When laws are drafted, law makers lay down general rules of conduct. They usually have in mind the average citizens, over 21 years old. When the judge interprets the law, he usually speaks in terms of the average, reasonable man. Hence, in a world of average, reasonable man, law making is far less complicated.
But the world is full of exceptional people, and the old adage has reason in it, that the exceptions test the rule. The exception in this context is that Muslim girls below the age of 16 and Muslim men below the age of 18 can marry only with the Syariah Court’s consent. Siti Maryam Mahmod, 14 who married Abdul Manan Othman, 23-year-old in July, 2010 was indeed a controversial case involving marriage of minors which actually represents only the tip of the iceberg.
Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom, was reported to have said the marriage was legal as it had the Syariah Court’s consent. It’s refreshing to know and to see that the Minister is answering the controversies around this issue and not pushing it underneath the carpet. But, the main question still remains unanswered. Why did the Shari’ah court consent to the marriage? Why the Shariah judge did not request both parties to go for pre-marital counseling?
This is a sensitive issue and the answers to these questions are not easy. It impinges on many domains – the social, religious and political as well as legal.
The Shariah court’s decision in this case seems to contradict decisions made by Al-Azhar Al-Sharif, the highest religious body in the Sunni world, on the said matter through a manual on the rights of Muslim children. It specifically reads, “Marriage in Islam is regulated by certain rules, namely, children must reach puberty and maturity so that they can get married,”
Similarly, Article 10 of the International Convention on Economic, Social and Cultural Rights, provides that “Marriage must be entered into with the free consent of the intending spouses.” Even more telling, a similarly worded provision can be found in Article 23 of the International Covenant on Civil and Political Rights (ICCPR). In the context of this particular case, Siti Maryam who has reached puberty was reported to give her free consent and not coerced by her father.
The basis of the debate is not about puberty but whether she had reached the age of maturity where legal accountability is thrust upon her. Herein lies the difference of opinions. The Convention on Children Rights (CRC) defined a child as a person less than 18 years old. Whereas, under Shari’ah law, a child has no legal capacity except when he/she has reached the age of puberty (baligh). It is based in effect on the Islamic principle of ‘akl (reason) which may not necessarily be 18 years old. The child acquires capacity when he/she reaches the age which Islamic law presumes him/her to have acquired ‘akl. This is different in the various schools of thought, but it would appear that the “maturity of mind” (rushd) in the context of certain transactions which enables the child a limited capacity.
As opposed to general principles of Civil law which is used in the CRC, Islamic law, as a general proposition, creates a system of steps in ascertaining legal capacity. Above certain age, when of “perfect understanding” he can participate in legal acts. However, these acts can be intervened by the guardian (wali), if this is done in the interest of the child. After the child has reached the age of majority, intervention by the wali is no longer possible.
In Islamic law, on attaining puberty, a marriage may only be permissible; it is not mandatory by any interpretation. Neither the Quran nor the prophet prescribed any fixed age for puberty or marriage. Professor Tahir Mahmood stated that the supposedly lowest age of puberty for girls (9 years) was based on some precedents of 7th century Arabia, said to have been accepted by Imam Abu Hanifa 100 years later. Two other jurists of Abu Hanifa’s time, Ibn Shubruma and Abu Bakr al-Asam, had disapproved of minor girls’ marriages, relying on some indications in the Quran.
While the great Imam’s viewpoint prevailed among his followers till recent times, taking advantage of the opinion of his two contemporaries many Muslim countries have now raised by legislation the lowest permissible age of marriage for girls and boys.
The first State law for this purpose was enacted in Egypt in 1923. Many other Muslim countries followed suit. The lowest permissible age of marriage for girls is now 18 in Algeria, Bangladesh and Somalia; 17 in Lebanon, Syria and Tunisia; 16 in Egypt, Indonesia, Malaysia, Pakistan and Yemen; and 15 in those Muslim countries where family law has been codified. However, the actual working of these enacted laws tells a different story. Nowhere in the Muslim world has the practice of the minor’s marriage been wholly abandoned.
Perhaps we should learnt important lessons from India where the law to restraint child marriage has always been a toothless paper tiger. The Sarda Act and its provisions shared by other statutory family laws have failed to eradicate the menace of child marriage. Whatever improvement one sees – the percentage of child marriages is now considerably lower is the result of educational advancement. It has not come about by virtue of the Sarda Act or any other parallel law.
In view of the fact that the old Arab practice of child marriage was not of Islam’s creation, that some great Muslim jurists of the past disapproved it on the authority of the Quran, that the law in many Muslim countries does not allow it. However, these laws do not affect the legal validity of such marriage.
Looking it from the legal perspective, several studies have highlighted powerful critique of the state of such laws, the lacunae in it as well as the confusions, contradictions, and lack of gender sensitivity inherent in the provisions of various statutes dealing with the age of marriage, the age of consent, and the validity of marriage.
These concerns were based on the fact that early marriage violates every human right to which a child is entitled: the right to health, to education, to equality, to liberty and security of the person and of course the right to make a free and informed choice of a spouse. Many of these weddings are furtive and hurried. This not only deprives a young girl but also militates against opportunities to think through, especially on practical and interpersonal readiness for marriage.
Significant suggestions as to actions which can be taken by interested persons and, NGOs to challenge and change the existing situation are also proposed in such studies. It outlines strategies to help those who have been married at an early age, and for the prevention of early marriage through education, advocacy and alliance-building. Most of the research concludes with a call for more rights-based research on an issue that has far-reaching consequences.
However, Annie Bunting from York University, Canada argues that a strategy based on a uniformed marriageable age and right-based analysis misses the complexity of both marriage and age. She maintains that the socio-economic conditions, in which girls, live and marry need to be examined and addressed in order to develop relevant and culturally appropriate strategies.