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Child Marriage in Islamic Law: Difference between revisions
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{{Quote|al-Umm 6:232 by Shafi'i, translated by Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 134|If a man is contractually married to a woman upon the like of whom the sexual act can be performed, even if she is not pubescent, and she allows him to visit with her (khalat baynahu wa-bayna al-dukhūl ʿalayhā) or her family allows them to be together (if she is a virgin) (khallā ahluhā baynahu wa-bayna dhālik in kānat bikran), and she is not prevented from visiting him (lam tamtaniʿ min al-dukhūl ʿalayhi), he must pay her maintenance, just as it would be incumbent upon him if he had had sex with her (idhā dakhala bi-hā), for the withholding is from his side.}} | {{Quote|al-Umm 6:232 by Shafi'i, translated by Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 134|If a man is contractually married to a woman upon the like of whom the sexual act can be performed, even if she is not pubescent, and she allows him to visit with her (khalat baynahu wa-bayna al-dukhūl ʿalayhā) or her family allows them to be together (if she is a virgin) (khallā ahluhā baynahu wa-bayna dhālik in kānat bikran), and she is not prevented from visiting him (lam tamtaniʿ min al-dukhūl ʿalayhi), he must pay her maintenance, just as it would be incumbent upon him if he had had sex with her (idhā dakhala bi-hā), for the withholding is from his side.}} | ||
Ibn Mundhir (d. 930 CE), a prominent jurist of the Shafi'i school, criticised the | Ibn Mundhir (d. 930 CE), a prominent jurist of the Shafi'i school, criticised the Hanbali use of the Aisha hadith (see below) and then sets out the Shafi'i view: | ||
{{Quote|Al-Ishraf by Ibn al-Mundhir, translated in Carolyn Baugh, ''Minor Marriage in Early Islamic Law'' p. 179|[Ibn al-Mundhir said:] Our opinion is other than this: If she reaches [nine years of age] and does not possess the body and strength [that would allow her to] tolerate a man, her family may keep her away from him (li-ahlihā manʿuhā minhu). And if she is not yet nine, and she possesses the body and strength that would tolerate a man, they should not keep her away from him.<BR /> | {{Quote|Al-Ishraf by Ibn al-Mundhir, translated in Carolyn Baugh, ''Minor Marriage in Early Islamic Law'' p. 179|[Ibn al-Mundhir said:] Our opinion is other than this: If she reaches [nine years of age] and does not possess the body and strength [that would allow her to] tolerate a man, her family may keep her away from him (li-ahlihā manʿuhā minhu). And if she is not yet nine, and she possesses the body and strength that would tolerate a man, they should not keep her away from him.<BR /> | ||
And al-Shāfiʿī said, “If the bride is husky (jasīma), and others of her type (mithluhā) tolerate sexual intercourse, it means they should be allowed to be together (khuliyya baynuhu wa baynuhā). If she cannot tolerate that, then her family should prevent her until she can tolerate sex.”}} | And al-Shāfiʿī said, “If the bride is husky (jasīma), and others of her type (mithluhā) tolerate sexual intercourse, it means they should be allowed to be together (khuliyya baynuhu wa baynuhā). If she cannot tolerate that, then her family should prevent her until she can tolerate sex.”}} | ||