Child Marriage in Islamic Law: Difference between revisions

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.

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.

At the same time, exegetes and jurists also considered {{Quran|4|6}}, which discusses the property of orphans who "reach [the age of] marriage" (balaghū l-nikāḥa). Some Muslim reformists today interpret this as setting pubescence as a minimum age for the marriage contract.

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>

{{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>

Baugh details a number of early stories of companions marrying and giving their minor daughters and sons in marriage that were frequently discussed by jurists (for example the marriage of Umar ibn al-Khattab to Umm Khaldum, the daughter of Ali and Fatima), though she says there is little indication that any of these marriages were more than unconsummated contractual unions.<ref>Caroline Baugh, ''Minor Marriage in Islamic Law'', pp. 38-42</ref>

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>

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>  

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>

As mentioned above, this word "bulugh al-nikah" as well as "rushd" (sound judgement) occurs in {{Quran|4|6}} in the context of releasing property to orphans. Like exegetes, jurists were very interested in defining these concepts, particularly for purposes of granting financial responsibility and the applicability of hadd punishments. The jurist Imam Malik even considered that rushd was necessary for releasing the bride's marriage gift (mahr).<ref>Caroline Baugh,''Minor Marriage in Islamic Law'', Leiden: Brill, 2017, pp. 44-46</ref> Baugh says that "''Rushd'', however, being ultimately highly subjective and intangible, was of significantly less legal value than ''bulūgh'', a verbal noun denoting the attainment of sexual maturity".<ref>Caroline Baugh,''Minor Marriage in Islamic Law'', p. 53</ref>

Unlike the other schools of jurisprudence, Hanafis allowed the guardian of orphans (who do not have their father) to contract them in marriage before pubescence. They interpreted this from {{Quran|4|3}} and {{Quran|4|127}} combined with their belief that only prepubescents are called orphans.<ref>Caroline Baugh,''Minor Marriage in Islamic Law'', p. 80</ref>

For Hanafis, a prepubescent wife is not entitled to maintenance from her pubescent husband "until maturity (hatta tablugh) for the withholding [of sexual intercourse] is from her and not from him".<ref>Al-Shaybani's description of Abu Hanifa's position as quoted by Caroline Baugh,''Minor Marriage in Islamic Law'', p. 97</ref>

For Malik, the age of intercourse is again significant due to it determining when a husband must start paying his young wife maintenance. For Malik, the male age of intercourse was the onset of nocturnal emission. For females, it is when she had come of age and could tolerate intercourse with men (tudrik wa tuṭīq al-rijāl).<ref>Mudawwana, 2:255 translated by Caroline Baugh, ''Minor Marriage in Islamic Law'', pp. 116-117</ref>

{{Quote|al-Umm 6:232 by Shafi'i, translated by Caroline Baugh, ''Minor Marriage in 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-Ishraf by Ibn al-Mundhir, translated in Caroline Baugh, ''Minor Marriage in 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 />

Baugh notes on the same page regarding the translated word "husky", "Although semantically jasīma indicates large or fat, the idea is clearly to depict a girl with a bigger, more sexually-developed body." Although, as Baugh points out, these Shafi'i scholars did not suggest Aisha had the physical state at age nine, it may be relevant to point out that isolated fatwas have occasionally linked this concept to a hadith which states that Aisha's mother fattened her up before she was handed over to Muhammad at the age of nine:

Ibn Hanbal alluded to Aisha's age of nine at her marital consummation as the age at which orphans may be married and consummated, and the age at which a father must seek his daughter's permission before contracting a marriage.<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."</ref> The later Hanbali scholar Ibn Qudama (d. 1223 CE) further cites Ibn Hanbal's opinion, which he says is based on the marriage of Aisha, that if a husband requests his minor spouse, she must be given to him if she has reached the age of nine: "[Her family] cannot keep her from him after the age of nine." Ibn Qudama is himself conscious of the risk of ''al-ifḍāʾ'' (fistula, tearing of the wall between the vagina and back passage) if the girl is still small. If she fears this, he says she may refuse intercourse and let her husband take pleasure from her in other ways.<ref>Ibn Qudāma, Al-Mughnī, 9:623 translated by Caroline Baugh, ''Minor Marriage in Islamic Law'', pp. 212-3 including footnote 21</ref>

Ibn Qudama is commonly cited today by Saudi scholars for his views on minor marriage. He cites consensus on the father's right to compel his virgin daughter into a marriage contract. Like so many other earlier scholars, in his view, the 'iddah waiting period for "those who have not menstruated" in {{Quran|65|4}} was proof that prepubescent females could be married and divorced without consideration of their wishes. He also cites the marriage of Aisha and some marriages of companions to minors. Regarding when a bride should be delivered and consummation takes place, Baugh says that Ibn Qudama appeals to culture and the family's judgement. Further, Baugh says that "He quotes the view of Abū Yaʿlā again, who points out that 'girls are different' (annahunna yakhtalifna), and 'the possibility of sex with a prepubescent female depends on her condition and what she can tolerate'".<ref>Caroline Baugh, ''Minor Marriage in Islamic Law'', pp. 7-10, 213-4, see also 12, 17, 20 regarding his influence today</ref>  

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 Caroline Baugh, ''Minor Marriage in Islamic Law'', p. 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>Caroline Baugh, ''Minor Marriage in 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>Caroline Baugh, ''Minor Marriage in Islamic Law'', p. 226</ref>