A Good Question Received

This came via email:

Salam,

This is the link to the content where I read that the girl can be married off without consent if she is younger than nine years old.

So again, is this true?

http://www.islamswomen.com/qa/question.php?qid=1083

Jazakallah khair.

My reply:

ASA

Thank you for your question.

The contract could be entered into, but the marriage could not be consummated (actually take place) until the girl reaches puberty. This means physical puberty, not any particular age. Of course, it varies widely among the daughters of Adam, anywhere from 8 or 9 up to 18.

The hadith is clear. She has the final decision. Children in Islam are not even legally CAPABLE of making such decisions until they reach physical puberty. And so, while a contract could be entered into between her guardian and prospective husband, it would be “on paper” only and she would have the option or “veto” once she reaches puberty before the marriage could actually begin.

Citing the Prophet’s case is weak. His spoken words are crystal clear and there is no exception given for girls under 9. While it is true that his marriage to Aisha was contracted when she was six, she only lived in his house as a child, playing with toys and being raised by his other wife. It was only when she reached maturity at age 9 (according to most narrations) that the marriage actually began in practice.

So, there are multiple possible explanations for the case of Aisha and the Prophet and there is no way that it can be regarded as contradicting the clear order spoken by Allah’s Messenger in the hadith quoted.

1) The order to seek permission before any female (virgin or otherwise) can be married may have been communicated from Allah after the time of his marriage to Aisha. Thus, that marriage would have been done within the parameters of the prevailing culture, but this was modified or restricted by the Divine Law when the rulings on this arrived.

2) The marriage to Aisha from when she was 6 until she reached maturity could have been only “on paper” – and all the narrations about what was going on fully support this – and her permission was then sought once she was legally competent to give it (at puberty) and before any consummation took place. If you read the life stories of the Prophet and Aisha, there could be no doubt in any reasonable mind that she would eagerly accept Allah’s Messenger as her husband. Moreover, the rest of their lives together are extensively documented and it is a beautiful story of love and companionship with no trace of the wicked things that many modern people conjure up upon looking at the superficial details of this story.

3) It is also possible that this is among the khususiyat of Allah’s Messenger. In such cases, the fact that he did it does not apply to others or modify rulings that he has expressed elsewhere. For example, it is agreed upon that a Muslim man may not marry more than four wives. The fact that the Prophet (sas) had nine wives at one time has no effect on that ruling.

Any scholar – no matter who they are – who says that a pre-pubescent girl can be “married” in the full sense of the word, including consummation, has erroneously enabled oppression and pedophilia and falsely attributed it to Allah’s final religion. There are some, but they are wrong. In matters like this, we refer to the inerrant texts containing Allah’s words or the Prophet’s words. As you saw in that article, the Prophet’s words on the matter are clear and unambiguous.

“The previously married woman must not be married until she is consulted. A virgin must not be married until her permission is sought.” They said, “O Messenger of Allah (peace be upon him) how is her permission given?” He said, “By her being silent.” Another narration states, “Her silence is her permission.” Yet a third narration states, “A virgin’s father seeks her permission and her permission is her remaining silent.”

We should not be surprised that even some of the greatest imams and scholars can be utterly mistaken in an individual issue. And, we should remember the famous statement of Imam Al-Awzaa’iy in this regard:

.من تتبع زلل الأئمة تزندقق.

“Whoever followed up (i.e., collected) the errors of the imams (i.e., the greatest among the scholars), became so corrupt as to be outside of Islam.”

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