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In other words, this outdated law presumes that Muslim girls on reaching the age of 15 become legally informed and competent to enter into marital alliances on their own.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 )
