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Islamic Law on Child Marriages

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 ISLAMIC LAW ON CHILD MARRIAGES

MOHAMMED SUBHAN HUSSAIN1

There is no agreed-upon answer in classical Islamic law as to

when a child is legally a minor, though it is widely acknowl-
edged that children have the legal capacity to acquire rights
and duties from the womb (ahliyyat al wujub). In questioning
when it is appropriate for a child to marry, it is crucial to de-
fine which rights are adjudicated to a minor when it is naqisah
(foetus), and when it is in the form of kamilah (child at birth).
Within the complexities that Islamic jurisprudence presents
concerning the marriage of minors, one must assess when a
child reaches puberty (bulugh/baligh) and whether, at this
age, he or she has the capacity of execution; thus becoming a
legally responsible (ahliyyat al adha) adult. This paper ex-
plores the idea that puberty is the age when a child manifests
prudence (rushd) and discernment (tamyiz) and whether abol-
ishing child marriage is an option. It closes with a reflection
of whether it is advisable to adopt a reform-orientated ap-
proach when assessing such an expansive topic.

1
I am the recipient of a full merit-based scholarship at BPP University
Law School. I would like to acknowledge Professor Werner Menski for
his unwavering support.
164 NILS UK Law Review Vol. 1

INTRODUCTION

This paper explores the degree of protection conferred by tra-

ditional Islamic family law to Muslim women by assessing
their ability to freely contract and consent to marriage (nik-
kah). It also examines the degree to which modern state law
is rooted in traditional law regarding such rights, particularly
the freedom to consent and the possibility of underage mar-
riage. There is a great deal of subjectivity about the meaning
of ‘underage’ in relation to marriage. The term is defined in
two ways. Traditional Islamic law specifies that the age of pu-
berty (bulugh) is the age of majority,2 which may be younger
than eighteen, contrary to the UN Convention of the Rights of
the Child (UNCRC).3 Given these definitions, the ages indi-
cated under traditional Islamic family law will be considered
in the appropriate context, but underage marriage in this paper
is defined primarily as marriage with a girl younger than
eighteen years of age.

TRADITIONALIST VIEWS

Traditional Islamic family law is the ‘substantive law’4 (furu

al-fiqh) grounded in the writings of Muslim jurists (fuqaha)5,
and associated with the four Sunni madhhahib and the Shi’a

2
M Siddiqui, ‘The Concept of Wilaya in Hanafi law: Authority versus
Consent in al-Fatawa al-Alamgiri’ (1998) 5(1) Yearbook of Islamic
and Middle Eastern Law 174.
3
‘Convention on the Rights of the Child’ (UNHR, Office of the High
Commissioner)
<http://www.ohchr.org/en/professionalinterest/pages/crc.aspx>
accessed 8 February 2018.
4
W B Hallaq, A History of Islamic Legal Theories: An Introduction to
The Sunni Usul Al-Fiqh (CUP 1997), 153.
5
W B Hallaq, The Origins and Evolution of Islamic Law (CUP 2005),
68.
2018 Islamic Law on Child Marriages 165

Ithna Asharis. To address these aspects, the work of al-Mar-

ghinani, Al-Hedaya, and that of Ibn Rushd, Bidayat al-Mujta-
hid, will be examined. Furthermore, the modern state laws
governing consent and underage marriage will be investigated
in the context of Yemen, Pakistan, and Iran. The argument put
forth is that traditional law undermines the right to marital
consent, supposedly granted to Muslims women. This is di-
rectly related to the lack of clarity regarding the age of major-
ity. Moreover, the madhhahib's interpret the Qur’an and
ahadith differently, resulting in lack of consensus. Hence, dif-
ferent schools of thought vary in their views on the rights
mentioned above. Compared to the other three madhhahib,
Muslim women enjoy broader marital rights under the Hanafi
and Ithna Ashari schools. Despite this, all five schools main-
tain the same rule that young Muslim girls must be under the
protection of a male guardian (wali).
Modern state law has been heavily influenced by various
aspects of traditional Islamic family law, and the differences
between modern states are embodied in the variations among
the madhhahib. This influence is indicative of state positivism
reinforcing interpretations of traditional Islamic law and thus
yielding both positive and negative outcomes, as well as em-
phasising the central role played by “interpretative actors”. A
minimum age for marriage6 is not specified in traditional Is-
lamic law; thus marriage of Muslim women is possible re-
gardless of their age. The reaching of puberty is the corner-
stone of the distinction between their right to marriage and
consent. For example, the Hanafi and Ithna Ashari schools
presume that girls younger than nine years old are minors and
the age of majority occurs at the age of fifteen.7 Though the

6
D El-Alami and D Hinchcliffe, Islamic Marriage and Divorce Laws
of the Arab World (Kluwer Law International 1996), 6.
7
M Lau and D Hinchcliffe, Introduction to Islamic law (University of
London Press 2010), 53.
166 NILS UK Law Review Vol. 1

Shafi'i and Hanbali schools mostly share this belief, the Mal-
iki school holds the belief that the age of majority is reached
at eighteen years of age.8
Traditional Islamic law conceptualises age differently from
modern international conventions such as the UNCRC. This
difference stems mainly from the fact that, under traditional
Islamic law, age is indicated by sexual, rather than mental ma-
turity.9 This is why female Muslims under the age of nine are
classified as girls and those of fifteen years of age and above
are deemed to be women. This view is shared by all the
schools apart from the Maliki school, which considers major-
ity reached at the age of eighteen. Consequently, female Mus-
lims are ‘married off’ at an age when they are still mentally
unprepared for marriage. In addition, since traditional Islamic
law differentiates between the rights of women and girls, the
absence of a general age of majority can lead to females’ nik-
kah (marriage contract) being deemed void.
There are differences among the madhhahib as to how
freely Muslim women, upon reaching puberty, should be able
to contract and consent to marriage. Female Muslims enjoy
the greatest freedom under Hanafi and Ithna Ashari schools of
thought, which consider that women who possess mental ma-
turity do not need a guardian’s approval to commit to mar-
riage.10 The Hanafi school legitimises its position on the
grounds that women are obliged to comply with the law with-
out being under the guardianship of anyone (mokkatiba). Chil-
dren, by contrast, have not yet “attained years of discretion”.11
Moreover, the Qur’an forbids blaming women who act freely

8
N Abiad and F Z Mansoor, ‘Criminal Law and the Rights of the
Child in Muslim States: A Comparative and Analytical Perspective’
[2010] BIICL 57-58.
9
Ibid 58.
10
Lau and Hinchcliffe (n 7) 53.
11
B al-Din al-Marghinani, The Hedaya (transl Charles Hamilton,
Premier Book House 1957), 34.
2018 Islamic Law on Child Marriages 167

in contracting marriage, without a guardian’s consent, as

clearly specified by the verse “There is no sin for you in that
which they do of themselves within the recognized limits”
(Qur’an 2:240).12 Hence, guardians do not have the right to
infringe upon women’s choice of spouse. Nevertheless, their
ability to select a husband can be restricted by guardians
(wilaya). It should be noted that such a right ceases to exist
upon pregnancy occurring.13 Hence, under the Hanafi and
Ithna Ashari schools, women can contract to marriage without
a guardian’s approval, although guardians can also impose
certain limitations on women’s freedom to contract and con-
sent to marriage. Under these two schools, it is not possible to
force Muslim girls as young as nine years of age to get mar-
ried.

VARIATIONS IN OPINION: DIFFERING SCHOOLS

OF THOUGHT

On the other hand, the Hanbali, Shafi’i and Maliki schools

hold that guardians are in charge of contracting marriages for
women who have no right in this regard, as specified by the
Hadith: “Any woman who marries without the consent of her
guardian, her marriage is void, void, void”.14 Women’s free-
dom is further limited by the manner in which they can con-
sent to marriage. If they are virgins (bikr), they can consent
by smiling or remaining silent, as mentioned by the Hadith,
“if [a virgin] be silent it signifies assent”.15 By contrast,
women are required to indicate consent more clearly to distant

12
Ibn Rushd, The Distinguished Jurist’s Primer: Bidayat al-Mujtahid
waNihayat al-Muqtasid (Vol 2, Ithaca Press 1999), 10.
13
Lau and Hinchcliffe (n 7) 53.
14
Ibn Rushd (n 13) 10.
15
al-Marghinani (n 11) 35.
168 NILS UK Law Review Vol. 1

guardians, as silence can signify shyness.16 Likewise, non-vir-

gins (siyeeba) must articulate their consent; in keeping with
the Hadith, "siyeebas are to be consulted”.17 These three
schools allocate the right of ijbar to the guardian, the father,
under Maliki law, or the father and grandfather under the other
four schools,18 who can thus coerce a virgin to marry.19 Con-
cerning marriage, a virgin woman is on a par with an infant
because of their inexperience in marriage.20 Hence, women’s
right to choose a spouse is restricted by the Hanbali, Shafi’I,
and Maliki schools, and consent can be implied by the
woman’s silence. Therefore, virgin women who have reached
puberty can be forced to marry under the laws of these
schools. In other words, these schools not only allow, but in
certain circumstances, encourage child and forced marriages.
Under the UNCRC, this a human rights transgression.21 These
aspects illustrate how the madhhahib differ, despite having
the same legitimacy via ikhtilaf.
Under the laws of all schools, guardians can contract mar-
riage for non-bulugh females and can force them to marry
based on the right of ijbar. Virginity and minority are used to
legitimise these rights under the Shafi’i school and the other
four schools respectively.22 The Hadith further reinforces
these rights, as Aisha was given in marriage to the Prophet
(pbuh) when she was six years old and the marriage was con-
summated three years later.23 Meanwhile, the law of the

16
Ibid.
17
Ibid.
18
Ibid 36.
19
Ibn Rushd (n 13) 5.
20
al-Marghinani (n 11) 34.
21
UN General Assembly, Human Rights Council, 24/L.34/Rev.1
<http://www.girlsnotbrides.org/wp-content/uploads/2013/10/HRC-
resolution-on-child-early-and-forced-marriage-ENG.pdf> accessed 14
February 2018.
22
Ibn Rushd (n 13) 5.
23
Ibid 6.
2018 Islamic Law on Child Marriages 169

Hanafi school specifies that females can confirm or dissolve

the union when they reach puberty by invoking the option of
puberty (khiyar-ul-bulugh). Importantly, however, this is not
applicable to marriages contracted by guardians based on
ijbar.24 Nevertheless, ijbar and wilaya both premise that
guardians must act ethically, giving due consideration to their
wards’ interests.25 Indeed, traditional Islamic law accords
enormous importance to this concept, with the right of ijbar
being granted solely to the father by the Maliki school, as no
other guardian can have as much care and goodwill.26 Hence,
guardians can invoke ijbar to force their wards into marriage,
but only if the wards’ interests are prioritised. From a modern
viewpoint, however, there is a possibility that guardians might
abuse their power, such as a father or grandfathers gaining fi-
nancially through the marriage of their wards.

A JURISDICTIONAL COMPARISON

Yemen
The dominant madhhab in Yemen is the Shafi’i school.27 It
can be argued that the incorporation of the traditional Shafi’i
law into the national Personal Status Law (PSL) has had ad-
verse implications. For example, the Yemeni Parliament re-
pealed Article 15 of the PSL in 1999 on the basis of religious
grounds, which stipulated that the youngest age at which both
males and females could marry was fifteen.28 Meanwhile,
comparable to traditional law, Article 127 of the PSL states

24
al-Marghinani (n 11) 37.
25
Ibid 7.
26
Ibid.
27
A A An-Na’im, Islamic Family Law in A Changing World (Zed
Books 2002), 145.
28
Human Rights Watch, ‘How Come You Allow Little Girls to Get
Married? Child Marriage in Yemen’ [2011] Human Rights Watch 2.
170 NILS UK Law Review Vol. 1

that girls reach majority at age nine years of age or when they
reach puberty, while majority is considered to begin at fifteen
years of age.29 As highlighted above, Muslim women’s rights
are susceptible to violation under this system. According to
Article 23 of the PSL, whereas virgins are considered to con-
sent to marriage if they stay silent, non-virgins must give clear
consent.30
More so, guardians frequently contract marriage for their
wards in Yemen,31 who therefore have the considerable power
to limit Muslim women’s rights to enter marriage on their own
and, in the case of virgins, infer consent from their silence.
The data collected by Human Rights Watch (HRW) from in-
terviewing Yemeni females confirmed this, with over 50% of
interviewees stating that they were not allowed to choose their
spouse.32 Moreover, there is a high rate of underage marriage
in Yemen due to the influence that guardians exert over their
wards (especially minors) and the absence of a fixed age for
marriage. The estimates from 2004 indicate that 14% of Yem-
eni girls were younger than fifteen when married, and 52%
were younger than eighteen.33 Girls younger than nine years
of age are protected solely by the fact that Article 15 of the
PSL prohibits sexual intercourse for pre-pubescent girls, yet
this stipulation does not preclude marital rape.34
The adverse social implication of traditional Islamic family
law is firmly illustrated in the case of Yemen. The reason for
this adverse influence, in part, is that the ethical assumptions
underpinning traditional Islamic law, such as the requirement
for guardians to prioritise their wards’ interests, are not ac-
counted for by positivist interpretations and implementation

29
Ibid 23.
30
Ibid 25.
31
Ibid.
32
Ibid 26.
33
Ibid 1.
34
Ibid 2.
2018 Islamic Law on Child Marriages 171

of legal principles. The HRW has reported that it is often the

case that guardians marry off their wards at a very young age
because they are considered a financial burden and the mar-
riage allow guardians to gain from the dowry.35 Hence, posi-
tivist interpretations of traditional law have taken precedence
over ethical considerations, with guardians justifying re-
strictions imposed on their wards and the ordeal they are
forced to endure. Furthermore, the disunity inherent in tradi-
tional Islamic family law has been enhanced in Yemen by the
fact that clerics and legislators opposed the adoption of a min-
imum marriage age in 2009-2010 on the grounds that it was
in contravention of the Shari’ah, whereas proponents offered
an opposing argument.36

Pakistan
In comparison to Yemen, the dominant madhhab in Pakistan
is the Hanafi school.37 In Pakistan, women can contract mar-
riage without their guardians’ approval, as dictated by the case
of Abdul Waheed v Asma Jehangir.38 Most judges draw on the
case of Muhammad Imtiaz and another v The State, which
held that women could contract to marriage without a guardi-
ans’ approval. The reason given for this judgment is because
marriage is perceived as a form of property sale from the per-
spective of Imam Abu Hanifa.39 Hence, the right of women to
contract marriage on their own has been protected by Hanafi
traditional Islamic law. Nevertheless, discrepancies within the
madhahib have occurred in Pakistan as well. For instance, in
the case of Saima Waheed, Judge Haq reasoned that there was

35
Ibid 16.
36
Ibid 21-22.
37
An-Na’im (n 31) 145.
38
M Lau, ‘Abdul Waheed v Asma Jehangir (the Saima Waheed Case)’
(1996) 3(1) Yearbook of Islamic and Middle Eastern Law 527.
39
Ibid.
172 NILS UK Law Review Vol. 1

a lack of congruency between the Hanafi law and the other

madhhahib which could, therefore, have adverse implications
for society.40
According to the Muslim Family Law Ordinance 1961, girls
cannot be married at an age younger than sixteen years old.41
The Child Marriages Restraint Act 192942 outlaws child mar-
riage, and guardians can receive a fine or be sent to prison if
they encourage, allow, or do not take steps to prevent child
marriage. Moreover, the Dissolution of Muslim Marriages
Act 193943 has incorporated khiyar-ul-bulugh in the absence
of the wali-ijbar restriction, specifying under section 2(vii)
that a wife has the right to annul the marriage if she was
younger than sixteen when it occurred and younger than eight-
een when she rejected it. In comparison to the situation in
Yemen, this legislation is more effective at preventing forced
and underage marriage, interpreting traditional Islamic family
law in line with modern society. Additionally, Pakistan re-
veals the degree to which protection of female Muslims’ right
to contract and consent to marriage is shaped by the parties
who interpret traditional Islamic law.

Iran
The madhhab that dominates in Iran is the Ithna Ashari
(Twelver). 44 As previously highlighted, the law of this school
allows women to contract and consent to marriage inde-
pendently, but specifies that virgins need their guardians’ ap-
proval. They do, in turn, have a remedy in a court-ordered per-
mission to independently contract if a guardian denies consent

40
Ibid 523.
41
Muslim Family Law Ordinance 1961, s12(1)(c).
42
Child Marriages Restraint Act 1929, s6(1).
43
Dissolution of Muslim Marriages Act 1939.
44
An-Na’im (n 31) 108.
2018 Islamic Law on Child Marriages 173

unjustifiably. This emphasises the importance of legal inter-

pretation.
Moreover, concerning underage marriage, a revision was
made to Article 1041 of the Civil Law in the aftermath of the
Iranian Revolution, overturning the rule that girls younger
than eighteen years of age (i.e., the age of majority and pu-
berty) could not be married. A new rule emerged, allowing for
girls younger than eighteen years old to be married if their
guardians consent and if it serves their interests. This means
that children can be married against their will if their guardi-
ans thought it is in their best interest, although no legal mech-
anism for identifying what constitutes ‘best interest’ exists in
the Iranian judicial system. Hence, Muslim women’s rights
are threatened by the lack of efficient sanctioning of such
practices. The situation in Iran shows how much weight the
relevant bodies have in interpretation. Alongside conservative
legislators, these entities also comprise activists for children’s
rights, who have managed to force the amendment of Article
1041 to increase the age at which girls can be married to thir-
teen years of age.

CONCLUSION

Traditional Islamic family law is interpreted in various ways,

either limiting or upholding Muslim women’s rights to con-
tract and consent to marriage. Muslim women enjoy the
broadest rights under the Hanafi and Ithna Ashari schools,
though they are subject to restrictions because a specific age
for marriage has not been established by law in some modern
states. In spite of this, Islamic family law has been interpreted
differently across states. To a significant degree, ethical con-
siderations have been ignored by soft positivist interpretations
of Islamic family law, leading to power granted to guardians
outside of the legal framework (in some states). The vital role
174 NILS UK Law Review Vol. 1

of relevant bodies interpreting modern state law is the core of

traditional Islamic family law, since marital rights can either
be restricted or promoted through effective interpretation and
implementation.

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