Why Marriage of Minor Muslim Girls Should be Illegal
By
Arshad Alam, New Age Islam
16 January
2023
Muslims Should
Come Forward Make Changes In Their Personal Law
Main
Points:
1. Muslim
personal law is in conflict with civil laws like PCM 2006 and POCSO 2012.
2. The Supreme
Court has admitted a petition which demands that in cases of such conflicts,
the civil law of the country should supersede religious laws.
3. According to
Muslim personal law, a girl can get married when she attains puberty.
4. Child
marriage has emotional, psychological, physical, financial and educational
consequences for girls.
-----
The Supreme
Court has admitted a petition which seeks to examine the legality of minor
Muslim girls getting married under the provisions of Muslim personal law. We
know that the minimum age of marriage for girls in the country is 18 years but
the Muslim personal law allows girls and boys to get married after reaching
puberty. It therefore means that Muslim girls can get married much earlier than
the stipulated 18 years. This contradiction between the Muslim law and the
state law has not yet been resolved, with high courts in different states
giving varying rulings. Thus, in October last year, the Punjab and Haryana high
court ruled that Muslim girls can get married after she hits puberty as her
religion allows her to do so.
This provision
of the Muslim personal law directly contradicts the Prevention of Child
Marriages Act 2006, which prohibits marriages of girls below the age of 18
years. Keeping this law in mind, the Karnataka high court in 2013 ruled that
“no Indian citizen on the ground of his belonging to a particular religion, can
claim immunity from the application of Prevention of Child Marriages Act”, thus
making it illegal for Muslim girls to get married before the age of 18 under
any circumstance. The Muslim law also runs foul of the Prevention of Children
from Sexual Offences (POCSO) Act 2012, which does not recognize consent for
sexual activities by minors. Under the provisions of this Act, any sexual
activity with girls before they reach the age of 18 years is treated as sexual
assault and hence liable to be punished. It is this disharmony between the
civil and the Muslim personal law which has given rise to ambiguity in terms of
contradictory judgments emanating from different high courts. It is expected
that the Supreme Court will examine the issue and give a judgment which will
put a stop to subjective interpretations of the law.
It is true
that in the Punjab and Haryana case, the girl was being forcibly married off by
her family to her maternal uncle. She chose to get out of that relationship by
marrying someone else. In this case, the Muslim personal law worked in her
favour as it allowed her to marry despite not having attained the age of 18
years. Had she waited to turn 18, things would have been much worse for her. But
clearly, these are exceptional circumstances which should not detract us from
the larger issue of what child marriage does to the dignity, autonomy and honour
of Muslim girls. Additionally, we need to be aware that as societies progress,
the age of marriage of girls increases. The idea is that women really become
empowered when they gain education and become financially independence. This
cannot happen when they get married at a young age, become mothers and are
burdened with household chores.
World over,
in all religions, the ideal for girls was to get married early. In India, the
Hindu tradition was no different. But it is also a fact that these religious
traditions have changed themselves. This is not to suggest that child marriages
do not happen in Hindu communities. Rajasthan is full of such stories. But then
Hinduism as a whole has accepted the idea that it is better for girls to get
married after they attain physical and emotional maturity. That’s why there was
not much of an issue when the age of marriage for girls was raised from 16 to
18.
Child marriage. Representational
Image? First Post
----
Unfortunately,
we cannot say the same for Muslim religious tradition. Way back in 2013,
majority of Muslim organizations in Kerala had appealed to the state to exempt
them from Child Marriage Act 2006 as it was in contravention of the Islamic
sharia. Thankfully, Muslim women bodies and student groups opposed this demand,
primarily moved by the orthodox Ulama. In 2012, the AIMPLB had welcomed the
decision of the Delhi high court which had upheld the legality of the marriage
of one 15 year old girl. When in 2021, the Union Cabinet had moved a resolution
to raise the minimum age of marriage of girls from 18 to 21, the AIMPLB again
termed it as an interference in their personal laws.
This is not
to suggest that most Muslim girls get married as soon as they hit puberty.
Indeed, much like other communities, the marriageable age of Muslim girls has
also increased through the decades. However, looking at the pronouncements of
religious bodies like the AIMPLB and others, it becomes clear that they resent
such developments. The ideal remains clear: girls should get married as soon as
possible. This is what differentiates Islamic response from other religious
traditions. While other religions have internalized that it is good for girls
to get married when they are emotionally and sexually mature, Islam still has a
problem in seeing any benefits that it brings.
Or is it
that the Muslim religion consciously does not want to see any merit when it
comes to empowerment of its women followers? Those claiming to represent the
Islamic cause seem to relish the misery of women. Just look at what the Taliban
are doing in Afghanistan and what the ISIS did in Syria and Iraq. The Islamic
scripture certainly advises that girls should be married when they hit puberty
but it does not necessarily mean that they should be compulsorily married off
at a young age. Moreover, the same scripture also tells us that marriage is a
contract. Hence it assumes that the person entering into the marriage contract
are of sound judgment and fully capable of giving valid consent. Do the
reactionary Ulama think that a girl of 15-16 is capable of fully comprehending
what the institution of marriage entails? Do they understand the social
responsibilities that they will have to fulfil post marriage? Clearly, no sane
person can argue that a child is capable of comprehending all that. Thus, the
consent that she gives (mostly under duress or persuasion of parents) cannot be
held valid if we recognize the spirit behind Islamic marriage.
The Ulama
state that the Prophet married Aisha when she was six and consummated the
marriage when she was nine. And since emulating the prophetic conduct is part
of Sunna, the Ulama have argued that there cannot be any minimum age for Muslim
girls to get married. This claim now looks exceedingly bogus. This piece of
information about the Prophet comes from the Hadis, which were written some
hundred any fifty years after his death. A lot of questions can therefore be
raised in terms of the methodology through which these narrations have reached
us. Latest research on the age of Aisha suggests that she was not 9 but 19 when
she got married. This might be dismissed as Muslim apologetics but there are
other narrations which support the claim that the Prophet would not have liked
child marriage at all. One of these narrations is that the Prophet himself
declined the marriage of his daughter Fatima specifically citing her young age.
The suitors in this case were Abu Bakar and Umar, the first and second caliph
of Islam. Those who believe in the authenticity of Hadis tradition, need to
explain the conduct of the Prophet, in this case expressly forbidding child
marriage. But then again, Muslim exegetes refuse to highlight this narration as
this does not suit their agenda.
Islamic
narration also tells us that the Prophet’s first wife was Khadija, who was 15
years elder to him. If everything that the Prophet did becomes a model worth
emulating, then why is it that this first marriage of the Prophet does not
become worthy of emulation by Muslims? His marriage to Khadija, which was the
longest and during which he remained monogamous, seems to be an ideal worth
emulating in contemporary times. But why is it that our Ulama do not select
this marriage as the normative Sunna that Muslims should follow?
The basis
on which Aisha’s marriage is selected as the model while Khadija’s is not is
completely arbitrary and selective. Ultimately, this selection of one model
over the other is about power and authority rather than any fundamental essence
of Islam which our Ulama keep telling us. Those exegetes who prized one model
over the other were rooted in their times; their own subjectivities built the
tradition that we know as Islam today. There is therefore no need to follow
such interpretations anymore as we live in very different times and our
subjectivities are very different from those living in 11-12th centuries, when
these legal tomes when written. Especially when such jurisprudence conflicts
with contemporary notions of morality, honor and dignity.
Many Muslim
nations have realized this already. With exceptions, countries like Algeria,
Bangladesh, and Turkey have raised the minimum age of marriage of girls.
Shouldn’t the Indian Muslims be doing the same?
-----
A
regular contributor to NewAgeIslam.com, Arshad Alam is a New Delhi based
independent researcher and writer on Islam and Muslims in South Asia.
URL: https://newageislam.com/islam-women-feminism/marriage-minor-muslim-girls-illegal/d/128886
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