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'''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. Forcing a female who had reached the age of puberty into a marriage contract with someone against her explicit wishes was forbidden by most schools of Islamic jurisprudence. However, there was a legal consensus that virgin minors could be entered into marriage contracts by their fathers by compulsion, despite hadith evidence which seems to mandate a female virgin's consent (or at least a lack of protest). | '''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. Forcing a female who had reached the age of puberty into a marriage contract with someone against her explicit wishes was forbidden by most schools of Islamic jurisprudence. However, there was a legal consensus that virgin minors could be entered into marriage contracts by their fathers by compulsion, despite hadith evidence which seems to mandate 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. | ||
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.<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. | 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.<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. | ||
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==Islamic law== | ==Islamic law== | ||
===Compulsion of minors and virgins=== | ===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 | 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 Islamic Law'' by Professor Caroline Baugh.<ref>Caroline Baugh,''Minor Marriage in 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): | Kecia Ali gives the following overview on the areas of juristic agreement and disagreement regarding compulsion (more detail is given below): | ||
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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). | 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), 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: | 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.}} | {{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.}} | ||
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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. | 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> | '''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. | ||
Shafi'i | '''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>Caroline Baugh, ''Minor Marriage in Islamic Law'', pp. 124-126</ref> As for the rarer case of non-virgin minors, Kecia 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>Caroline Baugh, ''Minor Marriage in Islamic Law'', p. 56</ref> | ||
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> | 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> | ||
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>Caroline Baugh,''Minor Marriage in Islamic Law'', p. 9</ref> | 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>Caroline Baugh,''Minor Marriage in Islamic Law'', p. 9</ref> Baugh also notes that Ibn Hanbal said girls over the age of nine must be consulted.<ref>Caroline Baugh, ''Minor Marriage in 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> | |||
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> | 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> | ||