Child marriages have long been the subject of international concern for human rights organisations. Various attempts have been made to ban marriages between minors, in many countries. In Islamic countries, difficulties in this area arise from tensions between international treaty commitments, and traditional and critical interpretations of religious sources.
A marriage contract is valid only if a couple both possess full legal capacity. Legal capacity requires the person to be of age and of sound mind. Marriageable age according to classical Islamic law coincides with the occurrence of puberty. The notion of puberty refers to physical signs of maturity such as the emission of semen or the onset of menstruation. Yazbak (2002:392) emphasises that ‘there was no need to mention a ‘minimum age’ because it was the girl’s physical appearance (‘plump and buxom’) that signalled whether the marriage could be consummated without undue harm.’ In the absence of such signs, the Hanafi school of Islamic jurisprudence assumes that puberty will occur no later than at seventeen years for girls and eighteen years for boys. At these ages the spouses are deemed to have attained full legal capacity to enter a marriage and are no longer considered minors in this regard. In contrast to the position of the Hanafis, both the Shafi’i and the Hanbali school set the ages of legal capacity for marriage at fifteen years for both sexes. All four Sunni schools agreed that a girl’s father had the right to marry her off to whomever he chose without consulting her.
The issue of child marriage is one on which there is considerable controversy within Islamic teaching. ‘Scholars argue that the core element of the Islamic marriage contract is the consent of both spouses’ (Nasir cited in Buchler and Schlatter 2013:41). Thus, a child marriage arranged by the guardians violates the sharia – either because the will of the future spouses is not sufficiently respected or because a minor does not have the mental maturity effectively to consent to marriage. ‘One argument that is often put forward in support of the practice of child marriage is the marriage of the Prophet Muhammad to Aisha, who was only been seven years old when the marriage took place’ (El Alami cited in Buchler and Schlatter 2013:41). It is argued that ‘marriages involving very young spouses are frequently concluded in the light of financial, property or relationship considerations and in order to secure not only the child’s but also the family’s interests’ (Buchler and Schlatter 2013:44). Yazbak (2002:399) further highlights that ‘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.’ Since extra-marital relationships are strictly forbidden in Islam, marriage relieves the father of a girl of his duty to protect her chastity and thus the honour of the family. Child marriages are also commonly seen as a means of elongating marital life and thus enhancing procreation. However, there is a growing international consensus that child marriages need to be eradicated, and this consensus finds expression in international law. Child marriages deprive children, and especially girls, of the opportunity to gain a proper education and thus make it impossible for them to pursue a professional career. Welchman (2007:65) notes that very young women and girls need special protection because they may be exposed to ‘physical and mental health risks of early marriage’ as well as ‘the loss of their opportunities for education and work outside family labour.’ Therefore, early marriage is detrimental to a girl’s physical, mental, and emotional health. It is also argued that ‘the risks of complications during pregnancy and childbirth are much higher when physical maturity has not yet fully developed’ (Buchler and Schlatter 2013:44). Beyond this, minor girls tend to fall victim to domestic violence far more often than grown-up women.
Islam has, according to many jurists, given to minors the so-called ‘option of majority’. A minor who has reached the age of puberty is free [in some cases] either to uphold or annul a marriage contract that was concluded on his or her behalf while in minority. Taken together, these measures seem to suggest that, in the final analysis, the minor’s interest and welfare are the focal point of the law. Even the jurists who do not recognize the minor’s ‘option of majority’ insist that no one other than a qualified father or grandfather is authorised to conclude a valid marriage on the minor’s behalf. This is based on the assumption that a father, who is also qualified as a guardian, would normally do what is best for his ward’ (‘Abd al ‘Ati 1977:77). However, according to the majority of the jurists, the ‘option of puberty’ only applies in case the minor’s marriage was contracted by a non-natural guardian. For example, Yazbak (2002:403) notes that ‘a minor for whom a marriage was contracted by his or her natural guardian or the latter’s agent has no possibility of having the contract annulled. Muftis are unambiguous on this point. It is argued that ‘It is the right of the father or [paternal] grandfather to contract the marriage (nikah) of a minor boy or girl, by force [of his authority] (ijbar). In this case the marriage is binding even it means a clear material loss for the girl … provided the natural guardian is not known to have misused his power, [i.e. used it] carelessly or wickedly’ (Yazbak 2002:403). This meant that, ‘if the natural guardian is publicly known to have misused his power, the marriage contract is not binding’ (Yazbak 2002:403-403). The classical Islamic jurists hold different views regarding the exercise of the ‘option of puberty’. Because a boy automatically enjoys the right of divorce as soon as he reaches majority, this situation [apparently] discriminates mainly against minor girls, who have to approach the court, for example, if a non-natural guardian carelessly contracted the marriage with someone unequal to her. Further, Tucker (1998:47) states that ‘if a minor girl were married off by someone other than her father or grandfather, she had the option, upon reaching her legal majority, of refusing the marriage [‘] such a refusal, which had to be given at the time she first reached puberty, immediately ended the marriage’. However, the marriage of minors is not compulsory but merely permissible (mub’h) under classical Islamic law and can therefore be restricted through principles of Islamic law such as siy’sah shar’iyyah, maslahah or dar’rah by the ruling authority of a Muslim-majority state.
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