Child Marriage

Child-marriage: Between Theory, Reality and Hope

Child-marriage: Between Theory, Reality and Hope

They see it as a rare phenomenon that consequently, does not deserve such attention. They think it is merely an exaggeration by the Media, which, in sensationalising it to increase sales, might sometimes relate inauthentic or even fake events. This affects the capability to assess the extent of the problem on the ground.

It is notable, in this respect, that some cases of the marriage of young girls have received much Media attention. They include the case of Nujood Ali, a Yemeni girl, who is divorced though she is still under 10 years of age. Ali authored an internationally best-selling book that was translated into many languages. It was also, reported that another Yemeni girl, aged 12 years, contracted to marry a 20-year-old man, died from physical injuries sustained directly after the marriage and as a result of it. In the Kingdom of Saudi Arabia, there is the story of a father from Qassim, who contracted his 12-year-old daughter to marriage to a 70-year-old man in return for SR85,000 (£14,000). This shows that the issue is a phenomenon that must be discussed. The girl’s mother filed a lawsuit against her father, for contracting her to marriage. The mother had the support of the governmental and non-governmental human rights organisations and lawyers, but withdrew the lawsuit, which people had hoped would set a precedent, paving the way for a better future.

[inset_right]They see it as a rare phenomenon that consequently, does not deserve such attention. They think it is merely an exaggeration by the Media, which, in sensationalising it to increase sales, might sometimes relate inauthentic or even fake events. This affects the capability to assess the extent of the problem on the ground.[/inset_right]

Within arguments regarding such phenomenon, some people make reference to the marriage of Prophet Mohammad (pbuh) and Aisha, (may Allah be pleased with her), when she was 9 years old. They never reflect upon this fact in a way that enables them to understand the reality of the incidence. Sheikh Mohammed bin Uthaymeen (may God have mercy on him) said: “There is a specific view when it comes to citing the story of Aisha. According to such a view, Aisha married the best of humans (pbuh) and Aisha is different from other women. Surely, she was satisfied and had no opposition to such a marriage. Therefore, when she (may Allah be pleased with her) was asked by the Prophet (pbuh), to take a decision regarding the marriage, saying: ‘Would you receive advice from your parents?’, she replied, ‘I have chosen the side of Allah and His Prophet’. She did not choose to be granted temporal benefits or adornment.” Bin Uthaymeen (God's mercy be upon him) also said, “Would an individual with such characteristics as Aisha, refuse to be married to the Prophet (pbuh) if asked to take a decision in the first place? Certainly she would not refuse. This is very clear.” Therefore, the Prophet's hadith (saying) in this respect is not a justification for child-marriage.

In addition, there are different opinions regarding the age of Aisha at the time. Some say that she was 9 years old, others say that she was 19 years old, as she was able to narrate hadiths and report the Prophet's preaching. Verified evidence asserts that she was 9 years old and that she was characterized with notable mental and physical growth. In addition, people at that time might have been different physiologically from people nowadays. Moreover, a society of 26 million cannot be compared to the small community of the Prophet’s (pbuh) time. This issue is not one of the fundamentals of Islam. Instead, it is a secondary issue that differs according to the Islamic jurisprudential principle that laws change according to time and place.

Some people regard the Prophet’s (pbuh) marriage to 9-year-old Aisha (may God be pleased with her), as a general rule. This was an action on the part of the Prophet (pbuh), not a statement or rule. Some scholars, specialised in fundamental issues, say that statements are more important than actions when it comes to rules. Therefore, what the Prophet (pbuh) did, in this case, is an act, which is not as strong as a statement, which reflects an impetus to preach an action or a rule.

We have read reports of children as young as 8 years old being married to adult men older than 18 years, at best, and older than 70 years, at worst. A recent Ministry of Justice memorandum to madhooneen, states that they should not marry children to much older men. This is the solution to a different issue. The problem being discussed here is the contracting of a child to marriage, not the age gap between the child and the spouse.

I will not repeat earlier discussions nor further their arguments, as I do not wish to further debate in terms of religion or child psychology. I will add to the opinions of the concerned that whatever argument one favours, we have a duty to protect our children and their interests.

Saudi Arabia has acceded to the 1989 Convention on the Rights of the Child (CRC). Its first report to the Convention’s Committee states minimum ages - 15 to 18 years - for punishment for drug-dealing, acceptance into public sector jobs, imprisonment, admission to the armed forces, permission to plead before the court, and legal or medical counselling without parental consent. Saudi Arabia specifies four stages to childhood: birth to 7 years; 7 to 10 years; 10 to 15 years; and 15 to 18 years.

Saudi Arabia has no legal minimum age of marriage.

Saudi Arabia acceded to the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 2000, with a general reservation on provisions contravening Shari’a. Article 16(2) stipulates the unlawfulness of contracting a child to marriage and requires States to legislate to specify a minimum age of marriage.

In the CRC, childhood ends at age 18 years, except where national law specifies a lower age. In Saudi Arabia, it is 18 years. While the 18-year age of majority is not always synonymous with the minimum age of marriage, it is so in many countries - 16 years of age with parental consent.

Saudi Arabia did not vote for Article 16 of the 1948 Universal Declaration of Human Rights (UDHR). Article 16 gives men and women the right to marry regardless of religion; in Islamic law, Muslim women can only marry Muslim men. Article 16(1) gives the right to marry to men and women of full age. We must define when boys and girls legally become men and women as regards the right to marry, and what the term ‘of full age’ implies.

In the Hanbali school prevalent in Saudi Arabia, a father or grandfather can approve the marriage of his daughter or granddaughter, if she is under 9 years of age, a pre- or post-pubescent virgin, or has previously been married, but is still a minor, without her consultation, to a physically and mentally competent suitor. A virgin woman, who has achieved majority, or a previously married girl over 9 years of age, should approve and consent to her marriage. Consummation should not however, occur before puberty.

The historical reason for a father to contract a child younger than 9 years to marriage was because the status of the suitor was such that they feared a better one could not be found later and it would be injurious to the child’s interests to forego such an opportunity. So, they considered it their Islamic duty to contract the child to this marriage. A more considered approach to this, from a spiritual, Muslim perspective, would be for the father to focus on fulfilling his duty towards the child and have faith that God will send the right suitor when the time comes, instead of choosing a minor part of religion and delegating responsibility for the child by contracting him or her to marriage.

Recently, parents’ reasons for contracting young children to marriage have been their own financial gain. Arguably, it might be in a girl’s best interests to marry young and injurious to wait until she attains the legal age of marriage. But, if a girl is married before she reaches the legal matrimonial age set by competent national authorities, in a credible legal system, her injury will outweigh the benefit. A child will not benefit from a marriage if she legally applies for a divorce at puberty and it may prejudice a beneficial, future marriage.

Not all fathers behave like the Prophet (pbuh) and his disciples. Our system supposes that the father is good. From reports, often, in child marriages, the father has mental health issues, is misogynistic, misuses substances, wants to rid himself of responsibility for the child and, or, is domestically abusive. Frequently, in child marriages, the father appropriates the bridal payment. Some fathers, who have never seen their daughters, return to contract them to marriage for financial gain or to hurt their ex-wife.

Four cases discussed in reputable publications, containing pictures and interviews with fathers and husbands, highlight the problems of child-marriages. The husband of one child-wife complained that she slept too long and played in the street instead of performing marital duties, which he defined as helping his mother in the house and receiving guests. A wife’s Islamic duties are to procreate and provide conjugal rights, of which an 8-year-old is incapable. Another said that he cannot converse with his child-wife. He beats her for not understanding his concerns. Boys are not immune from this problem. An adult woman married a cousin ten years her junior, to keep land in the family.

Some would argue that these are unconsummated marriage contracts. Who monitors and guarantees this? Secondly, consummation is not the only concern. There are also emotional and social pressures placed on the child, as with one girl from Qassim, who was married aged 7 and widowed at 9. She was criticised socially for playing outside during the mourning period, in her hedad dress.

Arguably, allowing child-marriage, case-by-case, according to physiological development, emphasises individual rights, but it is not feasible in contemporary Saudi Arabia.

Society and its welfare changes in every epoch, according to circumstance. Shari’a allows for this and prefers authorities to eliminate harm. If the ruler applies the Shari’a rule on preventing harm (dar’a al mafasid) and its dominance over gaining benefits (jelb al masaleh), to the child-marriage issue, we can use the core and true objective of Shari’a to specify an age of marriage, since the ruler may not change or restrict the Shari’a, but he can intervene to regulate it and achieve its intentions. His judgement would end any dispute on the issue. Scholars, like Al Mawardi in Al-Ahkam Al-Sultaniyya and Ibn Taimyyah in Al-Siyasa Al-Shar’iyya, have dealt with such cases in their writings about the Shari’a of politics.

An example of not abiding by a rule that was in effect during the era of the Prophet, is seen in the actions of Caliph Omar (may Allah be pleased with him). He prevented the resumption of marriage, between a husband and his wife, if he told her that he divorced her three times in a single meeting. This was not the case in the era of the Prophet (pbuh) and the era of Caliph Abu Bakr. Neither was it the case during two years or so of Caliph Omar’s era, as the resumption of marriage of those who told their wives they were divorced three times in a single meeting, was permissible at the time of the Prophet (pbuh).

A mother is a school, but when she becomes a mother while in primary school, she will have little to teach her children. A pre-pubescent child or one that has reached early puberty knows nothing of marriage or its sociological role. The parties to a marriage should be educated about the meaning and significance of marriage and consent to it without pressure or deception.

“Ye, young men, whosoever among ye could afford to marry, let him marry, and who could not, let him fast. That will give him strength to control his desire.” In this hadith to young people, not children, marriage is to prevent fornication and found a family, for which, a man must have the financial means, the absence of which may signify his incomplete physical or mental growth. Imams should promote abstention as a cure. If a 13-year-old girl requests marriage, her parents should advise her and protect her virtue until she reaches the legally prescribed age. I think that this is a correct and more comprehensive understanding of our religion.

In economic terms, women from poor and middle class backgrounds join the labour market now to help provide for their family. The participation of women from wealthy backgrounds, in this respect, is also an integral part of her social and national responsibility. This is also part of the natural ambitions of parents for their children, to give them a high standard of education and advance their prosperity. To join the labour market and manage in the economic and social reality, girls need to be educated to the end of high school, or given vocational training. This cannot be achieved before the age of 17 years.

According to the hadith referred to above, young people need to be able to afford the financial requirements of marriage to be able to found a family. In our society, however, there are high and growing divorce rates. The number of divorcees and widows puts a strain on charities, and on governmental and private organisations. In addition, there are teenage girls, who leave education for marriage, whose husbands divorce them later to evade responsibility, leaving them and their children without a breadwinner. Unfortunately, these phenomena have become widespread everywhere, under the pressures of contemporary life and the large disintegration of wider society. Some believe that contracting young girls to marriage to wealthy, adult men is a profitable deal that will guarantee them happiness. But child-marriage is a false economy. I do not call for pessimism in this respect, but it is important to prepare people for the roles they will play in life. The hadith that states that man should employ judgment of reason and expect good results from God, is significant in this respect.

Last year, women's associations and State agencies, co-operated in running awareness campaigns on domestic violence and the disadvantages of early marriage, in different parts of the Kingdom, including Riyadh. Al-Wafaa Charitable Association and Al-Nahda (Renaissance) Charitable Women’s Association, founded by HRH Princess Effat Al-Thunian Al Saud - the wife of the late King Faisal (may Allah have mercy upon him) - in 1395 Hijrah, provide safe havens for women and children who are the victims of domestic violence.

Providing the means to protect and safeguard families has been, and still is, of paramount importance to Saudi Arabia and is part of the considerable and distinguished attention given by the Custodian of the Two Holy Mosques, King Abdullah bin Abdul-Aziz (may God protect him), to the issues of women and children in our society, with a view to overcoming obstacles that might hinder their development or harm them. King Abdullah ordered that the National Centre for Family Safety be established, at the National Guard Hospital, in November 2005. The Centre is chaired by HRH Princess Sita bint Abdul-Aziz (may God protect her), with her deputy, HRH Princess Adela bint Abdullah bin Abdul-Aziz (may God protect her). The Centre cares for women and children - boys and girls - victims of domestic violence, investigates their cases and addresses their issues. The goal is to ensure and maintain the social safety and security of such victims. The management of the Centre is overseen by Dr Maha Al Maneef, a paediatrician with many years’ experience in this field, and in scientific and statistical studies.

At the same time, there has to be a concerted effort on the part of preachers and Islamic scholars, scientists, psychologists and sociologists to support decision-makers, as the issue of child-marriage is sensitive, not only as a legal and social matter, but as a religious issue.

In conclusion, the majority of those concerned with this issue hope that the authorities will enact an enforceable religious and regulatory law, with clear punishments for the guardian who contracts a child to marriage, the one who enters into a contract to marry a child and the madhoon, who registers such a marriage. In addition, an authority to monitor betrothals must be established.

The goal is to prevent child-marriages. While we discuss whether the minimum age of marriage in the Kingdom should be 16 or 18 years, children younger than 9 years of age are being contracted to marriage.

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