Marriage of Minors (Child Marriage)

The foregoing discussion raises two interrelated questions:

(1) the marriage of minors and (2) compulsion in marriage. Marriage in minority would seem to imply a betrothal or some formal agreement, deferring final consummation to a later date.1

This type of child “marriage” is probably best explained by the desire to draw families together and to facilitate social integration.²

Given the low sex ratio and racial plurality of Muslim society, the need for social integration and the high value of sexual purity and virginity, it may become understandable why Islam set no age limits on marriage.

Preliminary arrangements may have been made at an early age, but consummation usually took place when the parties were fit for marital congress, which depended, among other things, on their physical conditions.³

However, the lawfulness of such marriages does not necessarily mean that they were predominant. Nor were they peculiar to any society, region, or generation. For example, in Abyssinia in the sixth century a law was issued prescribing forcible intermarriage between Christians and baptized Jews.

Accordingly, no boy or girl over thirteen was to remain unmarried, because such early marriages “would lead to speedy amalgamation of the communities.”⁴ At various times, very youthful marriages prevailed among the Jews, and in the second half of the seventeenth century, “the bridegroom was frequently not more than ten years old and the bride was younger still.” ⁵

The Roman law stipulated that a man may marry at the age of fourteen and a woman at the age of twelve. This law was adopted by the Church and is still preserved in various countries, including some regions of the United States of America. In England, marriages at these respective ages “were valid without the consent of parents until the year 1753. . . ”⁵

Such a general and somewhat persistent phenomenon is not fully explicable in terms of any one culture or age. Some common reasons must account for marriages of this type.

Whatever these common reasons, Islam seems to prescribe that, no matter at what age betrothal may take place, final consummation must be delayed until the parties are ready for marital relations, a condition usually determined by puberty.⁶

In any case, the law prescribes that all marriage arrangements must be made in the best interest of the minors involved. It is unlawful to do anything disadvantageous to them.

To guard against possible misjudgment, Islam has made certain specific requirements.

First, marriage in minority is invalid without the consent and participation of the guardian. In this respect, Islam agrees with other religious and legal systems of ancient and modern times.

Second, Islam does not entrust this responsibility to any parent or guardian per se, but to those who, in addition to parenthood, must have certain qualifications sufficient under normal circumstances to ensure a good sense of judgment and conscientiousness.

Third, Islam has, according to many jurists, given to minors the so-called “option of majority.” A minor who has reached the age of puberty is free either to uphold or annul a marriage contract that was concluded on his or her behalf while in minority.

Taken together, these measures seem to suggest that, in the final analysis, the minor’s interest and welfare are the focal point of the law.⁷

Even the jurists who do not recognize the minor’s “option of majority” insist that no one other than a qualified father or grandfather is authorized to conclude a valid marriage on the minor’s behalf.

This is based on the assumption that a father, who is also qualified as a guardian, would normally do what is best for his ward. Thus, it is probably not so much an affirmation of the father’s authority over the ward as a protection of the latter’s interest, even if that overrides the “option of majority.” ⁸

References

1. See su p ra , pp. 127 ff.

2. R. Levy, p. 102.

3. Stern, p. 60.

4. Patai, pp. 32, 35; Waf! (3 ), pp. 29 ff; Westermarck (3), pp. 57-8.

5. In addition, see ‘Abd al BaqI (4), vol. 2, p. 540; Maghniyyah (2 ), pp. 32-3; Roberts, pp. 14-5; Shaltut ( 1J), pp. 251 ff.

6. Roberts, p. 15; cf. su p ra , pp. 33 ff.

7. Cf. Shaltut (1 ), p. 253.

8. A thin thread of explanation may be found in A. Ytisuf ‘Airs commentary on al Q u r 'a n (5:6), vol. 1, p.241, n. 700. The rest is suggested independently.