Forced Marriage: Difference between revisions

From WikiIslam, the online resource on Islam
Jump to navigation Jump to search
[checked revision][checked revision]
(Rejected the last text change (by CPO675) and restored revision 136847 by Lightyears: not accepting nabi asli)
Tag: Manual revert
 
(32 intermediate revisions by 7 users not shown)
Line 1: Line 1:
Forced marriages are sanctioned in [[Islam]] despite what the Muslim apologists claim to the contrary.  [[Islamic law|Shari'ah]] fails to protect the most vulnerable--children. A father's consent is all that is required to marry a young girl to an adult man, and the burden is upon her (once she reaches puberty) to seek an annulment or a divorce.  In the meantime, the girl is vulnerable to spousal abuse and childhood pregnancy which greatly jeopardizes her health and future. Child marriages occur all over the world, especially in Muslim countries that practice Shari'a. <ref>For more information, see: [[Contemporary Pedophilic Islamic Marriages]]</ref>
{{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}
'''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 [[Slavery in Islamic Law#In_Islamic_law|female slaves]] could be married off to someone by their owners without their consent.


==The Story==
Most (but not all) modern Muslim majority countries have made [[Child Marriage in Islamic Law|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.<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> 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.
A Muslim father pledged his 7-year-old daughter in marriage to his 45-year-old, devoutly Muslim friend. They agreed that the consummation of the marriage would not take place until menarche.  At the age of 10, the girl menstruated for the first time, and her husband attempted to consummate their marriage. She refused even though she was told by her family that she must obey her husband and have sex with him whenever he asks. The man forced himself upon her anyway. Since they lived in a rural area and she had little to no education, the girl did not know where to go or who to turn to for help.  Her community told her that she needed to stop refusing her husband.  One day her husband, irritated with her lack of compliance in the bedroom, told her that he no longer wanted her, and he divorced her (proclaiming the necessary words three times over).  She went back to live with her relatives, but two weeks later her husband changed his mind and decided that he wanted to remain married to her. She was returned to her husband by her father, and she was given no choice in the matter.


==Does Islamic law allow this?==
==Child marriage==
{{Main|Child Marriage in Islamic Law}}


One may ask; does Islamic law allow this? The answer is 'yes, it does'. Due to Muhammad's marriage to six-year-old Aisha, a child can be betrothed by her father without her explicit consent.<ref>{{Bukhari|7|62|18}}</ref><ref>{{Muwatta|28|2|7}}</ref>  In fact, a virgin's silence is taken as consent.<ref>{{Bukhari|7|62|68}}</ref> Consummation of the marriage takes place when the father and husband believe she is ready for it. Since Muhammad consummated his marriage to Aisha when she was nine,<ref>{{Bukhari|7|62|64}}</ref> there is nothing wrong Islamically with an adult consummating his marriage to a 10-year-old who has reached menarche.  In fact, Islamic law allows adults to marry pre-pubescent girls and does not stipulate when sexual relations may occur.<ref>{{Quran|65|4}}</ref>  Islam mandates that a woman have sex with her husband whenever he asks for it unless she is menstruating or severely ill.<ref>{{Muslim|8|3368}}</ref><ref>Mishkat al-Masabih Book I, Section 'Duties of husband and wife', Hadith No. 61</ref><ref>Al Tirmidhi Hadith No. 1160 & Ibn Ma’jah Hadith No. 4165</ref>  In Iran, for example, ''tamkin'' is the word used to describe a woman's obligation to be sexually available at her husband's whim.<ref>Ilkkaracan, Pinar. (2008). [http://books.google.com/books?id=pnGwP9-FhxYC&printsec=frontcover&source=gbs_navlinks_s#v=onepage&q=&f=false ''Deconstructing Sexuality in the Middle East'']. (p. 129). Burlington, VT: Ashgate Publishing Company.</ref>  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.<ref>{{Quran|2|223}}</ref><ref>[http://www.dailytelegraph.com.au/news/cleric-rape-beating-ok-for-wives/story-e6freuy9-1111118629144 Cleric: Rape, beating OK for wives] - Mark Dunns - The Daily Telegraph, January 22, 2009</ref>  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.<ref>{{Quran|2|228}}</ref><ref>[http://www.islamqa.com/en/ref/75027/permission%20second%20wife The wife’s consent is not a condition of taking her back after divorce] - Islam Q&A, Fatwa No. 75027</ref>
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.<ref>{{Bukhari|7|62|18}}</ref><ref>{{Muwatta|28|2|7}}</ref> 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<ref>{{Bukhari|7|62|64}}</ref> 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}}.


===Marital Rape and Domestic Violence===
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.<ref>{{Bukhari|7|62|68}}</ref> 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.


{{Quote|1=Dr Aamir Liaqat Hussain, Pakistan's minister of state for religious affairs|2=[It is] un-Islamic to stop husbands from having sex with their wives even if they were doing so without their consent.<ref>[http://www.dailytimes.com.pk/default.asp?page=2006\08\26\story_26-8-2006_pg1_7 No, it is unIslamic to stop husbands: Aamir] - Daily Times, August 26, 2006</ref>}}
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 [[Child Marriage in the Muslim World|all over the world]], but especially in Muslim countries that practice the relevant part of the Shari'a. [http://www.un.org/youthenvoy/2016/03/new-un-initiative-aims-to-protect-millions-of-girls-from-child-marriage 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.


{{Quote|1=Malaysia's Perak state mufti Harussani Zakaria|2=A husband has the right to be intimate with his wife and the wife must obey. If the wife refuses, then the rule of 'nusyuz' (disobedient) applies and the husband is not required to provide financial assistance to her.<ref>[http://www.aegis.com/news/afp/2004/AF040874.html Row erupts in Malaysia over marital rape] - Agence France-Presse, August 23, 2004</ref>}}
==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,<ref>Kecia Ali, "Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010</ref> and ''Minor Marriage in Early Islamic Law'' by Professor Carolyn Baugh.<ref>Carolyn Baugh,''Minor Marriage in Early Islamic Law'', Leiden: Brill, 2017</ref> A large set of translated quotes from various well known exegetical and jurist texts relating to these matters is also available online.<ref>[https://theislamissue.wordpress.com/2021/09/19/q65-4-the-verse-of-child-marriage/ Q65.4: The verse of child marriage]</ref>
 
Kecia Ali gives the following overview on the areas of juristic agreement and disagreement regarding compulsion (more detail is given below):
 
{{Quote|Kecia Ali, ''Marriage and Slavery in Early Islam'', p. 32|For free females, both virginity and majority were of concern. Fathers could compel marriage of daughters who were both virgins and minors. On the flip side, those who were neither virgins nor minors could not be compelled but had to give their spoken assent to any proposed marriage. The intermediate categories - daughters who were either virgins or minors but not both - were the subject of disagreement.}}
 
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).<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 21, 56</ref>
 
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:
 
{{Quote|1=[https://archive.org/details/BidayatAl-mujtahidTheDistinguishedJuristsPrimerVol2/page/n7/mode/2up The Distinguished Jurist's Primer: Volume II] by Ibn Rashd (transl. Imran Ahsan Khan Nyazee) p. 5|2=They arrived at the consensus that the father can force a non-bāligh virgin and that he cannot force a divorced bāligh woman, except for isolated instances of disagreement in this, as we have indicated.}}
 
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."<ref>Kecia Ali, ''Marriage and Slavery in Early Islam'', p. 32</ref> 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:
 
{{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.}}
 
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".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref> {{Muwatta|28||6}} and {{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.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35</ref>
 
The ''Risalah'' by Ibn Abi Zayd (d. 996 CE) is a classical manual of Maliki fiqh (jurisprudence). It says the following:
 
{{Quote|[https://bewley.virtualave.net/Rismarr.html Risalah 32.2a, translated by Aisha Bewley]|A father can arrange the marriage of his virgin daughter without her permission even if she is beyond the age of puberty. It is up to him whether he consults her or not.}}
 
'''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.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 124-126</ref> 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.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35 - 36</ref> 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.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 56</ref>
 
The famous work of Shafi'i fiqh, ''The Reliance of the Traveller'' by al-Misri (d. 1367 CE) states the following:
 
{{Quote|''The Reliance of the Traveller'' m3.13, translated by Nuh Ha Mim Keller|m3.13 Guardians are of two types, those who may compel their female charges to marry someone, and those who may not.
 
(1) 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.
 
(2) Those who may not compel her are not entitled to marry her to someone unless she accepts and gives her permission.}}
 
 
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''".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref>
 
''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:
 
{{Quote|[https://archive.org/details/Hedaya_201703/page/n285/mode/2up ''Al-Hidayah'' Vol 1 p. 492, translated by Imran Ahsan Khan Nyazee]|It is not permitted to the wali to force a virgin, who is a major to marry. Al-Shafi'i (God bless him) disagrees. [...] We maintain that she is a freewoman addressed directly by the communication from the lawgiver, therefore no one has authority over her to compell her. The authority over the minor is due to the lack of maturity of thought.}}
 
According to Ali, '''Ibn Hanbal''' considered that a girl must be consulted if married at the age of nine years or older.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", p. 208, footnote 21</ref> 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."<ref>Carolyn Baugh,''Minor Marriage in Early Islamic Law'', p. 9</ref> Baugh also notes that Ibn Hanbal said girls over the age of nine must be consulted.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 139 footnote 65<Br />"Witness Aḥmad ibn Ḥanbal’s insistence that a nine year old girl must grant permission, and that orphan girls cannot be married at all prior to attaining age nine, a marker that is surely extrapolated from the ages put forward in the report of ʿĀʾisha. (Chapters on Marriage, 63–64) Aḥmad further avers that he believes husbands should not have intercourse with (orphan) wives below the age of nine."<BR /><BR />Regarding the first two issues, Baugh p. 174 footnote 38 quotes from Ibn Hanbal:<BR />
"The actual quotation from the Chapters on Marriage and Divorce, from the rescension of ʿAbd Allāh ibn Ḥanbal, reads: “If her father is alive, and she is under nine years of age, her father’s giving her in marriage is valid and she has no option. But once she has reached nine years of age, neither her father no anyone else can give her in marriage without her permission. And [with regard to] the orphan who is not nine, if someone other than her father is to give her in marriage, I do not like him to so until she has reached nine years of age. Once she is nine, she must be consulted. Then when she gives her permission, she has no option.”"</ref>
 
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:
 
{{Quote|''Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh'' Chapter 3 (Abdullah) §18, translated by Susan Spectorsky, University of Texas Press, 1993<ref name="Spectorsky">''Chapters on Marriage and Divorce'' is a compilation of "responses" that Ahmad ibn Hanbal and his friend Ishaq bin Rahwayh gave to various fiqh questions that people asked them. The book is really three different compilations in one: the first from Abu Dawud, the famous Hadith scholar, the second from Abdullah, Ahmad's son, and the last from al-Kausaj, one of Ahmad's students. The three different compilations were collected and translated by Susan A. Spectorsky, a retired professor at Queens College, City University of New York.</ref>|He said, “Her walī should consult her. Then if she grants permission, he can give her in marriage.” I said, “But if she does not grant it?” He said, “If her father is [her walī], and she has not reached seven years of age, then her father’s giving her in marriage is valid, and she has no option. But if she has reached her ninth year, neither her father nor anyone else should give her in marriage without her permission.}}
 
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.'"<ref>Kecia Ali, "Marriage and Slavery in Early Islam", p. 35</ref>
 
As well as the hadith quoted above, Muslim advocates of reform to laws on marriage highlight the following hadiths:
 
{{Quote|{{Abu Dawud|11|2091}}|Narrated Abdullah ibn Abbas:
 
A virgin came to the Prophet (ﷺ) and mentioned that her father had married her against her will, so the Prophet (ﷺ) allowed her to exercise her choice.}}
 
{{Quote|{{Ibn Majah||3|9|1873}}|Abdur Rahman bin Yazid Al-Ansari and Mujamma bin Yazid Al-Ansari said:
 
that a man among them who was called Khidam arranged a marriage for his daughter, and she did not like the marriage arranged by her father. She went to the Messenger of Allah and told him about that, and he annulled the marriage arranged by her father. Then she married Abu Lubabah bin Abdul-Mundhir.}}
 
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.<ref>Carolyn Baugh,''Minor Marriage in Early Islamic Law'', pp. 65-66, 84-85</ref>
 
===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 <ref>Esposito, John L. (2001) "Women in Muslim Family Law (2nd Edition)", New York: Syracuse University Press, pp.16-17</ref><ref>Ali, S. M. (2004) "The Position of Women in Islam: A Progressive View", New York: State University of New York Press, pp.40-41</ref>


{{Quote|1=|2=Similar to almost all Arab and Islamic countries, Bahrain offers women no protection from their sexually abusive husbands. Only in cases of physical injury will the courts grant a divorce. For those who bear no physical marks, victims of sexual abuse feel helpless, as marital rape isn’t penalized in this part of the world.<ref>Saud Hamada - [http://www.thewip.net/contributors/2009/06/bahrain_offers_women_no_protec.html Bahrain Offers Women No Protection from Spousal Rape] - The WIP, June 29, 2009</ref>}}
A famous manual of Hanafi fiqh (law), ''Mukhtasar Al Quduri'', sets out the position of the school founded by Abu Hanifa:


{{Quote|1=Abdul Aziz Al-Qasim, a professor at Imam Muhammad ibn Saud University|2=A medical examination which proves the occurrence of sexual abuse is required when a woman decides to pursue legal action against her husband. If she can’t provide the evidence then she wouldn’t be able to seek a divorce later.<ref>Najah Alosaimi - [http://www.arabnews.com/?page=1&section=0&article=94779&d=10&m=4&y=2007 Outlaw Marital Abuse, Demand Saudi Women] - Arab News, April 10, 2007</ref>}}
{{Quote|''Mukhtasar Al Quduri'' Chapter 32 (Nikah), p. 329 translated by Tahir Mahmood Kiani|If the father, or grandfather, marries them off, then there is no option for them after attaining the age of majority, but if someone other than the father or the grandfather marries them off, then each one of the two has an option:


{{Quote|1=|2=''From an interview with Mohammed Asif Mohseni, a conservative Shia cleric:''<br>
1. If he/she wants, he/she may remain in the marriage, or


"The law ... which I created I see as correct for both men and women," he said. "We have given rights to both men and women, even better than rights given to women in the West. We give women more in this law."<br>
2. If he/she wants, he/she may repudiate [it].}}


I asked him about reports that if a woman does not comply in having sexual relations with her husband, then the husband can refuse to feed her. "Yes, I said that," Mohseni said looking me in the eye. "When a couple marries, sex is a part of marriage, and they agree to that."<br>
Another book of Hanafi law, ''Al-Hidayah'', describes this in more detail:


He went on to explain that a woman isn't obliged to have sexual relations every single night or if she is told by her doctor to refrain. But otherwise it is her obligation and something she signed up for when she got married. He calls it the wife's duty.<br>
{{Quote|[https://archive.org/details/Hedaya_201703/page/n287/mode/2up Al-Hidayah Vol 1 p. 496, translated by Imran Ahsan Khan Nyazee]|He said: If they are married away by the father or the grandfather, that is, the minor boy and the minor girl, they have no option, after they attain puberty. The reason is that these two (relatives) possess an informed opinion and abundant affection, therefore, the contract will become binding if it is concluded by them. It is just as if it was concluded with their consent after they had attained puberty.<BR />
If they are married away by someone other than the father or grandfather, then, each one of them will have the option upon attaining puberty.}}


Mohseni added that a wife wearing makeup "prevents a man from thinking about other women on the streets and he can just think of his wife."<br>
The founder of the Hanbali school, Ahmad ibn Hanbal was of the same view according to his son:


He continued: "It is natural that women (wear makeup). Don't they in the West? Their women wear it on the streets and in shops. Women should put make-up on for their husbands as it will increase the love and attraction between the two."<br>
{{Quote|''Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh'' Chapter 3 (Abdullah) §18, translated by Susan Spectorsky, University of Texas Press, 1993<ref name="Spectorsky" />|I asked my father about a man who gives his underage daughter in marriage. “Can she opt [to turn down the marriage] when she is of age?” He said, “She cannot exercise this option if her father gave her in marriage. If she could, then ʿĀʾisha could have with regard to the Prophet, because the Prophet married her when she was six or seven years old, had intercourse with her when she was nine, and died when she was eighteen.”}}


The cleric also explained that a woman is not required to ask the permission of a man to leave the house if she has a job and needs to go to work. But they do need to get permission if they are leaving for other reasons.<br>


More importantly, he said, a couple needs to make clear the day they marry whether or not she will need permission to leave the home. If they disagree then they should not get married.<ref>Atia Abawi - [http://www.cnn.com/2009/WORLD/asiapcf/04/20/afghanistan.cleric.rape.law/ Afghan cleric defends controversial marriage law] - CNN, April 21, 2009</ref>}}
===Marital rape===
{{Main|Rape in Islamic Law}}
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.<ref>{{Muslim|8|3368}}</ref><ref>Mishkat al-Masabih Book I, Section 'Duties of husband and wife', Hadith No. 61</ref><ref>Al Tirmidhi Hadith No. 1160 & Ibn Ma’jah Hadith No. 4165</ref>  In Iran, for example, ''tamkin'' is the word used to describe a woman's obligation to be sexually available at her husband's whim.<ref>Ilkkaracan, Pinar. (2008). [http://books.google.com/books?id=pnGwP9-FhxYC&printsec=frontcover&source=gbs_navlinks_s#v=onepage&q=&f=false ''Deconstructing Sexuality in the Middle East'']. (p. 129). Burlington, VT: Ashgate Publishing Company.</ref>  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.<ref>{{Quran|2|223}}</ref> 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.<ref>{{Quran|2|228}}</ref><ref>[http://www.islamqa.com/en/ref/75027/permission%20second%20wife The wife’s consent is not a condition of taking her back after divorce] - Islam Q&A, Fatwa No. 75027</ref>


==Slaves and Captives==
==Slaves and Captives==
We must not forget the others whose lives are at the mercy of 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 ([[disbelievers|kuffar]]) noncombatants as well as promoting an [[w:Indulgence|indulgence]]-style requirement of manumitting a slave for the compensation of sins committed.<ref>{{Quran|4|92}}</ref> 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.
{{Main|Slavery in Islamic Law}}
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 ([[Non-Muslims|kuffar]]) noncombatants in wartime, whose children are then also born into slavery (unless fathered by the owner), as well as promoting an [[w:Indulgence|indulgence]]-style requirement of manumitting a slave for the compensation of sins committed.<ref>{{Quran|4|92}}</ref> 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:
{{Quote|Kecia Ali, ''Marriage and Slavery in Islam'' p. 32|Legal texts seldom discuss a female slave's virginity in the context of marriage, whether because of the presumption that she was unlikely to have remained a virgin until such time as she might be married off or because it was entirely irrelevant to her legal standing: she never had a say in her own marriage arrangements.}}


A female slave may be used for sex by her master. He does not need her permission to practice [[Al-'Azl|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).<ref>For more information, see: [[Adultery is Permitted in Islam]]</ref>
A female slave may be used for sex by her master. He does not need her permission to practice [[Al-'Azl|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 (Marital Price)|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 ([[rape]]), 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.<ref>{{Quran|24|33}}</ref>
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.<ref>{{Quran|24|33}}</ref>


===Muhammad's slave girls and captives===
===Muhammad's slave girls and captives===
Line 45: Line 121:
====Juwairiya====
====Juwairiya====


[[Qur%27an,_Hadith_and_Scholars:Wives_and_Concubines_of_Muhammad#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.
[[Qur'an, Hadith and Scholars:Muhammads Wives and Concubines#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====


[[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.
[[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====


[[Mariyah_the_Sex_Slave_of_the_Holy_Prophet|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.
[[Maria the Copt (Mariyah Al-Qibtiyyah)|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====


[[Qur%27an,_Hadith_and_Scholars:Wives_and_Concubines_of_Muhammad#Raihana|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.
[[Qur'an, Hadith and Scholars:Muhammads Wives and Concubines#Raihana|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==
 
{{Quote|{{Muslim|8|3303}}| Abu Huraira (Allah be pleased with him) reported Allah's Messenger (ﷺ) as having said:
A woman without a husband (or divorced or a widow) must not be married until she is consulted, and a virgin must not be married until her permission is sought. They asked the Prophet of Allah (ﷺ): How her (virgin's) consent can be solicited? He (the Holy Prophet) said: That she keeps silence.}}
 
{{Quote|{{Muslim|8|3305}}| 'A'isha (Allah be pleased with her) reported:
I asked Allah's Messenger (ﷺ) about a virgin whose marriage is solemnised by her guardian, whether it was necessary or not to consult her. Allah's Messenger (ﷺ) said: Yes, she must be consulted. 'A'isha reported: I told him that she feels shy, whereupon Allah's Messenger (ﷺ) said: Her silence implies her consent.}}<br />{{Quote|1=Dr Aamir Liaqat Hussain, Pakistan's minister of state for religious affairs|2=[It is] un-Islamic to stop husbands from having sex with their wives even if they were doing so without their consent.<ref>[http://www.dailytimes.com.pk/default.asp?page=2006\08\26\story_26-8-2006_pg1_7 No, it is unIslamic to stop husbands: Aamir] - Daily Times, August 26, 2006</ref>}}
 
{{Quote|1=Malaysia's Perak state mufti Harussani Zakaria|2=A husband has the right to be intimate with his wife and the wife must obey.  If the wife refuses, then the rule of 'nusyuz' (disobedient) applies and the husband is not required to provide financial assistance to her.<ref>[http://www.aegis.com/news/afp/2004/AF040874.html Row erupts in Malaysia over marital rape] - Agence France-Presse, August 23, 2004</ref>}}
 
{{Quote|1=|2=Similar to almost all Arab and Islamic countries, Bahrain offers women no protection from their sexually abusive husbands. Only in cases of physical injury will the courts grant a divorce. For those who bear no physical marks, victims of sexual abuse feel helpless, as marital rape isn’t penalized in this part of the world.<ref>Saud Hamada - [http://www.thewip.net/contributors/2009/06/bahrain_offers_women_no_protec.html Bahrain Offers Women No Protection from Spousal Rape] - The WIP, June 29, 2009</ref>}}
 
{{Quote|1=Abdul Aziz Al-Qasim, a professor at Imam Muhammad ibn Saud University|2=A medical examination which proves the occurrence of sexual abuse is required when a woman decides to pursue legal action against her husband. If she can’t provide the evidence then she wouldn’t be able to seek a divorce later.<ref>Najah Alosaimi - [http://www.arabnews.com/?page=1&section=0&article=94779&d=10&m=4&y=2007 Outlaw Marital Abuse, Demand Saudi Women] - Arab News, April 10, 2007</ref>}}
 
{{Quote|1=|2=''From an interview with Mohammed Asif Mohseni, a conservative Shia cleric:''<br>
 
"The law ... which I created I see as correct for both men and women," he said. "We have given rights to both men and women, even better than rights given to women in the West. We give women more in this law."<br>
 
I asked him about reports that if a woman does not comply in having sexual relations with her husband, then the husband can refuse to feed her. "Yes, I said that," Mohseni said looking me in the eye. "When a couple marries, sex is a part of marriage, and they agree to that."<br>
 
He went on to explain that a woman isn't obliged to have sexual relations every single night or if she is told by her doctor to refrain. But otherwise it is her obligation and something she signed up for when she got married. He calls it the wife's duty.<br>
 
Mohseni added that a wife wearing makeup "prevents a man from thinking about other women on the streets and he can just think of his wife."<br>


{{Core Women}}
He continued: "It is natural that women (wear makeup). Don't they in the West? Their women wear it on the streets and in shops. Women should put make-up on for their husbands as it will increase the love and attraction between the two."<br>
 
The cleric also explained that a woman is not required to ask the permission of a man to leave the house if she has a job and needs to go to work. But they do need to get permission if they are leaving for other reasons.<br>
 
More importantly, he said, a couple needs to make clear the day they marry whether or not she will need permission to leave the home. If they disagree then they should not get married.<ref>Atia Abawi - [http://www.cnn.com/2009/WORLD/asiapcf/04/20/afghanistan.cleric.rape.law/ Afghan cleric defends controversial marriage law] - CNN, April 21, 2009</ref>}}


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


*[[Marriage]] ''- A hub page that leads to other articles related to Marriage''
{{Hub4|Marriage|Marriage}}
*[[Forced Conversion]]
*[[Child Marriage in Islamic Law]]


==External links==
==External links==
====Helplines====
====Helplines====
*[http://www.karmanirvana.org.uk/ Karma Nirvana]'' - A registered charity based in Derby, supporting victims and survivors of forced marriages and honour based violence''
====News====
*[{{Reference archive|1=http://www.huffingtonpost.co.uk/2013/03/05/forced-marriage-unit-intervene-2-year-old_n_2809750.html?just_reloaded=1|2=2013-03-07}} Forced Marriage Unit Intervened To Save 2-Year-Old Victim, Statistics Show] ''- Jessica Elgot , The Huffington Post UK, March 5, 2013''
*[http://www.csi-int.org/pdfs/csi_coptic_report.pdf The Disappearance, Forced Conversions, and Forced Marriages of Coptic Christian Women in Egypt. pdf] ''- A November 2009 Report Commissioned by Christian Solidarity International''
*[http://worldblog.msnbc.msn.com/archive/2009/10/29/2112069.aspx Afghan girls burn themselves to escape marriage] ''- Adrienne Mong, NBC News Producer, MSNBC World Blog, October 29, 2009''
*[http://www.rnw.nl/africa/article/rotterdam-tackling-forced-marriages Rotterdam is tackling forced marriages] ''- Klaas den Tek, RNW, September 25, 2009''
*[http://www.reuters.com/article/oddlyEnoughNews/idUSTRE5815E920090902 New school year puts French on forced marriage alert] ''- Sophie Hardach, Reuters, September 2, 2009''
*[http://islamineurope.blogspot.com/2009/07/netherlands-muslim-youth-fear-forced.html Netherlands: Muslim youth fear forced marriage] ''- Islam in Europe, July 18, 2009 (This is a blog. The original news source is in Dutch.)''
*[http://abcnews.go.com/International/story?id=8050635&page=1 English Summer = Forced Marriage Season?] ''- Aidan Jones, ABC News, July 11, 2009''
*[http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/5710243/Up-to-8000-forced-marriages-reported-in-England-last-year.html Up to 8,000 forced marriages reported in England last year] ''- Martin Beckford, The Telegraph, July 2, 2009''
*[http://www.earthtimes.org/articles/show/259569,news-a-forced-marriage-stirs-emotions-in-spain-mauritania--feature.html  A forced marriage stirs emotions in Spain, Mauritania] ''- Earth Times, March 12, 2009''
*[http://www.independent.co.uk/news/uk/home-news/woman-uses-new-forced-marriage-laws-against-father-1606038.html Woman uses new forced marriage laws against father]'' - Lucy Collins, The Independent, February 10, 2009''
*[http://www.guardian.co.uk/world/2009/jan/11/british-asian-forced-marriages Abducted. Abused. Raped. Survived: The survivors of forced marriages tell their stories] ''- Rebecca Seal and Eva Wiseman, The Observer,January 11, 2009''
*[http://www.independent.co.uk/news/world/asia/london-doctor-is-held-as-forced-marriage-hostage-1055684.html London doctor is held as forced marriage hostage]'' - The Independent, December 7, 2008''
:*[http://www.guardian.co.uk/world/2008/dec/19/statement-nhs-doctor-abedin-forced-marriage Statement from Humayra Abedin] ''- The Guardian, December 19, 2008''
*[http://news.bbc.co.uk/2/hi/uk_news/7288952.stm Fears over forced marriage levels] ''- BBC News, March 11, 2008''
*[http://news.bbc.co.uk/2/hi/uk_news/england/merseyside/7182887.stm Marriage fear teenager 'murdered'] ''- BBC News, January 11, 2008''
*[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/12/04/MNGH0G1B7L1.DTL Muslim girls in Austria fighting forced marriages] ''- Eric Geiger, San Francisco Chronicle, December 4, 2005''


====Videos====
* [http://www.karmanirvana.org.uk/ Karma Nirvana]'' - A registered charity based in Derby, UK, supporting victims and survivors of forced marriages and honour based violence''
*[http://barenakedislam.wordpress.com/2009/01/03/forced-child-marriage-in-islam/ Forced Child Marriage in Islam] ''- Bare Naked Islam''
* [https://www.met.police.uk/advice/advice-and-information/forced-marriage/report-forced-marriage/ Forced marriage support organisations] - List maintained by UK Metropolitan Police
*[http://www.cnn.com/video/#/video/world/2009/10/19/abawi.afghan.womens.courage.cnn Around 90% of Afghan women suffer from domestic violence] ''- CNN, October 2009''
* [https://www.mwnuk.co.uk/Forced_Marriage_7_factsheets.php Muslim Women's Network UK]
* [https://preventforcedmarriage.org/forced-marriage-overseas-pakistan/ Tahirih Justice Center Forced Marriage Initiative] - US based charity helping those faced with forced marriage in the US or overseas
 
 


==References==
==References==
{{reflist}}
{{reflist}}


 
[[Category:Women]]
[[Category:Islam and Women]][[Category:Islamic Law]]
[[Category:Shariah (Islamic Law)]]
[[Category:Honor violence]]
[[Category:Marriage]]
[[Category:Sex]]
[[Category:Child Marriage]]
[[Category:Human rights]]
[[Category:Criticism of Islam]]

Latest revision as of 17:30, 4 August 2024

Error creating thumbnail: Unable to save thumbnail to destination

This article or section is being renovated.

Lead = 4 / 4
Structure = 4 / 4
Content = 4 / 4
Language = 4 / 4
References = 4 / 4
Lead
4 / 4
 Structure
4 / 4
 Content
4 / 4
 Language
4 / 4
 References
4 / 4


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

Main Article: Child Marriage in Islamic Law

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):

For free females, both virginity and majority were of concern. Fathers could compel marriage of daughters who were both virgins and minors. On the flip side, those who were neither virgins nor minors could not be compelled but had to give their spoken assent to any proposed marriage. The intermediate categories - daughters who were either virgins or minors but not both - were the subject of disagreement.
Kecia Ali, Marriage and Slavery in Early Islam, p. 32

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:

They arrived at the consensus that the father can force a non-bāligh virgin and that he cannot force a divorced bāligh woman, except for isolated instances of disagreement in this, as we have indicated.
The Distinguished Jurist's Primer: Volume II by Ibn Rashd (transl. Imran Ahsan Khan Nyazee) p. 5

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:

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

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:

A father can arrange the marriage of his virgin daughter without her permission even if she is beyond the age of puberty. It is up to him whether he consults her or not.
Risalah 32.2a, translated by Aisha Bewley

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:

m3.13 Guardians are of two types, those who may compel their female charges to marry someone, and those who may not.

(1) 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.

(2) Those who may not compel her are not entitled to marry her to someone unless she accepts and gives her permission.
The Reliance of the Traveller m3.13, translated by Nuh Ha Mim Keller


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:

It is not permitted to the wali to force a virgin, who is a major to marry. Al-Shafi'i (God bless him) disagrees. [...] We maintain that she is a freewoman addressed directly by the communication from the lawgiver, therefore no one has authority over her to compell her. The authority over the minor is due to the lack of maturity of thought.
Al-Hidayah Vol 1 p. 492, translated by Imran Ahsan Khan Nyazee

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:

He said, “Her walī should consult her. Then if she grants permission, he can give her in marriage.” I said, “But if she does not grant it?” He said, “If her father is [her walī], and she has not reached seven years of age, then her father’s giving her in marriage is valid, and she has no option. But if she has reached her ninth year, neither her father nor anyone else should give her in marriage without her permission.
Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh Chapter 3 (Abdullah) §18, translated by Susan Spectorsky, University of Texas Press, 1993[20]

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:

Narrated Abdullah ibn Abbas: A virgin came to the Prophet (ﷺ) and mentioned that her father had married her against her will, so the Prophet (ﷺ) allowed her to exercise her choice.
Sunan Abu Dawud 11:2091
Abdur Rahman bin Yazid Al-Ansari and Mujamma bin Yazid Al-Ansari said: that a man among them who was called Khidam arranged a marriage for his daughter, and she did not like the marriage arranged by her father. She went to the Messenger of Allah and told him about that, and he annulled the marriage arranged by her father. Then she married Abu Lubabah bin Abdul-Mundhir.
Sunan Ibn Majah 3:9:1873

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:

If the father, or grandfather, marries them off, then there is no option for them after attaining the age of majority, but if someone other than the father or the grandfather marries them off, then each one of the two has an option:

1. If he/she wants, he/she may remain in the marriage, or

2. If he/she wants, he/she may repudiate [it].
Mukhtasar Al Quduri Chapter 32 (Nikah), p. 329 translated by Tahir Mahmood Kiani

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

He said: If they are married away by the father or the grandfather, that is, the minor boy and the minor girl, they have no option, after they attain puberty. The reason is that these two (relatives) possess an informed opinion and abundant affection, therefore, the contract will become binding if it is concluded by them. It is just as if it was concluded with their consent after they had attained puberty.
If they are married away by someone other than the father or grandfather, then, each one of them will have the option upon attaining puberty.
Al-Hidayah Vol 1 p. 496, translated by Imran Ahsan Khan Nyazee

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

I asked my father about a man who gives his underage daughter in marriage. “Can she opt [to turn down the marriage] when she is of age?” He said, “She cannot exercise this option if her father gave her in marriage. If she could, then ʿĀʾisha could have with regard to the Prophet, because the Prophet married her when she was six or seven years old, had intercourse with her when she was nine, and died when she was eighteen.”
Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh Chapter 3 (Abdullah) §18, translated by Susan Spectorsky, University of Texas Press, 1993[20]


Marital rape

Main Article: Rape in Islamic Law

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

Main Article: Slavery in Islamic Law

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:

Legal texts seldom discuss a female slave's virginity in the context of marriage, whether because of the presumption that she was unlikely to have remained a virgin until such time as she might be married off or because it was entirely irrelevant to her legal standing: she never had a say in her own marriage arrangements.
Kecia Ali, Marriage and Slavery in Islam p. 32

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

Abu Huraira (Allah be pleased with him) reported Allah's Messenger (ﷺ) as having said: A woman without a husband (or divorced or a widow) must not be married until she is consulted, and a virgin must not be married until her permission is sought. They asked the Prophet of Allah (ﷺ): How her (virgin's) consent can be solicited? He (the Holy Prophet) said: That she keeps silence.
Sahih Muslim 8:3303
'A'isha (Allah be pleased with her) reported: I asked Allah's Messenger (ﷺ) about a virgin whose marriage is solemnised by her guardian, whether it was necessary or not to consult her. Allah's Messenger (ﷺ) said: Yes, she must be consulted. 'A'isha reported: I told him that she feels shy, whereupon Allah's Messenger (ﷺ) said: Her silence implies her consent.
Sahih Muslim 8:3305


[It is] un-Islamic to stop husbands from having sex with their wives even if they were doing so without their consent.[34]
Dr Aamir Liaqat Hussain, Pakistan's minister of state for religious affairs
A husband has the right to be intimate with his wife and the wife must obey. If the wife refuses, then the rule of 'nusyuz' (disobedient) applies and the husband is not required to provide financial assistance to her.[35]
Malaysia's Perak state mufti Harussani Zakaria
Similar to almost all Arab and Islamic countries, Bahrain offers women no protection from their sexually abusive husbands. Only in cases of physical injury will the courts grant a divorce. For those who bear no physical marks, victims of sexual abuse feel helpless, as marital rape isn’t penalized in this part of the world.[36]
A medical examination which proves the occurrence of sexual abuse is required when a woman decides to pursue legal action against her husband. If she can’t provide the evidence then she wouldn’t be able to seek a divorce later.[37]
Abdul Aziz Al-Qasim, a professor at Imam Muhammad ibn Saud University
From an interview with Mohammed Asif Mohseni, a conservative Shia cleric:

"The law ... which I created I see as correct for both men and women," he said. "We have given rights to both men and women, even better than rights given to women in the West. We give women more in this law."

I asked him about reports that if a woman does not comply in having sexual relations with her husband, then the husband can refuse to feed her. "Yes, I said that," Mohseni said looking me in the eye. "When a couple marries, sex is a part of marriage, and they agree to that."

He went on to explain that a woman isn't obliged to have sexual relations every single night or if she is told by her doctor to refrain. But otherwise it is her obligation and something she signed up for when she got married. He calls it the wife's duty.

Mohseni added that a wife wearing makeup "prevents a man from thinking about other women on the streets and he can just think of his wife."

He continued: "It is natural that women (wear makeup). Don't they in the West? Their women wear it on the streets and in shops. Women should put make-up on for their husbands as it will increase the love and attraction between the two."

The cleric also explained that a woman is not required to ask the permission of a man to leave the house if she has a job and needs to go to work. But they do need to get permission if they are leaving for other reasons.

More importantly, he said, a couple needs to make clear the day they marry whether or not she will need permission to leave the home. If they disagree then they should not get married.[38]

See Also

External links

Helplines


References

  1. ↑ For example Muslim Women's Network UK and Tahirih Justice Center Forced Marriage Initiative
  2. ↑ Sahih Bukhari 7:62:18
  3. ↑ Al-Muwatta 28:7
  4. ↑ Sahih Bukhari 7:62:64
  5. ↑ Sahih Bukhari 7:62:68
  6. ↑ Kecia Ali, "Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010
  7. ↑ Carolyn Baugh,Minor Marriage in Early Islamic Law, Leiden: Brill, 2017
  8. ↑ Q65.4: The verse of child marriage
  9. ↑ Carolyn Baugh, Minor Marriage in Early Islamic Law, pp. 21, 56
  10. ↑ Kecia Ali, Marriage and Slavery in Early Islam, p. 32
  11. ↑ Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33
  12. ↑ Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35
  13. ↑ Carolyn Baugh, Minor Marriage in Early Islamic Law, pp. 124-126
  14. ↑ Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35 - 36
  15. ↑ Carolyn Baugh, Minor Marriage in Early Islamic Law, p. 56
  16. ↑ Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33
  17. ↑ Kecia Ali, "Marriage and Slavery in Early Islam", p. 208, footnote 21
  18. ↑ Carolyn Baugh,Minor Marriage in Early Islamic Law, p. 9
  19. ↑ Carolyn Baugh, Minor Marriage in Early Islamic Law, p. 139 footnote 65
    "Witness Aḥmad ibn Ḥanbal’s insistence that a nine year old girl must grant permission, and that orphan girls cannot be married at all prior to attaining age nine, a marker that is surely extrapolated from the ages put forward in the report of ʿĀʾisha. (Chapters on Marriage, 63–64) Aḥmad further avers that he believes husbands should not have intercourse with (orphan) wives below the age of nine."

    Regarding the first two issues, Baugh p. 174 footnote 38 quotes from Ibn Hanbal:
    "The actual quotation from the Chapters on Marriage and Divorce, from the rescension of ʿAbd Allāh ibn Ḥanbal, reads: “If her father is alive, and she is under nine years of age, her father’s giving her in marriage is valid and she has no option. But once she has reached nine years of age, neither her father no anyone else can give her in marriage without her permission. And [with regard to] the orphan who is not nine, if someone other than her father is to give her in marriage, I do not like him to so until she has reached nine years of age. Once she is nine, she must be consulted. Then when she gives her permission, she has no option.”"
  20. ↑ 20.0 20.1 Chapters on Marriage and Divorce is a compilation of "responses" that Ahmad ibn Hanbal and his friend Ishaq bin Rahwayh gave to various fiqh questions that people asked them. The book is really three different compilations in one: the first from Abu Dawud, the famous Hadith scholar, the second from Abdullah, Ahmad's son, and the last from al-Kausaj, one of Ahmad's students. The three different compilations were collected and translated by Susan A. Spectorsky, a retired professor at Queens College, City University of New York.
  21. ↑ Kecia Ali, "Marriage and Slavery in Early Islam", p. 35
  22. ↑ Carolyn Baugh,Minor Marriage in Early Islamic Law, pp. 65-66, 84-85
  23. ↑ Esposito, John L. (2001) "Women in Muslim Family Law (2nd Edition)", New York: Syracuse University Press, pp.16-17
  24. ↑ Ali, S. M. (2004) "The Position of Women in Islam: A Progressive View", New York: State University of New York Press, pp.40-41
  25. ↑ Sahih Muslim 8:3368
  26. ↑ Mishkat al-Masabih Book I, Section 'Duties of husband and wife', Hadith No. 61
  27. ↑ Al Tirmidhi Hadith No. 1160 & Ibn Ma’jah Hadith No. 4165
  28. ↑ Ilkkaracan, Pinar. (2008). Deconstructing Sexuality in the Middle East. (p. 129). Burlington, VT: Ashgate Publishing Company.
  29. ↑ Quran 2:223
  30. ↑ Quran 2:228
  31. ↑ The wife’s consent is not a condition of taking her back after divorce - Islam Q&A, Fatwa No. 75027
  32. ↑ Quran 4:92
  33. ↑ Quran 24:33
  34. ↑ No, it is unIslamic to stop husbands: Aamir - Daily Times, August 26, 2006
  35. ↑ Row erupts in Malaysia over marital rape - Agence France-Presse, August 23, 2004
  36. ↑ Saud Hamada - Bahrain Offers Women No Protection from Spousal Rape - The WIP, June 29, 2009
  37. ↑ Najah Alosaimi - Outlaw Marital Abuse, Demand Saudi Women - Arab News, April 10, 2007
  38. ↑ Atia Abawi - Afghan cleric defends controversial marriage law - CNN, April 21, 2009
Retrieved from "http://wikiislamica.net/index.php?title=Forced_Marriage&oldid=138384"