AGE OF MARRIAGE OF MUSLIM GIRLS - DIFFERENT PERSPECTIVES BUT NO SOLUTION

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

MUSLIM WOMEN'S IDEA OF MARRIAGE - BMMA DRAFT LAW PROVISION ON SOLEMNIZATION OF MARRIAGE

DAY 19

SOLEMNIZATION AND REGISTRATION OF MUSLIM MARRIAGES

BMMA spent 8 years to prepare this draft law. Today onwards we will see the various provisions of the draft law. Starting with marriage today. 

What are the conditions for the solemnization of Muslim marriage according to BMMA's draft law?

1. A marriage between any two Muslims may be solemnized under this draft law [DL], if at the time of the marriage the following conditions are fulfilled, namely: 
2. Every marriage solemnized under this  DL shall include payment of Mehr at the time of the solemnization of marriage which is the groom’s annual income. 
3. Express and unambiguous consent of both parties is necessary before a marriage contract becomes valid. This consent must have been obtained without undue influence, coercion and fraud. 
4. The bridegroom has completed the age of twenty- one years and the bride has completed the age of eighteen years authenticated from reliable proofs or records of the date of birth. 
5. The parties are not within the degrees of prohibited relationship 
6. In the subsistence of one marriage a man cannot marry another woman. 

What is the procedure for solemnization of a Muslim marriage? 

1. For the solemnization of the marriage, the parties have to approach a qazi 
2. The parties have to send a letter of application to a qazi 30 days before the date of solemnization where either bride or groom is residing for the last 30 days. 
3. The procedure of solemnization would include ijaab [proposal of the marriage] and qubool [acceptance of the proposal]. Both the proceedings of ijaab and qubool must happen in the same sitting in the presence of witnesses and the qazi. 
4. Nikaahnama must be filled up and original, true copies of the same is to be provided to both the parties. 

What are the responsibilities of the Qazi?

1. Must take separate application from both the parties 
2. Must ensure that both parties have fulfilled conditions linked to solemnization of marriage as given above
3. Must demand from both parties' authentic proofs pertaining to dates of birth and their place of residence and retain copies of the same after having them personally authenticated
4. Must ensure that the bride consents to the marriage without pressure or coercion
5. Must ensure that the bride knows and consents to marry the bridegroom if his previous wife has been divorced or deceased and has children from the said marriage
6. Qazi must solemnize marriage by filling up the nikaahnama which must be signed by her/him, the contracting parties and two witnesses from each party present at the time of marriage
7. 2 original copies of the certified nikaahnama must be given to both the parties
8. Qazi must maintain a proper record of the marriage in its centre. 
9. Qazi can act as an Arbitrator if it is also registered under this DL as an Arbitrator 
10. Qazi must ensure that the parties submit the divorce papers of previous marriage if divorced and death certificate in case of the death of the previous spouse. In case where the party is marrying for the first time, it must submit to the qazi affidavit stating that it is his/her first marriage.
11. Qazi must meet the parties to the marriage separately as well as together to ensure that the parties know about each other's background and also to ensure their willful and free consent to the said marriage. 

What should be an ideal mehr amount which the bride should get at the time of marriage?

1. The minimum amount of mehr shall not be less than his one full annual income which could be his income from property, business, agricultural or commercial land and salary. It can be given either in cash/gold/kind. 
2. If income/salary cannot be determined then the mehr can be fixed based on the minimum wages of his occupation where he is residing. 
3. The mehr must be prompt and must be paid to the bride at the time of the marriage. 
4. The mehr is the wife's exclusive property to be used by her at her absolute discretion without any manner of interference from parents and relatives of both parties. 
5. The wife cannot be forced or compelled or emotionally pressurized to forego/return the mehr anytime during the subsistence of marriage or after divorce or widowhood. 
6. The groom/husband and his family cannot demand dowry nor can they casually and innocently express their desire for dowry before or during the subsistence of marriage. 

Where and how should a Muslim marriage be registered? 

1. Immediately on solemnization of the marriage the signed nikaahnama should be registered by the parties at the local state bodies like the Panchayat, Block Office, District office, Ward Office or Marriage Registrar Office under the relevant marriage registration Act. 
2. The parties must ensure that they each have true, original copies of the registration certificate. 
3. The qazi may take additional responsibility of registration of the said marriage if the parties wish so. 

What is the responsibilities of the witnesses to the marriage?

The witnesses must sign the relevant documents and ensure that the party to which they are supporting as witness must have the relevant documents, which is; 

1. Death certificate if the spouse of the party has died 
2. Divorce papers if the party has been divorced 
3. Whether the party they are supporting is previously married
4. Whether the parties are violating any law of the land 

When does a marriage become irregular or Fasid? 

A marriage solemnized shall be considered irregular: 

1. If two adult witnesses are not present at the time of nikaah. 
2. If the marriage has been solemnized during the period of iddat 
3. If the marriage has been solemnized without the qazi 
4. If the marriage is not registered as mentioned in this Act 
5. If the amount of mehr is not paid 

How can this irregular marriage be regularized?

All marriages termed irregular in this DL can be regularized. The rights of women and children accruing from the said marriage are not affected if the marriage is not regularized. The regularization process would include: 

1. Approaching a qazi along with witnesses and attaching affidavits from all witnesses affirming the said marriage. 
2. Approaching a qazi after which the parties will give an affidavit stating that the period of iddat is over deeming their marital status legal under this Act. 
3. Approaching a qazi and resolemnise the marriage with a fresh nikhanama 
4. The parties themselves should take their filled up nikhanama along with an affidavit and register it with the authority as specified in this Act. 
5. Payment of mehr as promised. 

When do we consider a marriage as invalid?

Any marriage solemnized under this Act shall be an invalid marriage: 

1. If the consent of either party to the marriage contract has been obtained by force, coercion, undue influence or fraud. 
2. If the bride and groom are within the prohibited degrees 
3. If the bride and groom have not completed 18 and 21 years of age respectively 
4. If the husband has entered into another marital contract in the subsistence of a marriage contract, the second marriage will be an invalid marriage. 

What will happen if an invalid marriage is solemnized?

1. In case of underage marriage the provisions of The Prohibition of Child Marriage Act, 2006 will apply. 
2. In any of the above four incidents of invalid marriage the qazi who has solemnized the said marriage will be penalized. 
3. The rights of women in any of the above four incidents of invalid marriage must be protected. 
4. In case of polygamy by the husband, under this DL it should be punishable by punishment or fine or both or alternative 494 IPC must apply. 

PLEASE LET ME MARRY AFTER 18! Muslim Women and Age of Marriage

PLEASE LET ME MARRY AFTER 18!

Muslim Women and Age of Marriage

Dr. Noorjehan Safia Niaz

Muslim women in India are governed by their own personal laws and also by the law of the land. The law of the land has laid down 18 as the age of marriage for girls and 21 for boys. This law is applicable to all citizens of the country irrespective of their religion. The Muslim personal law has many versions. Widely accepted is the version which puts age of marriage at 15, some at 16 and some other versions bring it further down to onset of puberty.

In the last 6 years as part of the consultations on codification of Muslim family law, this question was put before many Muslim women’s groups; what should be the legal age of marriage of a Muslim boy and a Muslim girl? Overwhelmingly, illiterate to semi-literate Muslim women have endorsed strongly that the age of marriage should not be lower than 18/21. These women have in all probability not seen a school, have been married early themselves, mostly at the age of 13/14, earn little after working very hard and hence, these seemingly uneducated women do not want their daughters to have the same fate as theirs. In one such consultation in Bhopal one Muslim woman even went to the extent that even 18 is not good enough. By the time a girl finishes her graduation, which she should, she is 20/21, so common sense suggests that the age of marriage should not be lower than 21 for girls and 25 for boys. These endorsements and suggestions indicate that Muslim women know where her future lies and it shatters the myth of their ignorance and cocooned life. Not to say about the girls themselves. They are in no hurry to marry but aspire to educate and earn for their better future.

What dreams and aspirations do our girls have? Many inspite of their severe social handicaps want a more humane and dignified life. They want quality education and a safe and reliable source of livelihood. Their dreams are very ordinary but even those are beyond their reach, thanks to the community which refuses to see horizons beyond marriage and motherhood. Patriarchal notions do not encourage parents, especially fathers to see their daughter as an independent thinking entity. That she can also dream and aspire is beyond his understanding. He does not dream for her and so she does not know how to dream for herself. Her vision is limited to being a wife at 16-17 and a mother at 18 and that’s about it.

A section of the educated Muslim middle class actually endorses early marriage. In one of the consultations in Bangalore, a Muslim male practising lawyer asks, ‘what is wrong if a girl is married at the age of 13?’ In another consultation in Hyderabad, an educated, elite Muslim woman says if consent to sex is 16 years then why not consent to marriage? As if marriage is nothing but sexual relationship. Another one goes a step further and says age of marriage of boys should be brought down to 18. The most incongruous argument is of those who are ok with marriage at puberty. A girl who menstruates at the age of 9, 10, 11, 12 automatically qualifies for a married life! A young Mumbai-based graduate Muslim man of 23 years believes very strongly that the right age for girls to marry is 15-16 years. He firmly believes that a woman must marry early, bear and rear children, look after the family, wear good clothes, go shopping and generally lead a contended life. Another young Muslim man of 20 years, elitist and educated believes that woman need not earn a livelihood if her husband has a strong financial background, where is the need, he says. One always thought that a community is led by its educated and enlightened sections. It is a worrying phenomenon if this very educated section justifies early marriage.

In Islam marriage is a social, solemn contract based on mutual agreement, terms and conditions. The question to the above educated Muslims is: can a pubescent boy and girl enter into a contract which will determine their entire lives? Puberty does not even indicate physical maturity, let alone social, emotional and psychological. It is a worrying trend in cities like Hyderabad where a Muslim girl of 18 is too old for marriage. By the age of 20 her prospects of marriage are practically nil unless the parents pay a hefty dowry.

Poverty and patriarchy is keeping the Muslim girls out of the ambit of a better life. Where aspirations are there, the means are missing. Where means exist, the aspiration is absent. Where both exist, patriarchal notions and values play the spoilsport. Restrictions on mobility, restriction on education, a big no to earning livelihood, early marriage and hence early motherhood and all chances are, for all practical purposes, lost for this woman.

Is there a way out? Well, there better be a way out! There is a need for multi-pronged strategies. Parents play a crucial role in creating the urge to dream and aspire. Educational institutions and state too have a vital and fundamental role to play. To begin with the state must ensure good quality public education till class 12 atleast if not till graduation. This step in one stroke will take care of those who aspire but do not have the means.  For those who have the means, the aspiration/inspiration must be provided by the educational institutions. Muslim girls are terribly obsessed with doing B.Ed and D.Ed. Nothing wrong, except that there is a whole big world out there which is offering so much more. Institutions imparting formal education must open up this horizon for Muslim girls. They can also play a decisive role in diversifying the span of the parents and encouraging them to encourage their wards.

State must create conditions of security and safety. If woman do not feel safe in their localities, communities, railway bridges, skywalks, trains and buses, their mobility will automatically get affected along with their self-confidence. Effective implementation of laws, effective control over anti-social elements, cleaner and better civic infrastructure will go a long way in making daily life safer for girls. 

For long term legal and social solutions, the Muslim family law must be codified to legally bring age of Muslim girls to 18 years. In addition, registration of all marriages must be made mandatory. And in the end the young women themselves must shake off the severe limitations and take a bold step forward.