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Islamic Sharia Laws (13 Jun 2012 NewAgeIslam.Com)


Islamic Law does not Sanction Child Marriage

 

By A. Faizur Rahman

Jun 13, 2012

Muslim personal law would be in conformity with the Quran in making 18 the age of marriage for girls

The recent Delhi High Court judgment upholding — on the basis of the “Mohammedan Law” — the right of a Muslim girl to contract marriage at the age of 15 may have shocked many. But it would be unfair to fault the judges. They could not have gone beyond existing laws to arrive at their verdict which is in effect based on Sec. 2(vii) of the Dissolution of Muslim Marriages Act, 1939 (DMMA). It says the marriage of a Muslim girl will stand dissolved when “she having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18 years, provided that the marriage has not been consummated.”

In other words, this outdated law presumes that Muslim girls on reaching the age of 15 become legally informed and competent to enter into marital alliances on their own. And Islam is invoked to give legitimacy to such an indefensible supposition as can be seen from the manner in which the All India Muslim Personal Law Board welcomed the aforementioned ruling. Even the Delhi HC, to buttress its decree, cited judgments that have relied on Mulla's Principles of Mohammedan Law and Tyabji's Muslim Law. This brings us to the fundamental question: does Islam sanction child marriage?

Traditions citied by jurists

It is well known that insofar as its legality is concerned, marriage in Islam is a written covenant between two individuals and as such both have to be adults to understand the responsibilities and intricacies of such an agreement. This prescript that strikes at the root of the concept of child marriage is supported by verse 4:6 of the Quran which equates the age of marriage (balaghun nikah) with the age of intellectual maturity (rushd), a stage that comes after the age of puberty. Yet traditions are cited by the jurists to justify child marriage as if to suggest the Prophet allowed what the Quran clearly did not encourage. For instance, Sunni law, without any Quranic or Prophetic basis, empowers the father, granting him the status of wali (guardian), to impose marriage on his minor children in their “best interests.”

In fact, Sec. 2(vii) of the DMMA itself appears to be based on an archaic, sectarian law which states that the marriage contracted on behalf of a minor by any guardian other than the father and paternal grandfather can be revoked by the minor on attaining the age of puberty. This doctrine, which also finds a mention in the Delhi HC ruling, is known as khiyar al-buloogh or, option of puberty. It is based on a report in Abu Dawood's Hadees collection, wherein the Prophet is supposed to have given a minor girl the option to repudiate her marriage when she informed him that her father had married her off against her will. But a reading of this Hadees shows that the girl in question was not a minor because the word used to describe her is bikran which means a grown-up, virgin. Also, there is no mention of puberty in the report and hence, the Prophet could not have advised her to wait until puberty to exercise her right to divorce.

Even if it is hypothetically assumed that bikran refers to a minor, the wordings of the Abu Dawood Hadees clearly indicate that the Prophet had the marriage annulled immediately on knowing from the girl that her consent was not obtained. In a similar narrative mentioned in Sahih Bukhari, the Prophet annulled the marriage of Khansa'a bint-e-Khizaam when she complained to him that her father had forced her into a marriage which was not to her liking. The only inference that could be drawn from these reports is that child or forced marriage has no legal validity in Islam. This conclusion is supported by another Hadees, found in both Sahih Bukhari and Sahih Muslim, in which the Prophet is quoted as saying, “An ayyim (a widow or divorcee) shall not be married till she gives her consent, and nor a bikr (a virgin) be married till her consent is sought.” Therefore, the concept of khiyar-al buloogh is bad in law as it is based on an erroneous premise.

Child marriage in Islam is also justified on the basis of a Hadees which claims that the Prophet married Hazrat Aisha when she was just six and consummated the marriage when she was nine. The authenticity of this report is doubtful for several reasons. First, the Prophet could not have gone against the Koran to marry a physically and intellectually immature child. Second, the age of Hazrat Aisha can be easily calculated from the age of her sister Hazrat Asma who was 10 years older than Hazrat Aisha. The author of the Hadees collection Mishkath, in his biography of narrators (Asma ur Rijal), writes that Hazrat Asma died in the year 73 Hijri at the age of 100, 10 or 12 days after the martyrdom of her son, Abdullah ibn Zubair. It is common knowledge that the Islamic calendar starts from the year of the Hijrah or the Prophet's migration from Mecca to Medina.

By deducting 73, the year of Hazrat Asma's death, from 100, her age at that time, we can easily conclude that she was 27 years old during Hijra. This puts the age of Hazrat Aisha at 17 during the same period. As all biographers of the Prophet agree that he consummated his marriage with Hazrat Aisha in 2 Hijri it can be conclusively said that she was 19 at that time and not nine.

The foregoing scriptural evidence shows that there exists a strong case to delegitimise child marriages and fix 18 as the age of marriage for Muslim girls, thereby bringing Muslim personal law in conformity with the Koran and the teachings of the Prophet. This would prevent right-wing parties from exploiting controversial court judgments to time and again threaten the Muslims with a Uniform Civil Code.

A. Faizur Rahman is the secretary general of the Islamic Forum for the promotion of Moderate Thought.

Source: http://www.thehindu.com/opinion/op-ed/article3520569.ece

URL: http://newageislam.com/islamic-sharia-laws/a.-faizur-rahman/islamic-law-does-not-sanction-child-marriage/d/7614

 




TOTAL COMMENTS:-   6


  • how can we say one thing which is proved with the hadees of bukhari.not only that but also this is the real words of Aisha?
    By najeeb - 11/21/2013 12:16:55 PM



  • Today is not like yesterday and tomorrow is not going to be like today. So why we have to look upon past for all our evolving new challeges. Question has to be whether it is acceptable or not in the current social setup must be discussed and finalized, rather than getting into medieval practice in the corner of middle east as model for the whole islamic world.
    By satwa gunam - 6/14/2012 10:36:48 PM



  • I agree with Mr Mohiyuddin. Why can't we use common sense and latest scientific research that says that child marriage is disastrous for the health of the girl, especially when she carries a new life? We have been given brains to use it and the more we use it the better it will become. And I am sad to know that the Indian court has allowed a minor Muslim girl to marry before 18, 15 to be precise. This not only discriminates but is also unconstitutional, I believe.
    By Aiman Reyaz - 6/14/2012 9:02:42 PM



  • I'm glad to see the emphasis on the validity of marriage, There is plenty of research on the topic, those who are bent on maligning Islam hit on Aisha's age, Muslims use it as it suits some of the rascals.
    By Mike Ghouse - 6/14/2012 7:18:31 AM



  • A scholarly article that also clarifies the issue of Aisha’s age from theological sources.

    The arguments against child/ early marriage can be further strengthened on the basis of the Qur’an as summarized in my article just sent for publication relating to marriage, partly quoted below:“The brevity, the legal tone and the omission of any reference to the parents or any guardian of either spouse in all the Qur’anic verses relating to the captioned theme and the express acknowledgement of the matured roles of either spouses as the guardians of one another (9:71) totally removes the notion of the marriage of a minor girl or the one just reaching the threshold of puberty.”The bitter truth however remains as this writer can say on the basis of the fact that his grandmother (paternal) was married at the age of 14, as he heard from his father and his first hand fresh knowledge of the intention of his ex-domestic aid to contract the marriage of his 14 year daughter as he is much concerned about her safety. Truth can be bitter - but we can verify with our grandparents if they are alive.


    By muhammad yunus (1) - 6/13/2012 7:31:51 PM



  • Excellent article, but when will the day come when Muslim lawmakers can decide that the minimum age for girls to marry is 18 and for boys 21 without having to cite quotations from 9 different Hadiths and 6 different verses from the Quran? Can't we base our answers to such questions on our common sense, current knowledge of psychology and science, and community wisdom?

    By Ghulam Mohiyuddin - 6/13/2012 12:28:25 PM



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