Much Ado about ‘Marri-Age’

A recent verdict of the High Court of Kerala regarding the age of marriage for girls has now been locked in ruckus. Some Muslim organizations have decided to move the Supreme Court of India with the demand for the revision of the order, which, they argue have harmful effects on those who are forced to marry off their girls before the age of 18. They argue that the verdict of the Kerala High Court contravenes the safeguards in the Muslim Personal Law. Comments

We understand that some of the Muslim groups which are said to have decided to move the Supreme Court have come out with the statement that they were not part of the decision to move to the court, but they just participated in the meeting to think of the court verdict and study about its ramifications and consequences, especially whether the judgment might have effects on the cases prior to the this. We think that there is confusion created by the media reports as well as selective coverage of the meeting and statements which disprove the claims of the reports. According to Jamat-e-Islami, which was party to the deliberation, there were two separate meetings. In the first meeting, the Child Marriage Prevention Act was debated. There were discussions on creating awareness about the relevance of the verdict among the people. It was also decided that the Qazis will not officiate, if the bride or groom is below the age of 18. In the second meeting, where some of the parties, including Jamat-e-Islami, was not present, the deliberators sought legal help from advocates for the protection of those who had been married below 18 before the verdict and they decided to move the court. So we understand that all parties to the deliberation were not unanimous in the decision to move the court. Some groups, including the student wing of the Muslim League, which was party to the deliberation, issued press statement declaring that education, not marriage, is the priority of Muslim girls. So the press reports suggesting that Muslim organisations stand for child marriage, we understand, are wrong.

But it is certain that some of the participants decided to move the court, as not all participants came out with disclaimers. Considering that the law has provided safeguards to those who married off their girls before the latest verdict, the ruckus about the verdict has made it appear, much to the satisfaction of Islamophobic controversy mongers, that the Muslim organizations are waging a crusade for child marriage. There are several issues – theological, legal and social – to be addressed in this context. As the judgment was passed in the context of a controversial marriage of a Muslim orphan girl aged 17 to an ‘Arab’ citizen in which case there are many versions and perspectives on the incident – that the ordinance will not be applied to the past cases is to be ensured .

1. Legal Issues

At the backdrop of the whole debate is the section 2 (vii) of the Dissolution of the Muslim Marriages Act, 1939 (DMMA), where one can read:

“She, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated.”

In its 2012 ruling, the Delhi High Court upheld the right of a Muslim girl to contract marriage at the age of 15. We think that the safeguards in the Muslim Personal Law might be this clause, which is a misreading of a Hadith, as noted by A FaizurRahman in an op-ed article Islamic Law Does not Sanction Child Marriage:

“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 High Court 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 fact the option of puberty (khiyar al-buloogh) is an important concept, if we understand that the contract before puberty is not that of marriage but that of betrothal. That is, according to Jeremiah J. Bowden, who has specially studied the issue in her Marriageble Age in Islam, “all Sunni legal schools agreed that a girl’s father had the right to marry her off to whomever he chose without consulting her. As minors children lacked the legal capacity to give their permission for marriage. However, this marriage could not be consummated until the minor child reaches the age of majority. Here one might recall the fact that although Muhammad had married Aisha when she was six, he did not consummate the marriage until she was nine. In the period between her betrothal and the consummation of her marriage, the young bride would reside with her parents. Another important caveat, according to many jurists, is that upon the attainment of the age of majority (menarche) the bride would exercise her right to annul the marriage if she so wished, this was called her option of puberty.”  Such betrothal still exists in many parts of the Asiatic society whose Kerala variant is the murakalyanam (customary betrothal). The caveat of option of puberty (khiyar al-buloogh) ensures that a girl or boy is not obliged to the betrothed.

It is, indeed, a strong misapplication of law, if one says that a father can marry off his daughter, when she is a minor.

2. Theological Issues

In none of the discussions on the age of a Muslim girl for marriage, her consent has not figured. In many ahadith, including that of Abu Dawood cited above the Prophet lays stress on the consent of the girl.

Ibn Abbas reported that a girl came to the Messenger of Allah, and she reported that her father had forced her to marry without her consent. The Messenger of God gave her the choice… (between accepting the marriage or invalidating it.)

Ibn Majah (compiler), Sunan Ibn Majah, Dar Ihya’ al Kutub al Arabiyah, Cairo: 1952, Vol. 1, Hadith #1873. There are ahadith like this in Sunan Abu Dawood and al Hajjaj.
(Courtesy Jamal Badawi: http://www.islamstudie.dk/familie_koen.badawi.htm)

These ahadith do perfect justice to the Quranic verse 4:6 which says: “Test the orphans until they reach marriageable age. Then if you perceive in them maturity of intellect, release their property to them.” (Qur’an 4:6)

So the marriageable age for women, according to the Quran, is when ‘you found in them rushd’ (which according to Lane’s Arabic-English Lexicon is maturity of intellect, discretion, and good management of affairs). Exegetes are of the view that a person attains rushd when she reaches puberty. Attainment of rushd is, however, quite relative. There is a jocular comment that the marriage of those who get married after 25 is a child marriage, meaning that the married couples don’t know how to manage their affairs. Someone will attain discretion at an early age. But in the social and legal praxis, this can’t be left to the vagaries of different people and their viewpoints. So, different societies at different times adopt particular standard of age below which a person is not supposed to get married. Such a standard is not in discord with the Qur’anic concept of the age for marriage, as the verse above cited shows.

According to Jeremia, the age for marriage of a girl must be seventeen in Jordan and Syria, sixteen in Algeria, and fifteen in Tunisia and Morocco. However, a woman does not reach the age of full competence to marry, and the right to marry without the court’s or a guardian’s permission, until she is twenty in Tunisia and twenty-five in Morocco.

Prophet’s marriage to Aisha is taken up by people as justifying the practice in many countries of marrying off minor girls. FaizurRahman, in above cited article, considers the Prophetic traditions in this regard unauthentic. He says: ‘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 (AsmaurRijal), 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.’

But FaizurRahman’s opinion, we think, is not textually valid. That Aisha was given in marriage by her Father at the age of six and the marriage was consummated at the age of nine is narrated on Aisha’s authority by Saheeh al Bukhari, the second authentic textual source of Muslims. Mishkath is a collection of Saheeh (Valid) traditions, including that of Bukhari. As such, Mishkath is a secondary source. The biographical data of narrators listed in a secondary source can’t be taken as valid proof against Bukhari, which is the primary source.

What Jeremiah J. Bowden says about the tradition comparing it with the legal practice in the USA more than a century ago is a valid point to put the hadith under perspective:

In the Sunnah, the Prophet sets a limit as to what is acceptable practice and what is not. Namely, by consummating his marriage with “Aisha when she is nine instead of when she was six, he effectively sets a limit to acceptable practice vis-a-vis licit sexual relations. While this act might sound deplorable to the contemporary Western reader, he is in fact attempting to show that there is an acceptable age for licit sexual relations and an improper age for those relations. In 7th century Arabia, the proper age for such relations was nine. Some might argue, and quite correctly I might add, that this age has risen dramatically since then. However, some fail to acknowledge this change and prefer to adhere to inherited practices.
To further elucidate the importance of historical context a comparison between age of consent laws over the course of American history is quite telling. 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. This is only a single year older than Aisha was when she consummated her marriage to Muhammad in 622, more than 1200 years earlier. It is interesting to point out that 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 require people to be between fifteen to eighteen years old in order to engage in sexual relations.”

Also one must not take the Prophetic practice as normative (i.e we are all normally bound to emulate it) but customary.

Kecia Ali, in her brilliant analysis of the textual and legal complexities in Islam in Sexual Ethics in Islam, says:  “Though in the vast majority of Muslim contexts today a nine-year-old girl would emphatically not be seen as an appropriate marriage partner, there was nothing shocking or socially inappropriate about such behavior in seventh-century Arabia. Though most first-time brides were not nearly so young, there does not seem to have been controversy over the age difference, and some Companions of the Prophet seem to have engaged in marriages with a similar age gap. Notions of childhood, as numerous historical studies have shown, vary dramatically from place to place, and imposing modern notions of adulthood as a criterion for entering into marriage validly may be inappropriate.”

When we lampoons the Prophet as a child molester or when we say we must marry off minor girls just as Prophet did it, we are conflating time and spaces and becoming anachronistic.

3. Social issues

Most parents prefer to marry off their daughters at an early age by force of social and economic circumstances.  The dowry system, at times so exorbitant, makes parents think less about the education of their girls than about their marriage. (Though because of upward mobility and the intervention of social and religious groups, girls are educated nowadays in large numbers). Marriage is no longer a custom for bringing two people under the invisible shade of mercy and love as the Quran says. It is much more like a financial deal inked by two families. In societies where dowry is a major component, a boy is grown up with the intention of bagging a whopping amount of money as dowry. This is a situation which scares lower middle class as well as poverty-stricken families in the Indian state, Kerala. Because education, which is equally, if not more, exorbitant, might incur more financial burden than a poor family can bear. If a proposal comes their way, they do not think twice about it, even if the girl is minor or major. When we address reform of the age for marriage or the regulatory bodies enforce ordinance in this regard, all these factors must be brought under consideration.

Above all, educational, social and economic mobility among the youths has forced them to question the traditional, mainstream morality surrounding marriage. Divorces and marital discords have increased in number, questioning the very assumption of the arranged marriage. It is high time we thought about mercy and love – which the Quran introduces as the fundamental values of a marital relationship (30:21) – as the values to be instilled in all relationships. Though individuals must reclaim these values, social and religious institutions can set the stage for the same. For that they cease to run after unnecessary issues.

Also, this writer is of the opinion that it is high time we thought about reforming the Personal Law. In the discussion of the above mentioned legal pronouncement in the Dissolution of the Muslim Marriages Act, we saw how the meaning of a tradition – the girl has right to annul the marriage brokered without her consent – is so vulgarly violated by the stipulation of age 16 that a parent can bypass it after the age criterion and how the age 16 became a fixed criterion which militates against the reform of age for marriage. There are many sections which think that the personal law is sacred. In fact, the diversity of Muslim legal tradition has been submerged when the Ottoman Law of Family Rights, which has been adopted as template for personal laws, came to exist. We don’t even remember what Imam Ghazzali said about the purpose of Divine law. FelicitasOpwis says: Maslaha is meant for the preservation for human kind of ‘the five essential elements for their well-being, namely, their religion, life, intellect, offspring, and property. Whatever protects these elements and averts harm from them is a maslaha, and whatever fails to do so is the opposite, namely, mafsada.’

When we understand that if a practice we stick to is not for maslaha (well-being) of the society but for its mafsada (ruin), we will be able to reform that practice.

We have cited many works to prepare the Q and A. They are

Jeremiah J. Bowden’s  Marriageable Age in Islam: A Study on Marriageable Age Laws and Reforms in Islamic Law

FaizurRahman’s: Islamic law does not sanction child marriage(Op-Ed, The Hindu, 13, 2012)

Lane’s Arabic English Lexicon

Kecia Ali’s Sexual Ethics in Islam

Jamal Badawi’s Gender Equality in Islam

Felicitas Opwis’s “Islamic Law and Legal Change: The Concept of Maslaha in Classical and Contemporary Islamic Legal Theory” in Shari’a: Islamic Law in the Contemporary Context, eds. Abbas Amanat and Frank Griffel (Standford: Standford University Press, 2007).

Infoeditor