In reference to the letter “It isn’t polygamy but the way its practiced” in New Straits Times, 14 January 2002, saying it is wrong and offensive to recommend a ban on polygamy for Muslims because it is the sunnah of the Prophet, we would like to correct the many misunderstandings about Prophets practice of polygamy.
Many Muslims who regard polygamy as the Sunnah of the Prophet (saw), forget or fail to fully understand the type of polygamy that the Prophet practised. First of all, the Prophet himself was monogamous throughout his 25 year marriage to his first wife Khadijah (r.a.), and his polygamous marriages after her death in the tenth year of his prophethood were to widowed or divorced women for political or tribal reasons. The only virgin he married was his second wife, Aishah (r.a.). He married a total of 11 times, and most of his marriages were to elderly widowed or divorced women with children, entered into for political and tribal reasons. The Prophet married his nine wives after Aishah within a space of 5 years and never divorced any of the women he was married to. The Prophet did not marry younger and prettier women to fulfill his desires. In fact, he practised polygamy within the realm of spreading Islam to the communities at the time. Unlike the other men, the Prophet was allowed to keep all his wives after the maximum four wives limit was imposed upon the previous practice of unlimited polygamy, but he was eventually prohibited from adding to his wives or divorcing any of them with a view to taking another wife in her stead (Surah al-Ahzab 33 : 52).
Many, if not most, polygamous marriages today share almost nothing in common with the Sunnah of the Prophet. It would be unjust and offensive for those who contract polygamous marriages today to even compare their justification for polygamy to the reasons that the Prophet practised it. Moreover, considering the Prophet’s monogamous marriage with Khadijah, if one were to strictly follow the sunnah of the Prophet, it would appear that a man should not take another wife at all during the lifetime of his first wife! Many Muslims also forget the significance of the authentic hadith reported in Sunan ibn Majah that that even though the Prophet himself practised polygamy, he did not allow his son-in-law Saidina Ali ibn Abi Talib, to marry another woman “unless and until Ali ibn Abi Talib divorces my daughter (Fatimah) for surely she is part of me and what troublesand agitates her, troubles and agitates me too; and what harm befalls her befalls me too.” It would therefore appear from this tradition that the first wife is fully entitled not only to know about the proposed polygamous marriage, but also to reject it by refusing her consent, as well as to demand a divorce should the husband persist in his desire as well as to demand a divorce should the husband persist in his desire. The letter and spirit of the Qur’anic verses, as well as the Sunnah of the Prophet, is concerned with the welfare of women and children who were left unprotected after their husbands and fathers were killed in battle. At the same time, it is also anxious to prevent injustice in the family. It may be said that the type of polygamy permitted or tolerated in Islam is not a “male right” but a “female privilege”, and as such it should not be desired only by the man, but should be understood and agreed upon by all the women involved as well – the existing wife and the proposed wife. Accordingly, it is submitted that it is not wrong or offensive to suggest the possibility of a ban on polygamy for Muslims, especially at a time when there is no social emergency as a result of war, when marrying more than one wife may be a temporary for a social problem.
SURAT KEPADA PENGARANG 8 Januari 2002 Kami amat kesal dengan kenyataan Menteri Besar Perlis yang menyatakan bahawa soalan-soalan yang diajukan kepada beliau dan Mufti Perlis boleh menyebabkan kami syirik kecil. Adalah amat tidak wajar bagi seseorang yang mengaku dirinya berpelajaran agama untuk melabelkan orang yang seagama dengannya dengan cara begitu.
Agama Islam adalah amat teguh dan tiada apa yang boleh mengoyahkan kedudukannya. Ayat pertama yang turun merupakan perintah untuk belajar (Iqra'). Selaras dengan itu juga adalah menjadi tanggungjawab bagi mereka yang mengaku berpelajaran untuk bersikap terbuka dan turut terlibat di dalam perbincangan bagi mencapai matlamat syariah iaitu keadilan sejagat. Nabi Muhammad saw sendiri sentiasa terbuka untuk perbincangan dan tidak pernah menidakkan hak bersuara apalagi di kalangan wanita.
Persatuan wanita semasa mengajukan soalan dengan MB Perlis dan Mufti Perlis tidak pernah menyentuh kepada Hukum Syarak. Apa yang kami persoalkan adalah perlaksanaan Hukum Syarak oleh kerajaan negeri Perlis.
Surah an-Nisa' 4:3 menyatakan "Jika kamu takut bahawa kamu tidak akan berlaku adil tentang anak-anak yatim, maka kahwinlah olehmu perempuan yang baik bagimu; dua tiga atau empat. Tetapi jika kamu takut bahawa kamu tidak akan berlaku adil kahwinilah seorang sahaja…. yang demikian itu adalah lebih dekat (untuk mencegah) supaya kamu tidak melakukan kezaliman". Ayat 4:129 menyatakan "Kamu tidak akan mampu berlaku adil antara perempuan-perempuan itu, meskipun kamu sangat ingin akan demikian". Kedua-dua ayat tersebut amat menekankan keadilan bagi suami yang ingin berpoligami. Sebaik-baik saksi yang boleh memberi kesaksian samada suami adalah seorang yang adil adalah isteri sedia ada. Kami mempersoalkan rasional untuk tidak memanggil isteri sedia ada sebagai saksi sifat keadilan suami.
Kerajaan Perlis menyatakan bahawa mereka akan membuat siasatan ke atas keadilan suami tersebut tetapi saksi yang akan disiasat adalah saksi yang dibawa oleh suami yang ingin berpoligami ! Saksi yang dibawa oleh suami adalah berkemungkinan besar akan berat sebelah terhadap suami. Ia akan menyebabkan Mahkamah Syariah mengambil keputusan berdasarkan bukti-bukti yang berat sebelah dan memberi keputusan yang menyebabkan ketidakadilan.
Persatuan wanita tidak mempersoalkan bidangkuasa Mahkamah Syariah untuk menentukan samada suami tersebut boleh berpoligami. Kami inginkan Mahkamah Syariah untuk berlaku adil dan di dalam perkara permohonan berpoligami oleh suami, adalah adil bagi Mahkamah Syariah untuk memanggil isteri sedia ada sebagai saksi keadilan suami selama ini. Siapa lagi yang lebih arif mengenai sikap suami jika bukan isterinya? Sikap angkuh kerajaan Perlis menidakkan kesaksian isteri sediada adalah amat tidak wajar. Juga sikap mereka mempertikaikan hak isteri pertama untuk sekurang-kurangnya dimaklumkan mengenai perkahwinan poligami suami.Sisters In Islam8.01.2003
Summary of the StrategyThe problemEarly marriage Importance of the problem:It cuases: Physical, psychological and social damages to women. Deprivation of Education. Early Death.Reasons of the problemThe Law The Father’s dominationCustoms and traditionsPovertyLack of awareness
Amending the Law
Setting legal limits for the age of marriage
Punishment for those who do not obey the law
Women’s ability to express their own wills
Points of Strength
We have legal experts
There is no incompatibility with sharī‘a
We have supportive organizations
The attitude of the government
The demands of the international community
The need for improving the government’s image
Points of weakness
Shortage of financial resources
Minimal support from the ulama
The government’s reluctance
The presence of traditional groups
Preparation of studies
Raising awareness activities
During one year
Reforming the law
* * *
The practice of early marriage, which entails forcing minor females to marry at early age, is the worst discriminatory behaviour experienced by Yemeni women. In addition to its physical, psychological and social damages on women, this practice hampers the social development of Yemeni society.
The negative effects of early marriage might be summarised as follows:
1.Physical damages of minor females, which reflects on their general health conditions.
2.Depriving large number of girls from education and in consequence from participating in the labour force.
3. Early marriage and in effect, high fertility rates cause substantial incidents of early death among women.
4.Early marriage causes poor upbringing of children due to their mothers’ immaturity.
* * *
Our major objective is to stop this discriminatory practice, which represents a threat to the development of Yemeni society. Our previous studies and research inform us that there are key factors in the persistence of this phenomenon. They are summarised in the following:
Yemeni law permits the marriage of minor females (M/15 Personal Status) by keeping the minimum age of marriage undefined. This is despite the existence of a legal clause that allows women to refuse or accept their marriage after reach puberty.
Dominance of the father
The father is considered the main breadwinner as he monopolises the means of production. He dominates the family and thus he can violate the rights of daughters to choose. This permits him to compel minor females to marry early.
Customs and traditional culture
Traditional customs permit the father to exercise authority. Any refusal of his decision is viewed by society as violation of the socially accepted values. Customs and traditions view women as potential threat (‘ār) and therefore they have to be married as early as possible.
Many families decide to marry their daughters early because they cannot bear their financial burden. Early marriage is also perceived as an ensuring mechanism of the daughters’ future. This is in the context of viewing marriage as the only secure future of daughters.
Lack of awareness
Literal and legal illiteracy are crucial factors especially regarding the women’s right to choose. This should be seen in the context of traditional Islamic culture, which has not been developed to meet the needs of the present times.
* * *
In an attempt to resolve this problem, we put forward solutions to eliminate its causes. We focus (in the coming period) on the LAW through a number of strategies for reform.
Legal Reform allows us to achieve the following
1.Fix the minimum legal age of marriage by 18 years.
2.Endorse punishments in the legal text for those who do not comply with the legal age
3.Ensure the right of girls to express their will regarding their marriage.
* * *
We chose to focus on the legal amendments due to the following reasons:
First: Points of strength
1.We have the legal expertise in our organisations to prepare well-versed legal suggestions.
2.The extremely damaging physical, psychological and social consequences of early marriage deem to convince others to accept our suggestions.
3.No incompatibility to be found between our reforming suggestions on the one hand and the Islamic sharī‘a and Yemeni culture on the other.
4.The project requires communication and coordination with the bodies that share with us the same concern. These are: International and Local Organisations, Political Parties, Parliament members and Legal Experts.
5.The endorsement of the Yemeni government of a number of international treaties including CEDAW.
1.International Organisations insist that the government should legislate laws that minimise discrimination against women.
2.The desire of the government to appear (internationally) as being against discrimination.
1.Our programmes will be hampered by our poor financial resources.
2.Currently, we lack support from the religious leaders.
1.The government may hesitate from undertaking steps towards legal reform fearing that this may provoke fundamental social norms.
2.The traditional groups in society, especially in the parliament may succeed in felling our project.
First: Studies and researches
1.A scientific study will be prepared by a number of specialists to demonstrate the physical, psychological and social damages of early marriage.
2.Another study will be prepared by a number of ulama to clarify the position of Islamic sharī‘a in this regard. It will use the findings of the scientific research to backup its arguments.
3.The legal experts in our organisations will prepare a draft of the recommended legal amendments backed by the required justifications.
Second: Awareness raising activities
1.To organize a seminar for the key social groups (teachers, university students, media experts, mothers and fathers, etc) to discuss the negative consequences of early marriage.
2.To invite 150 religious preachers to attend several seminars to discuss the position of Islam regarding early marriage. An emphasis will be put on the role of preachers in restricting this practice.
Third: Media-related activities
1.To prepare a documentary film that highlights the damages of early marriages on women.
2.To write articles in the local newspaper to raise awareness regarding early marriage.
3.To publish four periodicals and two books.
4.To raise awareness with regard to the problem in schools and universities by utilising the prepared documentary and the published studies.
Fourth: Supportive activities
1.To present our demands to the government for reforming the law.
2.To organise a meeting with the official authorities i.e. the ministry of Human Rights, The Committee of Women, the Ministry of Justice, The Ministry of legal Affairs to clarify the reason behind our demand and its conformity with the general policy of the government.
3.To convey our demands to the parliament in the name of legal organisations in Yemen.
4.To organise a protest in front of the parliament building. For this, we will invite the International Organisations to attend the event. This will involve the participation of legal figures, religious leaders and parliament members in addition to women who experienced this harmful practice.
5. To requesting the international Organisations to invite the Yemeni government to observe the relevant international treaties.
We will secure the financial resources through:
1.Membership fees and donations.
2.Donations from supporters.
3.Financial assistance from the supportive International Organisations.
At the end of our activities, an evaluation will be undertaken in order to achieve our long-term objective:
Sisters in Islam expresses its deep concerns over the decision by the Malacca Islamic Religious Council to relax the conditions for Muslim girls under the age of 16 and Muslim boys under the age of 18 to marry with the permission of the Syariah court, and to encourage parents to allow their minor children to marry. We strongly urge the Council to reconsider its decision. Research conducted by UN agencies and women’s groups around the world point to the negative impact of child marriages on the wellbeing of minors and their educational and economic opportunities. Instead of encouraging child marriages, the State government should support the establishment of sexuality education and awareness-raising for students to empower them to make choices based on knowledge of their rights and mutual respect. Sisters in Islam reiterates its position that in the Qur’an, marriageable age is linked to “sound judgment” and “maturity of mind” (Surah An-Nisa, verse 6). Puberty alone is not sufficient. Furthermore, the decision by the Malacca Islamic Religious Council contradicts the letter and spirit of Child Act 2001, as well as human rights treaties ratified by Malaysia. Article 16(2) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) prohibits child marriage. Child marriages also violate the provisions of the Convention on the Rights of the Child (CRC) which affirms that a child has an inherent right to life, health and education. While we welcome the statement by Datuk Shahrizat Abdul Jalil condemning child marriages as “morally and socially unacceptable”, we urge the Ministry of Women, Family and Community Development to work together with the Malaccan state government to sensitise policy makers and religious officials on the impact of child marriages. We further urge the Malaysian Federal Government to amend civil and Islamic family laws to set the absolute minimum age to marry at 18 years. Prof. Norani Othman On behalf of Board of Directors Sisters in Islam
Prophet Muhammad's wife A'isha: How Old was She at the Time of her Marriage?
With reference to questions about marriageable age, minor age marriages are justified quoting the precedent of A’isha marrying Prophet at the age of nine. In his book, Tahqiq Umar A’isha al-Siddiqa [(Truth about the age of A’isha the Truthful), Karachi: Mashkur Academy, No date of publication mentioned], Hakim Niyaz Ahmad, a scholar from Pakistan has examined all the report in almost all collections of Hadith and has come to the conclusion that A’isha married the Prophet when she was 19 years old.
His main findings are as follows:
1.The Hadith report about A'isha’s marriage at the age of nine is not reliable because:
a.All Hadith collections report this Hadith on the solitary authority of Hisham
b. Urwa.b.Hisham is generally accepted as a reliable person, but in his old age he had lost this prestige among the scholars in Medina. They do not accept his Hadith narrated in this period. Hisham narrated this story in around 145 AH when he was 84 years old. A’isha’s marriage took place in 2 AH, more than 140 years ago. It was the time when most of those who could verify the facts of his narration had died.
c.A’isha’s marriage was not an ordinary event that only one person would narrate it.
2.Ibn Ishaq, Ibn Sa’d, and other historical accounts of the life of the Prophet never fail to mention A’isha among the first group of people who embraced Islam. If A’isha were nine years old in 2 AH/624 AC she would be five years old in 610 AC, when Muhammad announced his Prohethood. It is rather more reasonable to assume that she was adult at that time, which means that she was certainly more than nine years old in the year she migrated to Medina.
3.Mishkat al-Masabih, Al-Bidaya wa’lNihaya, Siyar A’lam al-Nubala, and al-Isti’ab, among the more well known sources clearly mention that A’isha was 10 years younger than her sister Asma.
4.Most sources, particularly Abu Na’im al-Isfahani suggests that Asma was 27 years old at the time of migration. It means A’isha was at least 17 years old at that time. The author disagrees with Isfahani, and calls it a miscalculation. This calculation is based on the assumption that Asma is usually reported to have died at the age of 100 years in 73 AH.
Calculating backward and subtracting the period of 13 years of Meccan (100-73-13) she would be 14 years when she accepted Islam. That would mean that A’isha was only four years old when she embraced Islam. It is so unreasonable. Both Aisha and Asma must be old enough to qualify for accepting Islam. Therefore, we have to believe either that Asma was older than 100 years at the time of her death, or that there was not difference in their ages. This is plausible because they were born of different mothers.
5.Asma gave birth to Abdullah b. Zubayr who was the first child born among Muslims at the time of Hijra. The event was celebrated with much happiness. The Prophet suggested A’isha to take the Kunya of Umm Abdullah (Abdullah’s mother). It would be odd for a minor girl to have that Kunya. It suggests that she was old enough to have that Kunya.
6.When the Prophet proposed, A’isha was already engaged to Jubayr b. Mut’am, whose father was the leader of the Quraysh. Jubayr’s family was not happy when A’isha’s family embraced Islam. Both families found it difficult to terminate that engagement. A’isha’s father Abu Bakr had to negotiate for divorce. He requested Jubayr’s family to conclude the marriage contract and take A’isha to Jubayr’s home, as was the custom.
Abu Bakr knew that Jubayr’s family would not agree to the contract and that then he could negotiate for divorce or disengagement. It was after her divorce that she could be engaged to the Prophet. The author argues that the fact Abu Bakr could negotiate for the conclusion of the contract or divorce is an evidence that A’isha was adult and of marriageable age.
7.The author concludes that Aisha was 19 years old at the time of marriage. There is a textual error 19 (tis’at ashar) was misread as nine (tis’ah). He gives several examples of such errors in the reporting in Hadith books.
القاهرة-أحمد عطية-إسلام أون لاين في الوقت الذي تتزايد فيه مطالبة النشطين في مجال العمل الأهلي والاجتماعي في مصر بتدعيم اتجاهات الشباب نحو الزواج المبكر في مصر حلا لمشكلة انحراف الشباب، وممارسة الجنس قبل الزواج ما زالت الجهات الحكومية ومراكز الأبحاث شبه الرسمية تواصل برامجها التي تهدف إلى محاربة هذا النوع من الزواج. وفي ذلك الإطار فقد دعت دراسة علمية أخيرة حول الزواج المبكر أعدتها الدكتورة إقبال الأمير السمالوطي الحكومة المصرية إلى وضع استراتيجية لمواجهة ظاهرة لزواج المبكر في المجتمع المصري، مشيرة إلى أن الزواج المبكر من الظواهر الاجتماعية التي تنتشر في مصر خاصة في المناطق الشعبية والريفية. واستندت الدراسة إلى إحصاءات رسمية تشير إلى أن نسبة 18.2% من الفتيات في الفترة من 1980 وحتى 1984 تزوجن في سن مبكرة في حين بلغت النسبة 40.3% في الفترة من 1960 وحتى 1964 وقالت إن نسبة الزواج المبكر في الحضر تصل إلى 9.5% في حين تمثل في الريف 26.3% وتصل النسبة في الوجه القبلي إلى 28.9% بينما تصل 16.9% في الوجه البحري. ودعت الباحثة إلى ضرورة أن تراعي استراتيجية المواجهة طبيعة وخصوصية المجتمع المصري وزيادة الوعي لدى المواطنين بالآثار السلبية للزواج المبكر، والاهتمام بالتوعية الدينية للفتيات المقبلات على الزواج وتعريفهن بحقوقهن الشرعية والقانونية لاختيار الزوج المناسب، وتعقيد الإجراءات الخاصة بالزواج المبكر، وتغليظ عقوبات التلاعب في عقود الزواج. ومضت الدراسة في تعديد أضرار الزواج المبكر مشيرة إلى أنه قد يؤدي إلى ارتفاع حالات الطلاق نتيجة لعدم التوافق الزواجي، وحرمان الفتيات من حقوقهن في اختيار أزواجهن، ووضع الفتاة في موقف المسئولية الاجتماعية قبل بلوغ مرحلة النضج، كما يؤدي إلى متاعب صحية للأم نتيجة الحمل والولادة المتكررة. وقالت الدراسة أن هذا الزواج يعتبر سمة من سمات المجتمعات الريفية إذ أن 36% من إجمالي عدد الزوجات في الأسر الريفية تزوجن في سن أقل من 16 سنة في حين تبلغ نسبة الإناث اللاتي تزوجن دون السن القانونية في الحضر 9.1%، وترجع الباحثة تزايد النسبة في الريف إلى رغبة الريفيين في الإكثار من الأولاد وقصر الفاصل الزمني بين الآباء والأبناء والخوف على الشرف والعرض ودعم الروابط الأسرية ورغبة الأباء في تزويج أولادهم مبكرا لإثبات الرجولة وتأكيد السيطرة. وقالت الدراسة أيضا إن العوامل الدينية تعد من أهم العوامل في شيوع الزواج المبكر في البلاد العربية والإسلامية، هذا بجانب أن بعض الأسر تزوج فتياتها الصغيرات اللاتي لم يبلغن السن القانونية من أزواج أثرياء مصريين أو عرب لديهم القدرة على تلبية الشروط التي تضعها أسرة الفتاة على الزوج وتخلص الباحثة إلى القول: إنه رغم السلبيات فإن الزواج المبكر يؤدي إلى تدعيم الروابط والعلاقات الأسرية وسيادة روح التكافل خاصة في المجتمعات الريفية، حيث يترتب على هذا الزواج نشأة حقوق وواجبات بين ذوي القربى، وتعاون في المجالات المختلفة من خلال علاقة المصاهرة. وفي مقابل وجهة النظر السابقة التي سجلتها الدراسة التي تأخذ بها المؤسسات الرسمية المصرية فإن هناك باحثين ونشطين في مجال العمل الأهلي والاجتماعي يعددون عددا من الآثار الضارة للزواج المتأخر في عصر شهد ثورة جنسية عن طريق الأطباق الفضائية والإنترنت بما تحويه هذه الوسائل من ثقافة جنسية غير منضبطة وبصورة متاحة للجميع، وهي العوامل التي أدت إلى انخفاض سن ممارسة الزواج في البلاد العربية وتورط العديد من الشباب في البلاد العربية في ممارسة الجنس قبل الزواج، ويقول هؤلاء إن الحد من الزواج المبكر لا يمكن أن تكون دعوة صحيحة في وقت تعاني فيه أعداد كبيرة من الفتيات العربيات من العنوسة لأسباب اقتصادية أو اجتماعية
Religious Doctrine, State Ideology, and Reproductive Options in Islam
This chapter assesses the compatibility of Islam with ideas of reproductive choice through an examination of Islam's doctrinal principles and their interpretations, and reviews available indicators of reproductive health in Countries of the Middle East as a measure of reproductive choice. It argues that while the doctrine has a degree of flexibility on issues of reproduction, the political context is a key factor for understanding the way in which religious doctrine is interpreted. The role of the state in shaping women's options through interpretations of religious doctrine is illustrated through a discussion of the dramatic reversals in Iran's population policy.
Reproductive Choice in the Islamic Doctrine
From a feminist "human rights" perspective, the notion of reproductive choice implies two basic principles. The first is autonomy, which means that a woman can make decisions in matters of reproduction, and that access to the information and services that make her choice possible; this autonomy in turn implies a set of other rights for her as an adult individual and as a citizen. The second principle is the notion that reproductive health is an integral part of a woman's life, and hence is shaped not only by medical conditions, but also by social forces and power relationships that range from the level of the family to that of international institutions (Freedman and Isaacs 1993). Before assessing the extent to which these preconditions can be fulfilled in the context of Islam, two points must be noted. First, there is a tension in Islamic doctrine between the egalitarian view that believers are judged solely according to merit, and the inegalitarian elements that define different roles for men and women. The second point that emerges from even a cursory examination of women's autonomy is the tremendous complexity and diversity that is found in the Muslim world. Given that in a Muslim countries different schools of jurisprudence coexist alongside civil codes derived from European legal systems, and even with customary laws that are often survivals of a pre-Islamic past, the legal dimension of women's status is shaped by elements that are sometimes contradictory. Moreover, the variability in levels of socio-economic development in Muslim countries generates great discrepancies in the social reality of women's autonomy, both between the countries and, within the same country, between different sectors of the population. The tension in the doctrine the variability in the social context are crucial for a balanced assessment of the situation, yet they are often ignored in discussions of women's status; the prevalent view is that Islam defines a subordinate role for women and hence is at the root of the unfavorable indicators of women's reproduction and health. It is argued here that the principles of Islam lend themselves to different interpretations and that the reality of reproductive choice in the region varies both between countries and over time. Islamic law (shari'a) is based on the Qur'an, the hadith (the collected sayings of the prophet Muhammad), and the sunna, (the prophet's biography). In deriving shari'a, the various schools of jurisprudence differ in two areas, the extent to which they allow ijtihad (the formulation of independent legal judgement) and the bases upon which such judgement can be developed. With respect to women's status, the ambiguity of the religious texts makes the process of interpretation crucial, but unlike Christianity, Islam does not have a hierarchically organized clergy. Thus, there is no central, authoritative interpretation of religious doctrine; instead, there are decentralized and sometimes dissimilar codes embodied in the various schools of law and religious sects. Islamic doctrine is ambivalent with regard to women's status because, while the sacred texts emphasize the equality of all believers before God, they also clearly differentiate between the rights and duties of men and women. As a result, the same texts can be used to legitimate divergent views. A literal interpretation could provide the basis for justifying women's subordinate position, while reformers have, at different periods in Islamic history, argued that the inegalitarian elements is Islam reflect the temporal context in which the religious emerged, were not intended to be immutable, and should be reinterpreted in light of contemporary conditions (Ahmed 1992). Traditional interpretations emphasize those passages in the Qur'an and hadith that give women a lower valuation than men, and use them to define a distinctly subordinate social role for women. The statements in the religious texts that grant women the right to manage their own property and to conduct their business receive little attention, compared to those that value female testimony in court as worth half that of a man, and allot her a share of inheritance half the size of that of a man. In this tradition, women's options are limited to their domestic role and they have little freedom of choice in matters of marriage, divorce, and the custody of their children. Marriage is contracted by a woman's legal guardian, her consent being inferred rather than formally sought, and therefore early marriage and forced unions are not regarded as necessarily unethical, as they would be from a women's rights perspective. Husbands are entitled to four wives and can repudiate their wives by uttering the divorce formula, whereas women must go through an often difficult procedure if they wish to obtain a divorce. Fathers have custody of their children after infancy, while women have no grounds for claiming custody. And although the religious sources provide no clear rules on the degree to which women should have access to equal education and employment, conservatives have favored sexual segregation in schools and opposed women's work outside the home (Rahman 1980). Reformists and feminists have contested this scriptural and "establishment" version of shari'a. Using the many instances in the Qur'an and hadith where no difference is made between believers, and the historical evidence on the status of women in the early decades of Islam, they argue that there is an egalitarian ethos in Islam that was historically distorted by patriarchal forces (Ahmed 1986, 1992). In their view, the religious texts can and should be interpreted in a more egalitarian manner. This perspective would be in harmony with the Western feminist notion of women's reproductive choice, and in fact, several aspects of Islamic doctrine are clearly compatible with such an interpretation. A number of statements in the scriptures stress the idea that God does not wish to burden man, and suggest that "quality" is as important as "quantity" in children. In addition, there is a generally positive attitude in Islam towards sex in marriage, and a clear recognition of a woman's right to sexual enjoyment. With respect to family planning in particular, the texts do not present a major obstacle: little mention is made of contraception, except in the famous hadith where the prophet condones the use of coitus interruptus (Omran 1992). By analogy, this permissive stance has been taken to apply to all non-terminal methods of contraception. The permissibility of abortion has been the subject of debate, because while most schools of law agree that abortion is acceptable before ensoulment and unacceptable afterwards the question of when ensoulment takes place has been as difficult to resolve as it has been in other theological traditions. With the exception of the Maliki school of jurisprudence, it is generally agreed that ensoulment, indicated by quickening happens near the end of the first trimester, and consequently abortions are allowed until that point. Sterilization poses a greater difficulty, because the finality of the method is seen as interfering with divine will, and therefore Muslim authorities have not condoned its use (Omran 1992). In sum, from the point of view of Islamic doctrine, it is possible to take two very different positions on reproductive choice; the more traditional one gives women very little freedom to make decisions that bear on reproduction; the second, increasingly espoused by Muslim reformists and feminists, argues that the constraints on reproductive choice that exist in Muslim countries are not inherently Islamic, and that the egalitarian elements in the sacred texts should be the guide to a reinterpretation of the doctrine that would be fully compatible with ideas of human rights and reproductive choice.
Reproductive Choice in Countries of the Middle East
To obtain a general view of reproductive choice in countries of the Middle East, I have summarized data on indicators of women's status and reproductive health in table 4-1. These data are imperfect proxies for choice; women's status indicators are a crude measure of women's ability to make informed decisions, and indicators of reproductive health provide a rough idea of the outcomes of such decisions (or lack thereof). Take together, they suggest that the constraints are considerable. Statistics showing a lower level of educational achievement for women compared to men, and figures showing low levels of labor force participation for women imply a low degree of autonomy. Indicators of reproductive behavior -- the high total fertility rate, and the relatively low percentage of women using contraceptive methods -- are consistent with available data on the high frequency of early marriage and the gap between stated fertility preferences and observed fertility levels (Farid 1987). They suggest that many women are not in a position to formulate and achieve clear reproductive goals. Measures of access to health care (percentage of the population with access to health care, percentage of births attended by trained personnel) show substantial gaps in coverage in some countries, and estimates of maternal mortality (Kane et al. 1991; Fortney et al. 1986) indicate that under conditions of difficult access, women are especially vulnerable. These adverse outcomes have been attributed to the ideology of male dominance and son preference in the culture,1 the limitations on the free mixing of the sexes,2 the custom of arranged marriages, the male privileges of repudiation and multiple wives,3 the pressures to bear children, and the low priority accorded to women's health and nutrition.4 In seeking a general explanation for these patterns, it is often argued that the association between Islam, women's status, and demographic outcomes is inevitably unfavorable, and this notion seems to fit with popular images of the plight of women in the Middle East (and also with the anxieties generated in the West by militant Islam). One of the major obstacles to a balanced assessment of reproductive choice and its health consequences has been the paucity of data on reproductive health in the Middle East. As in other regions of the world, a great deal of attention has been devoted to contraceptive surveys of attitudes and practices, but when we try to consider reproductive health in a comprehensive manner, the evidence is very sketchy, and we often have to make do with imperfect proxies. Although there have been some studies focusing on indicators of women's status and health outcomes (Tekce and Shorter 1984; Doan and Bisharat 1990), most have been limited to the topic of child survival, and we know very little about the state of reproductive health in relation to women's status.5 Statistics for the region as a whole are of limited use in linking women's health and fertility outcomes to the degree of reproductive choice in each Country context. Because they measure outcomes, these statistics do not tell us whether the source of change is a result of improvements in the reproductive options that are open to women, such as increased autonomy, or improved access to health services and to health information. Because they are aggregates at the state level, these measures cannot capture important variations within countries between the elites and the less privileged segments of the population. It is possible, however, to develop a broad view of the extent to which the situation has changed over the last few decades, and some of these trends have been included in Table 4-1.
Table 4-1 Selected Indicators of Reproductive Choice in the Middle East *
Primary School Enrollment
Secondary School Enrollment
Female labor force Participation (%)
Change in Preceding 25-30 Years (%)
Percent of Age Group
Females per 100 Males
Percent of Age Group
Females per 100 males
United Arab Emirates
Yemen YAR (North)
Yemen PDRY (South)
Total Fertility Rate
% Decline 1950-1990
Population with access to health care(%)
Births attended by medical personnel
Female life expectancy at birth*
Maternal mortality rate (estimates)
مخاطر الزواج المبكرمخاطر الزواج المبكر يعرف الزواج المبكر بأنه زواج الفتاة قبل سن الثامنة عشر ربيعا وطبيا نود أن نقسمه الى أولا:- زواج قبل سن خمسة عشر عاما. ثانيا: - زواج بين15-18سنة. دوافع الزواج المبكر:- 1- المجتمع المصرىيتميز بأنه مجتمع محافظيرفض تأخر سن الزواج بالفتاة و ذلك للمحافظة على الاخلاق و التقاليد و هيبة الأسرة الا أن المغالاة فى هذاالاتجاه أدى الى ظهور مشكلة الزواج المبكر بما لها من تداعيات صحية كثيرة. 2-الرغبة فى وجود أسرة كبيرة الحجم (العزوة) مازال فى أذهان البعض مما يدفعهم الى الزواج من الفتاة الصغيرة. 3-غياب حق الفتاة فىالمشاركة فى اتخاذ القرار و ذلك لصغر سنها . لماذا الآن:- قد يسأل سائل لماذا نتحدث الآن فى موضوع الزواج المبكر؟ أليس هذا الموضوع منذ زمن بعيد؟ ماذا جد حتى نتحدث عنه بحرارة هذه الأيام؟ الاجابة تكمن باختصار فى التقدم المذهل للطب فى ال50سنة الأخيرة مع وجود الاحصائيات و الدراسات التى أدت الى فهم عميق لأخطار الزواج المبكر و ما هى عوامل الخطر و كيفية تجنبها. هذه الوسائل لم تكن متوافرة من قبل فلم يكن أحد يتنبه لها. خطورة الزواج المبكر:- الزواج المبكر قضية اجتماعية ذات أبعاد طبية خطيرة فى المجتمع المصرى لمالها من انعكاسات على صحة المرأة والطفل و المجتمع عموما حيث تدل معظم الابحاث و الدراسات الطبية و البيئية على أن مضاعفات الحمل و الولادة تزداد بشدة فى حالات الزواج المبكر عنها فى حالات الزواج بعد سن18سنة و من أهمهذه المضاعفات تسمم الحمل و ضعف الجنين ممايؤدى الى ارتفاع حاد فى نسبة الوفيات فى الاطفال حديثى الولادة. مضاعفات صحية: اما نتيجة مباشرة لصغر السن وعدم نضج الفتاة أو نتيجة الاهمال و عدم متابعة الحمل مع الطبيب 1-تسمم الحمل:- هو ارتفاع ضغط الدم أثناء فترة الحمل مع تورم الساقين و نزول الزلال فى البول ممايؤدى الى تأخر نمو الجنين نتيجة انخفاض كمية الدم المغذية للرحم. و تسمم الحمل قد يؤدى الى مضاعفات كثيرة خاصة اذا لم تكن هناك زيارات متكررة للطبيب لمتابعة الحمل. ومن أهم هذه المضاعفات:- 1-حدوث تشنجات و غيبوبة نتيجة ارتفاع حاد فى ضغط الدم يؤدى الى نزيف فى أغشية المخ و نسبة وفيات الأمهات فى هذه الحالة عالية جدا. 2-اختناق الجنين فى بطن الأم وذلك للقصور الحاد فى الدورة الدموية المغذية للجنين. 3-تدخل الاطباء من أجل المحافظة على حياة الأم قد يؤدى الى حدوث الولادة المبكرة فى كثير من الاحيان 2-الولادة المبكرة:- ثانى أهم مضاعفات الحمل المبكر فى سن أقل من18سنة حيث تقل نسبة استعداد الرحم لتحمل الجنين فى كلا السن الصغير (أقل من18) و السن الكبير (أكثر من35). والولادة المبكرة لها تأثيرها المباشر على ازدياد نسبة الوفيات فى الأطفال حديثى الولادة. والجدير بالذكر أنه من بين16500حالة ولادة وجد أن1662حالة تعانى من تسمم الحمل و الولادة المبكرة وأكثر من50% من هذه الحالات يقل عمر الأم عن18سنة. 3-الاجهاض:- تزداد معدلات الاجهاض عن معدلاتها الطبيعية فى حالات الحمل المبكر وذلك اما لخلل فى الهرمونات الأنثوية (تفرز بمعدلات أقل من المفروض) أو لعدم تأقلم الرحم علىعملية حدوث الحمل ممايؤدى الى حدوث انقباضات رحمية متكررة من شأنها أن تحدث نزيف مهبلى وما يتبعه من التخلص من الجنين. 4-العدوى البكتيرية:- والتى تعرف باسم حمى النفاس وتزداد معدلاتها بشكل كبير فى حالات الحمل المبكر و ذلك لنقص مقاومة الجسموضعف التغذية من ناحية أو كنتيجة للمضاعفات السالفة الذكر. و حمى النفاس قد يتتبعها حدوث التهابات مزمنة فى الحوض- اضطرابات فى الدورة الشهرية و اخيرا العقم نتيجة لالتهاب الانابيب وانتشار الالتصاقات داخل البطن. 5- ارتفاع نسبة الوفيات:- نسبة الوفيات للامهات تتزايد بشكل خطير فى حالة حدوث الحمل المبكر أقل من18سنة كنتيجة للمضاعفات السالفة الذكرو تقدر هذه النسبة بوفاة واحدة فى كل70 حالة وهذه نسبة عالية جدا مقارنة بالدول المتقدمة (وفاة فى كل5000حالة تقريبا). تزداد فرصة حدوث هذه الأخطار فى حالة:- 1-حدوث الزواج فى سن أقل من15سنة 2-مستوى معيشى متدنى 3-ضعف الصحة العامة للفتاة نتيجة سوء التغذية مضاعفات اجتماعية 1-تأخر فى استكمال مسيرة التعليم 2- عدم القدرة على تنظيم عدد أفراد الأسرة 3- عدم القدرة على الارتفاع بمستوى المعيشة 4-عدم القدرة على العناية السليمة بالطفل الوليد. 5-ازدياد العبء على الدولة نتيجةازدياد تكلفة استخدام وسائل العلاج الحديثة و ازدياد الحاجة الى الحضانات للأطفال غير مكتملى النمو. كل هذا يؤدى الى التقليل من فرصة الحصول على مستوى معيشى كريم ويزيد من معاناة الفرد و المجتمع. دور المرأة فى التقليل من أخطار الحمل المبكر:- يمكن القول أن المرأة هى الضحية فى حالاتالزواج المبكر حيث تستهلك صحتها و نضارتها لماتتعرضه من تكرار فرصة الحمل فى السن الصغير وما قد يؤدى اليه من مضاعفات. دور الرجل فى التقليل من أخطار الحمل المبكر:- قد يتبادر الى الذهن: هل للرجال دور فى هذا الموضوع؟!! والجواب أن لهم دور أساسى اذ أن الرجل هو الأب و الاخ و الزوج فعن طريق الفهم الصحيح لهذه المشكلة يستطيع الرجل أن يوجه دفة الأسرة الى ماهو فى خيرها و لايخفى علينا أن الرجل فى مجتمعنا يعتبر هو الأساس فى قرار الزواج المبكر. دور المجتمع فى التقليل من أخطار الحمل المبكر:- عن طريق رموزه يستطيع أن يقدم التوعية الصحيحة و القدوة الحسنة لأفراد الشعب من مختلف طوائفه كما يستطيع المجتمع أن يقدم البرامج و الندوات التى تجمع الأطباء و رجالات الدين و المجتمع لتوضيح الحقيقة و تبسيط ماصعب فهمه. Edited by: Dr. Hesham G. Al-InanyAdded: 15/10/2002http://www.khosoba.com/archive/021015x04_sr_early_marriage.htm
[Proves that: The Holy Prophet Muhammad (pbuh) Married Hazrat Aishah When She was 19 Years of Age and not When She Was 9.] by Ghulam Nabi Muslim Sahib, M.A. Translated by: Masud Akhtar, B.A., LL.B. The Light (Sep 24, 1981, pp. 13-17). [Note: Many anti-Islamic sites accuse our Beloved Holy Prophet, Muhammad, peace and blessings of Allah be upon him, of , God Forbid, marrying a minor. We present here an article that will clear our Beloved Holy Prophet (pbuh) off this blasphemous charge. May Allah guide the opponents of Islam aright, Aameen!]
Most narrations carry misstatements about the age of Hazrat ‘Aishah Siddiqah at the time of her marriage to the Holy Prophet, (peace and blessings of Allah be upon him). They place this marriage in the tenth year of the Call and state that Hazrat ‘Aishah was only 6 years old at that time. On proper sifting of the material facts, these statements turn out to be incorrect and it becomes evident that she, in fact, was about 19 or 20 years of age when she arrived in the house of the Holy Prophet Muhammad (pbuh) as his wife in 2 A.H.
It will be in the fitness of things to quote from the writings of two well-known Muslim scholars of the present century who are the main exponents of the view that Hazrat ‘Aishah Siddiqah was 6 years old at her Nikah and 9 years old at the time of the consummation of her marriage. Both Maulana Syed Sulaiman Nadvi and Maulana Syed Abul Ala Maududi are well-known Muslim authors of Seerat (biography). Nadvi’s View: Maulana Syed Sulaiman Nadvi writes on page 21 of his book 'Seerat-i-Aishah':
"Books of history and biography are generally silent about the birth date of Hazrat ‘Aishah. The historian Ibn Sa’d, whom many later biographers have followed, has written that Hazrat ‘Aishah was born in the fourth year of the Call, and was married at the age of 6 years in the tenth year of the Call. Apparently this cannot be correct, because if her birth in the fourth year of the Call be admitted as correct then her age at the time of her marriage in the tenth year of the Call works out to 7 and not 6 years.
The fact remains that some matters about the age of Hazrat ‘Aishah are admitted to be correct by most historians and biographers, and these are: She was married three years before Hijrah at the age of six years; the marriage was consummated in the month of Shawal in the year 1 A.H. when she was 9 years old, and she became a widow in Rabi-al-Awwal 11 A.H., at the age of 18 years. According to this account, the correct date of her birth works out to the end of the fifth year of the Call or 614 A.D. of the Christian calendar. For a proper comprehension of the events of history, one should bear in mind that out of a total period of 23 years of the Call, the first 13 years were passed in Mecca and the last 10 years in Madina. Thus, the fourth year of the Call had already been out before her birth and the fifth year was running." Maududi’s View:
In the article, "The Nikah Date of Sayedah ‘Aishah," published in the 'Tarjuman al-Quran'of September 1976, Maulana Abul Ala Maududi wrote:
"It is apparent from the detailed reports of Imam Ahmad Tibrani, Ibn Jareer and Baihaqi that the Nikah of Sayedah ‘Aishah was solemnised before the Nikah of Sayedah Saudah. It is also evident that her Nikah with the Holy Prophet, peace and blessings of Allah be upon him, was solemnised in the month of Shawal of the tenth year of the Call, three years before Hijrah, when she was 6 years old. Here a question arises, that if Sayedah ‘Aishah was 6 years of age in the Shawal of the tenth year of the Call, then she should have been 9 years of age at the time of Hijrah and should have been of 11 years in 2 A.H. at the time of consummation.
But all narrators agree that her Nikah was solemnised when she was 6 years old and the marriage was consummated when she was 9 years old. Some Ulema have tried to meet this discrepancy by saying that the marriage was consummated seven months after Hijrah. Hafiz Ibn Hajar has preferred this view. On the other hand, Imam Nauvi in his 'Tahzeeb al-Asma’a al-Lughat', Hafiz Ibn Katheer in his 'Al-Badaya' and Allama Qustalani in his 'Mawahib al-Deeniah' report consummation in 2 A.H. Hafiz Badr-ud-Din Aini has written in his Umdat al-Qari that the marriage of ‘Aishah Siddiqah was consummated in Shawal 2 A.H. after the return of the Holy Prophet (pbuh) from the battle of Badr. Both Imam Nauvi and Allama Aini consider the above-quoted reports of consummation of marriage seven months after Hijrah as irresponsible and untrustworthy.
Thus we are faced with a question that if the marriage was consummated at the age of 9 years in Shawal 2 A.H., then what should be the date of Nikah which should tally with her age of 6 years? An answer to this question is found in Bukhari wherein it is reported from Urwah ibn Zubair, "Sayedah Khadijah died three years before Hijrah; the Holy Prophet solemnised Nikah with Sayedah ‘Aishah two years after that. Then it was consummated at the age of 9 years." This works out to be correct that Nikah was solemnised one year before Hijrah when she was 6 years old and consummation took place in 2 A.H. when she was 9 years." The above quotations amply bear out that both Syed Nadvi and Syed Maududi agree to the correctness of reports stating the age of Sayedah ‘Aishah at 6 years at Nikah and 9 years at the consummation. Their only worry seems to be the calculation of the correct year of the Call and the Hijrah for fixing these ages in those calendar years. Both of them start with a preconception that the age of 6 years for Nikah and 9 years for consummation are correct and true, and set out in search of the correct year of the Call and Hijrah in which these preconceived ages will fit in. This hardly can be called a scientific method of finding her correct age. This rather may be called an effort to find a correct date for a given age. The Other View: As far as my information goes the first voice against the common misconception about the age of Sayedah ‘Aishah at her marriage was raised by Maulana Muhammad Ali, M.A., LL.B., in 1924 in his 'Muhammad the Prophet', wherein he wrote:
"The popular misconception as to Aishah’s age may be removed here. That she had not attained majority is clear enough, but that she was not so young as six years of age is also true. In the first place, it is clear that she had reached an age when betrothal could take place in the ordinary course and must therefore have been approaching the age of majority. Again, the Isabah, speaking of the Prophet’s daughter Fatimah, says that she was about five years older than ‘Aishah.
It is a well-established fact that Fatimah was born when the Ka’bah was being rebuilt, i.e., five years before the Call or a little before it, and so ‘Aishah was certainly not below ten years at the time of her marriage with the Holy Prophet (pbuh) in the tenth year of the Call. This conclusion is borne out by the testimony of ‘Aishah herself who is reported to have related that when the chapter entitled ‘The Moon’ (the 54th chapter) was revealed she was a girl playing about and that she remembered certain verses then revealed. Now the fifty-fourth chapter could not have been revealed later than the fifth year of the Call, and therefore the report which states her to have been six years old in the tenth year of the Call when her marriage ceremony was gone through cannot be correct, because this would show her to have born about the time of the revelation of the 54th chapter.
All these considerations show her to have been not less than ten years old at the time of her marriage. And as the period between her marriage and its consummation was not less than five years, because the consummation took place in the second year of the Fight, it follows that she could not have been less than fifteen at that time. The popular account that she was six years at marriage and nine years at the time of consummation is decidedly not correct, because it supposes the period between the marriage and its consummation to be only three years, while this is historically wrong." Sulaiman Nadvi took Maulana Muhammad Ali to task (for his above-quoted view) in note 2 on page 26 of the third edition of his 'Seerat-i-Aishah' in the following words:
"Some irresponsible persons who think that the marriage with a girl of tender age was not befitting for the Holy Prophet (peace and blessings of Allah be upon him) have tried to prove that the age of Hazrat ‘Aishah Siddiqah at her marriage was 16 years instead of 6 years. All such efforts are useless and all such claims are illogical. Not a single word is the Hadith and history can be found in their support." Nadvi Contradicts Himself: In spite of this severe criticism of Muhammad Ali’s view, Nadvi not only contradicts himself about the age of Hazrat ‘Aishah, but provides supporting evidence to Muhammad Ali’s views when, writing about the last days of the life of Hazrat ‘Aishah, he writes at page 111 of the same 'Seerat-i-Aishah': "Hazrat ‘Aishah was a widow and she passed 40 years of her life as a widow." Further, at page 153 he writes: "The last days of Khilafat (Caliphate) of Amir Muawiyya were the last days of the life of Hazrat ‘Aishah and her age at that time was 67 years."
Now if we deduct 40 years of her widowed life from 67 years then we find she was 27 years of age at the time of the passing away of the Holy Prophet in 11 A.H.and not 18 years as reported by Nadvi in the earlier pages of the same book. Since the total period of the Call is 23 years, therefore, according to this account she was born about four years before the Call and not in the fourth year of the Call as Nadvi tried to make us believe in his earlier pages quoted herein above. Consequently, her age at the time of the Nikah in the tenth year of the Call works out to 14-15 years and not 6 years, as Nadvi himself so assertively reported.
According to this account, Hazrat ‘Aishah’s age at the time of consummation of her marriage in 2 A.H. works out to 19-20 years and not 9 years as stated in earlier pages of Seerat-i-Aishah. A further enquiry is most naturally necessitated to find out which of the reports of Nadvi should be given credence.
Other Sources: There are other important events recorded in history which provide definite evidence about the age of Hazrat ‘Aishah. 1. The well-known historian Ibn Jareer al-Tabari writes at page 50 of volume 4 of his 'Book of History': "Abu Bakr married two ladies in the days of ignorance (pre-Call era). Fateelah daughter of Abd al-Aza was the first, from whom Abdullah and Asma were born. Umm-i-Rooman was the second, from whom Abd al-Rahman and ‘Aishah were born. All the four children of Abu Bakr were born in the days of ignorance (Jahiliyyah, i.e., pre-Islamic days) from the above-named two ladies. 2. It is a well-known fact of history, that Abu Bakr’s son Abd al-Rahman fought against the Muslims in the battle of Badr. His age at that time was 21-22 years, and although he was older than ‘Aishah, there is no evidence to show that the difference between their ages was more than three or four years. This fact lends support to the view that Hazrat ‘Aishah was born four or five years before the Call. 3. The well-known historian and scholar ‘Allama ‘Imad-ud-Deen Ibn Katheer writes in his 'Al-Badayah' about Sayedah Asma’ daughter of Hazrat Abu Bakr’ (Allah be pleased with him) (and we hope Maulana Syed Abul Ala Maududi must have seen it as he referred to 'Al-Badaya' in his article): Asma’ died in 73 A.H. at the age of 100 years. She was ten years older than her sister ‘Aishah. Now according to this report ‘Asma’ would have been 27-28 years old at the time of Hijrah and since she was ten years older than Sayedah ‘Aishah, therefore the age of Sayedah ‘Aishah would have been 17 or 18 years at the time of Hijrah. Accordingly, her birth falls about four or five years before the Call, and her age at the time of the consummation of marriage in 2 A.H. will work out to 19-20 years. 4. The author of the well-known collection of Hadith 'Mishkat al-Masabeeh', Sheikh Waheed-ud-Deen, writes in his well-known book 'Ahmal fi Asma’ al-Rijjal': "At the time of the consummation of her marriage Sayedah ‘Aishah’s age was not less than 18-19 years." All the above quotations give ample refutation to the common misconception that Sayedah ‘Aishah’s age at the time of her Nikah was 6 years and at the time of consummation of marriage it was only 9 years. If Muslim scholars of the present era deem fit to make an objective research instead of beating the old track, they will find ample material in the pages of history to arrive at a correct age for Sayedah ‘Aishah. This indeed would be a great service to the cause of Islam. – Islamic Review, December 1980, U.S.A.
Violence Against Girl-Children in a Rights Paradigm: Deconstructing Child Marriage from Islamic Perspectives
The personal is often political, especially on matters where the stakes are made high both by vested interests that enjoy the status quo and those determined to subvert existing hierarchical authorities. I therefore start from the personal. My wife and I were married upon the completion of her law degree at the university. She was 26; I was two years older. Both of us were and are believing and practicing Muslims, decidedly not secular, yet both positive in our affirmation of personal and collective responsibility; of human dignity, and of the equal humanity of all – regardless of sex, ethnicity or class. It is such affirmation of the humanity of all that drives the conviction that the marriage of an 11-year old child on the excuse that she has commenced menstruation involves extreme violence: violence against a childhood interrupted, stolen and repudiated; violence against body and mind; and violence against the faith and path of al-Islam – for such violence is carried out as favoured by, when not done in the name of the Almighty. Yet, it is the same positive affirmation of the humanity of all that makes one permanently aware that one’s own experience is not necessarily a model for others to follow; that the full exercise of human dignity necessitates self-determination, at personal and collective levels – and that contexts and circumstances differ most widely across the diversity of the human condition. Marriage after all does not mean or symbolize the same everywhere; does not offer the same privileges everywhere; does not entail the same losses everywhere; does not receive the same protection everywhere; does not involve the same risks and gains everywhere; and is not sought for the same reasons everywhere. The very idea that one single culture, Western or other, represents the best life possible, a model for all humanity to follow – the idea that a universal minimum age of marriage can or should be set – is both ignorant and false, just as it is harmful. That idea must be set firmly in the same realm with all other hegemonies. At public and private levels, the denial of collective rights involved in such an imposition would entail violence that cumulatively would be comparable to the private violence of domestic hegemony that goes with child marriage itself. Islamic Law – what is commonly, if inappropriately called ‘Shari’ah’ – was codified from ’usool-ul-fiqh, the human jurisprudential interpretation of the principles derived during the first three centuries of Islam from the Qur’an (which Muslims believe is God’s message) and the sunnah, the sayings, teachings and examples ascribed with varying levels of authenticity to Prophet Muhammad. A major tragedy of Islamic history is that the process of continuous re-interpretation to derive new Islamic laws to fit new contexts – what is called ijtihaad – suffered a closure by which all further interpretation ceased. This closure introduced a lie into the claim by Muslims that Islam was a universal message for all time, because by this closure of ijtihaad, Islam, which was a process with fixed principles but dynamic applications became overall a frozen system. It is the legal components of this frozen system that many today commonly call ‘Shari’ah’. What is now called ‘Shari’ah’ is in actual fact no more than the frozen classical Islamic Law that was codified by the end of the third century of Islam. Classical Islamic Law – what is today popularly called Shari’ah – was sourced from ’usool-ul-fiqh, a term that did not conceptually exist until the time of the genius-jurist-theologian-imam Idrees M Shaafi‘ who was born 150 years after the Prophet had died. This historical fact, that Islam already existed for more than 150 years before the evolution of what we now know as Shari’ah and the principles (of ’usool-ul-fiqh) from which it was derived; is the clearest indication that Islam is not synonymous with Shari’ah.
That most Muslims, after centuries of the closure of ijtihaad, have come to see Islam as synonymous with Shari’ah encapsulates the ongoing tragedy that has to be overcome. It is necessary to overcome that constraint since large numbers of Muslims everywhere appear to remain tied to the idea of Islam playing a role, big or small, in the public sphere, in spite of two centuries of imperatives – sometimes violent – aimed at getting them to think differently. Now, under “Shari’ah” (actually classical Islamic Law), a child ceases to be a child at puberty. For boys, the onset of puberty was always fluid, for obvious reasons. For girls it was marked by the onset of menstruation, the point at which a girl was capable of conceiving a child. One day a girl was a girl. And the next day, she was a woman. Today, even though human beings and the world in which they live has changed tremendously in 1400 years, “Shari’ah” has not changed because reforming “Shari’ah” through ijtihaad is now widely seen as changing Islam, which for ordinary Muslims is tantamount to an admission that Islam is faulty. While re-interpretation remains closed, we are stuck with “Shari’ah”, as it is. This absence of reform is the greatest problem facing Muslims in today’s world. By the way, this absence of reform is caused partly by internal factors: authoritarian political cultures and regimes, poor governance and corrupt political and religious elites. It is also partly due to external factors. For example, world-leading ethicist Thomas Pogge points out that poor governance and corrupt regimes survive in many parts of the world because such a state of affairs is in the interest of rich powerful countries[i]. It is well known that ruling regimes in many Muslim countries, many of which have oil, are accountable more to foreign elites than to their own people. There is also the problem of colonialism, which prevented any further evolution of Islamic Law in the light of modern developments beyond the 18th century and turned Islamic Law into a domain of resistance.
Yet, colonialism, though violently hegemonic and deserving resistance, also brought the benefits of modernity at the time it occurred. Islamic Law thus became a form of resistance to colonialism (and thus modernity), and became even more frozen psychologically as a golden past to be retrieved. Up till 1800 when colonialism intensified, the Islamic Law system in Ottoman Turkey was considerably more advanced than the Western legal system in several spheres. With lack of use, lack of institutionalisation, and confinement into the unregulated private sphere, Islamic Law ceased all further evolution and became the domain of resistance to preserve Muslim values and cultures. Today, Islamic Law is understandably behind the times, to put it most mildly. The task facing Muslims is to institutionalize reform so that Muslims can live Shari’ah in the 21st century, and remain true both to their values and their times. As earlier stated, under classical Islamic Law, a child ceases to be a child and was considered mature (blgh in the Arabic root term) at puberty. 1400 years ago, the onset of menstruation would typically occur between the ages of 14 years and 17 years, and Muslim girls would typically become sexually active wives very soon after menses began (since they were usually married before or soon after[ii]). Today, children as young as 9 years old commence menstruation. In addition, the current state of human knowledge (of medical science) allows us to know that whereas the capacity to conceive a baby (marked by the onset of menstruation) is now achieved sometimes as early as 9 years old; the capacity to safely give birth to a baby comes years after. Universal medical evidence now shows that a moderately high level of first-birth safety is usually not attained until about the age of 17 years when the pelvis (hip bone) and the birth canal achieve their full size and stop further growth[iii].
On the basis of this biological and natural fact alone, which shows a gap of years between the ability to get pregnant and the ability to safely give birth, the idea of menstruation marking maturity / adulthood ought to see reform. This is aside from the social fact that what it took to parent a baby 1400 years ago – when carers in the extended family were plenty and life was simple – is not what it takes today (psychologically and emotionally) to competently parent another human being in the modern world. This is moreover a role which today has to be combined with the adult-role of wife – with all it psychological, economic and biological implications. It is not Islamic to insist in the 21st century that the onset of menstruation, say in a 9 or 10-year old marks maturity or adulthood. Islamic leaders, jurists and scholars have a duty to alter the definition of buloogh in the face of current truths. Their continuing failure not only constitutes violence against Muslims (especially poor Muslim girls); by such failures and silences, they do violence immense violence against their own souls. I will later address the often-cited argument related to the marriage between the Prophet of Islam and ‘Aisha, the only wife of the Prophet that was neither a widow nor a divorcee. Every intelligent person must know that children do sometimes menstruate, as early as the 9th, 10th or 11th year. Yet every sane person must accept that sexual intercourse is harmful to children. Those who ignorantly or immorally contest either reality are not only beyond persuasion or dialogue; they are unfit to speak anything in God’s name. Those who decide today to fix – permanently and for all eternity – the commencement of menstruation as the marker of maturity and the signifier of adulthood, are not only ignorant of physical truths, but also oblivious to God’s eternal message and wondrous ways. Essentially because marriage involves sexual intercourse and the potential for motherhood, it is violence to place any child in a situation where she is forced to play an adult role and bear a child. It should therefore be a matter of commitment to humanity that no child should be married when she is of an age at which she is too young to competently play the role of wife and potential mother. Yet such commitment must concede that beyond the basic biological determinants, the age at which such roles can be competently performed vary from culture to culture.
Beyond the physical and biological capacity to function sexually (not merely as a passive object but as a willing subject and co-participant) whether or not a 15 year old is competent to be wife will depend on a wide array of psychological, social, economic and cultural factors. Beyond the physical and biological capacity to bear a child with a decent level of safety to mother and child (at birth and thereafter); whether a 14 or 16-year old is fit to mother a child will depend on the widest array social and other factors, which of course include the type of family structure – nuclear or extended – that obtains in the culture in question; whether support structures are available; whether for example the care of the infant is solely dependent on the new mother or whether care is shared.
So in Sweden[iv], 18 years old is rightly set for the minimum age of marriage. Turkey[v] and South Africa[vi] rightly set 15 years. Egypt[vii] and the United Kingdom[viii] rightly set 16 years. Several states of the US allow the marriage of 14 year-olds under special circumstances[ix]. To ignore the diversity of the human condition entails a great deal of ignorance and arrogance. The equations even go beyond the diversity of culture: I for one would consider it harmful for a 14-year old to be married as fourth wife to a 55-year old man in 21st century society. This is because the Qur’an teaches me that marriage is based on mutuality[x]. When I read Qur’an 30: 21 taken together with Q 2:187 and other such verses, it is clear to me that sex is only correct when it is a mutual enterprise, not a an experience in which a man fulfils his needs through a woman who is passive or who lacks the status of being an active agent and co-beneficiary in a pleasurable encounter. How is this Qur’anic ethic to be fulfilled when men in their 30s and 40s thrust themselves upon 12 and 13 year-olds?! While mutuality is possible between two adults, even when age differences are substantial, the mutuality spoken of in the Qur’an is not possible between a 14-year old teenager and a 55-year old adult who has other adult wives, and possibly children in their 30s. The day-to-day realities of marriage obviously involve mostly subconscious but constant compromise, partnership and negotiation (and partnership and negotiation are meaningless when parties are so unequal). Yet I would see no wrong in the same 14-year old girl being married to a 15-year old boy to whom she consents where such practice is socially and culturally valid. In short, so complex and so tied to the diversity of culture, class and condition is human marriage that ignoring all these differences and nuances and going ahead to impose a universal age of marriage upon peoples with different cultures amounts to cultural violence. It is in the above context that one may raise concerns about the new/upcoming Children’s Bill, which was initially roundly rejected when put to the lower chamber of Nigeria’s legislature only to be dramatically endorsed almost without debate when later re-introduced. We too often count the success of human rights advocacy in terms of legal changes made. It is doubtful whether such a dramatic and embarrassing ‘success’ indicates real development, since they so vividly minimize the role of agency and choice by communities, a matter so important in any human rights discourse. In the long run, human rights are not advanced by deference to external imperatives and impositions – especially those that minimize and stifle democratic exchanges.
Without suggesting that vesico-vaginal-fistula (VVF) happens to every under-aged girl giving birth, or that it occurs only to mothers who are too young, or even that it is the only (physical, not to mention psychological) harm that child mothers face, I want to use it as an illustration because it is quite common with under-aged mothers. Causality is substantiated to the extent that there is overwhelming medical and statistical evidence showing that child marriage massively increases all the risks of maternal mortality (death) and morbidity (injury during birth)[xi]. One such common morbidity is VVF whereby due to childbirth difficulties, a woman suffers a rupture of tissues that leaves the vagina and the urinary passage to the bladder joined together, causing the loss of the ability to control urine. How can we as Muslims lay the claim to Justice if we make ‘Islamic’ claims to support the marriage of a 10 year-old, whose marriage is consummated after the eighth menstrual cycle at age 11, and who, while still a child slightly under 12 faces the prospect of giving birth to another child? Because the hole in her pelvic bone is still too small, she labours for 60 hours, the baby’s head being unable to pass through the pelvis. The baby eventually is a still-birth having been asphyxiated by too long being trapped in the cervix.
The girl-mother survives, but ends with fistula, no longer capable of controlling her urine. Labour leaves her battered in body and soul, her breasts are full and sore, her genitals damaged, her whole body in pain, and her baby is dead leaving her with nothing to show for the whole endeavour. Her mother-in-law and other members of the extended family tell her that she is a ‘weakling’ and is the first daughter-in-law who has ‘failed’ to successfully give birth and lost them a son at birth. Weeks after, because she is still “leaking urine, she is smelly, embarrassing and a source of shame”, she is cast out to live in a separate quarter within the compound, or even outside altogether. Her mental trauma worsens.
After being cast out for six months due to her condition, she is in due course divorced. Her husband who is typically at least double her age; joined by others; including the imam of the nearby mosque, explain to her that ‘chronic illness’ and ‘defects’ are a legitimate ground for divorce in Islam, and that one of the legitimate grounds for divorcing a woman according to (Maliki) law[xii] is ifda’ or urinary incontinence (leakage of urine), which she now suffers. She becomes ultimately convinced that she has been a multiple victim, but somehow, all those around her tell her that all that has befallen her is allowable in Islam: the marriage, the consequences, and the divorce. Her faith in Islam eventually departs her even if she doesn’t affirmatively renounce Islam. Now, how can we justify the marriage of this girl, all the consequences of that marriage, and ultimately her divorce? The above illustration, experienced in real life by thousands and thousands of girls around the Muslim world, demonstrates the tragedy of postponing the reform of Islamic Law. The foregoing and what follows are an attempt to deconstruct prevalent notions of ‘maturity’ in traditional understandings of ‘Islamic Law’ with the aim of fashioning a rights framework for ending Child Marriage in Muslim societies, especially Northern Nigeria. It is acknowledged that human rights legislation are not only useless but also counter-productive for overall human rights advocacy unless they have at least a chance of enforcement. Taking as point of departure the reality that laws that stand no chance of being accepted, much less made enforceable within the target populace are at the very least unhelpful to the extent they are not only ineffective, but also widen the gap between the lived realities of communities and the domain of formal laws – and thus people’s overall perception of Law. Because law is meaningless unless enforced by the threat of sanction, I think it counter-productive to human rights, especially the rights of those who most deserve protection, to fix 18 years as the minimum legal age of marriage in Nigeria. In arguing above that the use of the onset of menstruation as marker of maturity is un-Islamic today; I have deployed a largely biological argument from the moral framework of Islam. In contending that the marriage of children is wrong, I have argued along the lines of natural law. Under such arguments it would be a straightforward matter to describe as un-Islamic, harmful, wrong and evil, sexual intercourse with a 9, 10 or 12-year-old wife even if she has commenced menstruation.
The major aim of such arguments will be to show that the onset of menstruation cannot Islamically or rightly serve as the marker of buloogh (maturity or legal majority) today. The principle of maqaasid-al-Shari’ah, which emphasizes the intention or spirit of Shari’ah in the application of fiqh (and the interpretation of religious concepts and the derivation of religious laws), would be helpful in establishing such arguments. Islamic jurists have often demonstrated throughout history that the overall intent and spirit of Shari’ah is more important than specific legalisms, and that ijtihaad is required when there is a gap or contradiction between the maqaasid, the spirit or intent of Shari’ah on the one hand, and a formal adherence to legalism on the other. It is also possible to argue that the role of a mother in Islam is central, since Islam names the mother as the first teacher and the one who offers the first forms of guidance in life to children. Whether a 12, 13 or 14 year old is competent, psychologically and knowledge-wise, to fulfill the role of a Muslim mother in today’s complex world is anyone’s guess. It is now accepted worldwide that 8 years of formal education in school (roughly equivalent of Junior Secondary education) is the minimum education that anyone requires to competently cope as an adult with the challenges of the modern world.
Constitutional guarantees, several Nigerian laws and policies, including the national policy on education (NPE) thus make the minimum of Junior Secondary education (JS3) compulsory for all Nigerians. Very clearly, the nature of secondary education (unlike tertiary education), make it close to impossible to combine secondary education with the role of wife and mother. There is thus another moral basis for delaying marriage till after. Nigerian students complete their JS3 examinations usually between the ages of 13 and 16 years.
The Islamic Law principle of maslahah, by which regulations are applied on the basis of what is in the public interest of a Muslim community, can be very helpful in establishing the argument that Muslim women or Muslim mothers can only fulfill their Islamic role if they have the minimum education required to function as a competent adult citizen in the modern world. So can arguments based on the far-reaching public health, social and economic problems of under-aged marriage, all of which are contrary to the public interest of the Muslim community and require legislation to stop. Yet, it is important to engage with definitions in a matter that is this controversial. I address in this paper only child marriage: the marriage of children, specifically the marriage of girls to men. I am neither addressing “early marriage” nor am I addressing “forced marriage”.As for ‘forced marriage’, there is no controversy amongst Muslims as regards the status of ‘forced marriage’ whether of a young girl or a woman. Forced marriage is no marriage – null and void within the legal systems at issue. In Islamic Law, not only is a forced marriage void if consent was withheld or obtained with coercion, a forced marriage is either conceptually impossible or if possible under Shari’ah, not sustainable and prone to dissolution once the ‘bride’ declares that her consent was coerced[xiii]. Thus my discussion is not of forced marriage, but rather child marriage. I am also not discussing “early marriage”, because I find the term to be not only unhelpful, but loaded with a lot of ideological baggage. What is early marriage? Does early marriage suggest that some age might be late for marriage? Do women have the freedom to marry ‘late’ as do men? How does this feed into the sociocultural imperatives that coerce women to marry at certain ‘deadline’ ages? “Early marriage” is very relative. For example, average ages of marriage for women keeps going up (now over 28 years) in Japan.
And most Japanese women are facing first-birth after marriage. On the contrary, women’s ages of marriage or cohabitation in the US, after going up steadily for many decades have begun falling rapidly. Even falling very much faster is the average age of women at first-birth. Beyond the ages of childhood and early teen years, terms such as ‘early marriage’ tend to fit into the larger discourse of cultural imperialism in which some cultures are posed as possessing a universalizing power over and above other cultures, because they represent the ‘best life’.
I think it unacceptable to so many outside the West, and counter-productive for human rights advocacy everywhere. The term ‘early marriage’ comes across to many as being loaded with ethnocentrism. Purely from the perspective of social scholarship, the terms ‘early marriage’ is ambiguous, lacking in specificity and therefore not very useful in categorizing a specific typology. That explains the focus on child marriage. When traditional people hear ‘early marriage’, they ask quite validly, how early is ‘early’. Which leads to the question; “who is a child?”
The Convention on the Rights of the Child (which all countries have signed except the US and Somalia) establishes 18 years as threshold. But the convention itself recognizes that other laws may rightly exist which set an earlier age for legal majority on other issues. The minimum age of marriage is implicitly one of these issues. As shown in the earlier examples, different countries have always understood the CRC this way.
I advocate the age of 15 years to be set as minimum age of marriage under law for the needs of today’s Nigeria. I argue that this does not change Shari’ah; but rather changes a principle (the age of buloogh) that no longer applies today. I also argue that such a change is needed if Islam (and Islamic Law) is to validate popular Muslim claims that Islam offers guidance for all time. Most importantly, I am arguing that leaders, judges, jurists and Islamic public intellectuals, within the northern Nigerian states that have adopted Shari’ah-based legislations do have a duty under Islam to construct a new hermeneutic and do the ijtihaad necessary, or make the necessary change by collective ijmaa‘.
The marriage of girl-children can be shown to be counter to the fundamental Islamic principles of justice, and the duty of leaders to protect the weak, apart from representing a gross contradiction to the aggregate societal aims of any community of Muslim believers. The range of physical, medical, psychological, economic, social and even spiritual damage done to young girls, their children and even their husbands (if they knew it) by early marriage constitute gross avoidable social damage and destruction of lives, and flies in the face of Shari’ah.
Those who oversee the implementation of Shari’ah-based legislation have a duty to protect from harm. Of course, a minimum age fixed today would not become Shari’ah since Shari’ah itself was not intended to become frozen, except on matters of worship: legislation would always be open to change with varying contexts and circumstances. Laws concerning social relations defy being frozen.In arguing for 15 years to be set as minimum age of marriage instead of the 18 years being proposed by many within Nigeria’s human rights movement, I call attention to the fact that the Convention on the Rights of the Child (CRC) only employs a definitive threshold of 18 years for “childhood”.
The CRC itself envisages that other laws may rightly exist which set an earlier age of legal majority, while the age of 18-years remains fixed for legal majority especially with respect to liability for criminal punishments (such as the death penalty) and other related matters. The United Nations High Commission for Human Rights (UNHCHR) itself fixes 15 years as the recommended minimum age of marriage[xiv], leaving States to set minimums according to their various socio-cultural and political contexts. As stated, different countries have set age ranges from 15 to 18 years. I have chosen the 15-year benchmark for my advocacy because I can honestly advocate to Muslims on a 15-year minimum age using Shari’ah principles and the medical evidence of Muslim doctors over the decades[xv]. Also, my commitment is the protection of the vulnerable – not necessarily the achievement of a legislation on paper, one that is unlikely to work on the ground.
Under the human rights law principle of margin of appreciation, it would be more in favour of human rights that a 15-year mark is established in order to provide protection to the most vulnerable – the poor girls in the age range of 9 to 14 years – than establishing an 18-year mark that ensures rejection by entire cultural communities and forsakes the possibility of implementation. Putting forward 18-years as the minimum age of marriage, as the new Children’s Bill in the pipeline proposes, even if zealous, is quite ill-informed and ultimately counter-productive to the advancement of the human rights of the most vulnerable. It is problematic for implementation with regards to the poor Muslim communities at which it is apparently targeted to bring about positive change. The employment of liberal frameworks that ignore cultural and socio-economic specificities and presuppose notions of Western cultural superiority are flawed, both in conception and in their consequences on advocacy efforts towards the acceptance of the universality of human rights. Obviously, the fixing the minimum age of marriage at 15 years (as has been done in numerous countries including South Africa) or at most 16 years (as obtains in Egypt or the United Kingdom) is not contradictory to the spirit of the CRC or the UN human rights commission and offers the best chance for acceptance and enforcement.
It also has better guarantees of protection for the most vulnerable girl children. Fixing the minimum age at 18 only ensures that the resulting legislation will be rejected in the very social spaces where it is most needed, and that the dire need of the most vulnerable for protection will be forfeited.One must also address the dominant claim that child-marriage cannot be Islamically prohibited “because the Prophet married ‘Aisha when she was 9 (or according to some other reports, when she was 6 years old)”.
It is interesting that the alleged marriage of ‘Aisha at age 9 has come to be accepted almost as a dogma. Several hadeeth collections seem to validate this claim. Yet, a closer study of isnaad shows that almost every report is credited to Hisham Ibn Urwah, grandson of Asma. Hisham’s claim has not been without controversy over the ages. This fact is made plain by studying the seerah (Islamic history). Contradictions have been reported in his claims of Aisha being 9 at the age of marriage, when chronologically compared with Aisha’s date of birth, and her known age at death – and these in comparison to Hisham’s claims concerning the age of his own grandmother, Asma and the difference between Asma’s age and that of Aisha. These controversies can always be pursued inconclusively.
Yet for me, even if ‘Aisha can be shown to have been married at age 9, 1400 years ago, two things collapse the argument that it can then be right to marry a 9-year old bride today.
Firstly, it is known that this ‘marriage’ was actually a betrothal, as was common practice in the middle ages, and it is known that Aisha’s marriage was not consummated for several years after she was betrothed. If at all it is possible to determine today the age at which ‘Aisha commenced menstruation from the maze of historical reports at our disposal (some of which directly contradict each other, and are nonetheless simultaneously reported in the same hadeeth books); it is close to impossible to prove today beyond reasonable doubt the exact age at which ‘Aisha’s marriage was consummated.
Secondly and most importantly, it is important to point out that the very same persons who insist that ‘Aisha was married at 9 years old totally ignore all the reports that the Prophet consistently declined to numerous suitors the hand of his daughter Fatimah in marriage, saying that she was “too young”. It is well known that Fatimah (the only offspring that survived the Prophet) was not married to ‘Ali until she was well into her teens.
Why then do Muslim men keep harping on ‘Aisha’s ‘marriage’ in Makkah, rather than on the Prophetic example in Madinah, where the message of Islam was fuller and more complete? Since when have serious Muslims begun accepting Makkan hujjah over that of Madinah? Why is the noise of Aisha’s age 9 so loud, and the latter Madinah example of the Prophet almost totally obscured? The only explanation is patriarchy: male supremacy. The interest of patriarchy is obviously better served by perpetuating the marriage of men to girls (instead of to women). There is hardly any other way to explain this attitude of Muslim men.
Child marriage is no doubt a public health issue. It has reached crisis proportions in some parts of northern Nigeria, and there is no doubt that those who sustain such practices that violate the health and well-being of girls make use of Islam. I saw this myself during my one-year stay in the North. States with Shari’ah-based laws have a duty to take up the challenge by enacting necessary legislating. Islam does not expect marriage to be celibate; so marriage opens the possibility that a girl faces sexual intercourse and thus the potential for facing pregnancy and birth. It is useless to suggest that girl-children can be ‘married’, but the marriage not consummated until full maturity. Such stipulations would be totally unenforceable.
Yet any discussion of child marriage that ignores poverty is incomplete. We must always highlight the inextricable link between poverty and child-marriage. What are the commonalities shared by the child bride for example in Nepal, or by the Hindu girl in rural India, the Buddhist girl in Burma or Sri Lanka, on the one hand; and on the other, that iconic Muslim child bride in Pakistan, Bangladesh or Northern Nigeria? Is it not the case that we associate the denial of sexual health and reproductive well-being to girl victims of marriage to one specific culture or religion? Why do we so often fail to critique those powerful images and icons that feed into global public opinion, which present or represent the child-bride as a Muslim girl, automatically – while at the same time failing to name extreme poverty as a causal factor and a commonality.
Only in 2003 did IPPF (planned parenthood federation) publish a comprehensive study on the inextricable link between child marriage and poverty[i]. Is our silence not complicity? Would there not be horror in ‘the West’ if civil/political rights and individual liberties were denied to the extent of the large-scale denial of socio-economic rights that we have seen in the global South?
Why do we accept and puppet frameworks that name as “second-class rights” those socio-economic and cultural rights which peoples of the global South, including Africans and Muslims find to be at least as equally important as civil/political rights and individual liberties? I interrogate the Women’s Movement’s claims of ‘global sisterhood’ in the face of its apparent acquiescence to unregulated capitalism, globalization and other imperatives that indirectly favour (women of) the global North while worsening extreme forms of poverty for women of colour – after all, the effects of poverty tells first and worst on women.
The global feminization of poverty impacts constantly on at least 1.5 billion women worldwide and forecloses all possibilities of their enjoying basic human rights or living worthy lives. What is the response to the accusation that Global Feminism, led, controlled and funded by Western women, who also set or drive most of the agendas, is not representative of the pains of women of the South, who after all also have agency, autonomy and choice, and should therefore have ownership with respect to these agendas? How do we explain the reality that the fight against the unregulated globalization and capitalism, that impoverishes women in our world in the worst ways, is being carried almost solely by Southern women such as the women of DAWN (Development Alternatives for Women in a New Era)?
Even though poverty is the biggest source of human rights violation to the largest majority of women (some 1.5 billion people), does the Global Feminist Movement prioritize poverty the same way it does ‘FGM’? What support against poverty comes from ‘sisters’ from the rich countries, who benefit from the status quo and are therefore complicit? Does the dehumanizing impoverishment of so many women and girls trigger the same calls for action that have been seen with FGC (Female Genital Cutting) especially given the unlimited opportunity offered by “female genital mutilation”[ii] to demonstrate the cultural savagery of “others”?
It is suggested that rights frameworks that ignore the role of poverty and the untenable denial of socio-economic rights in the sustenance of Child Marriage practices are negligently complicit and are a disservice to efforts to expand the rights of women and girls in an increasingly unequal globalising world.Perhaps, the task of saving hapless girls from the violence of child-marriage and child-motherhood are made even more difficult by the mixed messages we send. Sometimes we suggest that sex is unhealthy and harmful to children. At other times, we suggest it’s only bad if it happens to children within the context of marriage – or only if the husband is a man who is (much) older. The discourse ultimately becomes ideological, with the poor victims no longer at the core. Perhaps we don’t really mind 13-year olds having sex.
We only mind if they have such sex as wives. Yet, in our discourse of child-marriage, we place sexual and reproductive health at the core. If the real argument is between two options: whether girls might have their first sex at 13 with a boyfriend or whether such sex should be with a husband; then perhaps the discourse will expand beyond health and well-being, which though remaining focal, might get pushed to the secondary level by the broader issue of cultural politics, ethics, political ideology and religious philosophy: totally out of the control of people who work in the area of public health.
With such a discursive frame, there is one side saying that since sex is not good for children, and since we all agree abstinence is best, then children should not be taught anything about how their bodies function sexually, should not be taught how to resist peer pressure, or communicate dissent, should not be taught about sexual risks – in short should know nothing about sexuality.
Even in the face of evidence that some children continue to have sex in spite of all moral and religious teachings imparted on them at home and at the mosque/ church; and that the risks in which they thus place themselves include not only sexually transmitted diseases and unwanted pregnancies, but even death through HIV/AIDS, unsafe abortion or maternal mortality during childbirth.
The myth is thus perpetuated that ignorance promotes chastity. Or perhaps those children who go on to have sex against the rules deserve to face the risks, including death. On the other side are those who assume that all children are having sex anyway, even though we tell them not to. It is even sometimes claimed that ‘children of today’ can’t do without sex. We might as well distribute condoms to them so that they can avoid the risks involved in intercourse.
The mutual error of both sides prevents policies that really might help the so many children who are caught in between.These issues are only mentioned because they are always present, lurking underneath every discussion about sparing children from the ongoing tragedy of child-marriage: which not only forces children to be adults, but also makes children to have children. The overall intent of this paper presentation has been to stimulate discussion and reflection and to demonstrate that under Shari’ah, it is not only possible, but also necessary for authorities implementing Islamic Shari’ah Law to fix minimum a minimum age appropriate to their contexts (without fearing that they are making ‘new Shari’ah’ and with the knowledge that such minimum age will not become frozen law, but will remain open to future changes that society may go through).
The overriding issue is to protect the weak and vulnerable, and ensure social justice within the framework of the Shari’ah. And we should always remember the victim and her lived experiences and realities. In arguing for an enforced minimum of 15 years (as do countries such as South Africa, Turkey and Kuwait[i]) instead of 18 years, I speak with the certain knowledge that rights frameworks perceived in local communities as an imposition or importation from external hegemonies too often lack acceptance and are problematic for implementation.