By Dr. Amina Wadud
Sep 25, 2013
This week, in the state where I am living, Kerala, India:
“…nine prominent Muslim (sic) organizations have decided to approach the Supreme Court to exclude Muslim women from the law prescribing a minimum marital age. According to them, the present Prohibition of Child Marriage Act, 2006, which prescribes 18 as women’s legal age and 21 for men, violates Muslims’ fundamental right to practice their religion”
Let me try to step back and formulate this in plain English.
India is a secular democratic nation-state, with a population of over 1 billion, a poverty rate at best estimated at 22% . It ranks as the 55th worst country with regard to its maternal mortality rate with estimates as high as 450 per 100,000 , and has an infant mortality rate of 44-55 per 1000. All the above factors have a direct corollary to child marriage: poverty, maternal mortality (think babies having babies), and thus, infant mortality is directly related to the national age of marriage.
Thus, one way to eradicate poverty, save mothers, and save infants is to prevent child marriage. It is no wonder preventing child marriage is a leading strategy for development organization, human rights organizations and even the World Bank. In 2006, India passed the Child Marriage Act  which states, “This legislation is armed with enabling provisions to prohibit child marriages, protect and provide relief to victims and enhance punishment for those who abet, promote and solemnize such marriages” (pg 1).
Against the proven results: maternal mortality and infant mortality rates have declined since its inception of the Child Marriage Act, Muslim organizations in Kerala have decided to approach the Supreme Court to ask that Muslims be exempted as it “violates the fundamental right to practice their religion”!!!
While providing no evidence that child marriage is “fundamental” to our religion, the absence of which would “violate” our ability to practice—since there is no such evidence—let me at least attempt to objectively describe the process of history and culture as it might lead to such a misconception.
There is sufficient evidence that one of the Prophet Muhammad’s wives was under 18 when they were married. That was neither unusual nor disrespectful at the time and place where this took place. My mother was under 18 when she and my father were married, and this was in the 20th century Democratic United States. While I acknowledge that this did happen, I do not sanction it as a model for what should continue to happen. What I will point here to is the kind of skewed logic that finds some advocates exerting that this must continue to happen. We start with the evidence above, proving that child marriage is harmful, potentially fatal, and also provide the intra-Islamic methodology.
Let Us Start With The Prophetic Example.
Muslims follow what is known as the Sunnah as one of our primary sources of law, ethics and behaviour. Sunnah best translates as “normative behaviour of the Prophet Muhammad”, upon him be peace. We say, “Normative”, because the Prophet was also known for exceptional behaviour in his spiritual practices, acts of worship, and social location. These exceptions have no force upon the community and have never been encoded into the law as recommendations, requirements, or “fundamentals”.
For example, the Prophet married 9 times. All but one of his wives was previously married, and considering the time in which they lived, they were quite old. His first wife, Khadijah, with whom he was married at the time he received the call to prophethood, was 15 years his senior: he was 25, she was 40. Their marriage lasted for over 25 years, until she died. They (re)produced four daughters, his only surviving offspring. It remained monogamous, despite the regularity of polygamy at that time. Since this marriage was the longest for the Prophet, why is it not the standard by which we measure normative or Sunnah?
Furthermore, all of his wives, except one, were older women, previously married (either divorcees or widows). Thus to seek precedent from the peculiar instance of the Prophet’s marriage to young Aisha is obviously skewed. I also find it abhorrent, distorting the image of the Prophet, violating the name of Islam and simply dangerous.
But the logic does not end here. Islamic law is often erroneously referred to as Shari’ah, a word which better relates to sacred path or divine essence. It should refer to Fiqh, which means interpretation or understanding of that essence, jurisprudence. Historical evidence has confirmed that Islamic law has always allowed for differences of opinion (Ikhtilaf) and has thus always been variant. Even today, there are four major Sunni schools of law, and one major Shi’a school. This speaks to its diversity and thus flexibility. Nevertheless, there are certain constants.
One constant, which I have already briefly demonstrated is the use of divine sources: the prophetic Sunnah, and most importantly the Qur’an, or revelation. These are also variants because as divine sources they can only come into force of law via HUMAN interpretation. The formulas for arriving at and then advocating divergent interpretive methodologies have proliferated and remain variant. Thus no one school has a monopoly on meaning. Every Muslim in every circumstance has the moral obligation to advocate a different opinion and to be supported by the very principle of Ikhtilaf. All one has to do is to show their logic, bring their evidence and they must be allowed their own good conscience.
Despite this flexibility and diversity there are still certain principles against which no law can be deemed “Islamic”. The number one principle is “justice”. Ibn al-Jayziyyah has stated, “the objective (or Maqasid) of Shari’ah is justice”. Should anyone be able to show that justice cannot be met, then the law must be reformed. In the case above, the overwhelming evidence shows that child marriages are harmful, even fatal, thus cannot be “Islamic”.
Finally, it is the purview of the nation-state to guarantee equality for all of its citizens. Should India allow herself to be persuaded by the skewed logic of these advocates, then it is the fault of India and not Islam that girl children will continue to lose their rights to becoming fully participating citizens and might even be led to their early death.
Clearly, I have more than can fit in one blog on this topic but for further information visithttp://www.musawah.org a global movement for justice and equality in the Muslim family. It states, “Equality, non-discrimination, justice and dignity is the basis of all human relations”. Child marriage violates these principles and is outside of Islam.