RUTHFULLY YOURS

This is not an isolated incident. NSW Family and Community Services Minister Brad Hazzard recently declared that “there is a tsunami of young girls, some as young as nine, who are being taken overseas and being forced to become child brides … The imams in the Muslim community need to speak up more, and indeed any other religious leaders in communities who might pursue this practice.”  Muslims Australia president Kaiser Trad claimed to be shocked by the reports, asserting that “one of the conditions for a marriage to be valid under Islamic teachings is consent. For anybody to force a young lady or a young man into a marriage against their will is wrong.” He was not quote as condemning child marriage per se.

A study of Muslim texts reveals that it was practised in the early Islamic period, even by the prophet Muhammad himself. His third wife, Aisha, was daughter of his best friend Abu Bakr. The marriage took place when she was six years old and was consummated when Aisha turned nine. Multiple texts in authentic hadiths (authoritative traditions) attest to these ages. Informants include Aisha herself,[1] Hisham’s father,[2] and Ursa.[3] Aisha reported: “He had intercourse with me when I was nine years old.”[4]   She also noted: “The Messenger of Allah married me when I was six, and consummated the marriage with me when I was nine, and I used to play with dolls.”[5]

Apparently Aisha had not yet reached puberty. Al-Asqalani’s celebrated commentary on al-Bukhari’s hadith makes this comment about Aisha’s childhood amusement: “The playing with the dolls and similar images is forbidden, but it was allowed for `Aisha at that time, as she was a little girl, not yet reached the age of puberty. (Fath-ul-Bari page 143, Vol.13) Another Hadith describes her sitting in the mosque with Muhammad as “a little girl (who has not reached the age of puberty).” (Sahih al-Bukhari 7:163)

Rules regarding pre-pubescent marriages are described in the Qur’an in Q.65:4. The iddah is the required waiting period for a previously-married female before she could marry another man. The Hilali and Khan translation states that “for those who have no courses [(i.e. they are still immature) their ‘Iddah (prescribed period) is three months.” Daryabadi’s translation presents it as: “their waiting period is three months… of those who have not yet menstruated.” Shakir translates it as: “their prescribed time shall be three months, and of those too who have not had their courses [They are physically immature].”

The most famous commentaries (tafsir) on the Qur’an agree. Ibn Kathir states: “The same is for the young, who have not reached the years of menstruation. Their iddah is three months.”  Tafsir al-Jalalayn notes that for “those who have not yet menstruated, because of their young age, their period shall [also] be three months.” Muhammad’s cousin Ibn Abbas presents this verse as being revealed due to a query. “Another man asked: “O Messenger of Allah! What about the waiting period of those who do not have menstruation because they are too young?” Muhammad’s reply was: “Because of young age, their waiting period is three months.” Al-Wahidi’s book Asbab al-Nuzul identifies the questioner as the famous reciter of the Qur’an Ubayy ibn Ka’b. The description of the girls is “‘those who are too young [such that they have not started menstruating yet].”

It seems that these child marriages must have been previously consummated, otherwise no waiting period would have been required before re-marriage. Hilali and Khan translate Qur’an 33:49  as follows: “O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no ‘Iddah [divorce prescribed period, see (V.65:4)] have you to count in respect of them.”

Pakistani scholar Abul A’la Maududi concludes that these verses and commentary constitute divine sanction for child marriage. “Making mention of the waiting-period for the girls who have not yet menstruated, clearly proves that it is not only permissible to give away the girl in marriage at this age but it is also permissible for the husband to consummate marriage with her. Now, obviously no Muslim has the right to forbid a thing which the Quran has held as permissible.”

Others have reached the same conclusion. Ayatollah Khomeini, on coming to power in Iran, proposed reducing the permissible age of marriage for girls from eighteen to nine years old.[6] Ibn Baz, Grand Mufti of Saudi Arabia (1993-1999) gave the following fatwa: “The Prophet (peace be upon him) married `Aishah (may Allah be pleased with her) when she was 6 or 7 years old and he (peace be upon him) consummated the marriage when she was 9 years old. His actions (peace be upon him) are legislation to this Ummah (nation based on one creed). The Sahabah (Companions of the Prophet, may Allah be pleased with them all) also used to marry when they were young and old, without any specifications on age. No one has the right to impose laws other than those laid down by Allah and His Messenger or to change them, as they are sufficient.”[7]

Child marriages continue to take place throughout the Muslim world. On April 30, 2009, the Saudi Gazette reported that a girl of eight years old had won a divorce from a man in his fifties, despite a Saudi judge twice rejecting her appeal. The girl’s father had arranged the marriage to pay off a debt. Earlier in the year, the country’s highest religious authority, the Grand Mufti Sheikh Abdul Aziz al-Shaikh, said it was not against Islamic law to marry off girls who are 15 and younger.[8]

Nujood Ali, a Yemeni girl, won the Glamour Magazine Woman of the Year award in 2008 along with the lawyer who facilitated her divorce when she was only eight years old. Beaten by her in-laws and raped by her husband, Nujood fled to the court two months after her wedding. She earned praise from Hillary Clinton and Condoleeza Rice for her courage.[9]

The legal age of marriage in Jordan is 18 years old, but a waiver can be given with the authorisation of two judges. UNICEF reports that 8% of Jordanian girls are married before 18. Amongst Syrian refugee girls in Jordan, the under-age marriage rate is a staggering 32%, reportedly to protect the girls from rape.[10]

Child marriage is not just an Arab phenomenon. “Malaysia’s government says it’s considering amending civil and shariah law to ban underage marriages, which are considered a common way to lower the number of children born out of wedlock and those which are abandoned.

This comes in response to public opposition to comments made by the chief minister of the state of Malacca, encouraging underage marriages. Datuk Shahrizat Abdul Jalil, the federal minister for women, family and community development, says child marriages are morally and socially unacceptable. She says the government wants to bring laws in line with United Nations human rights treaties which Malaysia has ratified. Ivy Josiah of the Women Aids Organisation in Malaysia stated: “There have been marriages between nine year olds and 40 year olds and ten year olds and 30 year olds …This is not right – even though it’s provided for in the Islamic shariah law.”[11] Although civil law sets the minimum age of marriage at eighteen, Islamic law allows earlier marriages, with no set age limit, with the permission of a syariah (Sharia) court, and State Chief Ministers can also give such permission.  In 2010, the Women, Family and Community Development deputy minister reported that 16,000 girls aged below 15 in Malaysia were married. Amendments to the federal Child Act in April 2016 did not address this anomaly, despite public calls to do so.[12]

Pakistan’s Tribune newspaper reports developments:

“Another move to ban child marriages in Pakistan has fallen at the first hurdle. The bill to prohibit underage marriages has been withdrawn after the Council of Islamic Ideology (CII) declared it un-Islamic. The National Assembly’s Standing Committee on Religious Affairs and Interfaith Harmony rejected the Child Marriage Restraint (Amendment) Bill 2014 after the CII dubbed it ‘anti-Islamic’ and ‘blasphemous’. The CII has already ruled the minimum age stipulated for marriage in the Child Marriages Restriction Act of 1929 does not comply with Islamic laws. In May 2014, amid severe criticism from various quarters, the council had endorsed its earlier ruling that girls as young as nine years old were eligible to be married “if the signs of puberty are visible”.[13]

Kaiser Trad’s comment about consent from both parties being necessary is correct. However the requirements for such agreement are not very stringent. In a discussion between Muhammad and his child-bride in the authentic hadith, Aisha reported: “I asked the Prophet, “O Allah’s Apostle! Should the women be asked for their consent to their marriage?” He said, “Yes.” I said, “A virgin, if asked, feels shy and keeps quiet.” He said, “Her silence means her consent.” (alBukhari 9:79). In another version, the account goes like this:  Aisha reported: “Allah’s Apostle said, “It is essential to have the consent of a virgin (for the marriage). I said, “A virgin feels shy.” The Prophet said, “Her silence means her consent.” (alBukhari 9:101, 100 also 7:68).

Although child marriage is practised by other religions and ethnic groups, only Islam offers it such high-level scriptural endorsement, prophetic example and legislative justification. These are significant hurdles for the Islamic community to overcome. Much courage and a serious re-interpretation of the ancient texts and the life of Muhammad will be required to resolve this ongoing problem. The future of the world’s Muslim children, including my friend’s fourteen-year-old neighbour in Melbourne, will depend on how this challenge is addressed.

Dr Bernie Power lectures in Islamic Studies at the Melbourne School of Theology. His book, Understanding Jesus and Muhammad, has been short-listed for Australian Christian Book of the Year.