Child Marriage in Islamic Law: Difference between revisions

In her book, ''Minor Marriage in 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 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 consumation of marriage, or intercourse) in {{Quran|4|6}} with ''bulūgh al-ḥulum'' ("reaching pubesence").<ref>Carolyn Baugh, ''Minor Marriage in 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 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 Islamic Law'', pp. 47-8</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 />Carolyn 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>Carolyn 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 Carolyn Baugh.<ref>Carolyn 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>

Carolyn 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>Carolyn 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>Carolyn Baugh, ''Minor Marriage in Islamic Law'', pp. 49, 80</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>Carolyn Baugh,''Minor Marriage in Islamic Law'', 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>Carolyn 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>Carolyn 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 Carolyn 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 Carolyn Baugh, ''Minor Marriage in Islamic Law'', pp. 116-117</ref>

{{Quote|al-Umm 6:232 by Shafi'i, translated by Carolyn 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 Carolyn 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 />

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