By Asghar Ali Engineer
Recently The Legal Affairs Committee of the Majles, the Iranian Parliament, has told the press that they regard the law that prohibits the girls below the age of 10 from being married off as ‘un-Islamic and illegal.’ Mr. Mr. Mohammad Ali Isfehani, the spokesperson for Majles said “As some people may not comply with our current Islamic system the appropriate age for a girl to have reached puberty and qualified to get married. They contradict and challenge the Islamic Shari’ah law.’
Recently in Iran more than 75 female children under 10 were forced to marry much older men. A discussion by conservative legislators is taking place on Khabar Online news website. It is indeed very strange how child marriage can be Islamic in any sense of the word? How can it be un-Islamic not to permit child marriage at the immature age of 8 years? Where is Iran going? This is probably more cultural than religious. After all any law bears footprints of the culture and cannot completely get rid of cultural influences. While Islamic laws are very progressive and transcendent, cultures in Islamic countries are still feudal or semi-feudal.
Also, there has been debate among the ulama, as pointed out by Muhammad Isfehani, the spokesperson for the Majles, about the age of puberty. Many of these Ulama think that girls attain age of puberty by or before age of 10 while others think by the age of 15. But for most of them age of 10 is the age of puberty.
This to happen in Iran where women’s participation in the revolution was so genuine and enthusiastic that they voluntarily took to wearing chador as a symbol of their Islamic identity and a New York Times correspondent seeing a sea of women in black chador in 1979 wrote I wonder how daughters of those mothers who had caste off their chador could take to chador again. He perhaps did not realize that these daughters were wearing chador as a symbol of their Islamic identity and show their solidarity with leaders of Islamic revolution.
However, their experience right from the beginning was not very pleasant and their expectations of liberation of women were not fulfilled. Gradually the Islamic regime began to tighten its grip over women’s liberty, especially after the death of Imam Khomeini who was a great visionary and believed in using persuasion rather than coercion. The revolutionary leadership began to quarrel for power among themselves, in the post-Khomeini period and unfortunately conservatives won.
And, it is important to note, that in Islamic world whenever conservatives win, first to be affected are Muslim women. Recently in Libya when Gadsdafi’s supporters were defeated and his opponents – conservative Muslims – won the first declaration was that now onwards polygamy will be legal as if their revolution was all about polygamy. In Iran too women came to be under increasing control of conservative clergy. A few years ago a woman who was married with children was accused of adultery and was sentenced to death by stoning though human rights activists maintained adultery charges were not proved. And no punishment for her adulterous partner, Men generally goes scot free in such cases.
Coming back to the case of child marriage in Islam, there is nothing Islamic about it, if anything it is un-Islamic. It is well known that marriage is a contract in Islam and Qur’an calls it ‘strong covenant’ (mithaqan ghaliza,) (4:21). It does not require lot of argument to conclude that such a covenant cannot be entered into by children of the age of 8 years old that too strong contract. A child does not even understand what covenant is.
Also, it is also well-known that both parties i.e. husband and wife can stipulate conditions without fulfilling which marriage will not be valid. Can a child stipulate conditions? Marriage is a lifelong partnership as Qur’an clearly describes it ‘strong covenant’ and a child cannot be expected to have experience or intellectual ability to choose his/her life partner. Thus child marriage can in no case be Qur’anic or Islamic.
What is then origin of child marriage in Islam? It is simply cultural and child marriage was not uncommon among Arabs. The jurists can hardly escape the influence of their culture and cultural ethos. Though Qur’an did not permit it yet they allowed it because it was widely prevalent around them. They also tried to find justification for it in Prophet’s (PBUH) sunnah. Most of the Muslims believe that the Holy Prophet (PBUH) married Hazrat A’ishah when she was simply seven years of age and consummated marriage when she was 9.
Firstly this hadith appears about three hundred years after the death of Prophet (PBUH) and in-depth researches by many scholars clearly show that her age at the time of marriage was not less than 17 or 18 and at the time of consummation of marriage about nineteen or twenty years. Here there is no occasion to discuss this matter in-depth but I have seen these researches and there are very good reasons to believe these researchers. How a prophet, who was role model for whole world and who brought about much revolutionary changes, particularly in the status of women, can himself marry a girl of seven or eight years? It just defies ones common sense.
Since marriage is a contract in Islam Imam Abu Hanifa, while allowing child marriage for sociological, rather than religious or Qur’anic reasons, had also to make provision for what is called option of puberty (khiyar al-bulugh) i.e. the girl, on achieving puberty or the age of proper understanding, could accept or reject the marriage and her marriage guardian (usually father) also cannot force her to accept the marriage if she is unwilling. Imam Abu Hanifa had to make this provision because he knew her marriage guardian is not an absolute authority to give her away in the marriage as a child.
In fact religion should prevail over culture and not culture over religion. That is why most of the Islamic countries have now prescribed 18 years as an age of marriage and have made child marriage as illegal. Thus Iranian clergy would be better advised not to make child marriage as legal and tenable. I am sure the women organizations of Iran would surely resist this measure on the part of Government of Iran, if at all it takes this regressive measure defying the Qur’anic concept of marriage as a strong covenant.
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Asghar Ali Engineer is a Mumbai-based Islamic Scholar and author of the book Islam in Contemporary World published by Sterling Publishers in 2007.