DAY 22
AGE OF MARRIAGE
What are the views of Muslim women in this regard?
In 2015 BMMA published ‘Seeking Justice Within Family’, a national study on Muslim women’s views on reforms in the Muslim personal law. According to this study:
- 75.5% of the 4710 respondents wanted girls to be above the age of 18
- 88.3% wanted boys to be above the age of 21 years.
In another study done by BMMA in the state of Maharashtra, out of 505 respondents:
- 333 were married on or before 18 years.
- 261 women said the girl should be above the age of 18 years and 160 women said it should be over 21 years.
- Put together 421 women say that age of marriage of girl should definitely not be below 18.
- 220 women say that the boy should be above the age of 21 years and 274 women said it should be over 25 years.
- Put together 494 want the boy to be mature enough to get into the relationship of marriage.
What is happening within the community vis-à-vis age of marriage of girls?
In ‘Seeking Justice Within Family’, a study of the age of the 4710 respondents:
- 55% were married before the age of 18.
- Out of which 15% were below the age of 15 and 40% between 15-18 years.
- The other socio economic data was also very stark.
- 73% had annual income below 50,000.
If the age of marriage figures are compared to the mehr amount received, then 40% received mehr which was less than Rs. 1000/ and 44% did not even receive any. Nikahnama, which is a document necessary to ensure that woman has a say in the conditions regarding marriage, was not even available with 47% of respondents. Those who had, 75% of which did not read it.
A child of 15-16 will not obviously have a say on whom to marry or any say in the amount of mehr that she should receive or even put conditions in her nikaahnama. All safeguards in a Muslim marriage, like the express consent of the parties, conditional nikahnama and fixation of mehr amount, make no sense if a girl is married off as a child. We are all too aware of the other impacts of child marriage, which a child/woman has to bear. It has a direct negative impact on her education, health, livelihood options and overall well-being.
Muslim women have time and again shown immense maturity and are aware that a delayed marriage is a boon for her. Now it is the turn of the state to listen to her.
As an Indian Muslim women, what legal safeguards exists and can be made use of?
Inspite of constitutional safeguards and a law against it, child marriage continues in the larger society and specifically in the Muslim community. As per the 2011 census, child marriage is rampant among Hindus at 31.3% and at 30.6% amongst Muslims. Child marriage is violative of all fundamental principles of Indian constitution, which are equality, justice, freedom and democracy. All possible fundamental rights are violated.
The Prohibition of Child Marriage Act was passed in 2006 with the objective to prohibit child marriages, to provide relief to victims and enhance punishment for those who abet, promote or solemnize such marriages. Any marriage of a girl below 18 and of a boy below 21 is a child marriage which is illegal, an offense and punishable under the law. The offense is cognizable and non-bailable. [Indiafilings.com] CM is cognizable and non-bailable. If done, such marriage is null and void and there is punishment for performing, conducting and abetting CM. Even parents are punished. There is punishment also for the adult male for marrying a child.
The Protection of Children from Sexual Offences (POCSO) Act, 2012 penalizes penetrative sexual assault on a child by anyone related to the child through marriage. It penalizes sexual acts with a girl below 18 years of age, with or without her consent. There is penalty and punishment for violation of the POCSO provisions.
The Dissolution of Muslim Marriage Act, 1939 says that if a girl is married as a child, she has the option of repudiating that marriage at the age of 18 provided the marriage is not consummated. Although a loophole filled provision, it does give a Muslim woman a chance to come out of a child marriage.
What has been the position of the Supreme Court on the issue of Muslim women and the age of marriage?
In the absence of a codified law which defines age of marriage of a Muslim girl and a boy, the Muslim community will be caught swaying between civil laws that are applicable but are not applied and the various court judgements which contradict each other.
The judiciary recognizes Muslim marriage as valid if these conditions are met, both have to be Muslims, both are not within prohibited degrees, there is proposal and acceptance, there is payment of mehr and the parties have reached puberty [sometimes defined as 15, sometimes as start of menstrual cycle]
The Delhi/Punjab/Haryana High Court have stated that Muslim girl was free to marry after attaining puberty, i.e. 15 years. Whereas the Madras High Court and Gujarat High Court have given primacy to the PCMA. While further on, the judgment by the Supreme Court in Safinjahan’s case 2018, recognized attaining puberty as a condition for a valid Muslim marriage.
So,
- SUPREME COURT ALLOWS MUSLIM CHILD MARRIAGE
- Various HIGH COURTS ARE DIVIDED OVER THE ISSUE
- SHARIAT ALLOWS CHILD MARRIAGE
- LAW OF THE LAND PENALISES CHILD MARRIAGE
No citizen of the country is prohibited from accessing any law of the country but given the hold of the clerics within the Muslim community and a misinformed police which believes that certain laws are not applicable to the Muslim community, most from the community are not aware of the law and many wrongly believe that it does not apply to them. Hence it is important that a specific mention be made in the codified Muslim family law that in case of child marriage, the PCMA can be evoked.
What are the Quranic injunctions and the say of Islamic jurisprudence?
The universal Islamic values of equality, justice, wisdom and compassion do not match with child marriage. Muslim laws, which claim to be shariah compliant cannot ignore these, core Islamic values as well as the contemporary, lived realities of Muslim women.
The purpose of marriage in Islam is to create a successful union that promotes love, tranquility and mercy between husband and wife and contributes to a healthy society. Hence one of the main condition for marriage is free and informed consent of the both adult spouses.
The Quran does not provide any specific age for marriage. Reference to marriage happens in 4:6, which requires that guardians of orphans manage their inheritance until they become fit to marry, and are of sound judgment to manage their own property. There is a direct link between the ability to manage property and marry, to the age at which maturity to do both is reached. Marriage is a contract in Islam and it one of the most important contracts that an individual will enter during their lifetime. The purpose of shariah includes the right to protection of life, family, education, religion, property, resources and human dignity. To the Muslims the protection of life and well being of humans should guide every decision, law and policy. Another principle of Islamic jurisprudence is that of maslahah mursalah or unrestricted public interest where by laws and policies must be decided on what is best for the public good and must be standard for all citizens. [Srilanka, MPLRAG, Position paper, Minimum Age of Marriage]
The Quran terms marriage as a solemn oath. ‘And how could you take it away after you have given yourselves to one another and she has received a most solemn pledge from you.’ [4:21] Marriage is a solemn pledge. The Quran also forbid marriage by compulsion. ‘O, you who have chosen to be graced with belief! It is not lawful for you to force women into marrying or holding on to them in marriage against their will’. [4:19]. No way this holy book encourages child marriage. An adult capable of handling responsibility that comes with marriage in a mature and sensitive way is the one who is ready for marriage. Not children. [Quranalyzeit.wordpress.com]
Prophet Mohammed’s life is also an indication. Hazrat Khadija was 40 and a widow when she married the 25 year old Prophet. He did not marry till Khadija passed away. All his other wives with the exception of Ayesha, were either widows or divorcees, mature women and some with children as well. And these later alliances were in the context of wars and negotiations which were part of the Arabian tribal life.
What about the UNCRC and the Indian Muslim children?
UNCRC [United Nation Convention on the Rights of the Child] is a human rights treaty signed by India, which sets out the civil, political, economic, social, health and cultural rights of children. The Convention defines a child as any human being under the age of eighteen, unless the age of majority is attained earlier under national legislation. [Wikipedia]
India has also signed CEDAW. Article 16(2) states that, ‘the betrothal and the marriage of a child shall have no legal effect and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory. [Srilanka, MPLRAG, Position paper, Minimum Age of Marriage]
Sustainable Development Goals [SDG] goal 5: Achieve gender equality and empower all women and girls. One of the main targets 5.1 - under this goal is to end all forms of discrimination against women and target. 5.3 says eliminate all harmful practices, such as child, early and forced marriage and fgm. SDG 4 is about quality education under which governments needs to ensure equal access t secondary education and eliminate gender and other disparities.
Muslim women and girls are citizens of the world and these treaties and goals and conventions must be looked at from her perspective as well. She cannot be exempted from these universally applicable principles by misogynist groups who exploit them and the larger community in the name of culture and religion.
What is the age of marriage in other Islamic nations?
In Tunisia, Turkmenistan, Kyrgyzstan, Tajikistan, Bangladesh and even Saudi Arabia, the age of marriage of girls is 18. Violation of the laws invite penalties and punishment varying from very mild to very strict.
BASED ON THE LIVED REALITIES OF MUSLIM CHILDREN AND WOMEN, INTERNATIONAL HUMAN RIGHTS STANDARDS, INDIAN CONSTITUTION AND THE QURAN, CHILD MARRIAGE IS UNTENABLE AND UNACCEPTABLE. INDIAN STATE MUST ABOLISH IT SPECIFICALLY FOR THE MUSLIM COMMUNITY.
References:
- Seeking Justice Within Family, A National Study on Muslim Women’s Views on Reforms in Muslim Personal Laws, 2015
- Indiafilings.com
- Wikipedia
- Srilanka, MPLRAG, Position paper, Minimum Age of Marriage
- Quranalyzeit.wordpress.com
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