By Asghar Ali Engineer
August 03, 2012
RECENTLY, the Legal Affairs Committee of the Majles (the Iranian parliament) has told the press that they regard the law that prohibits girls below the age of 10 from being married off as ‘un-Islamic and illegal.’
Reports indicate that in Iran, more than 75 female children under age 10 were recently forced to marry much older men. It is indeed very strange how child marriage can be deemed Islamic in any sense of the word. How can it be un-Islamic not to permit child marriage at the immature age of eight?
This is probably more cultural than religious. After all, any law bears footprints of culture and cannot completely get rid of cultural influences. While Islamic laws are very progressive, cultures in Islamic countries are still feudal or semi-feudal. Also, there has been debate among the ulema, as pointed out by the spokesperson for the Majles, about the age of puberty. Many ulema think that girls attain the age of puberty by or before age 10 while others think by the age of 15. But for most 10 is the age of puberty.
This has happened in Iran, where women’s participation in the revolution was so genuine and enthusiastic that they voluntarily took to wearing the chador as a symbol of their Islamic identity and a New York Times correspondent — seeing a sea of women in black chadors in 1979 — wondered how daughters of those mothers who had cast off their veils could take to the chador again. He perhaps did not realise that these daughters were wearing the chador as a symbol of their Islamic identity and to show solidarity with the leaders of the Islamic revolution.
However, their experience right from the beginning was not very pleasant and their expectations of liberation were not fulfilled. Gradually, the Islamic regime began to tighten its grip over women’s liberty, especially after the death of Imam Khomeini, who was a great visionary and believed in using persuasion rather than coercion. The revolutionary leadership began to quarrel for power in the post-Khomeini period and unfortunately the conservatives won.
And in the Islamic world whenever conservatives win, the first to be affected are Muslim women. Recently in Libya, when Qadhafi was defeated and his opponents — conservative Muslims — won, one of their first declarations was to legalise polygamy, as if their revolution was all about polygamy.
In Iran too women came to be under increasing control of the conservative clergy. A few years ago a woman, who was married with children, was accused of adultery and was sentenced to death by stoning, though human rights activists maintained that adultery charges were not proved. And there was no punishment for her alleged adulterous partner.
Coming back to child marriage, there is nothing Islamic about it; if anything it is un-Islamic. It is well-known that marriage is a contract in Islam and the Quran calls it a ‘strong covenant’ (mithaqan ghaliza) (4:21). It does not require a lot of argument to conclude that such a covenant cannot be entered into by children of the age of eight, that too a strong contract. A child does not even understand what a covenant is.
It is also well-known that both parties, i.e. husband and wife, can stipulate conditions, without fulfilling which the marriage will not be valid. Can a child stipulate conditions? Marriage is a lifelong partnership and a child cannot be expected to have the experience or intellectual ability to choose his or her life partner. Thus child marriage can in no case be Quranic or Islamic.
What is, then, the origin of child marriage in Islam? It is simply cultural and was not uncommon among the Arabs. The jurists can hardly escape the influence of their culture and cultural ethos. Though the Quran did not permit it, they allowed it because it was widely prevalent around them. They also tried to find justification for it in the Prophet’s (peace be upon him) Sunnah. Most Muslims believe that the Holy Prophet married Hazrat Ayesha when she was simply seven years of age and consummated the marriage when she was nine.
Firstly, this hadith appears about 300 years after the passing of the Prophet and in-depth research by many scholars clearly shows that Hazrat Ayesha’s age at the time of marriage was not less than 17 or 18 and at the time of consummation of marriage about 19 or 20. I have seen this research and there are very good reasons to believe it.
Since marriage is a contract in Islam, Imam Abu Hanifa, while allowing child marriage for sociological rather than religious or Quranic reasons, also had to make a provision for what is called option of puberty (khiyar al-bulugh) i.e. the girl, on achieving puberty or the age of proper understanding, could accept or reject the marriage and her guardian (usually father) also cannot force her to accept the marriage if she is unwilling. Imam Abu Hanifa had to make this provision because he knew the guardian is not an absolute authority to give the child away in marriage.
Religion should prevail over culture and not culture over religion. That is why most Islamic countries have now prescribed 18 as the age of marriage and have made child marriage illegal. Thus the Iranian clergy would be better advised not to legalise child marriage. I am sure the women organisations of Iran would surely resist this measure on part of the government, if at all it takes this regressive step defying the Quranic concept of marriage as a strong covenant.
Asghar Ali Engineer is an Islamic scholar who also heads the Centre for Study of Society & Secularism, Mumbai