Childhood And Child Marriage in Islamic Law
Authors: TAN Oğuzhan 
Published: December 2018

Though the child marriage has been a social phenomenon known and practiced in different societies throughout history, it has recently been all the more offensive to modern sensibilities. Until the last two centuries, children did not enjoy an exceptional status entitling them to differential treatment before the judiciary in the European legal thought. On the other hand, Islamic law took pioneering steps in according children a special legal status. One can see that even the early books of Islamic jurisprudence were full of highly technical details on different stages of physical and mental development of human being along with legal provisions resulted from each stage. Despite this early awareness of child rights, the child marriage phenomenon was seen in both Islamic societies and Islamic law. Because Islamic child law has remained deeply influenced by the cultural aspects of the period in which it first emerged, and these aspects have continued to serve as the basis of child law in Islamic jurisprudence across the Muslim world. This study attempts to demonstrate some excessive interpretations through which jurists traditionally argued for child marriage and read the relevant verses more coherently with their textual context.Summary: Developing a one-size-fits-all definition of the term “child” is more difficult than one might think. That is why there might be seen a palpable dissatisfaction among the scholars of childhood studies with a child definition made by any social discipline. On the other hand, Islamic law has from the very beginning had a detailed theory of child law. According to Islamic legal thought, humans pass through three stages of development between birth and adulthood: minority, puberty, and mental maturity. All the schools of Islamic law agree that children are minors [saghīr] from birth to puberty. Minors must have legal representatives to manage their possessions in their best interest. Jurists had a large consensus on a guardian’s, and especially a father’s and paternal grandfather’s, authority to compel the minor children in his care (al-wilāya al-mujbira), such that he can even give them in marriage to whomever he sees fit. However, such a betrothal is perceived to be a preliminary contract that does not directly result in a joint marital life. In premodern Islamic history, only a few early scholars such as Ibn Shubruma (d. 144/761), ʾAbū Bakr al-Asamm (d. 200/816), and ʿUthmān al-Battī (d. 143/760) were categorically against the marriage of minor children.In Ḥanafī opinion, girls and boys who have reached puberty with a sound mind (as being āqiland āqila), are then free of guardianship in terms of marriage, which means that they are able to conclude their marriage contract themselves. But the guardian still holds the right to proceed legally against marriage if he finds it inappropriate. The other three Sunnī madhhabs differentiate between male and female: while a male can make a marriage contract by himself after puberty a female remains perpetually under guardianship. Shāfiʿī school believes that the legal cause requiring guardianship (virginity) still exists, so, the guardian keeps holding his compulsory authority to marry girls off, and that obtaining her consent is just complimentary rather than necessary for the validity of her contract. It is not a requirement of marriage to acquire rushdor to complete the process of physiological maturation. Traditional Islamic law has not exhibited any divergence from its pro-early marriage position until modern times. The 1917 Ottoman Decree of Family Law, issued a set of unprecedented rulings: First, in order to be capable of marriage, a male had to have reached the age of eighteen, and that a female had to have reached the age of seventeen. A boy under the age of eighteen had to obtain a judge’s permission to marry, and a girl under the age of seventeen was required to have both the consent of her guardian and the permission of a judge. It further added that a boy under the age of twelve and a girl under the age of nine could never be married off. Although neither of logical context and syntactical structure serves them, jurists have used some Qur’anic verses (al-Nisā 4/3-6, al-Nisā 4/127, al-Talāq 65/4) in support of child marriage. However, this article tries to bring a more coherent interpretation to these verses. It also asserts that the Qur’an does not overtly facilitate the child marriage but, in fact, the scholars premise their pro-child marriage stance on some strained interpretations which are pretty acceptable to the cultural setting of their time. The narrative about ʿĀisha’s early marriage to the Prophet is another argument. This narrative is strongly believed to be authentic, however, very few jurists have referred to it arguably because they didn’t want to talk about the privacy of prophet or they were critical about the authoritativeness of narration. Taking a closer look at the narrative one can notice a significant negativity at the turn of phrase. Because ʿĀisha talks about physiologically and psychologically adverse conditions surrounded her in a fashion pleading for mercy and empathy of the audience. According the details came up in the narrative, while she was innocently playing with her friends, ʿĀisha was suddenly taken out of the swing knowing nothing about what would happen next. Narrative seems to impose not only permissibility of child marriage but also overstates that children must be obedient and resilient for marriage even in inappropriate conditions. The narrative is technically a kind of khabar al-wāhid(one transmitter's report). So, even though it has a historiographical significance, it lacks the quality of being evidence for the religious provisions. Because she is not transmitting in this narrative an official statement of the prophet, so to say, on the issue; but she is talking about an event that she was exposed.