On marriage to the minor in Islam In the Name of Allah, Most Gracious, Most Merciful “And marry, among women, those with whom you are pleased…” (Q4:3) HUMAN history appears constructed on some fault lines along which successful generations have always had to struggle. Such is the history of female infanticide in the pre-Islamic era. Such is the history of the murder of twins during the pre-modern era in certain parts of the world. Such is the history of slavery for which almost all human civilisations are culpable. The recent brouhaha on marriage to the minor appears to be one of such fault lines. Brethren, when the controversy broke out close to two weeks ago, my initial reaction was to shrug it off. I thought there were more fundamental issues confronting this nation now than for us to dissipate energy over practices, which are still legal in certain parts of North America, Europe, Africa and Asia. I have since become wiser. I have since become attentive to the fact that the issue at stake concerns my younger compatriots, Muslims and non-Muslim girls, who are made to lose their innocence before they know what it feels to be a woman. Thus the question kept intruding my wakefulness: what does Islam say about marriage to the minor? The question became so urgent and important that it side-stepped my initial plans to reflect on the last 10 days in Ramadan. Brethren, two main verses of the Quran are often cited to back the claim that Islam supports marriage to the minor. These are: “And for those of your women as have passed the age of monthly courses, for them the iddah (prescribed period), if you have doubt (about their periods), is three months; and for those who have no courses (they are still immature) their iddah is three months likewise… “And if you fear that you shall not be able to deal justly with the orphan girls, then marry (other) women of your choice…” (Quran 4: 3). Muslim scholars have tried to clarify which category of women the Quran refers to, in the first verse, as “those who have no menstrual courses” and in the second verse, as the orphans. They are in agreement that the first verse was revealed with particular reference to women undergoing divorce processes. Among the latter are those the Quran describes as “those who have no menstrual courses”. This is often seen as referring to the minors who are already in marital contract “since one who is not married could not have been divorced and cannot therefore observe the waiting period – iddah” (Q65:5). (See the exegeses of Imam al-Qurtubi, Shaykh al-Alusi asnd Imam Al-Shinqiti among others). There is also a consensus of opinion among exegetes that the second verse which talks about orphans was revealed to regulate and impose order on an otherwise oppressive order which thrived on the exploitation of helpless young girls who, consequent upon the death of their parents, had to come under the care of guardians. But that is where the consensus stops. In other words, I am not inclined to a reading of these two verses, which would now make marriage to the minor the norm not an exception. I guess it would be an unwarranted elasticisation of the Quranic principle which came to address a specific situation when we begin to say that given its apparent negative social implications the latter should be invoked in order to validate a practice which is fast becoming arcane. In other words, dear brethren, the same way the above verses were revealed to regulate divorce processes and the treatment of the orphans in early Muslim history, there are verses that were also revealed to regulate treatment of slaves at a time slavery was in vogue. Would it then be valid today for a Muslim to keep his fellow compatriot in bondage under the assumption that there are verses that provide rules and regulations on the same in the Quran? The point I am making here is this: the above two verses should not in any way be seen as establishing a social order in which marriage to the minor would become the norm and an “Islamic” injunction. Rather, the verses should be read with fidelity to their historical circumstances. They were revealed at a time in Arabia when, as was the case in certain cultures all around the world, marriage to minors was allowed. Cultural practice is, therefore, responsible for the marriage of al-Rasul (s.a) to Aisha (r.a) and for the marriage of Ali (r.a) at 17 to Fatimah (r.a) at 15. Thus marriage to the minor is not necessarily a religious act but a cultural transaction that may be done away with by any given society. Its permission and regulation by Islam should also not make it so exclusive to Islam such that its disapproval by the Nigerian society would now constitute an infraction of the religious right of the Muslims the same way legislation against driving against the traffic should not become an erosion of somebody’s religious right. In other words, if it was pleasing to the father of an Egyptian girl to marry out his daughter who is aged 13 to a Nigerian politician because such an act is ‘Islamic’, it would also be “Islamic” for the Nigerian nation to say that such a marriage cannot be consummated in this country. Both scenarios are possible and permissible as far as Islamic law is concerned. The principle guiding that in Islamic jurisprudence reads: “al-Aslu fil-ashya al-Ibahat”- the foundation upon which (lawful) matters (in social interaction) is built is their permissiveness”. Brethren, we must not, however, forget that it was not in all cases that young girls in Arabia willingly acquiesced to marriages contracted for them by their fathers. Early Muslim history shows that while Aishah consented to marriage to al-Rasul, Umm Kulthum, the daughter of Abubakr, the first Caliph, refused to marry Umar, the second caliph who had proposed to her through Aisha. This happened while she was less than 10 years old. (See Al-mughni Vol.9, page 404). There were countless other minors who refused to marry their elderly suitors and whose refusal were approved by al-Rasul. There were also minors who opted out of marriages entered into by their fathers before they reached the age of discernment. Such is the case of the wife of Thabit ibn Qayss (r.a) among many others. Brethren, the Almighty has not prescribed a particular age at which girls and boys could marry the same way he has not legislated on the age at which they could begin to drive cars. This is because these matters are better left to the exigencies of human societies. Caution should then be exercised so that we do not move that which is permissible (mubah) in Islamic law to the realm of obligation (wajib). Is it not true that today the educated ones amongst us would not give out their daughters until the latter have achieved those lofty heights in their education that we so much cherish? Why is it that today it is the poor who are likely to give their adolescent daughters out in marriage to the wealthy ones among us? I am still pondering these matters; I am on the prayer mat supplicating: Rabbana innaka ‘Afuwwun, tuhibul-‘Afwa fa‘afu anna” aaaamin!. By Afis A. Oladosu Features - Friday Worship, The Guardian Friday, 02 August 2013
Posted on: Fri, 02 Aug 2013 13:09:22 +0000
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