Hashim al-Tharihi, general secretary of the Vice and Virtue Committee and member of the Islah Party in Yemen|2=Because this happened to the Prophet, we cannot tell people that it is prohibited to marry at an early age.<ref>[http://news.bbc.co.uk/2/hi/middle_east/7711554.stm Child marriage and divorce in Yemen] - Jenny Cuff - BBC, November 6, 2008</ref>}}


{{Quote|1=[http://www.islamqa.com/en/ref/1493/pedophile Ruling on marrying young women]<BR>Sheikh Muhammed Salih Al-Munajjid, Islam Q&A, Fatwa No. 1493|2=...it is permitted to contract marriage with a young girl and to hand her over to her husband to stay with him before she reaches adolescence.}}
{{Quote|1=[http://www.islamqa.com/en/ref/1493/pedophile Ruling on marrying young women]<BR>Sheikh Muhammed Salih Al-Munajjid, Islam Q&A, Fatwa No. 1493|2=...it is permitted to contract marriage with a young girl and to hand her over to her husband to stay with him before she reaches adolescence.}}
{{Quote|Reliance of the Traveller: The Classic Manual of Islamic Sacred Law|m3.13 Guardians are of two types, those who may compel their female charges to marry someone, and those who may not.<BR><BR>
#The only guardians who may compel their charge to marry are a virgin bride's father or father's father, compel meaning to marry her to a suitable match (def: m4) without her consent.
#Those who may not compel her are not entitled to marry her to someone unless she accepts and gives her permission.
<BR>Whenever the bride is a virgin, the father or father's father may marry her to someone without her permission, though it is recommended to ask her permission '''if''' she has reached puberty. A virgin's silence is considered as permission.<ref>[http://web.archive.org/web/20020429172319/http://www.witness-pioneer.org/vil/Books/NHMK_RT/book_m.htm Reliance of the Traveller/Book M: Marriage] - (full text online)</ref>}}


{{Quote|Shaikh ibn Baz's answer on the Q & A site of the Muslim Students Organization of the University of Houston|...If she is married without her permission, by threat or coercion, then the marriage is not valid. The only exeption is in the case of the father and his daughter who is less than nine years of age. There is no harm if he gets her married while she is less than nine years old, according to the correct opinion. This is based on the messenger of Allah (peace be upon him) marrying Aisha without her consent when she was less than nine years old, as is stated in authentic Hadith...<ref>[http://web.archive.org/web/20040216151301/http://www.uh.edu/campus/msa/articles/fatawawom/marriage.html Questions Related to Marriage/ Is it allowed for a father to force his daughter to marry a specific man that she does not want to marry?] - Muslim Students Organization of the University of Houston</ref>}}
{{Quote|Shaikh ibn Baz's answer on the Q & A site of the Muslim Students Organization of the University of Houston|...If she is married without her permission, by threat or coercion, then the marriage is not valid. The only exeption is in the case of the father and his daughter who is less than nine years of age. There is no harm if he gets her married while she is less than nine years old, according to the correct opinion. This is based on the messenger of Allah (peace be upon him) marrying Aisha without her consent when she was less than nine years old, as is stated in authentic Hadith...<ref>[http://web.archive.org/web/20040216151301/http://www.uh.edu/campus/msa/articles/fatawawom/marriage.html Questions Related to Marriage/ Is it allowed for a father to force his daughter to marry a specific man that she does not want to marry?] - Muslim Students Organization of the University of Houston</ref>}}


{{Quote|Adil Salahi|Scholars have discussed at length the marriage of a young girl who has not attained puberty and whether her father may marry her away without her permission. If such a marriage takes place it is valid. However, it is '''perhaps''' best if the marriage is not allowed to be consummated until the girl attains puberty, when she is given the choice whether to continue with this marriage or not.<ref>Adil Salahi - [http://www.islamicvoice.com/august.98/marriage.htm#EAR Marriage  in Islam/Marriage at an early age] - Islamic Voice, Vol 12-08 No:140, August 1998</ref>}}
{{Quote|Mufti Fazlul Haque Amini|Banning child marriage will cause challenging the marriage of the holy prophet of Islam, who also married minor Ayesha, when she was just eight years old. The new law [seeking to ban child marriages] initiated by the current government [of Bangladesh] will put the moral character of the prophet into controversy and challenge. Islam permits child marriage and it will not be tolerated if any ruler will ever try to touch this issue in the name of giving more rights to women.<ref>[https://www.independentsentinel.com/horrors-of-child-marriage/?amp <!-- Backup link from Jihad Watch {{Reference archive|1=http://www.jihadwatch.org/2011/04/bangladesh-islamic-cleric-threatens-jihad-if-child-marriage-is-banned.html|2=2011-04-23}}  -->Islamist leader threatens of waging Jihad] - Weekly Blitz, April 20, 2011</ref>}}
 
{{Quote|Mufti Fazlul Haque Amini|Banning child marriage will cause challenging the marriage of the holy prophet of Islam, who also married minor Ayesha, when she was just eight years old. The new law [seeking to ban child marriages] initiated by the current government [of Bangladesh] will put the moral character of the prophet into controversy and challenge. Islam permits child marriage and it will not be tolerated if any ruler will ever try to touch this issue in the name of giving more rights to women.<ref>[http://www.weeklyblitz.net/1386/islamist-leader-threatens-of-waging-jihad <!-- Backup link from Jihad Watch {{Reference archive|1=http://www.jihadwatch.org/2011/04/bangladesh-islamic-cleric-threatens-jihad-if-child-marriage-is-banned.html|2=2011-04-23}}  -->Islamist leader threatens of waging Jihad] - Weekly Blitz, April 20, 2011</ref>}}
 
{{Core Pedophilia}}


==See Also==
==See Also==


* [[Qur'an, Hadith and Scholars:Aisha]]
*[[Qur'an, Hadith and Scholars:Aisha]]
{{Hub4|Women (Primary Sources)|Women (Primary Sources)}}


==References==
==References==
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The Islamic Tradition Itself
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Peculiar Traditions


The hadith and sira tradition is very explicit about the fact that Muhammad married Aisha when she was six, and consummated the marriage when she was nine. As Muhammad is "al-insaan al-kaamil". This marriage was used by jurists of the Shafi'i and Hanbali schools in their discussions of compulsion of minors into marriage and the age of consummation, respectively (see Forced Marriage and Child Marriage in Islamic Law). Both the Qur'an and the hadiths have played an important role in legal and exegetical discussions on these topics, in particular Q. 65:4 which was generally understood to allude to divorced pre-pubescent wives. Though there was no minimum age for the marriage contract, Islamic law generally permitted a girl to live with her husband and consummate the marriage when she could tolerate intercourse without physical harm, which according to some jurists sometimes may be the case while she was still a minor.

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 Imam 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).

Qur'an

Surah 65:4

Main Article: Child Marriage in the Qur'an

The following verse allows sex with pre-pubescent married girls who have not yet menstruated.

Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses (it is the same): for those who carry (life within their wombs), their period is until they deliver their burdens: and for those who fear Allah, He will make their path easy.
Quran 65:4

Tafsir

Tafsirs on verse 65:4.

يَقُولُ تَعَالَى مُبَيِّنًا لِعِدَّةِ الْآيِسَةِ -وَهِيَ الَّتِي قَدِ انْقَطَعَ عَنْهَا الْحَيْضُ لِكِبَرِهَا-: أَنَّهَا ثَلَاثَةُ أَشْهُرٍ، عِوَضًا عَنِ الثَّلَاثَةِ قُرُوءٍ فِي حَقِّ مَنْ تَحِيضُ، كَمَا دَلَّتْ عَلَى ذَلِكَ آيَةُ "الْبَقَرَةِ" وَكَذَا الصِّغَارُ اللَّائِي لَمْ يَبْلُغْنَ سِنَّ الْحَيْضِ أَنَّ عِدَّتَهُنَّ كَعِدَّةِ الْآيِسَةِ ثَلَاثَةُ أَشْهُرٍ؛ وَلِهَذَا قَالَ: {وَاللائِي ‌لَمْ ‌يَحِضْنَ}


The `Iddah of Those in Menopause and Those Who do not have Menses Allah the Exalted clarifies the waiting period of the woman in menopause. And that is the one whose menstruation has stopped due to her older age. Her `Iddah is three months instead of the three monthly cycles for those who menstruate, which is based upon the Ayah in (Surat) Al-Baqarah. [see 2:228] The same for the young, who have not reached the years of menstruation. Their `Iddah is three months like those in menopause. This is the meaning of His saying.
Tafsir Ibn Kathir, Dar Taybah, vol.8 p.149
(وَاللائِي ‌لَمْ ‌يَحِضْنَ) يقول: وكذلك عدد اللائي ‌لم ‌يحضن من الجواري لصغر إذا طلقهنّ أزواجهنّ بعد الدخول
"And for those who haven't menstruated" means: The same applies to the Iddah for girls who do not menstruate because they are too young, if their husbands divorce them after consummating the marriage with them.
The interpretation of Al-Tabari, mu'assasat Al-Risalah, vol.23 p.452
Here, one should bear in mind the fact that according to the explanations given in the Quran the question of the waiting period arises in respect of the women with whom marriage may have been consummated, for there is no waiting-period in case divorce is pronounced before the consummation of marriage. (Al-Ahzab: 49). Therefore, making mention of the waiting-period for the girls who have not yet menstruated, clearly proves that it is not only permissible to give away the girl in marriage at this age but it is also permissible for the husband to consummate marriage with her. Now, obviously no Muslim has the right to forbid a thing which the Quran has held as permissible.
Commentary on Qur'an Chapter 65:4
Sayyid Abul Ala Maududi, Tafhim al-Qur'an
Surah al-Talaaq 65:4: If a woman does not menstruate, either because she is very young or old and past menopause, then her ‘iddah is three months, because Allaah says (interpretation of the meaning): “And those of your women as have passed the age of monthly courses, for them the ‘Iddah (prescribed period), if you have doubt (about their periods), is three months; and for those who have no courses (i.e. they are still immature) their ‘Iddah (prescribed period) is three months likewise.[3]
Shaykh Muhammad ibn ‘Uthaymeen, Majmoo’at As’ilah tahumm al-Usrah al-Muslimah, p. 61-63
And [as for] those of your women who (read allā'ī or allā'i in both instances) no longer expect to menstruate, if you have any doubts, about their waiting period, their prescribed [waiting] period shall be three months, and [also for] those who have not yet menstruated, because of their young age, their period shall [also] be three months - both cases apply to other than those whose spouses have died; for these [latter] their period is prescribed in the verse: they shall wait by themselves for four months and ten [days] [Q. 2:234]. And those who are pregnant, their term, the conclusion of their prescribed [waiting] period if divorced or if their spouses be dead, shall be when they deliver. And whoever fears God, He will make matters ease for him, in this world and in the Hereafter.
Qur'an 65:4
Tafsir al-Jalalayn
(And for such of your women as despair of menstruation) because of old age, (if ye doubt) about their waiting period, (their period (of waiting) shall be three months) upon which another man asked: “O Messenger of Allah! "What about the waiting period of those who do not have menstruation because they are too young?” (along with those who have it not) because of young age, their waiting period is three months." Another man asked: “what is the waiting period for those women who are pregnant?” (And for those with child) i.e. those who are pregnant, (their period) their waiting period (shall be till they bring forth their burden) their child. (And whosoever keepeth his duty to Allah) and whoever fears Allah regarding what he commands him, (He maketh his course easy for him) He makes his matter easy; and it is also said this means: He will help him to worship Him well.
Qur'an 65:4
Tafsir Ibn Abbas
(And for such of your women as despair of menstruation…) [65:4]. Said Muqatil: “When the verse (Women who are divorced shall wait, keeping themselves apart…), Kallad ibn al-Nu‘man ibn Qays al-Ansari said: ‘O Messenger of Allah, what is the waiting period of the woman who does not menstruate and the woman who has not menstruated yet? And what is the waiting period of the pregnant woman?’ And so Allah, exalted is He, revealed this verse”. Abu Ishaq al-Muqri’ informed us> Muhammad ibn ‘Abd Allah ibn Hamdun> Makki ibn ‘Abdan> Abu’l-Azhar> Asbat ibn Muhammad> Mutarrif> Abu ‘Uthman ‘Amr ibn Salim who said: “When the waiting period for divorced and widowed women was mentioned in Surah al-Baqarah, Ubayy ibn Ka‘b said: ‘O Messenger of Allah, some women of Medina are saying: there are other women who have not been mentioned!’ He asked him: ‘And who are they?’ He said: Those who are too young [such that they have not started menstruating yet], those who are too old [whose menstruation has stopped] and those who are pregnant’. And so this verse (And for such of your women as despair of menstruation…) was revealed”.
Qur'an 65:4
Al-Wahidi, Asbab al-nuzul
(وَاللائِي ‌لَمْ ‌يَحِضْنَ) يقول: وكذلك عدد اللائي ‌لم ‌يحضن من الجواري لصغر إذا طلقهنّ أزواجهنّ بعد الدخول
and for those who haven't menstruated" means: The same applies to the Iddah for girls who do not menstruate because they are too young, if their husbands divorce them after consummating the marriage with them.
The interpretation of Al-Tabari, mu'assasat Al-Risalah, vol.23 p.452

In the following quote, the bold text translates as “They are those who haven’t reached the age of menstruation”. Tabrasi comments on the phrase “Wallaee Lam yahidhna” = “Those who have not menstruated yet” in the verse.

{ واللآئي لم يحضن } تقديره واللآئي لم يحضن إن ارتبتم فعدتهن أيضاً ثلاثة أشهر وحذف لدلالة الكلام الأول عليه وهن اللواتي لم يبلغن المحيض ومثلهن تحيض على ما مرَّ بيانه.

Qur'an 65:4
Tabrasi

In the following quote, the bold part translated as: “Those who have not menstruated yet” are young girls who have not reached the age of menstruation.

{ فَعِدَّتُهُنَّ ثَلَـٰثَةُ أَشْهُرٍ وَٱللاَّئِى لَمْ يَحِضْنَ } لصغرهن، وعدم بلوغهن سن المحيض، أي: فعدتهن ثلاثة أشهر
For those who are small and have not reached age (quoting the Qur'an) "for those female who have not menstruated, their waiting period is three months" i.e. their waiting period is 3 months.
Qur'an 65:4
Al-Shoukani, Fath al-Qadir

Hadith

Quotes from Imam Bukhari's hadith collection, regarding verse 65:4.

The Tafsir of Surat at-Talaq

Mujahid said that "if you have any doubt" (65:4) means if you do not know whether she menstruates or not. Those who do not longer menstruate and those who have not yet menstruated, their 'idda is three months.
Sahih Al-Bukhari, Chapter 68: Book of Tafsir

The following is from Bukhari's chapter introduction for chapter 39, Book an-Nikkah. It appears immediately before the first and only hadith of Chapter 39, Sahih Bukhari 7:62:64 and can be seen in the Dar-us-Salam print edition, volume 7.

Giving one’s young children in marriage (is permissible) by virtue of the Statement of Allah: ‘And for those who have courses’ (i.e. they are still immature) (Sura 65:4) And the ‘Iddat [waiting period for a woman before lawful sexual intercourse] for the girl before puberty is three months (in the above Verse).
Bukhari (Chapter 39)

The following is from Fath al-Bari, the most authoritative commentary on Sahih Al-Bukhari.

واللائي لم يحضن , فجعل عدتها ثلاثة أشهر قبل البلوغ ) ‏ ‏أي فدل على أن نكاحها قبل البلوغ جائز


"and those who never had menses, their prescribed period is three months before puberty, which indicates that giving her into marriage before puberty is permissible."
Fath Al-Bari by Ibn Hajar

Jurists struggled to reconcile their views on the right of a father to force his minor and / or virgin daughter into a marriage contract without her consent with the contents of the following hadith (which occurs in multiple similar versions):

Ibn Abbas (Allah be pleased with them) reported Allah's Messenger (ﷺ) as saying: A woman who has been previously married (Thayyib) has more right to her person than her guardian. And a virgin should also be consulted, and her silence implies her consent.
Sahih Muslim 8:3307

In Islamic Law

Main Article: Child Marriage 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:

مستند الإجماع:

1-قوله تعالى: {يَئِسْنَ مِنَ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ} [الطلاق: 4]. وجه الدلالة: جعل اللَّه سبحانه وتعالى عدة اللائي لم يحضن ثلاثة أشهر، ولا تكون العدة ثلاثة أشهر إلا من طلاق في نكاح أو فسخ، فدل ذلك على أنها تزوج وتطلق، ولا إذن لها فيعتبر، وأن نكاحها قبل البلوغ جائز .

2- عن عائشة -رضي اللَّه عنها- قالت: تزوجني رسول اللَّه -صلى اللَّه عليه وسلم- لِسِتِّ سنين، وبنى بي وأنا بنت تسع سنين .

3- تزوج قدامة بن مظعون -رضي اللَّه عنه- ابنة الزبير حين نَفِسَتْ، فقيل له، فقال: ابنة الزبير إن مت ورثتني، وإن عشت كانت امرأتي .

4- زوج علي -رضي اللَّه عنه- أم كلثوم ابنته وهي صغيرة عمر بن الخطاب -رضي اللَّه عنه- . وجه الدلالة من هذه الأحاديث: أن عائشة، وابنة الزبير، وأم كلثوم بنت علي كنَّ صغيرات، وعندئذٍ لم يكنَّ في حال يعتبر إذنهن فيه

موسوعة الإجماع في الفقه الإسلامي، الطبعة الأولى 2012، المجلد الثالث من إعداد الدكتور ظافر بن حسن العمري، (3/ 147-144)


1- Allah said: “And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated.” Quran 65:4

This verse says that the Iddah for those who haven’t menstruated is three months. And since that the Iddah is only prescribed in the case of divorce, this proves that:

A-She can marry and can get divorced.

B- Marrying her off before puberty is allowed.

C- Her consent is neglected.  

2- Ayisha said: “Allah's Messenger married me when I was six years old, and consummated his marriage when I was nine”.

https://quranx.com/Hadith/Muslim/USC-MSA/Book-8/Hadith-3309

3- Muhammad’s companion Qudamah Bin Math’un married the daughter of Al-Zubayr when she was born. He said: “If I die then the daughter of Al-Zubayr will inherit me. If I live then she will be my wife”

4- Ali, Muhammad’s cousin and the fourth caliph, married off his minor daughter Um Kulthum to Umar the second caliph.

These reports show that Ayisha, Al-Zubayr’s daughter and Ali’s daughter were minors which means their consent was unviable.
Mawsu’at Al-Ijma’ Fil-Fiqh Al-Islami, Volume 3 by professor Zafir Al-Amri, first edition 2012, published by Dar Al-Fadhilah, Al-Maktabah Al-Shamilah, vol.3 p.144-147

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:

وَأَمَّا وَقْتُ ‌زِفَافِ ‌الصَّغِيرَةِ الْمُزَوَّجَةِ وَالدُّخُولُ بِهَا فَإِنِ اتَّفَقَ الزَّوْجُ وَالْوَلِيُّ عَلَى شَيْءٍ لَا ضَرَرَ فِيهِ عَلَى الصَّغِيرَةِ عُمِلَ بِهِ وَإِنِ اخْتَلَفَا فَقَالَ أَحْمَدُ وَأَبُو عُبَيْدٍ تُجْبَرُ عَلَى ذَلِكَ بِنْتُ تِسْعِ سِنِينَ دُونَ غَيْرِهَا وَقَالَ مَالِكٌ وَالشَّافِعِيُّ وَأَبُو حَنِيفَةَ حَدُّ ذَلِكَ أَنْ تُطِيقَ الْجِمَاعَ وَيَخْتَلِفُ ذَلِكَ بِاخْتِلَافِهِنَّ وَلَا يُضْبَطُ بِسِنٍّ وَهَذَا هُوَ الصَّحِيحُ

شرح النووي على مسلم، دار إحياء التراث العربي، المكتبة الشاملة، ج9 ص206

Regarding the timing of the wedding of a minor wife and consummation of her marriage, if the husband and the minor’s legal guardian both agreed on something that doesn’t harm the minor then it’s done. If they disagree, Ahmad (the Imam of one of the 4 major legal schools in Sunni Islam) said that she is forced to be wed at the age of 9. Malik, Al-Shafi’i and Abu Hanifa (the remaining 3 Imams of the 4 major legal schools) said the timing is when she’s capable of enduring sexual intercourse which differs from one person to another and can’t be determined by age. This is the correct view.
Al-Nawawi, Al-Minhaj Sharh Sahih Muslim, published by Dar Ihya’ Al-Turath Al-Arabi, Al-Maktabah Al-Shamilah, vol.9 p.206

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:

وقوله وأمكن وطؤها أي بلا حد سن بل يختلف باختلاف الأشخاص ولا يشترط الاحتلام فيها كالرجل؛ لأن من أطاقت الوطء يحصل بها للرجل ‌كمال ‌اللذة

شرح الخرشي على مختصر خليل، المطبعة الكبرى الأميرية، المكتبة الشاملة، ج3 ص258


“It’s possible to have sex with her” meaning there’s no specific age. Every person is different. And it’s not required for her to reach puberty because a man can receive full pleasure if the female can endure sex.
Al-Kharashi, Sharh Al-Kharashi, published by Al-Matba’ah Al-Kubra, Al-Maktabah Al-Shamilah, vol.3 p.258

Many scholars say that a husband is obliged to provide for his wife only if she lets him have sex with her. This notion causeda 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:

قَالَ - رَحِمَهُ اللَّهُ - (وَصَغِيرَةٌ لَا تُوطَأُ) يَعْنِي لَا تَجِبُ لَهَا النَّفَقَةُ سَوَاءٌ كَانَتْ فِي مَنْزِلِهِ أَوْ لَمْ تَكُنْ، وَقَالَ الشَّافِعِيُّ لَهَا نَفَقَةٌ لِأَنَّهَا عِوَضٌ عَنْ الْمِلْكِ عِنْدَهُ كَمَا فِي الْمَمْلُوكَةِ مِلْكَ الْيَمِينِ وَقِيلَ إنَّ الصَّغِيرَةَ إذَا كَانَتْ مُشْتَهَاةً وَيُمْكِنُ جِمَاعُهَا فِيمَا دُونَ الْفَرْجِ يَجِبُ لَهَا النَّفَقَةُ، وَلَوْ كَانَتْ الصَّغِيرَةُ تَصْلُحُ لِلْجِمَاعِ تَجِبُ نَفَقَتُهَا عَلَى الزَّوْجِ بِالْإِجْمَاعِ لِحُصُولِ الْمَقْصُودِ، وَاخْتَلَفُوا فِي حَدِّهِ فَقِيلَ بِنْتُ تِسْعِ سِنِينَ، وَالصَّحِيحُ أَنَّهُ ‌غَيْرُ ‌مُقَدَّرٍ ‌بِالسِّنِّ، وَإِنَّمَا الْعِبْرَةُ لِلِاحْتِمَالِ وَالْقُدْرَةِ عَلَى الْجِمَاعِ فَإِنَّ السَّمِينَةَ الضَّخْمَةَ تَحْتَمِلُ الْجِمَاعَ، وَإِنْ كَانَتْ صَغِيرَةَ السِّنِّ


تبيين الحقائق شرح كنز الدقائق للزيلعي، المطبعة الكبرى الأميرية، المكتبة الشاملة، ج3 ص52


“A minor who can’t endure sex” meaning the husband isn’t obliged to provide for her whether she’s living in his home or not. Al-Shafi’i said that “the husband is actually obliged to provide for her since that providing for her is the price for owning her. It’s like how a man is obliged to provide for his slave girl”….Some scholars say if the female minor is (old enough) to be sexually desirable and it’s possible to have sexual acts with her except for intercourse, then the husband is obliged to provide for her. But if the female minor can endure sex, scholars have unanimously agreed that the husband is obliged to provide for her. Scholars have disagreed on determining the age when a minor can endure sex, with some saying it’s nine. What’s is correct is that age doesn’t matter. What matters is the capability to endure sexual intercourse; a fat big female can endure intercourse even if she’s of a young age.
Al-Zayla’i, Tabyin Al-Haqa’iq, published by Al-Matba’a Al-Kubra, Al-Maktabah Al-Shamilah, vol.3 p.52

ِAl-Khatib Al-Sharbini (d.1570 ِAD), who was a scholar from the Shafi'i legal school, said in his commentary on "Al-Minhaj" by Al-Nawawi:

وَيَحْرُمُ وَطْءُ مَنْ لَا تَحْتَمِلُ الْوَطْءَ لِصِغَرٍ أَوْ جُنُونٍ أَوْ مَرَضٍ أَوْ هُزَالٍ أَوْ نَحْوِ ذَلِكَ لِتَضَرُّرِهَا بِهِ، وَتُمْهَلُ حَتَّى تُطِيقَ، فَلَوْ سُلِّمَتْ لَهُ صَغِيرَةً لَا تُوطَأُ لَمْ يَلْزَمْهُ تَسَلُّمُهَا؛ لِأَنَّهُ نَكَحَ لِلِاسْتِمْتَاعِ لَا لِلْحَضَانَةِ، وَإِذَا تَسَلَّمَهَا لَمْ يَلْزَمْهُ تَسْلِيمُ الْمَهْرِ كَالنَّفَقَةِ


مغني المحتاج للشربيني (ت 977هـ)، دار الكتب العلمية، ج4 ص373


It's forbidden to have sex with someone who can’t endure sex due to young age, illness or thinness because she would be harmed. She should wait until she can endure it. If a wife was handed over to her husband while she’s a minor who can’t endure sex then the husband isn’t obliged to take her because he married her for pleasure and not for custody. If he takes her then he’s not obliged to give her the dowry.
Mughni Al-Muhtaj by Al-Sharbini (d.1570 AD), published by Dar Al-Kutub Al-‘ilmiyyah, vol.4 p.373

In the 17th century, a group of Indian scholars authored a book that served as the basis for the Mughal empire legal system. This book says:

وأكثر المشايخ على أنه ‌لا ‌عبرة ‌للسن في هذا الباب وإنما العبرة للطاقة إن كانت ضخمة سمينة تطيق الرجال ولا يخاف عليها المرض من ذلك؛ كان للزوج أن يدخل بها، وإن لم تبلغ تسع سنين، وإن كانت نحيفة مهزولة لا تطيق الجماع ويخاف عليها المرض لا يحل للزوج أن يدخل بها، وإن كبر سنها وهو الصحيح


الفتاوى الهندية، المطبعة الكبرى الأميرية، ج1 ص287


The majority of scholars say that age doesn’t matter. What matters is the ability. If she’s big and fat, can endure men and cannot fall ill from it (sex), then the husband can consummate his marriage even if she’s not nine years old yet. But if she’s thin and weak, and can’t endure intercourse, and can fall ill from it, then the husband isn’t allowed to consummate his marriage even if she’s old. This is the correct view.
Mughni Al-Fatawa Al-Hindiyya by a group of Indian scholars in the 17th century, Al-Matba’ah Al-Kubra Al-Amiriyya, vol.1 p.287

Recent Fatawa

A fatwa collection issued by the Ministry of Religious Endowments and Islamic Affairs in Kuwait, included the following fatwa (though this and similar isolated fatwas are out of step with the Islamic legal tradition - see Child Marriage in Islamic Law):

هل يصح عقد الزواج على الرضيعة ويجوز التمتع بها بالتقبيل وغيره -سوى الجماع- بما لا ‏يضرها؟

الجواب: إذا كان العقد مستوفيًا لشروطه الشرعية، فإنها تصبح به زوجته من كل الوجوه، ويحل له منها ‏النظر إليها ولمسها وتقبيلها، ولا يحل له جماعها حتى تطيقه من غير ضرر، فإذا أطاقته حل له منها ‏ذلك أيضًا.

مجموعة الفتاوى الشرعية، فتوى رقم 6058


Question: Is it allowed to marry a suckling baby and is it allowed to pleasure myself with her by kissing her and doing other unharmful acts excluding sex?

Answer: If the marriage contract fulfills the Islamic legal requirements then she’s considered to be his wife in all respects and he’s allowed to look at her, touch her and kiss her. He’s not allowed to have sex with her until she can endure sex without causing her any harm.
Majmu'at Al-Fatawa Al-Shar'iyya, Fatwa no. 6058

December 2010 fatwa from popular Islamic website.

The Noble Qur'an has also mentioned the waiting period [i.e. for a divorced wife to remarry] for the wife who has not yet menstruated, saying: "And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated" [Qur'an 65:4]. Since this is not negated later, we can take from this verse that it is permissible to have sexual intercourse with a prepubescent girl. The Qur'an is not like the books of jurisprudence which mention what the implications of things are, even if they are prohibited. It is true that the prophet (PBUH) entered into a marriage contract with A'isha when she was six years old, however he did not have sex with her until she was nine years old, according to al-Bukhari.
Is it permissible to restrict the age at which girls can marry?
Submitted by Ahmad, IslamOnline, December 24, 2010
Getting married at an early age is something that is confirmed by the book of Allah, the Sunnah of his Prophet (Sallallahu Alaihi wa Sallam), the consensus of the scholars and the actions of the companions, and the Muslims who came after them.

Moreover, the interest of Shariah proves it. So the claim that this was abrogated is not correct. And the Hadith did not include that meaning; it just states that a virgin woman is not to be married until consulted.

The evidence from the Qur'an is:

1. The saying of Allah: "And those of your women as have passed the age of monthly courses, for them the 'Iddah (prescribed period), if you have doubts (about their periods), is three months, and for those who have no courses [(i.e. they are still immature) their 'Iddah (prescribed period) is three months likewise, except in case of death]". (At-Talaq 65:4)

So, Allah set rulings of marriage, divorce and waiting period for the women who have not yet had menses, i.e. the young girls.

The Iddah (waiting period) does not take place except after marriage.
Child marriage in Islam
Islamweb, Fatwa No. 88089, June 24, 2004

Muhammad

Married Aisha When She Was Six

Main Article: Portal: Muhammad’s Wives and Consorts

Muhammad consummated his marriage with the 9 year old Aisha, while she remained pre-pubescent.

A'isha (Allah be pleased with her) reported: Allah's Apostle (Mohammad) married me when I was six years old, and I was admitted to his house when I was nine years old.
Sahih Muslim 8:3310

Muhammad's Companions

Main Article: Child Marriage and Muhammad's Companions

Umar the 2rd Caliph married Umm Kulthum at a time when she was 10-12 years old. Some sources say she was five years old.

"'Umar asked 'Ali for the hand of his daughter, Umm Kulthum in marriage. 'Ali replied that she has not yet attained the age (of maturity). '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."
In Tarikh Khamees, Volume 2, p. 384 ('Dhikr Umm Kalthum') and Zakhair Al-Aqba, p. 168
Getting married at an early age is something that is confirmed by the book of Allah, the Sunnah of his Prophet (Sallallahu Alaihi wa Sallam), the consensus of the scholars and the actions of the companions, and the Muslims who came after them...

There are many Ahadith which confirm that marriage at an early age was widespread among the companions and no one denied its permissibility. Getting married at an early age was not peculiar to the Prophet (Sallallahu Alaihi wa Sallam) as some people think, but it was general for him and for his Ummah.

The following are some of the actions of the Sahaba (companions):

1. Ali Ibn Abi Talib, may Allah be pleased with him, married his daughter, Um Kulthum to Omar Ibn Al-Khattab, may Allah be pleased with him, and she mothered a child before the death of the Prophet (Sallallahu Alaihi wa Sallam). Omar got married to her while she was young before reaching the age of puberty. This is reported by Ibn Saad in 'Al-Tabaqat'.

2. From Urwa Ibn Zubair: that Zubair, may Allah be pleased with him, married his daughter when she was very young. Reported by Saeed Ibn Mansour, in his Sunnah, and Ibn Abi Shaibah, in Al-musannaf, with a Sahih chain of narration.

Al-Shafie said in the book of Al-Um: "Many companions of the Prophet (Sallallahu Alaihi wa Sallam) married their daughters while these were still young."

Delaying the marriage of girls in many Muslim countries is something new and contradictory to what Muslims used to do over many centuries. This is because of westernization and the application of man-made laws. This caused a change in understandings and customs within a considerable number of the population, and it is absolutely not permissible to consider the customs and traditions in a given country as the standard by which people abide, and fail to obey the absolute evidences of Shariah.

In some Muslim countries, the marriage for girls has been delayed by many years beyond the age of puberty. This has indeed led to an increase in the removal of the veil from the face, and increased fornication and adultery, as well as the emergence of deviation in conduct and religion among the youth. They had become morally unstable as they lack affection, chastity, and protection their private parts from illegal sexual relations.

By delaying marriage, there is also a reduction in the number of Muslims in the Ummah, and this is contrary to the order of the Prophet (Sallallahu Alaihi wa Sallam), as he ordered us to have many children so that the Muslim nation will be greater in number than the previous nations.
Child marriage in Islam
Islamweb, Fatwa No. 88089, June 24, 2004

Other Hadith

The following Muwatta hadith shows it's permissible to marry girls who have not reached puberty.

Yahya related to me from Malik that he had heard that the Messenger of Allah, may Allah bless him and grant him peace, visited Umm Salama while she was in mourning for Abu Salama and she had put aloes on her eyes. He said, "What is this, Umm Salama?" She said, "It is only aloes, Messenger of Allah." He said, "Put it on at night and wipe it off in the daytime."

Malik said, "The mourning of a young girl who has not yet had a menstrual period takes the same form as the mourning of one who has had a period. She avoids what a mature woman avoids if her husband dies."

Malik said, "A slave-girl mourns her husband when he dies for two months and five nights like her idda.

Malik said, "An umm walad does not have to mourn when her master dies, and a slave-girl does not have to mourn when her master dies. Mourning is for those with husbands."
Al-Muwatta 29:108

Miscellaneous

"It was narrated by Ahmed that a man came to him that feared that he would ejaculate while he was fasting. Ahmed said: "What I see is that he can release semen without ruining the fast, he can masturbate using his hands or the hands of his wife, If he has an "Ammah" whether be it a girl or a little child, she can masturbate for him using her hands, and if she was a non-believer, he can sleep with her without releasing (his semen), if he released it in her, it becomes impermissible".
Bada'i al-Fuwa'id of Ibn Qayyim, page 603
It is incorrect to say that it's not permitted to marry off girls who are 15 and younger. A girl aged 10 or 12 can be married. Those who think she's too young are wrong and they are being unfair to her.

We hear a lot in the media about the marriage of underage girls. We should know that Shariah law has not brought injustice to women.[4]
Grand Mufti of Saudi Arabia, Sheikh Abdul Aziz Al-Sheikh
Our mothers and before them our grandmothers married when they were barely 12. Good upbringing makes a girl ready to perform all marital duties at that age.[5]
Grand Mufti of Saudi Arabia, Sheikh Abdul Aziz Al-Sheikh
The marriage of nine-year-old girls is not forbidden because according to the Hadith (the Prophet Mohammed's sayings), Mohammed married Aisha when she was only seven-years-old and he consummated his union when she was nine. A nine-year-old girl has the same sexual capacities like a woman of twenty and over.[6]
Skeikh Mohamed Ibn Abderrahmane Al-Maghraoui
According to the Shari'ah, if a girl is a minor (did not attain puberty), she may be given in marriage by her father. When she attains puberty, she has the right to maintain the marriage or discontinue the marriage. There is no age limit to be intimate with one's wife even if she is a minor.
I would like to marry a woman who is 12 years old, her father and she has also agreed. What is your advise?
Islamic Q & A Online with Mufti Ebrahim Desai, Ask-Imam, Question No. 6737
Child marriage in Islam is permissible. In the Koran there is no specific age of marriage...[If the government imposed new laws against child marriage] There will be violent conflict from the Muslims, saying that 'no, we will not accept this, we'd rather die than accept something which is not a law from Allah.'[7]
Ahmed Sani Yerima, former governor and current senator of Zamfara State, Nigeria
Nigeria has many uncountable problems and none of them is early marriage. As a matter of fact early marriage (is) the solution to about half of our problems. For those who wonder if I can give my daughter(s) out in marriage at the age of 9 or 13, I tell you most honestly, I can give her out at the age of 6 if I want to and it’s not your business. This is because I am a Muslim and I follow the example of the best of mankind, Muhammad ﺻَﻠَّﻰ ﺍﻟﻠَّﻪُ ﻋَﻠَﻴْﻪِ ﻭَﺳَﻠَّﻢَ...
Ahmed Sani Yerima, former governor and current senator of Zamfara State, Nigeria[8]
...it is permitted to contract marriage with a young girl and to hand her over to her husband to stay with him before she reaches adolescence.
Ruling on marrying young women
Sheikh Muhammed Salih Al-Munajjid, Islam Q&A, Fatwa No. 1493
You can have a marriage contract even with a 1-year-old girl, not to mention a girl of 9, 7 or 8. But is the girl ready for sex or not? What is the appropriate age for sex for the first time? This varies according to environment and tradition.[9][10]
Dr. Ahmad al-Mu’bi, Saudi marriage officiant
Everything that is not forbidden is permitted. [The new law in Yemen that set the minimum marriage age at 17] is a Western plot aimed at Westernizing our culture. The West wants to teach us how to marry, conceive and divorce. This is cultural colonization that we reject.[11]
Sheik Mohammed al-Hazmi, a legislator in Yemen, 2009
Because this happened to the Prophet, we cannot tell people that it is prohibited to marry at an early age.[12]
Sheikh Hamoud Hashim al-Tharihi, general secretary of the Vice and Virtue Committee and member of the Islah Party in Yemen
...it is permitted to contract marriage with a young girl and to hand her over to her husband to stay with him before she reaches adolescence.
Ruling on marrying young women
Sheikh Muhammed Salih Al-Munajjid, Islam Q&A, Fatwa No. 1493
...If she is married without her permission, by threat or coercion, then the marriage is not valid. The only exeption is in the case of the father and his daughter who is less than nine years of age. There is no harm if he gets her married while she is less than nine years old, according to the correct opinion. This is based on the messenger of Allah (peace be upon him) marrying Aisha without her consent when she was less than nine years old, as is stated in authentic Hadith...[13]
Shaikh ibn Baz's answer on the Q & A site of the Muslim Students Organization of the University of Houston
Banning child marriage will cause challenging the marriage of the holy prophet of Islam, who also married minor Ayesha, when she was just eight years old. The new law [seeking to ban child marriages] initiated by the current government [of Bangladesh] will put the moral character of the prophet into controversy and challenge. Islam permits child marriage and it will not be tolerated if any ruler will ever try to touch this issue in the name of giving more rights to women.[14]
Mufti Fazlul Haque Amini

See Also

References

  1. ↑ For example Muslim Women's Network UK and Tahirih Justice Center Forced Marriage Initiative
  2. ↑ Senior Islamic cleric issues fatwa against child marriage - Guardian.com
  3. ↑ The ‘iddah of a woman divorced by talaaq - Islam Q&A, Fatwa No. 12667
  4. ↑ Top Saudi cleric: OK for young girls to wed - CNN, January 17, 2009
  5. ↑ Carlyle Murphy - Child marriage case showcases deep splits in Saudi society - GlobalPost, April 16, 2009
  6. ↑ Fatwa in favour of 9-year-old girl marriage - 2008
  7. ↑ "Nigeria Child Brides-Broken Lives", Times Online, November 28, 2008 (archived), http://www.wunrn.com/news/2008/11_08/11_24_08/112408_nigeria.htm. 
  8. ↑ "I Could Marry Off My Six Year Old Daughter If I So Wished, Senator Ahmed Yerima Replies Critics", The Nigeria Today, July 21, 2013 (archived), http://thenigeriatoday.net/i-could-marry-off-my-six-year-old-daughter-if-i-so-wished-senator-ahmed-yerima-replies-critics/. 
  9. ↑ https://www.foxnews.com/story/saudi-marriage-official-says-1-year-old-brides-ok Saudi Marriage Official Says 1-Year-Old Brides OK] - Fox News, June 2, 2008
  10. ↑ LBC TV (Lebanon) - June 19, 2008 - 03:08 - MEMRI TV, Video Clip No. 1798
  11. ↑ Islamists Fight Yemen Law Banning Child Marriage - Fox News, April 16, 2009
  12. ↑ Child marriage and divorce in Yemen - Jenny Cuff - BBC, November 6, 2008
  13. ↑ Questions Related to Marriage/ Is it allowed for a father to force his daughter to marry a specific man that she does not want to marry? - Muslim Students Organization of the University of Houston
  14. ↑ Islamist leader threatens of waging Jihad - Weekly Blitz, April 20, 2011
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