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Child Marriage in Islamic Law: Difference between revisions
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In her book, ''Minor Marriage in Early Islamic Law'', Carolyn Baugh describes the opinions of Quranic commentators regarding the age of maturity for purposes of financial and legal responsibilities. They were particularly interested in {{Quran|4|6}} quoted above, which mentions testing orphans until they "reach [the age of] marriage" (balaghu al nikah) before releasing them their property. They also discussed what counts as the "sound judgement" (rushd) in the same verse.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', Leiden: Brill, 2017, pp. 44-46</ref> | In her book, ''Minor Marriage in Early Islamic Law'', Carolyn Baugh describes the opinions of Quranic commentators regarding the age of maturity for purposes of financial and legal responsibilities. They were particularly interested in {{Quran|4|6}} quoted above, which mentions testing orphans until they "reach [the age of] marriage" (balaghu al nikah) before releasing them their property. They also discussed what counts as the "sound judgement" (rushd) in the same verse.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', Leiden: Brill, 2017, pp. 44-46</ref> | ||
Baugh observes that many commentators such as al-Thalabi and al-Tabari before him (citing various companions) equated ''bulūgh l-nikāḥ'' (commonly translated "reaching [the age of] marriage", though [[Nikah_(Sexual_Consummation_of_Marriage)|nikāḥ]] more literally means | Baugh observes that many commentators such as al-Thalabi and al-Tabari before him (citing various companions) equated ''bulūgh l-nikāḥ'' (commonly translated "reaching [the age of] marriage", though [[Nikah_(Sexual_Consummation_of_Marriage)|nikāḥ]] more literally means consummation of marriage, or intercourse) in {{Quran|4|6}} with ''bulūgh al-ḥulum'' ("reaching pubesence").<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 44-47, including footnote 117</ref> Kecia Ali similarly observes that this identification was made by legal jurists as the point at which a father can no longer compel his son or daughter into a marriage contract - see the section on Islamic Law below. While jurists saw no solid indicator indicator in the Quran for an age of marriage, Baugh nevertheless suggests there may be some unequivocal evidence of a Quranic position on the age at which people may be married. She notes al-Tabari's argument that {{Quran-range|2|236|237}} refers only to women (nisa) and not minors (although these verses imply a significant time gap between the marriage contract and consummation of the marriage, which is common with child marriages). Al-Qurtubi similarly argues regarding {{Quran|4|3}} that the term ''nisa'' is used after a woman has reached pubescence.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 47-48</ref> In fact the word nisa is used in the Quran for females in general in a number of other verses (see [[Child Marriage in the Qur'an]]). | ||
Regarding {{Quran|65|4}}, Al-Tabari and al-Qurtubi include the opinion that "those who have not menstruated" means those too young to menstruate. Al-Tabari says, "The same applies to the ‘idaah for girls who do not menstruate because they are too young, if their husbands divorce them after consummating the marriage with them."<ref>See al-Tabari's tafsir for Q. 65:4 translated by Islamqa.info [https://islamqa.info/en/answers/12708/is-it-acceptable-to-marry-a-girl-who-has-not-yet-started-her-menses Is it acceptable to marry a girl who has not yet started her menses?]</ref><ref>See altafsir.com for the Arabic commentaries on Q. 65:4 by [https://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=5&tSoraNo=65&tAyahNo=4&tDisplay=yes&Page=3&Size=1&LanguageId=1 al-Qurtubi] (who says it means prepubescent girls, al-saghirah), and [https://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=1&tSoraNo=65&tAyahNo=4&tDisplay=yes&Page=2&Size=1&LanguageId=1 al-Tabari] (who says it refers to young girls, al-jawari, or virgins ʾabkār, or those who had not reached menstruation)</ref> Baugh though notes that al-Tabari and al-Qurtubi also report opinions that the verse refers to women whose menstruation has become disrupted. She observes that Ibn al-'arabi on the other hand is definitive that Q 65:4 applies to prepubescent girls (al saghira) and takes it as proof that a man may contract his prepubescent daughter in marriage, as does Ibn Qudama. <ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 47-8</ref> | Regarding {{Quran|65|4}}, Al-Tabari and al-Qurtubi include the opinion that "those who have not menstruated" means those too young to menstruate. Al-Tabari says, "The same applies to the ‘idaah for girls who do not menstruate because they are too young, if their husbands divorce them after consummating the marriage with them."<ref>See al-Tabari's tafsir for Q. 65:4 translated by Islamqa.info [https://islamqa.info/en/answers/12708/is-it-acceptable-to-marry-a-girl-who-has-not-yet-started-her-menses Is it acceptable to marry a girl who has not yet started her menses?]</ref><ref>See altafsir.com for the Arabic commentaries on Q. 65:4 by [https://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=5&tSoraNo=65&tAyahNo=4&tDisplay=yes&Page=3&Size=1&LanguageId=1 al-Qurtubi] (who says it means prepubescent girls, al-saghirah), and [https://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=1&tSoraNo=65&tAyahNo=4&tDisplay=yes&Page=2&Size=1&LanguageId=1 al-Tabari] (who says it refers to young girls, al-jawari, or virgins ʾabkār, or those who had not reached menstruation)</ref> Baugh though notes that al-Tabari and al-Qurtubi also report opinions that the verse refers to women whose menstruation has become disrupted. She observes that Ibn al-'arabi on the other hand is definitive that Q 65:4 applies to prepubescent girls (al saghira) and takes it as proof that a man may contract his prepubescent daughter in marriage, as does Ibn Qudama. <ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 47-8</ref> | ||
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===Later scholars=== | ===Later scholars=== | ||
Ibn Taymīya (d. 1328 CE), who inspired the modern Salafi movement, is also clear that it is possible to compel a female minor to marry, though does not cite the Aisha hadith and denounces those who would compel a girl who has reached maturity into marriage.<ref>Ibn Taymīya, Fatāwā, 32:39 cited by Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', | Ibn Taymīya (d. 1328 CE), who inspired the modern Salafi movement, is also clear that it is possible to compel a female minor to marry, though does not cite the Aisha hadith and denounces those who would compel a girl who has reached maturity into marriage.<ref>Ibn Taymīya, Fatāwā, 32:39 cited by Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 211-212</ref> | ||
Another later scholar, Ibn Qayyim (d. 1350 CE) on the other hand disagreed and was reluctant to offer support for marriage of minors generally.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 214</ref> The early scholar Ibn Shubrumah (d. 761 CE) reportedly also held this view, considering Muhammad's marriage to Aisha to be an exception permitted only for him.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 226</ref> | Another later scholar, Ibn Qayyim (d. 1350 CE) on the other hand disagreed and was reluctant to offer support for marriage of minors generally.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 214</ref> The early scholar Ibn Shubrumah (d. 761 CE) reportedly also held this view, considering Muhammad's marriage to Aisha to be an exception permitted only for him.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 226</ref> | ||
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==In the Wider Late Antique Milieu== | ==In the Wider Late Antique Milieu== | ||
Roman law, and, as early as the 8th century, Byzantine law both forbade marriage to girls below the age of puberty, which they fixed at twelve and thirteen years of age, respectively. The law was not entirely successful in eliminating such marriages. The penalty for seducing a girl below this age was that the man's nose was slit and she was given half his property. Jewish and Islamic law by contrast were far more permissive of men contracting and | Roman law, and, as early as the 8th century, Byzantine law both forbade marriage to girls below the age of puberty, which they fixed at twelve and thirteen years of age, respectively. The law was not entirely successful in eliminating such marriages. The penalty for seducing a girl below this age was that the man's nose was slit and she was given half his property. Jewish and Islamic law by contrast were far more permissive of men contracting and consummating marriage with pre-pubetal girls.<ref>Sean Anthony, "Muhammad and the Empires of Faith: The making of the Prophet of Islam", Oakland CA: University of California, 2020, p. 115</ref> | ||
In the Sasanian period, middle Persian law provided that a girl might marry at the age of nine years and that consummation of the union need be delayed only until she reached the age of twelve years (there was one Persian jurist who allowed the marriage to be consummated at the age of nine if the girl was physically mature). If a girl refused all marriage offers by the age of fifteen she had committed a capital sin.<ref>CHILDREN iii. Legal Rights of Children in the Sasanian Period - [https://www.iranicaonline.org/articles/children-iii Encyclopedia Iranica online]</ref> | In the Sasanian period, middle Persian law provided that a girl might marry at the age of nine years and that consummation of the union need be delayed only until she reached the age of twelve years (there was one Persian jurist who allowed the marriage to be consummated at the age of nine if the girl was physically mature). If a girl refused all marriage offers by the age of fifteen she had committed a capital sin.<ref>CHILDREN iii. Legal Rights of Children in the Sasanian Period - [https://www.iranicaonline.org/articles/children-iii Encyclopedia Iranica online]</ref> | ||