Tuesday, July 09, 2013

Marriage of Minors in Islam

Marriage of Minors in Islam
Prof. Gabriel Sawma

Under the rules of Islamic marriage according to the Hanafi traditions, a marriage cannot be contracted by an insane person, or by a boy without understanding. The hearing and consent by each of the parties to an Islamic marriage is important for the marriage contract to be in effect.

A Muslim man or woman who is of sound mind and who has attained puberty (in classical law, twelve years of age for boys and nine years for girls) is considered to be legally eligible for marriage (see Women in Muslim Family Law by John Esposito, second edition, 2001, p. 15).

An adult woman of a sound mind may be married by virtue of her own consent, although the contract may not have been made or approved by her guardian, and it does not matter whether she is virgin or not. This is the opinion of Abu Hanifah and Abu Yusuf as is attested by Dhaherul Riwaya.

The consent of the woman in Islamic marriage is also a condition when she attains puberty. According to the Hanafi School of Jurisprudence, regardless of whether she is virgin or not, her guardian cannot compel her to marry. This means, no one can lawfully contract a woman in marriage who is an adult and of sound mind without her own consent. And, if any one should force her to marry without her consent, the marriage is suspended on her demand; the marriage will then be nulled.

If a guardian propose a marriage to a woman who is not virgin, it is necessary that her compliance be particularly expressed by words, such as, “I consent to the marriage.” This is based on the saying attributed to the Prophet who said: “Thayibas are to be consulted,” (women who are not virgins), and also because, according to the Hanafi School, such women had sexual experience with men and do not have the same pretense to silence or shyness as virgins do, and consequently the silent signs before intimated are not sufficient indications of their assent to the proposed marriage.

Guardianship in Marriage
An infant is incompetent to marry without the consent of his or her guardian, but can do so with their consent or permission. A female not having attained the age of puberty, cannot contract herself in marriage without the consent of her guardian, and the validity of the marriage contract depends upon such consent. The validity of marriages contracted by discreet minors is subject to the consent of their guardians. Similarly, the marriage contracted by a boy of his minor is valid if his guardian consents to his marriage.

The marriage of a minor, male or female, can be contracted by a guardian even against his or her will. However, the minor may, immediately upon attaining majority, have the option of consenting or cancelling the marriage, except in the case of its being contracted by a father or paternal grandfather. Where minors are contracted in marriage by a father or grandfather, they have no option on arriving at puberty, but when contracted by any other than a father or grandfather, they have an option on arriving at puberty, and may either abide by the marriage or cancel it according to the Hanfai School. In other words, a marriage contract entered into by a father or grandfather on behalf of an infant is valid and binding, and the infant does not have the option of annulling it on attaining maturity; but if entered into by any other guardian, the infant may dissolve the marriage on coming of age, provided that he or she exercises his or her right immediately after they arrive the age of maturity.

According to the Hanafi School of Jurisprudence, the guardians of a boy and a girl may marry them to each other against their will, whether the girl is a virgin or not. Where minors are contracted in marriage by a father or grandfather, they have no option on arriving at puberty, but when contracted by a person other than a father or grandfather, they have an option on arriving at puberty, and may either abide by the marriage or seek termination. But if the marriage contract should have been executed by the authority of others than their parents, each is respectively at liberty, after they become of age, to choose whether the marriage shall be confirmed or annulled. This is called the “option of puberty.”

Dissolution of Matrimonial Tie
The complete dissolution of the matrimonial tie requires a judicial act. It is necessary that a decree purporting the dissolution of the marriage at the request of one of the married couple upon coming of age should be obtained from a Qadi (Judge).

The right of repudiating the marriage is lost, in the case of a female, if she has remained silent after attaining puberty. But in the case of a male, the right continues until he has ratified the marriage either expressly or impliedly as by payment of mahr or cohabitation.

Effect of Repudiation
When the “option of repudiation” is exercised, the marriage is dissolved from the moment of repudiation. But the marriage is valid until repudiation, and in the event of the death of either party before repudiation, the other party is entitled to all the rights of inheritance.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:

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