It is claimed that
Qur’an in 65:4 allows prepubescent girls to be married off:
وَاللاَّئِى يَئِسْنَ مِنَ الْمَحِيضِ مِن نِّسَآئِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَـثَةُ أَشْهُرٍ وَاللَّـتِي لَمْ يَحِضْنَ وَأُوْلَـتُ الاٌّحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ وَمَن يَتَّقِ اللَّهَ يَجْعَل لَّهُ مِنْ أَمْرِهِ يُسْراً
And those who no
longer expect menstruation among your women – if you doubt, then their period
is three months, and [also for] those who have not menstruated. And for those
who are pregnant, their term is until they give birth. And whoever fears Allah
– He will make for him of his matter ease.
A number of
commentaries are shown to confirm that marriage with those who have not
menstruated can be done. I have not quoted any of these as this paper does not
argue against them and it tackles only the relevant part i.e. intercourse with
prepubescent girls. What the scholars say is admitted by Muslims without
question and this paper does not divert from the classical Islamic position in
any way.
Who are included in
those who have not menstruated?
Those women who do
not menstruate due to medical condition. Either their process is delayed or it
does not take place at all. This verse includes them and this is natural and
understandable.
Those women who have
not menstruated and there is no medical condition. This category of women is
the subject of controversy and is discussed further below.
Why does Islam allow
marrying those who have not menstruated?
Before proceeding,
what must be understood is that Islam differentiates between marriage and
consummation. Marriage is something similar to what we call engagement in our
times. The different cultures consider it differently and we today consider the
ancient Arab custom of this marriage as an engagement. The Prophet (ﷺ) married Aisha (رضي الله عنها) when she had not
reached puberty i.e. he got engaged to her while she continued to live in her
own home with her parents. Such a marriage is akin to engagement in our times.
Hence, we see that engagement with a minor is allowed (with conditions
elaborated below) while intercourse is not.
One may counter
argue that the verse (Q.65:4) says that those who have not menstruated must
wait for three months when they are divorced while the verse (Q.33:49) states
that there is no waiting period for those who have not consummated their
marriage:
يأَيُّهَا الَّذِينَ ءَامَنُواْ إِذَا نَكَحْتُمُ الْمُؤْمِنَـتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحاً جَمِيلاً
O You who have
believed, when you marry believing women and then divorce them before you have
touched them, then there is not for you any waiting period to count concerning
them. So provide for them and give them a gracious release [Q.33:49].
Since Q.33:49 states
that those married women who haven’t consummated their marriage have no waiting
period and Q.65:4 states that those who haven’t menstruated must wait for three
months until they can remarry, it is evident that those who have not
menstruated in Q.65:4 refer to those who have consummated their marriage.
Hence, it is claimed that the women mentioned in Q.65:4 are consummated minors.
This is an appeal
from silence. It may work if there is no explicit text to the contrary.
However, the truth is that Islam explicitly forbids intercourse with minors.
The women who fall under Q.65:4 are those who have reached puberty and the age
of maturity but have not menstruated for whatever reasons. If they are divorced
after consummation of marriage, they wait for three months till they can
remarry.
Since the scholars
are clear that Q.65:4 also includes prepubescent girls, how is one to
understand this verse? The fact that it is permissible to marry a young girl
does not mean that it is permissible to have intercourse with her; rather that should
not be done until she is able for it. A girl may reach the age where she
develops desire for physical intimacy and has developed a body for the purpose
as well but only lacks menstruation; in such a case, Islam does not hold her
from the right to intimacy. Scholars have a consensus that intercourse must not
be done when the girl cannot bear it – it must not take place before the age
when she develops desire for intimacy. The great scholars of Islam, after which
schools have developed, Maalik, al-Shaafa’i and Abu Hanifah have said that the
marriage may be consummated when the girl is able for intercourse, which varies
from one girl to another, so no age limit can be set (in the Shariah). If
countries lay down laws stipulating a minimum age, Islam does not stop us from
honoring them.
With regard to
consummation of the marriage with a minor, it does not become permissible by
merely drawing up the marriage contract; rather the husband should not
consummate the marriage with her until she is able to have intercourse, which
is not necessarily at puberty. This is something that varies from one
environment and time to another. With regards to that, Shariah pays attention
to physical makeup. [*]
It should be noted
that al-Shafi’i and his companions said: It is preferable for fathers and
grandfathers not to marry off a virgin until she reaches the age of puberty and
they ask her permission, lest she end up in a marriage that she dislikes. What
they said does not go against the Hadith of Aisha, because what they meant is
that they should not marry her off before she reaches puberty if there is no
obvious interest to be served that they fear will be missed out on if they
delay it, as in the Hadith of Aisha. In that case it is preferable to go ahead
with the marriage because the father is enjoined to take care of his child’s
interests and not to let a good opportunity slip away.[*]
What does best
interest of the girl mean?
لكن ذكر بعض العلماء الإجماع على أن له أن يزوجها، مستدلين بحديث عائشة ـ رضي الله عنها ـ، وقد ذكرنا الفرق، وقال ابن شبرمة من الفقهاء المعروفين: لا يجوز أن يزوج الصغيرة التي لم تبلغ أبداً؛ لأننا إن قلنا بشرط الرضا فرضاها غير معتبر، ولا نقول بالإجبار في البالغة فهذه من باب أولى، وهذا القول هو الصواب، أن الأب لا يزوج بنته حتى تبلغ، وإذا بلغت فلا يزوجها حتى ترضى.
لكن لو فرضنا أن الرجل وجد أن هذا الخاطب كفء، وهو كبير السن، ويخشى إن انتقل إلى الآخرة صارت البنت في ولاية إخوتها أن يتلاعبوا بها، وأن يزوِّجوها حسب أهوائهم، لا حسب مصلحتها، فإن رأى المصلحة في أن يزوجها من هو كفء فلا بأس بذلك، ولكن لها الخيار إذا كبرت؛ إن شاءت قالت: لا أرضى بهذا ولا أريده.
وإذا كان الأمر كذلك فالسلامة ألا يزوجها، وأن يدعها
إلى الله ـ عزّ وجل ـ فربما أنه الآن يرى هذا الرجل كفئاً ثم تتغير حال الرجل، وربما يأتي الله لها عند بلوغها النكاح برجل خير من هذا الرجل؛ لأن الأمور بيد الله ـ سبحانه وتعالى ـ.
Ibn Taymiyyah
narrated from Ibn Shubrumah that he said: It is not permissible to arrange a
marriage for a young girl who has not reached the age of puberty, because if we
say that that is subject to her consent, her consent does not count (because
she is too young to make such decisions), and when she does reach the age of
puberty we believe that she should not be forced into a marriage. Ibn Taymiyyah
said: This view is the correct one, that the father should not arrange a marriage
for his daughter until she reaches the age of puberty, and when she reaches the
age of puberty he should not arrange a marriage unless she gives her consent.
But if we assume
that a man regards this suitor as compatible and he (the father) is old, and
there is the fear that if he passes away and guardianship of the girl passes to
her brothers, they may not take the matter of her marriage seriously and they
may arrange her marriage according to their whims and desires, not according to
what is in her best interests, and he thinks that it is in her best interests
to arrange her marriage to someone who is compatible, there is nothing wrong
with that, but she will have the choice when she grows up; if she wishes she
may say: I do not agree to this and I do not want it.
If the matter is
like this, then the safest option is not to arrange her marriage and to entrust
her to Allah, may He be glorified and exalted. Perhaps now he thinks that this
man is compatible but then the man’s situation may change, and perhaps when she
reaches the age of marriage Allah will bring her a man who is better than this
man, because all things are in the hand of Allah, may He be glorified and
exalted. [Al-Sharh al-Mumti‘, 12/57-59]
There is no forced
marriage
Islam neither allows
nor recognizes forced marriages. The Prophet (ﷺ)
said:
الثَّيِّبُ أَحَقُّ بِنَفْسِهَا وَالْبِكْرُ يَسْتَأْمِرُهَا أَبُوهَا
A previously married
woman has more right (to decide) about herself (with regard to marriage) (than
her guardian), and a virgin should be consulted by her father. [Sunan an-Nasa’i
3264]
لاَ تُنْكَحُ الْبِكْرُ حَتَّى تُسْتَأْذَنَ
A virgin should not
be given in marriage until her permission is granted. [Sahih al-Bukhari 6970]
Read more here
[*][*].
Conclusion
Girls who have not
yet reached puberty may be married (or engaged as per our modern standards) by
their guardian depending only on some strict conditions
When this marriage
takes place, she is not sent over to the husband (or fiancé as per our modern
standards) but stays with her parents or guardians
The girl has the
right to accept or turn it down when she reaches the age of maturity
There is no concept
of forced marriage in Islam
Intercourse with a
girl that has not reached the age of maturity is not allowed in Islam
There is no specific
age limit set as a minimum for marriage and varies from person to person
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