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Child marriage in the eyes of Sunni and Shia Islam

Shia Islam, Sunni Islam, Child marriage, sexual actions, Sharia law, Shia jurists, Intercourse with woman

Interfaith

Child marriage in the eyes of Sunni and Shia Islam

Moving to Shia Islam, Ayatollah Khomeini wrote about this topic in the classical commentary and Shia jurists guide Tahrir al-Wasilah: “Intercourse with a woman is not allowed unless she attains the age of nine years, regardless whether the marriage is permanent or temporary. There is, however, no objection in other enjoyments like touching lasciviously, hugging and rubbing the thighs, even with a suckling infant. If a person has had intercourse with a girl before she has attained the age of nine years, but it has not resulted in ifā: he shall not be subjected to any punishment, except that he shall be considered to have committed a sin.” This not only affirms child marriage anytime after the age of nine, but also legitimizes graphic sexual actions with a girl of any age before it, regardless of any of her characteristics. Writes Phoebe Williams

When investigating what Islam teaches about child marriage, we need to examine multiple sources. First and foremost is the Qur’an, the highest authority in Islam, along with its tafasir, commentaries by Islam’s greatest scholars. Then we need to look at Sharia law; the four Sunni madhahib (schools), as well as those of Shia Islam. Every true Muslim must necessarily subscribe to one of these schools of law to be able to claim they fully understand Islamic teaching.

For the Qur’an, there are three relevant verses we initially need to look at to understand the grounding of this topic in Islam. The first is surah 33:49: “O you who have believed, when you have sex (marry) with the believing women, then you divorce them before you have touched them, you do not have the waiting period against them which you count. So give them enjoyment (a gift), and let them go in a beautiful way.” There is no waiting period, عِدَّةٍ, ‘iddatin’, for these women. If a woman gets a divorce (which is lawful and regulated in Islam) before having intercourse with her husband, she can get married again immediately and does not have to sit out her waiting period, which is called the ‘iddah’.

Meanwhile, in surah 2:228, we see that for regular situations when the woman does have intercourse with her husband before divorcing him, she does have to observe iddah: “And the divorced women should keep themselves three menstruations. It is not lawful for them to hide what Allah has created in their wombs if they were believer in Allah and in the last day. And it will be more right for their husbands to bring them back when in this state if they desire reconciliation. And they have rights similar to the one over them in fairness. And to the men, a higher degree than them. And Allah is dear, wise.”

Obviously, this can only apply to women who have menstrual cycles, which resulted in the revelation of surah 65:4: “And for those of your women who despair of the menstruation, if you doubt [that they may be pregnant], their prescribed waiting time is three months, as well as for those who have not yet begun menstruation. And as for the pregnant ones, their term is until they give birth. And whoever fears Allah, he will make his affair the easiest.” This can only be referring to young girls who haven’t reached puberty yet, as this is the only scenario in which someone isn’t currently experiencing it, but will in the future.

Tafsirs for this verse are unanimous on the meaning. Al-Jalalayn writes of “those who have not yet menstruated, because of their young age, their period shall [also] be three months.” Ibn Kathir writes in his tafsir: “Ibn Abi Hatim recorded a simpler narration than this one from Ubay bin Ka‘b who said, “O Allah’s Messenger! When the Ayah in Surat Al-Baqarah was revealed prescribing the ’Iddah of divorce, some people in Al-Madinah said, ‘There are still some women whose ’Iddah has not been mentioned in the Qur’an. There are the young, the old whose menstruation is discontinued, and the pregnant.’ Later on, this Ayah was revealed.” Maududi tells us that “They may not have menstruated as yet either because of young age.”

When pointing out that surah 65:4 is referring to young girls, al-Qurtubi, al-Tabari, Ibn Kathir, al-Jalalayn and others all use forms of the Arabic word صغير, “sagheer.” Lane’s lexicon says that when the term “sagheerah” is applied to a human being, it means “a child; i.e. one who has not attained to puberty.” This shows that the Qur’an is absolutely talking about young girls who have yet to undergo puberty being married.

The standard Muslim response to the allegation that Islam promotes child marriage is surah 4:6: “And test the orphans until they reach the age of having sex (marriage), so if you perceive in them a sound judgment, so hand over their money to them. But do not consume it wastefully or by hastily entrusting it to them until they grow up. And whoever was rich, so let him stay away from it; and whoever was poor, so let him consume from it with fairness. So when you give over their money to them, so take witnesses over them. And Allah is a sufficient accounter.”

Muslims often use references such as this one about not having intercourse with a young wife until she’s physically ready for it and conclude that this means being physically ready is puberty, but this is reading back into the text. None of the tafsirs hold that the Qur’an is determining marriageable age in this verse, and none of the scholars understood it like this; the words “marriageable age” in 65:4 denote that they are able to fulfill the purpose of marriage, which is procreation, after one reaches puberty, and it is about returning property to orphans after they attain puberty.

For example, a girl could reach puberty at age eleven, yet even by age twelve, she’s not physically able to handle intercourse. In this scenario, in Islam, she wouldn’t consummate her marriage yet, aside from the Hanbali school, which dictates that a husband can force it at the age of nine. If a girl reached puberty at age eleven but she was able before the age of nine to handle intercourse, in Islam her marriage would be consummated at age nine. Being physically able to handle intercourse is different for each individual. It could happen before or after puberty, and this is the position of the Muslim scholars; puberty is not relevant when the decision is made.

We will now turn our attention to Sharia and examine some examples from the four schools of Sharia law in Sunni Islam; Shafi’i, Hanafi, Maliki and Hanbali, in all of which this subject is extensively discussed.

Starting with the Shafi’i madhhab, in Reliance of the Traveller, one of the most renowned classical manuals of fiqh, we read in n9.2: “A waiting period is obligatory for a woman divorced after intercourse, whether the husband and wife are prepubescent, have reached puberty, or one has and the other has not.” Part n9.9 reads: “The waiting period for a woman who does not menstruate, whether prepubescent or post-menopausal, is 3 months.” We can clearly see here that marriage to prepubescent girls or post-menopausal women is allowed and regulated, with divorce rules for such women in operation.

Al-Hidayah is one of the most pre-eminent legal manuals of the Hanifi school, and here we can see again what Sharia holds regarding child marriage: “If they are married away by the father or the grandfather, that is, the minor boy and the minor girl, they have no option, after they attain puberty.” It continues: “If they are married away by someone other than the father and the grandfather, then, each one of them will have the option upon attaining puberty; if they like they can maintain the contract and if they like they can revoke it.”

The Risala: A Treatise On Maliki Fiqh of Maliki jurisprudence also tells us about prepubescent girls who had their marriage consummated. Section 33.2: “The ’idda for a free woman who is widowed is four months and ten nights, whether a child or adult, consummated or not, Muslim or kitabi. For a slave girl who is partially free it is two months and five days, except in the case of an older woman whose period is delayed. Then she waits until the doubt is removed. As for the one who does not menstruate because of youth or old age and her marriage was consummated, she cannot marry until three months after the death of the husband.” Here, the Maliki school refers to divorce regarding a girl who doesn’t menstruate because of youth or old age, and hence, a marriage involving such a girl is perfectly harmonious with this madhhab.

The Hanbali school dictates in Sharh ‘Umdah al Fiqh: “The father is entitled to give his minor children, male and female and his virgin daughters, in marriage without their consent”. We can gain further insight from Fath al-Bari, volume 11, page 25, which says that “Muslim schools of jurisprudence unanimously allow the marriage of young girls, even if they were still babies in the cradle.” This statement is absolutely indisputable, and no matter which school a Muslim accepts, this practice is absolutely legislated in Islamic law.

Moving to Shia Islam, Ayatollah Khomeini wrote about this topic in the classical commentary and Shia jurists guide Tahrir al-Wasilah: “Intercourse with a woman is not allowed unless she attains the age of nine years, regardless whether the marriage is permanent or temporary. There is, however, no objection in other enjoyments like touching lasciviously, hugging and rubbing the thighs, even with a suckling infant. If a person has had intercourse with a girl before she has attained the age of nine years, but it has not resulted in ifā: he shall not be subjected to any punishment, except that he shall be considered to have committed a sin.” This not only affirms child marriage anytime after the age of nine, but also legitimizes graphic sexual actions with a girl of any age before it, regardless of any of her characteristics.

In review, the Qur’an allows for marriage and intercourse with prepubescent girls, the Islamic commentaries affirm that the Qur’an is referring to prepubescent girls, all four Sunni schools of jurisprudence allow marriage and intercourse with prepubescent girls, and Shia Islam allows for child marriage past the age of nine and until then, sexual acts with infants. The only conclusion for someone who views the evidence objectively is that Islam definitively teaches that child marriage and intercourse with prepubescent children is permissible.

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