By Asghar Ali Engineer
August 03, 2012
RECENTLY, the Legal Affairs Committee of the Majles (the Iranian parliament) has told the press that they regard the law that prohibits girls below the age of 10 from being married off as ‘un-Islamic and illegal.’
Reports indicate that in Iran, more than 75 female children under age 10 were recently forced to marry much older men. It is indeed very strange how child marriage can be deemed Islamic in any sense of the word. How can it be un-Islamic not to permit child marriage at the immature age of eight?
This is probably more cultural than religious. After all, any law bears footprints of culture and cannot completely get rid of cultural influences. While Islamic laws are very progressive, cultures in Islamic countries are still feudal or semi-feudal. Also, there has been debate among the ulema, as pointed out by the spokesperson for the Majles, about the age of puberty. Many ulema think that girls attain the age of puberty by or before age 10 while others think by the age of 15. But for most 10 is the age of puberty.
This has happened in Iran, where women’s participation in the revolution was so genuine and enthusiastic that they voluntarily took to wearing the chador as a symbol of their Islamic identity and a New York Times correspondent — seeing a sea of women in black chadors in 1979 — wondered how daughters of those mothers who had cast off their veils could take to the chador again. He perhaps did not realise that these daughters were wearing the chador as a symbol of their Islamic identity and to show solidarity with the leaders of the Islamic revolution.
However, their experience right from the beginning was not very pleasant and their expectations of liberation were not fulfilled. Gradually, the Islamic regime began to tighten its grip over women’s liberty, especially after the death of Imam Khomeini, who was a great visionary and believed in using persuasion rather than coercion. The revolutionary leadership began to quarrel for power in the post-Khomeini period and unfortunately the conservatives won.
And in the Islamic world whenever conservatives win, the first to be affected are Muslim women. Recently in Libya, when Qadhafi was defeated and his opponents — conservative Muslims — won, one of their first declarations was to legalise polygamy, as if their revolution was all about polygamy.
In Iran too women came to be under increasing control of the conservative clergy. A few years ago a woman, who was married with children, was accused of adultery and was sentenced to death by stoning, though human rights activists maintained that adultery charges were not proved. And there was no punishment for her alleged adulterous partner.
Coming back to child marriage, there is nothing Islamic about it; if anything it is un-Islamic. It is well-known that marriage is a contract in Islam and the Quran calls it a ‘strong covenant’ (mithaqan ghaliza) (4:21). It does not require a lot of argument to conclude that such a covenant cannot be entered into by children of the age of eight, that too a strong contract. A child does not even understand what a covenant is.
It is also well-known that both parties, i.e. husband and wife, can stipulate conditions, without fulfilling which the marriage will not be valid. Can a child stipulate conditions? Marriage is a lifelong partnership and a child cannot be expected to have the experience or intellectual ability to choose his or her life partner. Thus child marriage can in no case be Quranic or Islamic.
What is, then, the origin of child marriage in Islam? It is simply cultural and was not uncommon among the Arabs. The jurists can hardly escape the influence of their culture and cultural ethos. Though the Quran did not permit it, they allowed it because it was widely prevalent around them. They also tried to find justification for it in the Prophet’s (peace be upon him) Sunnah. Most Muslims believe that the Holy Prophet married Hazrat Ayesha when she was simply seven years of age and consummated the marriage when she was nine.
Firstly, this hadith appears about 300 years after the passing of the Prophet and in-depth research by many scholars clearly shows that Hazrat Ayesha’s age at the time of marriage was not less than 17 or 18 and at the time of consummation of marriage about 19 or 20. I have seen this research and there are very good reasons to believe it.
Since marriage is a contract in Islam, Imam Abu Hanifa, while allowing child marriage for sociological rather than religious or Quranic reasons, also had to make a provision for what is called option of puberty (khiyar al-bulugh) i.e. the girl, on achieving puberty or the age of proper understanding, could accept or reject the marriage and her guardian (usually father) also cannot force her to accept the marriage if she is unwilling. Imam Abu Hanifa had to make this provision because he knew the guardian is not an absolute authority to give the child away in marriage.
Religion should prevail over culture and not culture over religion. That is why most Islamic countries have now prescribed 18 as the age of marriage and have made child marriage illegal. Thus the Iranian clergy would be better advised not to legalise child marriage. I am sure the women organisations of Iran would surely resist this measure on part of the government, if at all it takes this regressive step defying the Quranic concept of marriage as a strong covenant.
Asghar Ali Engineer is an Islamic scholar who also heads the Centre for Study of Society & Secularism, Mumbai
Recently I heard Asghar Ali Engineer addressing a lawyers workshop, when he spoke on the importance given to women in Islam and the need to increase the marriageable age of the Muslim girls. I do not know why our respected and learned people have to say so much on fixing the marriageable age.
Whatever may be the reasons, one of the most serious problem confronting the Muslim society is illiteracy, particularly among the women. Literacy alone will uplift the society. No girl will be able to achieve a reasonable amount of knowledge and confidence without completing a under-graduate degree course. For completing a degree course a girl should be at least 18. There ends the matter. All those who argue in favour of fixing the marriageable age of girls at below 18 are doing a very great disservice to the whole Muslim society.
I read one of the comments on the poverty prevailing in the society and the poor girls have to get married at. This is totally an absurd argument. Poverty is mainly due to the prevailing illiteracy. Poverty will be eliminated only if our girls achieve literacy. This is not at all possible if they are given in marriage at the age of 16.
a very principled stand to be not identified and therefore I will not accept
what has been attributed to me. Dear Mr. Manzoorul Haque Sir’s good intention
to clothe me decently, however, is well appreciated. Thank you. This reply is
also to be a response for Dear Mr. Aiman Reyaz Sir who had asked for my identity,
very specifically on some other thread. However at the risk of hurting him, I
would like to say that I cannot let go the advantage of internet in letting me
stay veiled and yet be in public. Muslims girls who have taken up veil once
again in a big way should now have no excuse to participate in public using
this virtual veil. Their participation in public life is important. We need
more soldiers. They are half of us. Better half, in fact; as per some
chivalrous men. And we need things better. I wish Dear Mr. Aiman Reyaz Sir,
understand my concern. Through these writings you all are much closer to me
than those with whom I use ‘personal’ mail. So I am here, till I am.
ASL. You know what it means? Surely, you must be. Age, Sex, Location. In the
days of internet chatting a decade back when Facebook wasn’t there, just three
piece clothing was considered important for taking matters further. Some were
OK with just two. Now I guess we can do away even that, and run amock, naked,
just donning a veil. This is the New Age.
that’s the strategy part. I have some personal reasons as well. My identity is
oversized and it doesn’t fit the format. Nor do I like to be forced fit and
then be a victim of prejudice. And it is not that ki dar kiska and koi kya kar
lega, but it is more because of the fact that I am not that important to be
identified and spotted. I am just a New Age Islamist, a New Age warrior,
fighting death every single moment. It doesn’t mean death scares me. But yes I
am scared. I am scared of your (you all) prejudices. The day my comments cease
to come, you can assume that I am dead; virtual dead or even real dead. And
yes, in that case too, I have decided on my ‘Last Wish’. I do not wish for any mazar
or janaza. Hue mar ke ham jo ruswa, hue kyon na garq-e-dariya na kabhi
janaza uthta, na kahin mazar hota. All that I wish for is that the war, we
war is against those who are spoiling the good name of Islam; the war that is
ongoing, within, amongst ourselves, between spoilers along with their
sympathizers Vs those who believe in Islam, its recognition for the merit of
pacifism, patience and peace. This war is also against those who are fuelling
the war- the propagandists. I, in person, am unimportant, insignificant and
perhaps of no consequence even, someone like one among a million similar tiny
sized baby tortoises racing to reach the sea before predators preys. But as a
one more warrior, am here with you all in a common mission- Spoil the agenda of
the spoilers and of propagandists. God willing, together we will do it. If
predators don’t get tired, collectively we would be too many for them to be
eaten up. Collectively, we are indefatigable, indomitable and invincible. We
have the advantage of being able to be collective and tolerant of minor
differences and get more organized while they are cursed with intolerance of
each other. When we will die, we will Inshallah achieve martyrdom; but when
they will blow themselves up or others or advocate for it, Allah has promised
something exclusively for them. Marna to sabhi ko hai ek din, bas zillat aur
ruswayi nahi chahiye therefore I see this veil as important. This is the real
New Age burqa and this time I am for it.
Muslim writers use the words 'West' and 'modernity' interchangeably and look at them as being subversive or decadent. But modernity does not just mean women showing skin or superpowers arming themselves with nuclear weapons. Modernity also includes freedom of speech, freedom of belief, individual liberties, human rights, gender equality, liberal education, democracy, separation of church and state, respect for the religions of others, Darwinism, Theory of Relativity, modern means of travel and communication, rationalism and absence of obscurantism. I believe that Muslims are backward in these areas. I also believe that, since we were once ahead of the rest of the world, we could have maintained our edge with proper ijtihad and the zest for learning that prevailed from the eighth to the thirteenth centuries. Now which part of the above do you disagree with?
This is how it has proceeded. Mr. Ahmed writes: [The problem to Islam is not from those who
are converting to Christianity but from its intelligentsia who have suddenly
developed an inferiority complex about Islam and straining every nerve to
retrofit Islam to the “ideals of Western Society”].
Mr Mohiyuddin responds: [The expression "keenness to
retrofit Islam to the ideals of the West" is an unfortunate
misrepresentation designed to exacerbate the phobia of modernity, stymie
progress and keep us mired in the practices of seventh century Arabia.]
There was another idea expressed by Mr. Mohiyuddin: “If
ijtihad had not been blocked for the past 1000 years, Islam would be ahead of
what is called "modernity" instead of being scared of it”. It was to
this idea I was responding.
Now Janab Mohiyuddin sb. If you cannot link my replies to
your statement, we can drop off the discussion, because we can’t do anything
about it. However, the link is there in the historical interpretation of ‘being
ahead’. I have questioned your very fundamental presumption because it is linked
to the larger debate of whether Western civilization is progressing humankind
or regressing it. When the whole world is crying halt (including elements of
the West), you seem to marching ‘forward’ with the West (the dominants sections
of the West like military industrial complex) with quite a zeal! The choice is
coming to the part of your statement with which Mr. Ahmed is engaged, you have
asked me to explain, "The expression 'keenness to retrofit Islam to the
ideals of the West' is an unfortunate misrepresentation designed to exacerbate
the phobia of modernity, stymie progress and keep us mired in the practices of
seventh century Arabia.". But if you recall even if I support the views of
Mr. Ahmed, I am required to defend only 'keenness to retrofit Islam to the
ideals of the West' part, but not to the whole expression which you have to
explain to me, this being your expression in fact. To tell the truth I had not
understood your formulation, “an unfortunate misrepresentation designed to
exacerbate the phobia of modernity”, and allowed it to pass over. Why? Please
see. Who has phobia of modernity in the first place? Where is the
exacerbation-taking place? Whom does the exacerbation benefit? As far as I am
concerned, I am against the phobia of modernity and I think that is also the
position of Mr. Ahmed. So what am I to explain? Yes, about defending the
remarks 'keenness to retrofit Islam to the ideals of the West', as something
undesirable, I submit that I have done precisely that.
Sadaf, Why don't you just make your point? If I tried to make my point, I will have to cover the history of the World and the West from the events that lead to renaissance till date and also the reasons for the rise of the Muslims and their subsequent fall. Maybe I will do that in an article but surely not in the comments.