Child Marriage in Islamic Law: Difference between revisions

{{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}[[File:Child marriage.jpg|thumb|Ghulan Haider, 11, married Faiz Mohammed, age 40. She hoped to become a teacher but was forced to quit her classes upon engagement. Image from the ''New York Times Magazine''.]]

The major schools of Islamic jurisprudence were in agreement that a pre-pubescent child could be contracted in marriage by his or her father [[Forced Marriage|and without consent]]. They based this view variously on [[Muhammad]]'s marriage to [[Aisha]], the example of his [[Sahabah|companions]], and the Quran (particularly {{Quran|65|4}}). The Maliki and Shafi'i schools even allowed a father to forcibly contract his daughter in marriage who had already reached puberty if she was still a virgin. The family were to hand over the betrothed wife for consummation of the marriage when they determined that the girl was now able to endure intercourse without physical harm rather than this being tied to any particular age (though Ibn Hanbal specified the age of nine due to the example of Aisha's marital consummation with Muhammad). Some Quranic commentators interpreted the Quran such that only females who had reached puberty can be married, though most thought that marriage of minors was permitted.

 

Today, [[w:Marriageable_age|many modern Muslim countries]] have legislated to raise the minimum age of marriage, in many cases to the age of 16 or 18 for girls (though often with loopholes or with ineffective enforcement) and to prevent forced marriage, often in the face of opposition from Islamic scholars. Many Muslim campaign groups and charities have been involved in this process and continue to offer help to those at risk (see the article [[Forced Marriage]] which includes sources of help).<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> In collaboration with activists, in 2019 the deputy Grand Mufti of al-Azhar University in Cairo issued a fatwa calling for marriage based on mutual consent with a minimum age set as 18.<ref>[https://www.theguardian.com/global-development/2019/jun/21/senior-islamic-cleric-issues-fatwa-against-child-marriage Senior Islamic cleric issues fatwa against child marriage] - Guardian.com</ref> Unicef say that the prevalence of child marriages are decreasing globally but are nevetheless common (including among non-Muslim populations in some regions of the world).

 

[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. Medical risks include her hips being too narrow to safely give birth, and the risk mentioned by a few classical scholars of ''al-ifḍāʾ'' (fistula, tearing of the wall between the vagina and back passage).

 

{{Main|Child Marriage in the Qur'an}}

Exegetes (Quranic commentors) and Jurists considered a number of Quranic verses when discussing the age of marriage. A significant verse was {{Quran|65|4}}, which concerns the [['Iddah (Female Menstrual Waiting Period)|''Iddat'']] (العدة‎) waiting period a woman must observe before she can remarry in order to avoid doubts about paternity in case she is pregnant (see {{Quran|2|228}}). The verse specifies the waiting period after divorce for females who for a range of reasons might not menstruate, for example the menopause. Among the scenarios mentioned in the verse are "those who have not menstruated". Jurists and most exegetes (Quranic commentators) understood this as referring to those too young to have had their first periods. Another verse, {{Quran|33|49}} explains that there is no waiting period if the former husband never consummated the marriage. On this basis, the verse was understood to permit pre-pubescent girls to be contracted in marriage.

 

{{Quote|{{Quran|65|4}}|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.'' And for those who are pregnant, their term is until they give birth. And whoever fears Allah - He will make for him of his matter ease.}}

 

{{Quote|{{Quran|4|6}}|And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them sound judgement, release their property to them. [...]}}

 

 

In her book, ''Minor Marriage in Islamic Law'', Caroline Baugh describes the opinions of Quranic commentators regarding the age of marriage.<ref>Caroline Baugh, ''Minor Marriage in Islamic Law'', Leiden: Brill, 2017</ref> 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) for releasing their property in the same verse.<ref>Caroline Baugh, ''Minor Marriage in Islamic Law'', pp. 44-46</ref>

 

Baugh observes that many commentators such as al-Thalabi and al-Tabari before him equated ''bulūgh l-nikāḥ'' (commonly translated "reaching [the age of] marriage") in {{Quran|4|6}} with ''bulūgh al-ḥulum'' ("reaching pubesence") and discussed it in relation to granting financial responsibility and liability for hadd punishments.<ref>Caroline Baugh, ''Minor Marriage in Islamic Law'', pp. 44-47, including footnote 117</ref> Kecia Ali similarly observes the same identification was made by legal jurists - 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 females 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 they are not called women (nisa) until they have reached pubescence.<ref>Caroline Baugh, ''Minor Marriage in Islamic Law'', p. 47</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}}, both al-Tabari and al-Qurtubi mention opinions that it includes women whose menstruation has become disrupted/suspended. Ibn al-'arabi on the other hand is unequivocal that Q 65:4 refers 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>Caroline Baugh, ''Minor Marriage in Islamic Law'', pp. 47-8</ref> Al-Tabari and al-Qurtubi both also give the opinion that "those who have not menstruated" in the same verse includes those too young to menstruate<ref>See altafsir.com regarding the 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>

 

The well known classical tafsirs of Ibn Kathir and al-Jalalayn are available in English and are quoted below. Both say that "those who have not menstruated" in Q 65:4 refers to the prepubescent (l-saghira). The traditonal circumstance of revelation for this verse narrates that Muhammad was asked about the 'iddah for "Those who are too young, those who are too old and those who are pregnant".<ref>[Azbab al-Nazul by al-Wahidi for Quran 65:4] - altafsir.com</ref> Many other tafsirs make similar statements (See [[Child Marriage in the Qur'an]]). A large set of translated quotes attributed to various companions and successors and from various well known commentaries and jurist texts relating to this verse 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>

 

{{quote |1=[http://www.tafsir.com/default.asp?sid=65&tid=54196 Exegesis on (Qur'an 65:4)]<BR>Tafsir Ibn Kathir |2= The `Iddah of Those in Menopause and Those Who do not have Menses Allah the Exalted clarifies the waiting period of the woman in menopause. And that is the one whose menstruation has stopped due to her older age. Her `Iddah is three months instead of the three monthly cycles for those who menstruate, which is based upon the Ayah in (Surat) Al-Baqarah. [see 2:228] '''The same for the young, who have not reached the years of menstruation.''' Their `Iddah is three months like those in menopause. This is the meaning of His saying.}}{{Quote|1=[http://altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=74&tSoraNo=65&tAyahNo=4&tDisplay=yes&UserProfile=0 Qur'an 65:4]<BR>Tafsir al-Jalalayn|2= And [as for] those of your women who (read allā'ī or allā'i in both instances) no longer expect to menstruate, if you have any doubts, about their waiting period, their prescribed [waiting] period shall be three months, and [also for] '''those who have not yet menstruated, because of their young age, their period shall [also] be three months''' - both cases apply to other than those whose spouses have died; for these [latter] their period is prescribed in the verse: they shall wait by themselves for four months and ten [days] [Q. 2:234]. And those who are pregnant, their term, the conclusion of their prescribed [waiting] period if divorced or if their spouses be dead, shall be when they deliver. And whoever fears God, He will make matters ease for him, in this world and in the Hereafter.}}

 

{{Quote|Tafsir of al-Maududi for Quran 65:4|Here, one should bear in mind the fact that according to the explanations given in the Qur'an the question of the waiting period arises in respect of the women with whom marriage may have been consummated, for there is no waiting-period in case divorce is pronounced before the consummation of marriage. (Al-Ahzab: 49). Therefore, making mention of the waiting-period for the girls who have not yet menstruated, clearly proves that it is not only permissible to give away the girl in marriage at this age but it is also permissible for the husband to consummate marriage with her. Now, obviously no Muslim has the right to forbid a thing which the Qur'an has held as permissible.}}

 

{{Main|Aisha's Age|3=Qur'an, Hadith and Scholars:Aisha}}[[Aisha]] (''‘Ā’ishah'', c. 613/614 –c. 678)<ref name="Siddiqui2">Al-Nasa'i 1997, p. 108</ref> 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]] [[Hadith|hadiths]].<ref>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. {{Bukhari|5|58|236}}</ref><ref>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). {{Bukhari|7|62|64}}</ref><ref>'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. {{Muslim|8|3310}}</ref><ref>Aisha said, "The Apostle of Allah married me when I was seven years old." (The narrator Sulaiman said: "Or six years.") {{Abudawud||2116|hasan}}</ref><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, <nowiki>ISBN 978-0231079990</nowiki>, pp. 39–40;</ref> Due to concerns about child marriage this topic is of heavy interest in modern [[Apologists|apologetic]] literature and public discourse. Aisha's early marriage to Muhammad also featured in the jurist Shafi'i's discussion of the right of a father to contract his virgin daughter in marriage. Her age of nine at consummation is alluded to in Ibn Hanbal's discussion of the same right and of the minimum age of marriage and consummation for orphans (see the section on consummation below as well as the article [[Forced Marriage]]). Later, even the other schools of jurisprudence joined them in using the Aisha hadith in discussions of compulsion.<ref>Baugh writes, "If at first the non-Shāfiʿīs held out against inserting the report of ʿĀʾisha into this discussion, they later gave way, and other proof texts such as the ayyim/bikr hadith would eventually be cast aside. By the time of the Ḥanbalī Ibn Qudāma, the only text given any real emphasis is the ʿĀʾisha report."<BR />Caroline Baugh, ''Minor Marriage in Islamic Law'', p. 205</ref>

 

==Marriage of Minors in Islamic Law==

 

 

{{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.}}

 

Caroline 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>Caroline Baugh, ''Minor Marriage in 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). For a more detailed discussion of the views of each school of jurisprudence regarding a father's right to compel his pre-pubescent and/or virgin daughter into a marriage contract as well as relevant hadiths, see the article [[Forced Marriage]], which also explains how the hadith of Aisha's marriage was used. In addition, Baugh notes that Maliki and Shafi'i jurists said only the father (or grandfather) may marry off his pre-pubescent daughter, while Hanafis said that any guardian may do so in the case of orphans.<ref>Caroline Baugh, ''Minor Marriage in Islamic Law'', pp. 49, 80</ref>

 

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 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>

 

 

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.” It 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:

{{Quote|1=Mawsu’at Al-Ijma’ Fil-Fiqh Al-Islami, Volume 3 by professor Zafir Al-Amri, first edition 2012, published by Dar Al-Fadhilah, Al-Maktabah Al-Shamilah, vol.3 p.144-147|2={{right| مستند الإجماع:

“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, though like some other isolated fatwas of a similar nature, it does not seem consistent with earlier jurisprudence discussed above and in Baugh's book:{{Quote|1=[http://www.fatawa.com/view/7436 Majmu'at Al-Fatawa Al-Shar'iyya, Fatwa no. 6058]|2={{right|  

 

==In the Wider Late Antique Milieu==

{{Main|Child Marriage in the Muslim World}}In recent decades the legal age of marriage has been raised in most Muslim majority countries. Child marriage under the age of 18 and 15 is nevertheless still common in many Islamic countries, as well as in many predominantly Christian African countries, India, Latin America and the Caribbean.<ref>[https://data.unicef.org/topic/child-protection/child-marriage/ Child marriage data] - Unicef.org (accessed November 2022)</ref> A number of factors are associated with the practice, including poverty, family honor and religious and customary laws.<ref>[https://www.unicef.org/protection/child-marriage Child marriage] - Unicef.org (accessed November 2022)</ref> 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'.

===Quran===

{{Quote|1={{Quran|65|4}}|2=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.''' And for those who are pregnant, their term is until they give birth. And whoever fears Allah - He will make for him of his matter ease.}}