Marriage of Minors under Islamic Law: Between Classical Jurisprudence and Modern Legislative Reforms. Part 2

This post is a continuation of Part 1 of this titled blog post contributed by Professor Mashood Baderin, Module Convenor for Introduction to Islamic law

Over the years, the marriage of minors has attracted global concern and criticism on grounds that it adversely affects, particularly, the girl child in many parts of the world today, including in Muslim-majority States where the practice persists. The arguments include that it deprives children, especially girls, of the opportunity to gain proper education and thus restricts their human capacity and development. Such children are not allowed to experience real childhood and adolescence, but are expected to assume matrimonial responsibility at a very early age. There are also susceptible to medical risks such as complications during pregnancy and childbirth, which are much higher when physical maturity has not yet fully developed. Children are also exposed to sexual trauma from such early experiences and often where minor girls are married to very elderly men they are prone to be subjected to domestic violence if they are not able to meet up with the demands of adulthood in marriage. For example there have many reported cases of such abuses in Muslim-majority countries such as Yemen and Niger leading to international outcry and high level campaigns against the practice.

Based on these challenges and contemporary realities, the minority jurisprudential position under classical Islamic jurisprudence has been accepted as the better view based on the concept of istihsān (juristic preference) by different contemporary Muslim scholars and organisations in the Muslim world on the question of marriage of minors, with some calling for its criminalisation. Based on evidence that the practice is generally harmful to children both socially and medically, there have been attempts at reforming the law in different Muslim-majority states in the larger interest of society based on relevant Islamic law principles of maslahah (public interest or human benefit) and darūrah (necessity). Examples of such reforms are as follows:

• Moroccan Family Code (Mudawwanah) (2004).

Art. 19: Sets minimum age of marriage at 18 for both sexes.

“Men and women acquire the capacity to marry when they are of sound mind and have completed eighteen full Gregorian years of age”.

Art. 20: Only allows marriage below 18 years through judicial permission based on legitimate grounds supported by medical evaluation or a social enquiry.

“The Family Affairs Judge in charge of marriage may authorize the marriage of a girl or boy below the legal age of marriage as stipulated in preceding Article 19, in a well-substantiated decision explaining the interest and reasons justifying the marriage, after having heard the parents of the minor who has not yet reached the age of capacity or his/her legal tutor, with the assistance of medical expertise or after having conducted a social enquiry”.

Art. 21: Makes such permitted marriage of minors contingent on the consent of both the legal tutor along with that of the minor.

“The marriage of a minor is contingent on the consent of his/her legal tutor. The legal tutor’s consent is expressed by signing, along with the minor, the marriage authorization petition and being present during the conclusion of the marriage contract. If the minor’s legal tutor refuses to consent, the Family Affairs Judge rules on the matter”.

It is obvious that the Moroccan Code does not fully prohibit the marriage of minors but only regulates it. While it sets the general minimum age of marriage at 18, it still allows marriage below 18 years through judicial permission after necessary medical and social enquiry. As the Code prohibits unregistered marriages, it may be possible for the State to regulate marriage of minors through this provision, but its effectiveness is still debatable.

• Malaysian Islamic Family Law (Federal Territories) Act, 1984 (as amended).

 S.8: Sets minimum age of marriage at 18 for men and 16 for women, except where a Shari’ah judge grants permission in writing in certain circumstances.

“No marriage may be solemnized under this Act where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syariah Judge has granted his permission in writing in certain circumstances”.

S.18(1): requires the Registrar of marriages to refer the application for  marriages below the minimum age to the Shari’ah judge having jurisdiction in the place where the woman resides to obtain judicial permission.

“… the Registrar shall, instead of acting under section 17, refer the application to the Syariah Judge having jurisdiction in the place where the woman resides.

(2) The Syariah Judge on being satisfied of the truth of the matters stated in the application and the legality of the intended marriage and that the case is one that merits the giving of permission for the purposes of section 8…”

This is similar to the approach under the Moroccan Code above.

• Jordanian Personal Status Law (2010).

Art. 10: Sets minimum age of marriage at 18 years, but judges with the agreement of the Chief Justice, may in special circumstances grant permission for the marriage of persons aged 15 years old.

While the approach under the Jordanian law is similar to the Moroccan and Malaysian approach above, it however goes a small step further by limiting the judges permission for marriages under 18 years to persons aged 15 years old. Both the Moroccan and Malaysian laws do not set a minimum for the age of marriage under 18 years that the judges could permit when necessary, which could, arguably, be open to abuse.

• Iranian Civil Code 1935 (as amended).

 Art. 1041: generally prohibits marriage before the age of puberty, which, according to classical Shi’i Ithnā Asharī law is defined as 15 years for boys and 9 years for girls. Marriage before puberty is only permissible by way of exception if the guardian approves of it and it serves the best interests of the spouses.

Unlike the examples in Morocco, Malaysia and Jordan above, the law in Iran is still essentially a restatement of the position under classical Shī’ī jurisprudence. Efforts in a 2000 draft bill to raise the minimum age from 9 years  to 13 years for girls was rejected by the Guardian Council but on appeal the Council of Exigency approved the proposal with an additional clause, which still permitted the marriage of girls under 13 years subject to the guardians consent and physical maturity of the girl, thus rendering the proposed amendment to 13 years not compulsory.

For further elaboration on these reforms and in other Muslim-majority countries such as Egypt, Saudi Arabia and Afghanistan see: Buchler and Schlatter, “Marriage Age in Islamic and Contemporary Muslim Family Laws: A Comparative Survey” (2013) 1 Electronic Journal of Islam and Middle Eastern Law, pp.46-71.

The emphasis of contemporary jurists on this subject has been on the fact that none of the classical Islamic jurists considered the marriage of minors to be obligatory (wājib) under Islamic law but merely permissible (mubah) in case of necessity and only in the best interest of the minor. Thus, the reforms are often based on contemporary ijtihād and legislative maslahah by the relevant Muslim-majority States. For example, the preamble of the Moroccan Family Code stated the justification of the reforms by indicating that King Mohamed VI had “appointed an advisory Royal Commission constituted of the finest experts and religious scholars, men and women from a diversity of profiles and fields, to conduct a fundamental review of the Personal Status Code … and insisted upon their fidelity to the provisions of Sharia (religious law) and Islamic principles of tolerance, and encouraged the use of ijtihād (juridical reasoning) to deduce laws and precepts, while taking into consideration the spirit of our modern era and the imperatives of development, in accordance with the Kingdom’s commitment to internationally recognized human rights”.

On the fact that  marriage of minors is not compulsory (wājib) but merely permissible (mubāh) for the perceived interest of the minor concerned under classical Islamic jurisprudence, it can therefore be abolished or restricted through principles of Islamic law such as siyāsah shar’iyyah (executive policy), maslahah (public interest or human benefit) or darūrah (necessity) by the ruling authority of a Muslim-majority State for the larger public interest and benefit of minors.

Justice Tanzīl-ur-Rahmān, a former Chief Justice of the Pakistan Federal Shariat Court from 1990 to 1992 and a member of the Council of Islamic Research and Council of Islamic Ideology in Pakistan from 1980 to 1984, has observed in that regard as follows:

The question of child marriage basically is a social problem. This problem instead of being looked at from purely religious point of view should equally be examined in the context of present day society. The fact that should be borne in mind is that the contracting of marriage of minors is not compulsory; it is just permissible. The Head of State or the Legislative Body of a country may, in the larger interests of the society, suspend or restrict it. This, however, never means that the Head of State or the Legislative Body may act only when it considers such a marriage contract to be illegal. It rather means that the Head of State or the Legislative Body may do away with it in the interest of the society and put a stop to social evils that might emanate otherwise. Islam recognises the right of the highest authority of the State to frame laws for the purpose. The Sovereign is empowered to suspend or restrict some actions or acts, that are in themselves permissible (mubah) but within the framework of divine law.” (Tanzīl-ur-Rahmān, A Code of Muslim Personal Law, Vol. 1, 1978, pp. 186-187).