Justifying child abuse in the name of Shariah
Posted May 9, 2009

Justifying child abuse in the name of Shariah

By A. Faizur Rahman

About a month ago the world media reported a shocking decision by a Saudi judge in which he refused to annul the marriage of an 8-year old girl to a 47-year old man. But to those who are already familiar with the so called Islamic laws of Saudi Arabia this ruling was merely the latest in the sequence of several such cases of human rights abuse in the name of the shariah. The question is: does the Islamic law really uphold child marriage?

A perusal of the Quran will reveal that marriage in Islam is a civil contract, meesaaq ( 4:21), and as such it can be finalized only between persons who are intellectually and physically mature enough to understand and fulfill the responsibilities of such a contract. This can be further understood from the verse; “And test the orphans until they reach the age of nikah (marriage), and if you find in them rushdh (maturity of intellect) release their property to them.”(4:6). It may be noted here that the Quran makes intellectual maturity (which always falls beyond the age of puberty) the basis to arrive at the age of marriage. This is also in conformity with the Quranic description of marriage as emotional bonding between two mutually compatible persons through which they seek “to dwell in tranquility” (see 7:189 and 30:21) in the companionship of each other which is not possible if either of the spouses is mentally undeveloped.

Unfortunately, Muslim jurists don’t seem to have understood these Quranic teachings. Recently the grand mufti of Saudi Arabia, Sheikh Abdul Aziz Al-Sheikh, issued a fatwa legitimizing the marriage of girls as young as 10.  Even in India Muslim institutions including the Deoband and the All India Muslim Personal Law Board have not outlawed child marriage. Yet they congregated not once but twice to condemn terrorism. It is astonishing that those who claim an Islamic basis for their shariah disregard the primary source of Islamic law, the Quran, to the extent of overruling it through their exploitation of spurious traditions. For instance, child marriage in Islam is justified on the basis of a hadith in Bukhari which says that the Prophet married Hazrath Aisha when she was just six and consummated the marriage when she was nine.

This hadith cannot be true for several reasons. First, the Prophet could not have gone against the Quran to marry a physically and intellectually immature child. Secondly, the age of Hazrat Aisha can be easily calculated from the age of her elder sister Hazrat Asma who was 10 years older than Hazrat Aisha.  Waliuddin Muhammad Abdullah Al-Khateeb al Amri Tabrizi the famous author of Mishkath, in his biography of narrators (Asma ur Rijal), writes that Hazrat Asma died in the year 73 Hijri at the age of 100, ten or twelve days after the martyrdom of her son Abdullah Ibn Zubair. It is common knowledge that the Islamic calendar starts from the year of the Hijrah or the Prophet’s migration from Mecca to Medina. Therefore, by deducting 73, the year of Hazrat Asma’s death, from 100, her age at that time, we can easily conclude that she was 27-years old during Hijra. This puts the age of Hazrat Aisha at 17 during the same period. As all biographers of the Prophet agree that he consummated his marriage with Hazrat Aisha in the year 2 Hijri it can be conclusively said that she was 19 at that time and not 9 as alleged in the aforementioned hadith.

The Saudi judge also abused another hadith when he ruled that the minor girl will have the right to seek a divorce only after reaching puberty. This is known as Khiyar-al-Buloogh or the Option of Puberty and is based on Ibn Abbas’s report in the collection of Abu Dawood according to which the Prophet is supposed to have given a minor girl the option to repudiate her marriage when she informed him that her father had married her off against her will. But a reading of this hadith shows that the girl in question was not a minor because the word used to describe her is bikran which means a grown-up, unmarried girl. Also, there is no mention of puberty in the report. Therefore, the concept of Khiyar-al Buloogh is bad in law as it is based on a false premise. In short, there is no authentic statement of the Prophet justifying child marriage and hence, the question of his advising any minor to wait until puberty to exercise her right to divorce simply does not arise.

The problem with the present day Islamic law is that most of it is not based on the spirit of the Quran. This is because of the belief of Muslim theologians (particularly the Salafi ideologues, commonly known as the Wahabis) that hadiths have an overriding effect on the Quran. One such preacher Abu Ammar Yasir Qadhi’s has the temerity to write in his book “An Introduction to the Sciences of the Quran” that the Sunnah of the prophet can abrogate the Quran. The truth is that the Quran being the locus classicus of Islam, no authority can supersede it.  Even the Prophet was commanded to judge by it (4:105, 5:49, 6:50, and 7:203).  Furthermore, as the Quran claims to be a guide for all periods, it supports the notion that any law formulated on the basis of its framework has to evolve from time to time. For this to happen the doors of ijthihad (independent interpretation) must be reopened, and the entire corpus of hadiths must be reevaluated to discredit such hadiths that are antithetical to the spirit of justice, equity and fairness embodied in Quranic universalism. 

(The author is a peace activist and a student of comparative study of religions.)

SOURCE:  HINDUSTAN TIMES-MAY 9, 2009.  Reprinted with permission of author