India’s Child Marriage Act 2006 Prescribing 18 As Women’s Legal Age For Marriage Is Consistent With The Qur’an, The Personal Sunnah Of The Prophet Does Not Infringe The Fundamental Religious Rights Of The Muslims In Any Way
By Muhammad Yunus, New Age Islam
Co-author, Jointly with Ashfaque Ullah Syed, Essential Message of Islam, Amana Publications, USA, 2009
September 29 2013
- This is a follow up on Dr. Amina Wadud’s article dt. Sep. 25, appearing on this website refuting the objection of prominent Muslim organizations against this Act on religious grounds
· Early Marriage and Early Islam
This essay investigates the pressing issue of marriageable age for Muslim girls from the perspective of the Qur’an, the personal Sunnah of the Prophet and the gender dynamics of the era.
Historical relativity on marriageable age for women and the need and justification of Child Marriage Act 2006 for this era
In broad historical perspective, the marriageable age for a girl is informed by the gender dynamics and civilisational paradigms of an era.
Through the medieval ages and until the advent of family planning in the post war era, families were large, incomes were low, living conditions were harsh, personal security was lacking and women had no significant intellectual or economic role. The growing girls were then a burden on the family to be disposed off through marriage as soon as they approached puberty and drew the attention of male onlookers. In some cultures marriages were contracted when the girls were in infancy or even before they were born. This ensured the financial and personal security of a girl child as she grew up in a hazardous and hostile environment, and saved the parents from any worries regarding the final settlement of their daughters in the conjugal phase of life. Some ancient people including the pre-Islamic Arabs institutionalised female infanticide as a way out of taking any responsibility of women – a practice that can be detected in some communities this very day, going by sex-wise birth statistics. Thus, in broad historical timeframe, it is not possible to settle on any marriageable age for women.
Coming to this era, child marriage as practiced in many societies as part of culture or for financial and emotional reasons has been a cause of great sufferings, deprivations, exploitation and disempowerment of women – a truism that hardly needs any elaboration. Hence, the overriding need of the Child Marriage Act. However, as religion is of paramount importance to the Muslims, it is necessary to investigate the subject in light of the Qur’an and the Sunnah and to see whether or not the act is admissible on religious grounds.
The following Qur’anic illustrations point to a matured marriageable age and support the stipulated 18 year mark as the minimum age for a woman’s marriage.
1. It directs men and women using identical vocabulary to choose their own mates (2:221)
2. It omits any reference to the parents or any guardian of either spouse in all its verses relating man-woman relationship.
3. It expressly acknowledges the matured roles of either spouse as the guardian or protector (Wali) of one another (9:71).
4. It empowers a woman to have an independent income (4:32), which calls for her proper education and grooming and reaching a matured age before she enters wedlock.
5. The opening injunction of the verse 4:6, “test the orphans until they reach marriageable age,” explicitly carries the notion of a ‘marriageable age.’
6. In the context of the revelation, it invested women with independent authority to affirming their allegiance to the faith in Islam directly to Prophet, without the consent or presence of their husbands or guardians (60:12).
7. It accords a man with leading financial role in wedlock as its ‘Qawwam’ but does not bar a woman from playing this role jointly with the husband or independently if circumstances demand (4:34/ 4:32).
These Qur’anic illustrations are clear in support of a matured marriageable age for women, albeit, the Act should be complemented with a social safety net as discussed later.
From the perspective of the personal Sunnah of the Prophet
If we take Muhammad’s almost 25 year long monogamous marriage with Khadija, his first wife, as his personal example, his Sunnah (normative way), points to a matured marriageable age for a woman: Khadija was around 40 when Muhammad married her; he was reported to be 25.
But if we judge Muhammad as an elderly leader of a rapidly growing community, all his marriages including the one with a minor or underage girl, Aisha, represented the Sunnah of his era that he, as a leader of the community had to observe as a compulsive socio-political requirement of his era. Put it another way, as the leader of the Muslim community, he had to take the widows of his fallen men as well as slain rivals into his protection, and make politically important marital alliances, and all his later polygamous marriages between age 50-58, including the one with young Aisha fell in the latter category.
Hence, the personal Sunna of the Prophet does not admit of the marriage of a minor or under-age woman, though the Sunna of his era allows for marrying a minor girl. But, by any stretch of imagination, the Muslims are not required to follow the Sunna of the Prophet’s era. If that were so, they will have to emulate the Prophet while going in their daily chore (brushing of teeth, cutting of nail, mending of clothes, repairing of shoes for example) as part of their religion, and a fanatic Islamic group among them may force fellow Muslims to send their toddlers away to desert for childhood grooming, to graze camels, walk on foot, milk their goats (if they had any), drive camels or cattle herds, live in portable tents and replicate the primitive ways of the Prophet’s era. The Muslims, and particularly their traditional Ulema must therefore make this distinction to avoid utter confusion, irrationalism, anachronism and atavism in religion.
Arguments supporting the Act – a summary glance
- It is designed to empower women, give them an opportunity to build an educational base of at least higher secondary level education and acquire some technical skills before their full time conjugal bondage.
- It will help curb crimes, injustices, abuses and oppression of under-age brides that is frequently reported today.
- Basic education and skill will in turn earn women a social recognition and save them from becoming merely a sex slave-cum-domestic aid in today’s world in which women in other civilizations and religions have made enormous advancement in education, and all professional fields and public arenas including sports, song, music and art forms.
- It will give them security in marriage, lest their husbands will take undue advantages of their lack of personal attainments that inevitably goes with under-age marriage.
- It is obviously merited from health point of you and will help reduce infant and maternal mortality rates.
An argument against it and Counter-argument
While there is almost an open and-shut case in favour of the Act, there is one major issue that calls for serious consideration: the scourge of poverty and social oppression potentially triggered by the Act.
There may be millions of girls in very poor families in Muslim slums who have no means to pursue education as they approach puberty. Their parents may be too poor to meet their basic survival needs. Surrounded by the sexually adventurous adult males in their compressed and over-congested abodes, they are constantly stalked by unworthy suitors and are afraid to venture out of home for fear of being kidnapped or raped. These unfortunate victims of India’s social, political and communal order may have their woes compounded if they are not allowed to marry until age 18.
The argument, however strong, cannot put to question the rationale of the Act as the abuses of child marriage are universal and institutionalized and simply cannot be eradicated except by the enactment of the Act, while the abuses this Act triggers can be controlled and minimized by rule of law and other institutional measures. To this end, the Indian Government may seriously consider taking the following measures, and strengthening them if already in place:
Establish higher secondary level schools for girls as well as boys and IT/ Technical training Centres in Muslim slums on population basis to ensuring free compulsory education/ IT training for all school age Muslim children from the poor and otherwise deprived families with free meal or survival allowance until age 18.
A network of anti-stalking women Inspectors should be established with offices in each slum and Muslim population zones depending upon population with reporting lines to the area’s central Police Station. These will act as approach-friendly anti-sexual harassment agencies between heavily taxed, male dominated, major crime focused and awe inspiring Police Stations and the common female citizens.
Upgrade the slums in terms of civil amenities, housing quality, municipality services, and free health clinics as for historical and socio-political reasons and communal pressures, city slums have become final abode for most Indian Muslims, and are quite unsafe for a girl approaching her puberty.
On the sidelines, the Government must enforce compulsory universal education in all Madrasas keeping a core religious subject to maintain their religious character. Unless this is done, the functionally handicapped product of the Madrasas will be educationally or skill-wise outclassed by their matured age (above18) wives that will create another type of social problem against Muslim women. The following article on the theme can be used as basis to initiate a debate on the issue involving the educated Muslim Class and the popular Urdu Press”
RESTRUCTURING MADRASA EDUCATION: Muslim Opponents of India’s 'Right of Children to Free and Compulsory Education Act' are Enemies of Indian Muslims
Early Marriage and Early Islam
Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.
I fully agree with Yunus Sahab. Here is what M.J.Akbar writes in today's Times of India: -
"Almost every Muslim nation has banned child marriage. Are Muslims living in Bangladesh or Malaysia or Senegal or Egypt or Kazakhstan any less Muslim because of the ban? One of the myths perpetrated by Muslim extremists is that Islamic law is frozen. This is nonsense. The Sunni code includes the concept of Ijtihad, a form of honest and rigorous due diligence based on independent reasoning. Anyone competent enough to so interpret the sharia is called a Mujtahid. Slavery was legal when the Holy Quran was given to mankind. Today slavery is illegal in the Muslim world. And no one cuts off hands for theft."