Some Source Material on Child Marriage and the Shari'a
Just a quick note for today, to follow up on something I promised sometime back, which is precisely what the position is of the classical doctors of Islamic law on the question of child marriage, and a woman's consent to marriage. It is not, as many in their emails continue to insist to me, that a grown woman must always consent, at least by silence, or no contract may be made and that young children before puberty cannot be married.
Here, again, is Ibn Rushd, the Maliki classical authority:
As concerns women, the jurists agree by consensus that the consent of the nonvirgin postpuberty woman must be taken into account. . . . They disagree about the postpuberty virgin. . .. . About the postpuberty virgin, Malik, al-Shafii and Ibn Abu Layla say that the father may force her to marry.
{The jurists} arrived at the consensus that the father can force a prepuberty virgin and that he cannot force a divorced postpuberty woman. . .
Here is Ibn Taymiyya, the Hanbali:
If an uncle says to his niece if you don't accept this man, then I will marry you to another without your consent, any consent given is not acceptable, nor is the marriage arising out of it acceptable, because under the shari'a, only the father and the grandfather may force a grown woman into marriage by the consensus of the jurists, and even there, there is a split among the jurists, as concerns the grown woman, but as for the young girl, there is absolute agreement.
Ibn Taymiyya has another section where he makes clear what "young girl" means:
Question (to Ibn Taymiyya): There is a girl who has not reached puberty and one appears who desires her in marriage. May the judge marry her or not?
Answer: . . . If the proposing man is qualified, then the judge may marry her according to the best of the scholars, specifically the school of Abu Hanifa and Ahmed (ibn Hanbal) among the better known authorities. There are those who say if she is married without her will, then she has the option when she reaches puberty (khiyar idha balaghat) to reject the marriage like the madhab of Abu Hanifa and opinions of the school of Ahmed, and of them there are those that say if she reaches nine years old, then she marries of her own consent and she has no right to reject and this is the more clear of the opinions of Ahmed . . . .
Kasani the Hanafi says this:
The compassion of a relative of one other than the father and the grandfather is limited. .. .The strength of the relation is the reason for the strong right of guardianship, and for the father and the grandfather it is the right to compel.
Sistani, the Ja'fari says
The father and the paternal grandfather can contract a marriage on behalf of his minor son or daughter, . . . .. And after the children have become baligh, he can endorse or abrogate it, if the contracted marriage involves any moral lapse or scandal.
And if the marriage contract does not involve any moral lapse or scandal, but the non baligh son or daughter calls off the marriage, then as an obligatory precaution, a Talaq or a renewed Nikah, whatever the case may be, must be recited. {Reminder, a woman cannot issue a Talaq, or divorce, so effectively her choice doesn't exist if the husband doesn't agree to offer it.--my comment}
Sorry I don't have a Shafi'i, but the point is clear.
I hear many of you quote the authority of the Prophetic hadith, "do not marry the virgin unless she gives her permission, nor the girl, until she accepts," then, when asked if she is too shy what to do, the Prophet says "then her silence is her consent." I read that just as you read it. But the point is, it has not historically been read to suggest that (a) children cannot be married without their consent or (b) a woman's consent must always be obtained prior to marriage. There is a history and a scholarly pedigree one must necessarily pay attention to. I am not saying we yield, only we don't pretend that the notion of child marriage and the shari'a is some grand media concoction designed with the assistance of isolated extremist illiterates to make Islam look bad. It's our issue, we have to address it.
Here, again, is Ibn Rushd, the Maliki classical authority:
As concerns women, the jurists agree by consensus that the consent of the nonvirgin postpuberty woman must be taken into account. . . . They disagree about the postpuberty virgin. . .. . About the postpuberty virgin, Malik, al-Shafii and Ibn Abu Layla say that the father may force her to marry.
{The jurists} arrived at the consensus that the father can force a prepuberty virgin and that he cannot force a divorced postpuberty woman. . .
Here is Ibn Taymiyya, the Hanbali:
If an uncle says to his niece if you don't accept this man, then I will marry you to another without your consent, any consent given is not acceptable, nor is the marriage arising out of it acceptable, because under the shari'a, only the father and the grandfather may force a grown woman into marriage by the consensus of the jurists, and even there, there is a split among the jurists, as concerns the grown woman, but as for the young girl, there is absolute agreement.
Ibn Taymiyya has another section where he makes clear what "young girl" means:
Question (to Ibn Taymiyya): There is a girl who has not reached puberty and one appears who desires her in marriage. May the judge marry her or not?
Answer: . . . If the proposing man is qualified, then the judge may marry her according to the best of the scholars, specifically the school of Abu Hanifa and Ahmed (ibn Hanbal) among the better known authorities. There are those who say if she is married without her will, then she has the option when she reaches puberty (khiyar idha balaghat) to reject the marriage like the madhab of Abu Hanifa and opinions of the school of Ahmed, and of them there are those that say if she reaches nine years old, then she marries of her own consent and she has no right to reject and this is the more clear of the opinions of Ahmed . . . .
Kasani the Hanafi says this:
The compassion of a relative of one other than the father and the grandfather is limited. .. .The strength of the relation is the reason for the strong right of guardianship, and for the father and the grandfather it is the right to compel.
Sistani, the Ja'fari says
The father and the paternal grandfather can contract a marriage on behalf of his minor son or daughter, . . . .. And after the children have become baligh, he can endorse or abrogate it, if the contracted marriage involves any moral lapse or scandal.
And if the marriage contract does not involve any moral lapse or scandal, but the non baligh son or daughter calls off the marriage, then as an obligatory precaution, a Talaq or a renewed Nikah, whatever the case may be, must be recited. {Reminder, a woman cannot issue a Talaq, or divorce, so effectively her choice doesn't exist if the husband doesn't agree to offer it.--my comment}
Sorry I don't have a Shafi'i, but the point is clear.
I hear many of you quote the authority of the Prophetic hadith, "do not marry the virgin unless she gives her permission, nor the girl, until she accepts," then, when asked if she is too shy what to do, the Prophet says "then her silence is her consent." I read that just as you read it. But the point is, it has not historically been read to suggest that (a) children cannot be married without their consent or (b) a woman's consent must always be obtained prior to marriage. There is a history and a scholarly pedigree one must necessarily pay attention to. I am not saying we yield, only we don't pretend that the notion of child marriage and the shari'a is some grand media concoction designed with the assistance of isolated extremist illiterates to make Islam look bad. It's our issue, we have to address it.
Dear Brother Haider
in the case of Sistani you commented:
"{Reminder, a woman cannot issue a Talaq, or divorce, so effectively her choice doesn't exist if the husband doesn't agree to offer it.--my comment}
"
well in this case it is different, and as a matter of fact she can divorce. actually if she doesn't accept after she become baligh the marriage would be canceled automatically and the divorce here is just "an obligatory precaution".
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Dear Brother:
As a realist, I've always regarded the category of "obligatory precaution" (al ahwat luzuman etc etc. ") as being effectively equivalent to "required" (wajib) because in both cases an obligation is created, though your comment does point to an effective difference.
If it was "required", then her repudiation when baligh would be null and void, and she would be deemed married. Because it is an obligatory precaution, that means there is doubt when she repudiates as to what her status is. I don't agree that the marriage is clearly canceled automatically, if so then there would be no need for a divorce to be issued, the matter would be settled. Instead, it is murky and to clarify it, a divorce must be issued which is neither a prerogative of a court nor a woman absent a delegation. Now it seems to be impossible for the girl to remarry if the divorce is not issued by the husband. If there is no Talaq, the same doubt that accompanied the repudiation would remain and she couldn't remarry. In this sense, "required" and "obligatory precaution" are the same.
But at the same time, I would agree that it's not clear to me that her shari'a duties of obedience, for example, still hold either. Doubt arising from an obligatory precaution is going to flow both ways, it's neither clear that she is married and owes her husband shari' marriage obligations, nor is it clear that she is not married and free to do whatever she likes. This is why the divorce is necessary to clarify under Sistani's rules.
Now one can say the husband is then required to divorce because this kind of doubt is not acceptable in Shi'ism, but it is fair to then ask "what if he does not?" I'm borrowing here from the notion of Justice Holmes in the American context, to understand law we have to know how it is going to apply to the "bad man." It seems to me he might be sinning, but he cannot be required to issue the divorce and the court cannot issue it for him.
So while you are right that it was wrong for me to make it sound like her repudiation was pointless, it is I think right to say that unless the husband cooperates in the scheme and agrees to issue the divorce as the obligatory precaution theory requires him to do, that she might not have to live with the man her father contracted her to marry as a child, but she will also not be able to marry another.
Wassalam
HAH
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Dear Haider,
Sorry for commenting after this long time but I had to ask to make sure. here in the (Fatwa) the obligatory precaution or the wajib in reality (as you said and is right) is the duty of husband if the wife rejected the contract. now if the man rejected to issue the divorce that doesn't mean that the girl is still his wife, actually the girl is not and she can marry another man. she can also report to the (Hakem el Share', Mujtahid) the Sharia Judge and in this case it will be (wajib) duty of the Mujtahid to issue the divorce. I am sorry for my first comment as it appear from this comment I had some wrong understanding hope this comment made things clear.
thanks and regards.
Hassan
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This is clear Brother Hassan, but I am confused as to how the Mujtahid can issue a tafriq for no reason other than that the husband chose not to issue a talaq. I guess it makes sense, if the talaq is wajib on him under the doctrine of "obligatory precaution", but can you provide me the source material for this? I would appreciate it, and when received will correct the post.
It would be good to know, because it would establish the Shi'a rules as clearly distinct from the Sunni, in that all of the Sunni madhahib traditionally bound the child to the marriage upon puberty if the contract was conducted by the father or grandfather (Hanafis give the election to the girl at puberty if a different guardian orders the marriage). This sounds like Sistani effectively does give the choice to the girl, at puberty, no matter who contracts the marriage for her. Interesting.
Wassalam and thanks for this discussion, we've cleared up some things I hope
Haider
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