Marriage of Minors under Islamic Law: Between Classical Jurisprudence and Modern Legislative Reforms – Part 1

This post has been contributed by Professor Mashood Baderin, Module Convenor for Introduction to Islamic law.

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While marriage of minors is an age-old practice that has historical footprints in different societies, it is despised today and identified as a deprivation of childhood and a cause of lifetime disadvantage especially for girl children. There is concerted international effort to promote understanding about its adverse effects on children and continued advocacy for ending the practice globally. The UN General Assembly adopted a second resolution in 2016 against the practice and urging States to enact laws to end the practice. Although many States have now legislated against marriage of minors, the practice is still common in different parts of the world, including Muslim-majority States, based on cultural, economic and religious reasons amongst others. In some Muslim communities, the practice of marriage of minors is sometimes justified by reference to the views of classical Islamic jurists in the Fiqh manuals of the different schools of Islamic jurisprudence.  For example, a few years ago, some Muslim organisations in India opposed the ban on marriage of minors under the Indian Child Marriage (Prevention) Act on grounds that it was against the Muslim Personal Law. Also the Council of Islamic Ideology in Pakistan had objected to the Pakistani Law prohibiting underaged marriages on grounds that it was contrary to Islam. The continued prevalence of the practice in different Muslim-majority States that still apply the principles of Islamic family law as part of State law, begs the question of whether the practice can be banned or at least regulated under Islamic law in view of contemporary realities.

I will, in this 2-part Blog, give an overview of both classical Islamic jurisprudential views and modern legislative reforms in some Muslim-majority states on the issue.  While majority of the classical Islamic jurists considered marriage of minors permissible under classical Islamic jurisprudence, different Muslim-majority states have, indeed, now adopted legislative reforms regulating the practice in response to contemporary realities. This provides an illustration of the possible evolution of Islamic law in response to relevant circumstances of time and place.

With regard to classical Islamic jurisprudence, the starting point will be to identify the Shari’ah provisions on this issue from the Qur’an and the Sunnah as the two “sources” of Islamic law. First, there is no specific definitive (qat‘ī) provision on the age of marriage in the  Qur’an. There are, however, three relevant  non-definitive (zannī) Qur’anic verses that the classical jurists relied upon for their different jurisprudential views on the issue. These are Q4:6 – “And test the orphans [in their abilities] until when they are mature for marriage (hatā idhā balaghū al-nikāh); and if you perceive in them sound judgement (rushd), release their property to them”, Q24:32 – “Marry those who are single (al-ayāmā) amongst you”,  and Q65:4 – “And for women who have passed the age of menstruation, their prescribed waiting period [in case of divorce], if you have any doubts, is three months, and [also] for those who have not menstruated [wa al-lā’ī lam yahidna); but for those pregnant with babies in their womb, their prescribed period is when they deliver their pregnancy…”.  There is a majority and a minority jurisprudential view on the subject due to the non-definitive (zannī) nature of these verses.

Generally, the statement “until they are mature for marriage (hatā idhā balaghū al-nikāh); and if you perceive in them sound judgement (rushd)”  in Q4:6 indicates apparently that attainment of maturity (bulūgh) and sound judgement (rushd) are necessary pre-conditions of personal capacity for  marriage. It is important to note however that maturity is primarily determined under classical Islamic law by physical puberty. Age only serves as a secondary means of determining maturity where there is lack of the specified signs of puberty. There are differences of opinion among the  classical jurists on the presumed age of maturity in the absence of the specified signs of puberty. This ranged between 12 to 19 years for boys and 9 to 17 years for girls according to juristic views under different schools of classical Islamic jurisprudence. From the context of the verse, the additional requirement of sound judgement (rushd) would relate to ability to manage one’s own affairs, which may actually occur much later after puberty.

The majority classical view, held by the Hanafī, Mālikī, Shāfi’ī, Hanbalī and Ithnā Asharī schools of Islamic jurisprudence is that marriage of minors is permissible and may be contracted by the  father or guardian acting in the minor’s best interest. This is based on their interpretation of the three Qur’anic verses earlier cited.  First, they argued that the statement “… and those who have not menstruated…” (wa al-lā’ī lam yahidna) in Q56:4 refers to minors who have not yet started menstruating. They inferred that prescription of waiting period (in case of divorce) for “those who have not menstruated” (which they interpret to mean minors who have not yet started menstruating),  indirectly indicates permissibility of marriage of minors. This is the view held by most of the classical Qur’anic exegetes, including Ibn Kathīr and Qurtubī. However that classical view has been questioned by some contemporary Muslim commentators who argue that the statement “those who have not menstruated” in Q56:4  does not refer to minors but should be understood as referring to mature women who have conditions of absence of menstruation, known in modern medical terminology as “amenorrhea”. Secondly, the majority view also argue that the statement “Marry those who are single (al-ayāmā) among you” in Q24:32 refers to both mature women and minor girls. With regard to the phrase  “until when they are mature for marriage” (hattā idhā balaghū al-nikāh) in Q4:6, they argue that this, as is reflected in the verse, relates to when the property of young orphans should be released to them and not specifically about when to marry. The nucleus of the classical majority view is that while marriage of minors is not the general norm under the Shari’ah, it may be necessary in the minor’s own interest and thus its permissibility under Islamic law. It must be noted, however, that in case of such marriages,  consummation must not take place until after maturity. Also, according to some of the jurists under this view, such marriages remain voidable by the minor upon reaching puberty under the concept of the so-called khiyār a-bulūgh (option of puberty) before consummation of the marriage.

Contrary to the majority view, there is a minority view held by classical jurists such as Abdullah Ibn Shubrumah al-Kūfī, a famous jurists of Iraq in the 8th century, and Abū Bakr Al-Asamm, a prominent Mu’tazilī jurist of Basra in the 9th century, that the marriage of minors is not lawful until majority (bulūgh). Ibn Hazm recorded in his al-Muhallā that Ibn Shubrumah’s view was that it is not permissible for a father to give his minor daughter in marriage until she attains puberty and able to give her consent as is required generally under Islamic. The minority view is based on different interpretations of the same Qur’anic verses earlier cited. First, they argue that Q4:6 clearly establishes that maturity (bulūgh) and sound judgement (rushd) are essential pre-requisites of a valid marriage and they disagree with the view of the majority that this verse does not relate to marriage. They also disagree with the majority view that the statement “and those who have not menstruated” (wa al-lā’ī lam yahidna) in Q56:4 refers to minor girls and further argue that  the statement “Marry those who are single (al-ayāmā) among you” in Q24:32 refers only to mature single women and not to minor girls as perceived by the majority view. The minority view also argues generally that marriage requires consent of the parties and is based on particular necessities, such as fulfilment of sexual needs and lawful procreation, for which minors have neither the ability to fulfil nor the need for and therefore marriage has no benefit for them. Such marriages are often contracted to satisfy the interest of the parents/guardians themselves, and not necessarily in the best interest of the minors. For example in analysing some fatwā on marriage of minors in 19th Century Ottoman Palestine, Yazbak ( 2002, p.399) noted that:

Of course, one of the main reasons for contracting minor marriages was the possibility it gave guardians to preserve or enhance the position and property of their own families through strategic alliances.

 

The nucleus of the minority view is that  marriage of minors is unwarranted as minors have no need for and are not bound by the rights and responsibilities in marriage which can only arise after the attainment of maturity and sound judgement.

In addition to relying on those non-definitive provisions of the Qur’an on this issue, the classical jurists also relied on the Sunnah by reference to a hadīth in which Aisha, the wife of the Prophet (pbuh) is reported to have said: “The Prophet of God (pbuh) married me when I was six years old, and I was admitted to his house when I was nine years old” (Narrated by both al-Bukhāri and Muslim). Ibn Shubrumah was of the view that the Prophet’s marriage with Aisha was a special case (khāss) and should not be considered as a practice permissible generally under Islamic law. There have also been some recent research revisiting and debating the actual age of Aisha when she married the Prophet.

On the premise that Aisha was actually married to the Prophet at the age of six years and consummated at the age of nine years, Bowden (2013, p.4) has rightly observed that this should be perceived contextually in relation to the acceptable practices of the time that the marriage took place. In comparison, he illustrates this by reference, for example, to the historical fact that  in 1880, the majority of the United States agreed that a person who was ten years old was old enough to consent to sexual relations, noting that: “This is only a single year older than Aisha was when she consummated her marriage to Muhammad in 622CE, more than 1200 years earlier. Delaware had set the age at seven and only a handful of other states upped their minimum age to twelve. By 2007, age of consent laws in the United States required people to be between fifteen to eighteen years old in order to engage in sexual relations”. (Continued in Part 2).

 

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