Forced Marriage: Difference between revisions

Forced marriage is the compelled marriage of an individual (usually female) against their will. The individual is usually forced by family members and in countries with primitive women's rights. In Islamic law, forcing a female who had reached the age of puberty into a marriage contract with someone against her explicit wishes was forbidden by the Hanafi and Hanbali schools of jurisprudence, though a father was permitted to do so by the Maliki and Shafi'i schools if his daughter was still a virgin. They all agreed that virgin minors could be entered into marriage contracts by their fathers by compulsion, despite hadith evidence requiring a female virgin's consent (or at least a lack of protest). Reports of Muhammad's marriage to Aisha and of his companions marrying off their minor daughters played a role in some jurist opinions. Jurists also agreed that female slaves could be married off to someone by their owners without their consent.

Most (but not all) modern Muslim majority countries have made child marriage and forced marriage illegal. Nevertheless, such marriages still occur to a significant extent despite legal protections (and also occur in some non-Muslim communities). Many Muslim charities and campaign groups are working to prevent contemporary cases of forced marriage and to help those who seek their help.^[1] There are also government agencies who can and should be contacted when someone is at risk of forced marriage. Some charities advise those who realise too late that they are being taken overseas for a forced marriage to hide a spoon underneath their clothing so that when passing through the airport metal detector there will be an opportunity to explain the situation privately to the security team. Contacting the relevant national embassy is usually advised if already abroad.

Child marriage

As detailed below, Muhammad's marriage to six-year-old Aisha was cited in jurisprudence ruling that a child can be betrothed by her father without her explicit consent.^[2][3] Consummation of the marriage takes place when the father and husband believe she is ready for it. The tradition that Muhammad consummated his marriage to Aisha when she was nine^[4] also featured in the opinion of some jurists. A number of Quranic verses played a prominent role both in Quranic exegesis and legal discussions about marriage with pre-pubescent girls, most noteably Quran 65:4, though also Quran 4:3, Quran 4:6 and Quran 24:32.

A father or guardian must ask the consent of his virgin daughter before offering her in marriage according to a well known sahih hadith. However, according to that same hadith, if she remains silent when asked, offering no explicit acceptance, this counts as consent to the marriage.^[5] As detailed below, if a girl was both a virgin and a minor, Islamic jurists nevertheless were agreed that a father could compel her marriage contract without her consent.

Even if consulted, a girl would have to make a life changing decision on marriage while still a young child, with very limited experience and utterly dependent on her parents. Child marriages occur all over the world, but especially in Muslim countries that practice the relevant part of the Shari'a. 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.

Islamic law

Compulsion of minors and virgins

Two books by academic authors are particularly notable on this topic: Slavery and Marriage in Islam by Professor Kecia Ali,^[6] and Minor Marriage in Early Islamic Law by Professor Carolyn Baugh.^[7] A large set of translated quotes from various well known exegetical and jurist texts relating to these matters is also available online.^[8]

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).^[9]

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).

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 Professor 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."^[10] Quran verses that mention bulugh were taken into account in jurist discussions on marriage compulsion and there was also much discussion centred around the following hadith:

This appears to rule out a father forcing his virgin daughter into marriage without consulting her and obtaining her agreement, or at least her silence (though this is obviously open to abuse for the reasons mentioned above). However, Kecia Ali explains that the jurists were nevertheless in agreement that "a father's power of compulsion over his virgin daughter is unquestioned so long as she is a minor." The founders of two of the four major schools of Sunni jurisprudence, Malik and Shafi'i, employed different strategies to get around the apparent implications of the above hadith.

Malik's legal methodology considered the custom of the people of Medina as more authoritative than this hadith. Ali notes that "For Malik, either virginity or minority allowed compulsion, so a non-minor virgin could be compelled. A previous marriage, if unconsummated, did not remove a father's power of compulsion".^[11] Al-Muwatta 28:6 and Al-Muwatta 28:7 are examples of hadiths in Malik's Muwatta on this topic. The Mudawwana which also records Malik's opinions, prefaces the hadith about consultation with the explanation that it was only referring to the fatherless virgin, claiming that the word wali (guardian) there excludes the father.^[12]

The Risalah by Ibn Abi Zayd (d. 996 CE) is a classical manual of Maliki fiqh (jurisprudence). It says the following:

Shafi'i interpreted the hadith quoted above such that a father could still compell his virgin daughter into a marriage contract. Baugh explains that he did so by asserting that it refers to fathers as guardians, and the consultation of a virgin must be optional since otherwise there would be no difference in the right to consent between a virgin and non-virgin. He further argued that the consultation mentioned in the hadith is of psychological benefit to her and good manners, but she was in any case under obiligation to obey her father as she has no authority. The virgin daughter and prepubescent son are equally under the father's authority when contracting marriage.^[13] Kecia Ali similarly says that for Shafi'i the consultation mentioned in the hadith was only a recommendation and if a father contracts a marriage for a baligh (pubescent) virgin it is not rescinded even if she objects. As for the rarer case of non-virgin minors, Ali says that according to Shafi'i such girls were forbidden to be married again at all until they reached majority since a non-virgin could not be married off without her consent, but a minor could not give valid consent. For both Malik and Shafi'i, the father's power to compel his virgin daughter to marry continued even after the age of majority. She notes that for Shafi'i, "there was no real difference between a minor and a bāligh female so long as she remained a virgin", though he recommended that daughters who have reached the age of majority are consulted.^[14] Baugh similarly says that Maliki and Shafi'i jurists believed that a female could never reach majority for purposes of freedom from her father's guardianship if she remained a virgin.^[15]

The famous work of Shafi'i fiqh, The Reliance of the Traveller by al-Misri (d. 1367 CE) states the following:

Kecia Ali says regarding another of the four major jurists, "Abū Ḥanīfa rejects compulsion at majority for all females, both virgin and non-virgin". There is no record of his ruling in the case of non-virgin minors, though later Hanafi texts are explicit that majority is determinative: "a bāligh female could not be coerced even if she was a non-virgin, but a minor could be, even if she was a thayyib".^[16]

Al-Hidayah by Burhan al-Din al-Marghinani (d. 1197 CE) was one of the most influential compendiums of Hanafi fiqh. It states the following:

According to Ali, Ibn Hanbal considered that a girl must be consulted if married at the age of nine years or older.^[17] Baugh describes his legacy on this issue as equivocal. In one mention of the topic, he stated that a virgin must be consulted, though "In another rescension of his opinions, he was asked if a man could marry off his virgin daughter without consulting her; he conceded that it was possible, but that he preferred she be consulted."^[18] Baugh also notes that Ibn Hanbal said girls over the age of nine must be consulted.^[19]

In the following, Ahmad ibn Hanbal is quoted by his son as stating that daughters who are younger than seven can be forced into marriage by their fathers:

Kecia Ali further states that the example of Muhammad and his companions featured in jurist discussions: "Though the Muwatta and Mudawwana presented anecdotes about Companions and the Prophet marrying off their daughters, the Umm focused on the Prophet's marriage to 'A'isha". Elaborating on the latter text, she notes that "In Shafi'i's view, she was still a minor when consummation occurred. The binding nature of Muhammad and 'A'isha's union establishes fathers' power to contract binding marriages for their minor virgin daughters: 'Abu Bakr's marrying 'A'isha to the Prophet, may God's blessings and peace be upon him, when she was a girl of six and [the Prophet's] having sex with her when she was a girl of nine indicates that the father has more right over a virgin than she has over herself.'"^[21]

As well as the hadith quoted above, Muslim advocates of reform to laws on marriage highlight the following hadiths:

Baugh discusses these and similar reports. Jurists claimed that Khidam's daughter was not a virgin but had been previously married, and this was the reason why Muhammad allowed her request, though Baugh argues that the jurists' assumption about her is questionable.^[22]

Option of puberty to annul the marriage

In all schools of classical Islamic law, a father was allowed to enter his pre-pubescent virgin child into a marriage contract without consent. When the child reached the age of puberty he or she could exercise the "option of puberty" (khiyar al-bulugh) to repudiate the marriage, but only if it was entered into negligently, fraudulently or by someone other than the father or grandfather. The option was also lost to a virgin female who has reached puberty and who had taken no action or remained silent for what is considered a reasonable time after being informed of the contract. A male child retained his option in the same circumstances until he actively approved of the marriage ^[23][24]

A famous manual of Hanafi fiqh (law), Mukhtasar Al Quduri, sets out the position of the school founded by Abu Hanifa:

Another book of Hanafi law, Al-Hidayah, describes this in more detail:

The founder of the Hanbali school, Ahmad ibn Hanbal was of the same view according to his son:

Marital rape

The problem of marital rape is particularly likely to occur in cases of forced marriage. A sahih hadith obliges a woman to have sex with her husband whenever he asks for it, as does Islamic law unless she is menstruating, fasting or severely ill.^[25][26][27] In Iran, for example, tamkin is the word used to describe a woman's obligation to be sexually available at her husband's whim.^[28] There is no law in Islam that protects a woman from rape by her husband. In fact, a wife is a man's tilth, and he is permitted to approach her however and whenever he feels like it.^[29] If she feels that she is being mistreated, she must seek a divorce from an Islamic court and prove the mistreatment. If her husband divorces her, but changes his mind before the mandatory 'idda is over, he may take his wife back whether she desires to remain married to him or not.^[30][31]

Slaves and Captives

In recent decades there has more or less been a consensus of scholars that slavery is no longer permitted and it is now illegal in all Muslim-majority countries. Historically however, and still in a few places today, slavery persisted for many centuries. Slaves lose control of their lives to those known as owners. Although Islam promotes the freeing of slaves by promising divine rewards in the afterlife, it also institutionalizes the practice by sanctioning the capture and enslavement of enemy (kuffar) noncombatants in wartime, whose children are then also born into slavery (unless fathered by the owner), as well as promoting an indulgence-style requirement of manumitting a slave for the compensation of sins committed.^[32] The buying and selling of human beings like livestock is permitted in Islam, and there is no limit to the number of slaves a Muslim can own so long as he (or she) can afford to feed, clothe, and shelter them. Slaves have no right over their own persons. A slave may not get married without his or her master's permission, and a slave can redeem his or herself only if the master allows it.

Kecia Ali states regarding the marriage of slaves:

A female slave may be used for sex by her master. He does not need her permission to practice al-'azl, and after having sex with her he may sell her to another man or ransom her back to her family (if she had been captured during a battle or raid). If he desires her as a wife, he may marry her and does not have to pay her a bride price. Her freedom is considered her mahr. This can come in handy when a man is poor and yet desires to have a wife. A captured woman costs nothing, and he does not have to pay any money to marry her. A man may have sex with his captives and slaves without the permission of his wife (or wives).

The woman, of course, has no say in the matter. However, it would probably be in her best interest to get married seeing as though she might never experience freedom otherwise. Mandatory freeing of a female slave only occurs upon her master's death if she has given him a child. Whatever the scenario, a female slave has absolutely no control over her life. Her master can have sex with her if he wants (see Rape in Islamic Law), sell her to another man, or give her in marriage to another man. Her wishes are meaningless and her compliance unnecessary. The only thing her master cannot do is earn money by prostituting her to other men.^[33]

Muhammad's slave girls and captives

Juwairiya

Juwairiya was a captive from the Banu Mustaliq tribe. She was given to one of the Muslims, and she entered into an agreement with him to purchase her freedom. She then sought assistance from Muhammad for the payment amount. He offered to pay the price of her freedom if she married him (since she was very beautiful). So, she married him and the captives were released because they had become the relatives of Muhammad by marriage. On account of Juwairiya, one hundred families of the Banu al-Mustaliq were set free.

Safiyah

Safiyah was a Jewish captive from Khaibar and chief mistress of the Quraiza and An-Nadir tribes. After the brutal death of her husband Kinana, she was given as war booty to one of the Muslims. Muhammad was informed of her great beauty, and so he ordered her owner to give her to him in exchange for another slave girl. He married her shortly thereafter, and considered her manumission to be her mahr. Of his nine wives, Muhammad spent the least amount of time with Safiya.

Mariyah

Mariyah was a Coptic concubine sent as a gift from Egypt to Muhammad. She gave birth to Muhammad's son Ibrahim, but he died by the time he was two. They were never married, but he had sex with her because she was his property.

Rayhana

Rayhana was a Jewish captive from the Quraiza tribe. One source says Muhammad offered her marriage instead of slavery, but she declined and remained Jewish. Another source says he married her, and her manumission was her mahr.

Relevant Quotations

See Also

• Marriage - A hub page that leads to other articles related to Marriage
• Child Marriage in Islamic Law

External links

Helplines

• Karma Nirvana - A registered charity based in Derby, UK, supporting victims and survivors of forced marriages and honour based violence
• Forced marriage support organisations - List maintained by UK Metropolitan Police
• Muslim Women's Network UK
• Tahirih Justice Center Forced Marriage Initiative - US based charity helping those faced with forced marriage in the US or overseas

References