Muslim personal law would be in conformity with the Koran 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In other words, this outdated law presumes that Muslim girls on reaching the age of 15 become legally informed and competent to enter into marital alliances on their own.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 Koran clearly did not encourage. For instance, Sunni law, without any Koranic 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 hadess 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. He may be reached at faizz@rocketmail.com)
Keywords: child marriage, age of marriage, Mohammedan Law, Dissolution of Muslim Marriages Act, Muslim Law, Islamic law
Mr. Khaleelur Rahman's long-winded response was amusing to the say the least. I do not understand on what basis he calls the excellent article of Mr. A. Faizur Rahman 'a bundle of distortions' when he has not been able to point out a single distortion? Mr. Faizur Rahman quoted chapter and verse from both the Quran and the hadiths to prove that child marriage is not allowed in Islam. All Mr. Khaleelur Rahman had to do was to counter these facts. Since he was not able to do that Mr. Faizur Rahman's arguments still hold good. I am also surprised that Mr. Khaleelur Rahman thought it fit to quote the Shankaracharya to bolster Deoband's justification of child marriage. It is amusing to see to what lengths Muslim fundamentalists can go to prop up their indefensible positions. Finally, the figures and percentages (obviously taken from the Wikipedia) quoted by Mr. Khaleelur Rahman are totally irrelevant to the discussion. Let him quote from the Quran to prove the validity of child marriage.
The Chief Justice of India, Mr. K. G. Balakrishnan once rightly said that a uniform civil code is a highly sensitive issue in our country where people belonging to different castes, races and communities live and explained it in detail saying that "it took thirty years for Britishers to implement the Indian penal code after its codification in the beginning of 1830". In a plural society like India only plural laws can give a strong feeling of nationality. Ours is a country of people belonging to different faiths and cultures and of course they must have the laws of their respective choice. The different personal laws in vogue now should continue to exist for the purpose of unity and solidarity of the country. If a uniform civil code is imposed on the unwilling minorities, it will not only be of no use, but also weaken our country. There is an urgent need for creating a right atmosphere in the country where people can feel free to think and decide their issues. There is mention of a uniform civil code in the Directive Principles of the Constitution and not of a common civil code. It is well known that the Hindu laws are not the same everywhere in the country. The tribals also enjoy their own laws and they continue to receive support from all politicians. As the first step let the Hindu laws be made uniform.
After reading this article and comment i get realize that our judicial system should analyze the fact and reality before making any judgement.
The author seems to feel that right-wing parties exploit controversial court judgments like this one to threaten the Muslims with a Uniform Civil Code. Well the need to enforce a Uniform Civil Code is enshrined in the Constitution (Directive Principles) of our country. So, the anger of the author should be directed against the constitution and its secular creators! BTW, why does The Hindu feel so shy to publish this comment (third try)? Is Hindu embarrassed by the mention of Uniform Civil Code in the Constitution?
so why is there no protest against this judgement, in fact some muslim groups welcomed it. Why are rational voices of Islam, like this report, are so muted and all we get to see is aggressive and vocal radicals?
This has reference to the write-up “Islamic law does not sanction child marriage” by Mr. A. Faizur Rahman. It is a bundle of distortions to say the least. The internationally reputed Islamic seminary Darul Uloom, Deoband and the Muslim community by and large have welcomed the recent judgment of the hon'ble Delhi high court upholding the right of a 15 year old Muslim girl to stay married and rejecting her mother’s claim that she was a minor girl who had been abducted against her will. One should understand that there is Muslim personal law in our country and Muslims are governed by it. The hue and cry made by some activists against the judgment has no meaning. In fact the above judgment is a shining example of a very rational approach to a burning issue like marriage. The hon'ble judges actually saved the marriage and also the couple. There have been child marriages taking place throughout the world. It depends upon socio-economic conditions. All the religions Hinduism, Christianity, Islam etc. are not opposed to the marriages of girls below 18 years. Many Sankaracharyas have said that girls should be married as soon as they attain puberty. UNICEF's 'State of the World's Children-2009'report says that 47% of India's women aged 20-24 were married before the legal age of 18. Even in the United States laws regarding marriage vary in different states. Generally girls 16 and over may marry with parental consent although 18 is the minimum age in most states to marry without parental consent. The report also shows that 40% of the world's child marriages occur in India. Yet another report says that in 2010 the great majority of teenage births were to unmarried young women in the U.S. (99% for teens under age 15, and 88% for 15 to 19 year olds, compared with 63% of births to women ages 20 to 24, one-third for women ages 25 to 29 and 21% for women in their thirties. Under these circumstances the judges had no option but to approve the marriage of the 15 year old Muslim girl. This should have made the couple heave a sigh of relief. Islamic laws are meant for the betterment of the society and not to make it go astray. We cannot say that girls cannot be competent to enter into marital alliances on their own before the age of 18. The very fact that the girl married a boy of her choice and not her parents indicates that she is bold enough and capable of deciding things. There may be girls even at 25 lacking maturity and incapable of taking decisions about their marriage. It does not mean that Muslim girls are to be married before 18. The present day Muslim girls are interested in higher education. Now-a-days child marriages are not common among Muslims. Things have been changing fast. There is no need to make changes in the Muslim personal law about the age of marriage for Muslim girls as it will not serve any purpose but only create problems.
The author is afraid that right-wing parties will exploit controversial court judgments like this to threaten the Muslims with a Uniform Civil Code. More than the right-wingers it is the Constitution of India that talks about the need to enforce a Uniform Civil Code and it was written by confirmed 'seculars'!
Mr, Rahman, we do not need fantastically formulated explanations of Sharia law. India's uniform civil code which is known for its progressiveness and versatility, should be followed by all Indians including Muslims. There is no place for any religious code in Secular India. You are cleverly misleading people by saying that only right-wing parties advocate Uniform Civil law. In reality ,substantial number of muslims, particularly muslim women, law makers and Indians of all religions strongly advocate a uniform civil code for all Indians and do not want one group to consider itself above India's civil code. Your hatred for India's civil code is obvious in your last statement when you say you feel threatened by the common civil code.
A child should not belong to any religion unless she is 21 and can have the understanding of whetehr there is a god or not. I hope the goodwill will prevail in the society and all human beings are considered as a human rather than belonging to a religion.
courts of law in India are pronouncing judgments
on what is right and what is wrong in religious beliefs and practices.
It is high time that Caesar should claim what is rightfully his due,
while allowing religions to have their sway within their realms.
Thanks for the lucid explanation on child marriage in Islam. A lot of anti-Muslim fanatics take the example of Aisha being married early as gospel truth but your logical explanantion by comparing the age of her sister Asma makes it clear that she was between 17-19 when she got married
Islam clearly prohibits child marriage or can be called an immature marriage, through its Quranic versions. "The Quran rejects the marriage of immature girls and boys as well as entrusting them with responsibilities" (Mir Murad Alikhan, "Was Haz. Aisha 9 years old..."). In an Islamic view 'the age of puberty' does not mean only that one has reached to the stage when sex glands have become functional. Rather it talks more about responsibilities, i.e. a married couple should be able to look after their family affairs. Can an immature girl/boy be able to fulfill the upcoming responsibilities? The court before passing out such judgement needed to study more about Islamic law according to Quran and Hadith. At the same time the Islamic scholars are required to study the social sciences, they need to study the psychological aspect of the society.
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