Child Marriage in Islamic Law
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Child marriage and sexual activity between adults and children are sanctioned by Islamic law and were practiced by Muhammad and his companions. As is the case within all contexts where sexual activity is permitted in Islam - namely, marriage and slavery - female consent is not required and the category of "rape" does not exist (even while the category of "rape" exists outside these contexts). The only restriction on sexual activity with children of any age within the contexts of marriage and slavery is that the child should not come to severe physical harm as a consequence of the encounter ("mental anguish", as such, is not considered, and consent is regardless irrelevant). Consequently, men are advised to avoid vaginal penetration with their child wives and female slaves if they are too small to endure such activity, although other forms of sexual activity with such children are permitted. "Thighing", explicitly discussed by Islamic jurists, is one such variety of alternative sexual activity that men may engage in with their child wives and female slaves if they are too small to endure penetration.
In scripture
Child marriage in the Quran
The Qur'an permits child marriage. Verse 4 of Surah 64 provides guidelines regarding divorce a wife who has not yet menstruated. This verse refers to the Iddat (العدة), which is a waiting period a female must observe before she can remarry. According to this verse, the stipulated waiting period for a divorced girl who has not yet menstruated is three months.
Muhammad's marriage to Aisha
Aisha (‘Ā’ishah, c. 613/614 –c. 678)[1] or عائشة, (also transliterated as A'ishah, Aisyah, Ayesha, A'isha, Aishat, or Aishah) was married to Muhammad at the age of 6 or 7, and the marriage was consummated by Muhammad, then 53, at the age of 9 or 10 according to numerous sahih hadiths.[2][3][4][5][6] Due to concerns about child marriage this topic is of heavy interest in modern apologetic literature and public discourse.
Marriage at a young age was not unheard of in Arabia at the time, and Aisha's marriage to Muhammad may have had a political connotation, as her father Abu Baker was an influential man in the community.[7] Abu Bakr, on his part, may have sought to further the bond of kinship between Muhammad and himself by joining their families together in marriage via Aisha. Egyptian-American Islamic scholar, Leila Ahmed, notes that Aisha's betrothal and marriage to Muhammad are presented as ordinary in Islamic literature, and may indicate that it was not unusual for children to be married to their elders in that era.[8]
Revisionary disputations on her age
The age of Aisha was not disputed by earlier scholars but a surge of some modern Islamic scholars have made attempts to advance the idea that Aisha was older than nine lunar years at time of the consummation of her marriage to Prophet Muhammad. Sahih hadiths of Aisha's own testimonies are taken to be mistaken, and indirect sources and disputed dating techniques are used to calculate different ages. These diverse techniques have led to several conflicting ages to be proposed for Aisha at the time of consummation, including 12, 14, 15, 17, 18 and 21 years of age.
These revisionary perspectives can be broadly categorized into five categories, including those that: (1) discredit Hisham ibn Urwah and the Iraqi narrators, (2) use non-sahih information to overturn otherwise sahih hadiths, (3) use indirect evidences in preference of direct testimonies, or (4) use ‘loose' dating and aging in preference to specific dates and statements of age. These revisionary approaches are, however, generally not accepted by mainstream Islamic establishments.
Revisionary disputations on the word "consummate"
In a hadith in Sahih Bukhari, Aisha says that she was married to Muhammad at the age of six and that Muhammad consummated the marriage when she reached the age of nine. The implications of this and similar hadiths have recently been contested by some modern Islamic scholars who attempt to advance the idea that the verbiage used in this hadiths does not in fact refer to sexual consummation. While such a reading has no historical/linguistic or traditional precedent, it has nonetheless achieved some popularity. However, these re-readings, like those re-readings which attempt to advance a different age for Aisha, have generally not been accepted by mainstream Islamic establishments.
The terms used in the hadiths are udkhilath and bana biha, and these words do not permit any meaning other than "engaged in sexual intercourse with her" in the contexts where they are used. Crucial to the facilitation of asexual re-readings of these passages are tendentious English translations (particularly those of Dr. Muhsin Khan) as well as a general and perhaps understandable unwillingness to admit that Muhammad could have slept with or raped a nine year old.
Child Marriage and Muhammad's Companions
Due to the commonplace nature of child marriage in the 7th century (both inside and outside of Arabia), many of Muhammad's companions (sahabah) also engaged in child marriage. Most notable among these were Umar b. al-Khattab (the second "rightly guided caliph"), who married Umm Kulthum when she was between 10-12 (although some sources report she was just 5[9]), and Ali b. Abi Talib (Muhammad's cousin and the fourth "rightly guided caliph"), who married Fatima (Muhammad's daughter) at the age of 9.
In Islamic Law
The Encyclopedia of Unanimous Islamic Rulings says: “Scholars have unanimously agreed that it is permissible for a father to marry off his minor daughter without her consent.”
The Encyclopedia lists 14 classical scholars who reported the consensus about this, such as Ibn Abdul Barr (d.1071 AD) who said: “Scholars have unanimously agreed that a father can marry off his minor daughter without consulting with her”.
The Encyclopedia explains the basis for this consensus:
1-قوله تعالى: {يَئِسْنَ مِنَ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ} [الطلاق: 4]. وجه الدلالة: جعل اللَّه سبحانه وتعالى عدة اللائي لم يحضن ثلاثة أشهر، ولا تكون العدة ثلاثة أشهر إلا من طلاق في نكاح أو فسخ، فدل ذلك على أنها تزوج وتطلق، ولا إذن لها فيعتبر، وأن نكاحها قبل البلوغ جائز .
2- عن عائشة -رضي اللَّه عنها- قالت: تزوجني رسول اللَّه -صلى اللَّه عليه وسلم- لِسِتِّ سنين، وبنى بي وأنا بنت تسع سنين .
3- تزوج قدامة بن مظعون -رضي اللَّه عنه- ابنة الزبير حين نَفِسَتْ، فقيل له، فقال: ابنة الزبير إن مت ورثتني، وإن عشت كانت امرأتي .
4- زوج علي -رضي اللَّه عنه- أم كلثوم ابنته وهي صغيرة عمر بن الخطاب -رضي اللَّه عنه- . وجه الدلالة من هذه الأحاديث: أن عائشة، وابنة الزبير، وأم كلثوم بنت علي كنَّ صغيرات، وعندئذٍ لم يكنَّ في حال يعتبر إذنهن فيه
موسوعة الإجماع في الفقه الإسلامي، الطبعة الأولى 2012، المجلد الثالث من إعداد الدكتور ظافر بن حسن العمري، (3/ 147-144)
1- Allah said: “And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated.” Quran 65:4
This verse says that the Iddah for those who haven’t menstruated is three months. And since that the Iddah is only prescribed in the case of divorce, this proves that:
A-She can marry and can get divorced.
B- Marrying her off before puberty is allowed.
C- Her consent is neglected.
2- Ayisha said: “Allah's Messenger married me when I was six years old, and consummated his marriage when I was nine”.
https://quranx.com/Hadith/Muslim/USC-MSA/Book-8/Hadith-3309
3- Muhammad’s companion Qudamah Bin Math’un married the daughter of Al-Zubayr when she was born. He said: “If I die then the daughter of Al-Zubayr will inherit me. If I live then she will be my wife”
4- Ali, Muhammad’s cousin and the fourth caliph, married off his minor daughter Um Kulthum to Umar the second caliph.
These reports show that Ayisha, Al-Zubayr’s daughter and Ali’s daughter were minors which means their consent was unviable.
Al-Nawawi (d.1277 AD) in his commentary on Sahih Muslim, laid out the view of all four major legal schools on the minimum age of consummation of marriage:
وَأَمَّا وَقْتُ زِفَافِ الصَّغِيرَةِ الْمُزَوَّجَةِ وَالدُّخُولُ بِهَا فَإِنِ اتَّفَقَ الزَّوْجُ وَالْوَلِيُّ عَلَى شَيْءٍ لَا ضَرَرَ فِيهِ عَلَى الصَّغِيرَةِ عُمِلَ بِهِ وَإِنِ اخْتَلَفَا فَقَالَ أَحْمَدُ وَأَبُو عُبَيْدٍ تُجْبَرُ عَلَى ذَلِكَ بِنْتُ تِسْعِ سِنِينَ دُونَ غَيْرِهَا وَقَالَ مَالِكٌ وَالشَّافِعِيُّ وَأَبُو حَنِيفَةَ حَدُّ ذَلِكَ أَنْ تُطِيقَ الْجِمَاعَ وَيَخْتَلِفُ ذَلِكَ بِاخْتِلَافِهِنَّ وَلَا يُضْبَطُ بِسِنٍّ وَهَذَا هُوَ الصَّحِيحُ
شرح النووي على مسلم، دار إحياء التراث العربي، المكتبة الشاملة، ج9 ص206Regarding the timing of the wedding of a minor wife and consummation of her marriage, if the husband and the minor’s legal guardian both agreed on something that doesn’t harm the minor then it’s done. If they disagree, Ahmad (the Imam of one of the 4 major legal schools in Sunni Islam) said that she is forced to be wed at the age of 9. Malik, Al-Shafi’i and Abu Hanifa (the remaining 3 Imams of the 4 major legal schools) said the timing is when she’s capable of enduring sexual intercourse which differs from one person to another and can’t be determined by age. This is the correct view.
Mukhtasar Khalil is a major book in the Maliki legal school which is one of the four major legal schools. Al-Kharashi (d.1690) said in his commentary on this book:
وقوله وأمكن وطؤها أي بلا حد سن بل يختلف باختلاف الأشخاص ولا يشترط الاحتلام فيها كالرجل؛ لأن من أطاقت الوطء يحصل بها للرجل كمال اللذة
شرح الخرشي على مختصر خليل، المطبعة الكبرى الأميرية، المكتبة الشاملة، ج3 ص258
“It’s possible to have sex with her” meaning there’s no specific age. Every person is different. And it’s not required for her to reach puberty because a man can receive full pleasure if the female can endure sex.
Many scholars say that a husband is obliged to provide for his wife only if she lets him have sex with her. This notion caused a discussion amongst scholars on the issue of a wife who’s too young to endure sex, with some scholars saying the husband in this case isn’t obliged to provide for her because he can’t have sex with her. The following quote falls within this context: Kanz Al-Daqa’iq is a major book in the Hanafi legal school. Al-Zayla’i (d.743 AH) said in his commentary on this book:
قَالَ - رَحِمَهُ اللَّهُ - (وَصَغِيرَةٌ لَا تُوطَأُ) يَعْنِي لَا تَجِبُ لَهَا النَّفَقَةُ سَوَاءٌ كَانَتْ فِي مَنْزِلِهِ أَوْ لَمْ تَكُنْ، وَقَالَ الشَّافِعِيُّ لَهَا نَفَقَةٌ لِأَنَّهَا عِوَضٌ عَنْ الْمِلْكِ عِنْدَهُ كَمَا فِي الْمَمْلُوكَةِ مِلْكَ الْيَمِينِ وَقِيلَ إنَّ الصَّغِيرَةَ إذَا كَانَتْ مُشْتَهَاةً وَيُمْكِنُ جِمَاعُهَا فِيمَا دُونَ الْفَرْجِ يَجِبُ لَهَا النَّفَقَةُ، وَلَوْ كَانَتْ الصَّغِيرَةُ تَصْلُحُ لِلْجِمَاعِ تَجِبُ نَفَقَتُهَا عَلَى الزَّوْجِ بِالْإِجْمَاعِ لِحُصُولِ الْمَقْصُودِ، وَاخْتَلَفُوا فِي حَدِّهِ فَقِيلَ بِنْتُ تِسْعِ سِنِينَ، وَالصَّحِيحُ أَنَّهُ غَيْرُ مُقَدَّرٍ بِالسِّنِّ، وَإِنَّمَا الْعِبْرَةُ لِلِاحْتِمَالِ وَالْقُدْرَةِ عَلَى الْجِمَاعِ فَإِنَّ السَّمِينَةَ الضَّخْمَةَ تَحْتَمِلُ الْجِمَاعَ، وَإِنْ كَانَتْ صَغِيرَةَ السِّنِّ
تبيين الحقائق شرح كنز الدقائق للزيلعي، المطبعة الكبرى الأميرية، المكتبة الشاملة، ج3 ص52
“A minor who can’t endure sex” meaning the husband isn’t obliged to provide for her whether she’s living in his home or not. Al-Shafi’i said that “the husband is actually obliged to provide for her since that providing for her is the price for owning her. It’s like how a man is obliged to provide for his slave girl”….Some scholars say if the female minor is (old enough) to be sexually desirable and it’s possible to have sexual acts with her except for intercourse, then the husband is obliged to provide for her. But if the female minor can endure sex, scholars have unanimously agreed that the husband is obliged to provide for her. Scholars have disagreed on determining the age when a minor can endure sex, with some saying it’s nine. What’s is correct is that age doesn’t matter. What matters is the capability to endure sexual intercourse; a fat big female can endure intercourse even if she’s of a young age.
A fatwa collection issued by the Ministry of Religious Endowments and Islamic Affairs in Kuwait, included the following fatwa:
هل يصح عقد الزواج على الرضيعة ويجوز التمتع بها بالتقبيل وغيره -سوى الجماع- بما لا يضرها؟
الجواب: إذا كان العقد مستوفيًا لشروطه الشرعية، فإنها تصبح به زوجته من كل الوجوه، ويحل له منها النظر إليها ولمسها وتقبيلها، ولا يحل له جماعها حتى تطيقه من غير ضرر، فإذا أطاقته حل له منها ذلك أيضًا.
مجموعة الفتاوى الشرعية، فتوى رقم 6058
Question: Is it allowed to marry a suckling baby and is it allowed to pleasure myself with her by kissing her and doing other unharmful acts excluding sex?
Answer: If the marriage contract fulfills the Islamic legal requirements then she’s considered to be his wife in all respects and he’s allowed to look at her, touch her and kiss her. He’s not allowed to have sex with her until she can endure sex without causing her any harm.In the Muslim world today
Child Marriage in the Muslim World
Child marriage under the age of 18 and 15 is common in many Islamic countries, as well as in many predominantly Christian African countries, India, Latin America and the Caribbean.[10] A number of factors are associated with the practice, including poverty, family honor and religious and customary laws.[11] Child marriage is legal under Islamic law, and where the practice is prohibited by civil law, such marriages are sometimes carried out by independent Imams who allege to be loyal to the Sharia alone. In these countries, child marriages are especially common among rural populations where girls well below the age of puberty may be wed by their guardians to older men to various ends, including the preservation of the family and girls' 'honor'.
This practice has even been observed among the Muslim populations of non-Muslim countries, such as the United Kingdom[12] and the United States.[13]
In countries including Yemen, Bangladesh, Iran, and Northern Nigeria, attempts at reforming laws and banning child marriages have been opposed and stopped on the grounds that such a ban would be un-Islamic.[14][15][16][17][18] Malaysia has even passed new laws which explicitly allow for the practice of child marriages among Muslims on religious grounds.[19]
Relevant quotations
Quran and tafsir
Tafsir Ibn Kathir
Tafsir al-Jalalayn
Hadiths
See also
External links
References
- ↑ Al-Nasa'i 1997, p. 108
- ↑ Narrated Hisham's father: Khadija died three years before the Prophet (ﷺ) departed to Medina. He stayed there for two years or so and then he married `Aisha when she was a girl of six years of age, and he consumed that marriage when she was nine years old. Sahih Bukhari 5:58:236
- ↑ Narrated 'Aisha: that the Prophet married her when she was six years old and he consummated his marriage when she was nine years old, and then she remained with him for nine years (i.e., till his death). Sahih Bukhari 7:62:64
- ↑ 'A'isha (Allah be pleased with her) reported: Allah's Apostle (may peace be upon him) married me when I was six years old, and I was admitted to his house when I was nine years old. Sahih Muslim 8:3310
- ↑ Aisha said, "The Apostle of Allah married me when I was seven years old." (The narrator Sulaiman said: "Or six years.") Sunan Abu Dawud 2116 (Ahmad Hasan Ref)
- ↑ Most sources suggest age at consummation as nine, and one that it may have been age 10; See: Denise Spellberg (1996), Politics, Gender, and the Islamic Past: The Legacy of 'A'isha Bint Abi Bakr, Columbia University Press, ISBN 978-0231079990, pp. 39–40;
- ↑ Afsaruddin, Asma (2014). "ʿĀʾisha bt. Abī Bakr". In Fleet, Kate; Krämer, Gudrun; Matringe, Denis; Nawas, John; Rowson, Everett. Encyclopaedia of Islam (3 ed.). Brill Online. Retrieved 2015-01-11
- ↑ Ahmed, Leila (1992). Women and Gender in Islam: Historical Roots of a Modern Debate. Yale University Press. p. 51-54. ISBN 978-0300055832.
- ↑ "'Umar asked 'Ali for the hand of his daughter, Umm Kulthum in marriage. 'Ali replied that '''she has not yet attained the age (of maturity)'''. 'Umar replied, 'By Allah, this is not true. You do not want her to marry me. If she is underage, send her to me'. Thus 'Ali gave his daughter Umm Kulthum a dress and asked her to go to 'Umar and tell him that her father wants to know what this dress is for. When she came to Umar and gave him the message, he grabbed her hand and forcibly pulled her towards him. 'Umm Kulthum asked him to leave her hand, which Umar did and said, 'You are a very mannered lady with great morals. Go and tell your father that you are very pretty and you are not what he said of you'. With that 'Ali married Umm Kulthum to 'Umar." Tarikh Khamees, Volume 2, p. 384 ('Dhikr Umm Kalthum') and Zakhair Al-Aqba, p. 168
- ↑ Child marriage data - Unicef.org (accessed November 2022)
- ↑ Child marriage - Unicef.org (accessed November 2022)
- ↑ Ten-fold rise in forced marriages in just four years - The Daily Mail July 2, 2009
- ↑ Christine Vendel - Man charged with statutory rape in ‘marriage’ to 14-year-old girl - The Kansas City Star, November 8, 2009
- ↑ "Nigeria Child Brides-Broken Lives", Times Online, November 28, 2008 (archived), http://www.wunrn.com/news/2008/11_08/11_24_08/112408_nigeria.htm.
- ↑ "I Could Marry Off My Six Year Old Daughter If I So Wished, Senator Ahmed Yerima Replies Critics", The Nigeria Today, July 21, 2013 (archived), http://thenigeriatoday.net/i-could-marry-off-my-six-year-old-daughter-if-i-so-wished-senator-ahmed-yerima-replies-critics/.
- ↑ Islamist leader threatens of waging Jihad - Weekly Blitz, April 20, 2011
- ↑ Yessir - Child Marriage - Death Of 13 Year Old Bride After Wedding - A BIG MESSAGE, April 10, 2010
- ↑ YEMEN: Deep divisions over child brides - IRIN, March 28, 2010
- ↑ Outcry over Malaysian child marriages - Sydney Morning Herald, August 4, 2010