Child Marriage in Islamic Law: Difference between revisions

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 Early 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 Early 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]]).

{{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 Early Islamic Law'', p. 205</ref>

{{Quote|{{Abu Dawud|28|3894}}|Narrated Aisha, Ummul Mu'minin:

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 Early Islamic Law'', p. 212</ref>

Roman law, and, as early as the 8th century, Byzantine law both forbade marriage to girls below the age of puberty, which they fixed at twelve and thirteen years of age, respectively. The law was not entirely successful in eliminating such marriages. The penalty for seducing a girl below this age was that the man's nose was slit and she was given half his property. Jewish and Islamic law by contrast were far more permissive of men contracting and consumating marriage with pre-pubetal girls.<ref>Sean Anthony, "Muhammad and the Empires of Faith: The making of the Prophet of Islam", Oakland CA: University of California, 2020, p. 115</ref>

{{Quote|1={{Bukhari|5|58|236}}|2=Narrated Hisham's father: Khadija died three years before the Prophet 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.'''}}{{Quote|1={{Bukhari|7|62|64}}|2=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).}}