The Child Marriage Restraint Act 2017 which allowed girls under 18 and boys under 21 to be married off under “special circumstances” was undoubtedly the country's most controversial law of 2017. The Act was widely opposed by national and international human rights organisations and activists as they believe that it will only exacerbate the issue of child marriage in Bangladesh.
Despite staunch opposition from most, the new law has been well received by “Islamist” organisations, which went as far as to say that “in the eyes of Islam, this is the correct decision” because apparently setting a minimum age of marriage would go against Islam (“Bangladesh weakens longstanding law against child marriage”, The New York Times, February 27, 2017).
It is in this context that it is imperative for us to reclaim the narrative from hardliners, instead of granting them exclusive rights to speak on behalf of Islam. Banning child marriage is certainly not an affront to Islamic law; rather justifications for outlawing it can be found well within the rubric of Islamic jurisprudence.
There is no denying that child marriage has generally been permissible under classical Sharia but it is by no stretch of the imagination an exclusively “Islamic” practice. It was so prevalent across different faiths and regions during earlier times that academics have said that child marriage was virtually the norm. Even today, the practice of child marriage is not exclusive to Muslim countries since Christian-majority countries (e.g. Central African Republic, Ethiopia and Mozambique) and Hindu-majority countries (e.g. India and Nepal) are also on the list of countries most affected by child marriage (The State of the World's Children, UNICEF, 2016).
Crucially, child marriage as it is currently practised in Bangladesh stands in stark contrast to the type which gained permissibility under classical Sharia. Unfortunately, much of the discussion on child marriage in Islamic law is entirely devoid of context and is instead carried out deliberately in sensationalist and inflammatory terms.
It must be made clear that child marriage in the Classical period did not entail forcing a child into marriage (much less a detrimental one for perverse economic incentives) nor did it consist of forcing a girl into cohabitation or performance of marital duties, as it currently does. Rather, it usually entailed a betrothal or a type of formal agreement, which would defer final consummation to a later date. This is because Islam prescribes that irrespective of the age at which betrothal may take place, “final consummation must be postponed until both parties are ready for marital relations”. Hence the minor (or minors, if both parties were prepubescent) would remain in their guardians' home(s) in the interim period. As such, it seems child marriage in classical fiqh was allowed as a contract to secure a future, rather than an immediate interest or performance, before such an opportunity was lost.
For instance, two closely tied but otherwise unrelated family clans would contract to marry their newborn male and female wards to further cement their social ties but the marriage ceremony and cohabitation would only take place when both parties were ready to commence marital relations. Furthermore, Islamic law was careful to strike a balance between a parent's right to contract their minor ward into marriage with the minor's own right to self-determination. It did so by granting these minors the option to terminate the marriage contract upon reaching puberty if either felt the pairing was unsuitable by exercising their right of khiyar al bulugh (option of puberty), which has been granted under section 2(vii) of The Dissolution of Muslim Marriages Act 1939. Thus if either the girl or the boy decided upon reaching puberty that the pre-contracted marriage is not one they are willing to pursue, they would be able to exercise their option of puberty to repudiate it.
Additionally, it is undisputed that Islamic law requires that all minor marriage arrangements be made in good faith and in the best interest of the minors party to it. It is simply unlawful for guardians to act purely out of self-interest or put the minors in a disadvantageous situation, which unfortunately has become the norm today, whereby parents contract their minor children into marriage and force them to begin marital relations immediately, before she is even ready to do so, thereby breaching the requirements of Islamic law. What is even more tragic is that these girls are either unaware or unable to exercise their legal right under the 1939 Act to terminate the marriage.
Minor marriages are merely mubah (permissible), which is religiously value neutral. This then crucially renders the scope for reform to be substantially higher in comparison to issues which are fardh (obligatory, e.g. prescribed shares of inheritance), mandub (recommended, e.g. charity), makrooh (e.g. divorce) or haram (e.g. murder).
Out of the plethora of legal tools in Sharia that can justify a ban on child marriages, maqassid al-Sharia (objectives of the law) can be used as the philosophy on which the justifications for reform can be based. The law has to prohibit that which promotes harm and protect that which procurers benefit for Muslims in this world and the hereafter, and plainly speaking these are the maqassid al-Sharia. To the esteemed jurist Imam Al-Ghazali, the maqassid comprised of protecting the five cardinal values: religion, life, intellect, lineage and property. Hence any action which secures these values falls within the scope of maslahah (public interest), and any measure which infringes them is mafsadah (evil).
Child marriage as practised today causes serious harm to female children, precisely the kind of harm and hardship Islam strove to eradicate upon its advent. Serious health issues that arise as a direct result of child marriage include, but are certainly not limited to, gynaecological problems due to early childbirth, higher risk of cervical cancer, higher risk of suicide, and other mental problems such as depression and anxiety. Furthermore, these young girls are usually met with the burdensome duties of an adult wife and homemaker imposed upon them, which often results in their being deprived of a proper education.
This in turn reduces the girls' “employment” options to cooking, cleaning, and having babies (intellect). Underage motherhood can go on to jeopardise the lives of the minors' own offspring (lineage) (for how can a child suffering from demonstrable harm be expected to look after another child, that too as a mother?). The injustice does not end there. Instances where minor girls are given into marriage so the father can use her dower to pay off a debt, to arrange a son's marriage or simply pocket the money himself can and have happened. Such practices are plainly misusing the dower of the bride (property), a portion of wealth that should rightfully have been for her own exclusive use. Taken together, the unjustified suffering by these minor girls and potential for corruption on part of the guardians and repressive regimes (such as the Taliban's commodification of child brides) severely endanger the inherent spirit of justice that is embedded within Islamic law (religion).
Thus the continued practice of child marriage without any restriction passes on all five counts laid out by Al-Ghazali so as to constitute mafsadah and these reforms are an essential step towards maslahah by ensuring these threats are averted and these archetypal Islamic values secured. This is why one of the greatest Caliphs of all time, Umar, like Al-Ghazali, was such a staunch advocate of focusing on the spirit of the law rather than the letter itself. They were fully cognisant of the fact that while the maqassid are timeless, the rules and practices that facilitate their attainment are not.
If we trick ourselves into obsessing over the letter of the law rather than the spirit of it, not only do we risk reducing the inherently evolutionary nature of Islamic law to a monolithic rigidity, but also let it obscure our notion of the very purpose of the Sharia itself.
Taqbir Huda is currently working as a research officer at Bangladesh Institute of Law International Affairs (BILIA) and volunteer at Bangladesh Society for the Enforcement of Human Rights (BSEHR-Manabadhikar).