Question:
As-Salaamu Alaykum,
Many Muslim scholars make embarrassing claims that in Islam an adult man may marry a girl who had not yet even reached puberty. What are the proof-texts to refute this?
Jazakallah,
Answer:
Waalaykumussalam warahmatullah,
In present times, since the prevalent `urf (customary practices, valid in Shari`a) in all countries and societies considers such a marriage abhorrent then the Shari`a also considers it abhorrent.
Early marriage has been viewed for the greater part of human history, including from the earliest times in Islam, as a means of protection and improvement for all involved at different levels. The latter levels apply most if not all of the fundamental objectives of the Sacred Law defined as:
(i) the preservation of life,
(ii) the preservation of the faith,
(iii) the preservation of reason,
(iv) the preservation of lineage (also defined as the preservation of honor), and
(v) the preservation of wealth.
The wrong view to which the question refers is caused by the confusion of some (not many) latter-day scholars between the validity of a marriage contract between the respective families of a bride and a bridegroom even if both of the latter are still in the cradle, and the impermissibility of cohabitation and intercourse until they are mature. Another reason for their misguided error is their ignorance of the major role played by `urf in the Shari`a ruling pertaining to the issue.
The jurists have always taken `urf into consideration in the rulings pertaining to the age of marriageability and consummation. They defined `urf as “recurring beneficial practices which are acceptable to people of sound nature and which form the collective customs of a large number of people” (see Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, Ch. 14). `Urf is assessed from awareness of, and familiarity with the laws, ethics and mores that prevail in the society that follows such `urf. The `urf of one people is not necessarily that of another, and likewise the `urf of one people at a certain time is not necessarily that of their ancestors or descendants at other times.
However, even when earlier ages saw benefit in marrying off a young girl per all the above perspectives, strenuous conditions applied. First, that such be considered part of the `urf of the society in which it took place. If it was considered unacceptable then the Shari`a endorsed that ruling of unacceptability. Second, that even if `urf endorsed it, nevertheless there should be no established impediment such as objection on the part of her wali, e.g. the father and, after him, the agnates (paternal close relatives). Valid objections can be made if there is no kafa’a (matching suitability) between the two parties. Idha thabata al-`adl, batala al-`aqd: “If the objection is established, the contract is invalid” as a rule. Third, agreeing and contracting to a marriage did not necessarily mean that actual consummation became permissible at that time. In the cases of two prepubescents or one mature and the other prepubescent, it was out of the question.
Also, even in their own times, respectively the second and the third Hijri centuries, the Qadi and jurist `Abd Allah b. Shabrama and the Imam Ishaq b. Rahawayh both famously took the explicit position that it was categorically impermissible to marry off a prepubescent girl (sources: Masa’il al-Imam Ahmad wa-Ishaq b. Rahawayh 4:1477; Ibn Hazm, al-Muhalla 9:459; Ibn Hajar, Fath al-Bari 9:190; al-Shawkani, Nayl al-Awtar 6:136).
More relevant to us, in present times, since the prevalent `urf in all countries and societies considers such a marriage abhorrent then the Shari`a also considers it abhorrent. Hence the vast majority of the jurists hold that the only correct ruling is that a girl is not marriageable until:
(i) she is mature as defined by the `urf, which varies in Muslim countries from 15 to 20; and
(ii) she must be asked permission and
(iii) has the right to choose for herself.
And Allah knows best.
Hajj Gibril Haddad
