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 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
The following verse allows sex with pre-pubescent married girls who have not yet menstruated.
Tafsir
Tafsirs on verse 65:4.
Sayyid Abul Ala Maududi, Tafhim al-Qur'an
Tafsir al-Jalalayn
Tafsir Ibn Abbas
Al-Wahidi, Asbab al-nuzul
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.
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.
Al-Shoukani, Fath al-Qadir
Hadith
Quotes from Imam Bukhari's hadith collection, regarding verse 65:4.
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, Sahih Bukhari 7:62:64 and can be seen in the Dar-us-Salam print edition, volume 7.
The following is from Fath al-Bari, the most authoritative commentary on Sahih Al-Bukhari.
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):
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:
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:
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 ص206Regarding 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:
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.
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-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.
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.
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.December 2010 fatwa from popular Islamic website.
Submitted by Ahmad, IslamOnline, December 24, 2010
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.Islamweb, Fatwa No. 88089, June 24, 2004
Muhammad
Married Aisha When She Was Six
Muhammad consummated his marriage with the 9 year old Aisha, while she remained pre-pubescent.
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.
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.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."Miscellaneous
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]
Islamic Q & A Online with Mufti Ebrahim Desai, Ask-Imam, Question No. 6737
Sheikh Muhammed Salih Al-Munajjid, Islam Q&A, Fatwa No. 1493
Sheikh Muhammed Salih Al-Munajjid, Islam Q&A, Fatwa No. 1493
See Also
References
- ↑ For example Muslim Women's Network UK and Tahirih Justice Center Forced Marriage Initiative
- ↑ Senior Islamic cleric issues fatwa against child marriage - Guardian.com
- ↑ The ‘iddah of a woman divorced by talaaq - Islam Q&A, Fatwa No. 12667
- ↑ Top Saudi cleric: OK for young girls to wed - CNN, January 17, 2009
- ↑ Carlyle Murphy - Child marriage case showcases deep splits in Saudi society - GlobalPost, April 16, 2009
- ↑ Fatwa in favour of 9-year-old girl marriage - 2008
- ↑ "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.
- ↑ "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/.
- ↑ 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
- ↑ LBC TV (Lebanon) - June 19, 2008 - 03:08 - MEMRI TV, Video Clip No. 1798
- ↑ Islamists Fight Yemen Law Banning Child Marriage - Fox News, April 16, 2009
- ↑ Child marriage and divorce in Yemen - Jenny Cuff - BBC, November 6, 2008
- ↑ 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
- ↑ Islamist leader threatens of waging Jihad - Weekly Blitz, April 20, 2011