By : Faqihuddin Abdul Kodir
On of the controversial issues regarding modern Islamic Family Law regarding the age of marriage is whether it should be limited or not. In almost all of Islamic countries, the underage marriage had been prohibited in their applied legal laws. Therefore, the trend of Islamic Law in the majority of muslim countries tend to mention the minimum age of marriage for the subject of ‘aqd ( marriage contract), both for the bride and groom. Of course, the limitation are different among one country and another countries, from since 12 years old such as for muslim in Nigeria and Srilanka, up to 21 years old in Fiji and Gambia. (WLUML, 2007: 62-69).
Generally in many muslim countries, the restriction of the minimum age of marriage for women are lower than men, ranges from 15 up to 16 years old for women, but 18 up to 19 years old for men. Different with another countries which distinguish for men and women, Jordania and Morocco create the same limitation for men and women, namely 18 years old. So did Algeria, but it was higher namely 19 years old. Of course there are still many countries which use the ambiguous limitation, namely the ‘puberty’ age without mentioning specific age. Those happened to the muslim in Philipina, which still uses the puberty as the limitation of measuring somebody’s capacity to marry, both men or women. Moreover the Perak state parties (of Malaysia) does not mention the minimum age at all, so that early marriage or under age marriage are possible to happen. (WLUML, hal. 62-69).
Both the trend of modern Islamic law which mention minimum age of marriage, or exception in many countries, which are not definitely give the restriction, based on the heritage of Islamic jurisprudence that initially open various perspectives. The maturity of thought and adulthood (ar-rushd wa al-bulûgh) in the fiqh, is a legitimate requirement for the subject in the ‘aqd nikah (marriage contract), both for men and women. But the ulama of Fiqh (Islamic jurisprudence scholars) then dissent the various opinion on determining the signs of maturity, whether by using ‘puberty’ as menstruation and wet dream, or by mentioning the certain age, such as 15 or 18 years old (Kharofa, 2004: 55-62). The Fiqh scholars also dissent the various opinion on whether somebody who haven’t reached maturity and adulthood allowed to be married by their parents or should not be married before they reached adult age. (Muhammad, 2001: 70-74).
The such different opinion of the Fiqh issue on this, among them were based on the verse 6th of Surah An Nisa’ and the 152nd of Surah Al An’am which required the adulthood (maturity) as requirements of ‘aqd (contract) and transaction in all of the conditions. (Kharofa, page 57; and Muhammad, page 71). But, both of the verses especially on the marriage issues, often faced the hadith text which narrated the story of Aisha Bint ABi Bakar ra. who married with the Prophet when she was 6 or 7 years old, but coexisted with him when she reached 9 years old. (Muhammad, page 69). The story will discuss on how the ulama (both in the Fiqh/Islamic jurisprudence and Hadith disciplines) respond and understand the such hadiths, and how the texts can be understood in the context and spirit of empowerment of muslim women.
The Hadith Regarding the Marriage of Aisha
Ibn al-Atsîr (d. 606 H/1210 M) in his book Jâmi’ al-Ushûl min Ahâdîts ar-Rasûl (Encyclopedia of Prophet’s Hadiths) said the hadiths reharding the age of Aisha when she got married with tge Prophet Muhammad PBUH. The hadith texts were narrated by Imam Bukhari (d. 256/870), Muslim (d. 261 H/875 M), Abu Dawud (d. 275 H/889 M), and Nasa’i (d. 303 H/915 M). There were some differences in mentioning the age of Aisha when she got married on these texts. In several histories, it had been mentioned that the age of Aisha when she got married was 9 years old, and then coexisted when she was 9 years old. Another history, from Imam Muslim for example, mentioned she was 7 years old when getting married and 9 years old when coexisted. But another history from Imam Nas’si which did not mentioned the age of 6 or 7 years old, but directly mentioned that when she was 9 years old Aisha married and coexisted with the Prophet PBUH. (Ibn al-Atsir, 1983: juz XII, page 110-112).
By seeing the narrators of hadith above, the hadith text on Aisha’s marriage on 6, 7, or 9 years old were sahih (valid). The text which mentioned the age of 6 years old for example was narrated by Imam Bukhari in his Sahih book, the highest degree of book in the Ilmu Hadith disciplines. For the majority of hadith ulama, if a hadith was narrated only by Imam Bukhari or only by Imam Muslim, it is enough to ensure that it was a sahih or valid hadith (‘Itr, 1985: 254-256).Furthermore if the hadith texts were narrated by the 2 Grand Imam, Bukhari Muslim and supported from another track line, namely Imam Abu Dawud and Imam Nasa’i.
So far, there had not been heard that a hadith ulama criticized the validity of hadith texts on the very young age of Aisha when she got married with the Prophet PBUH. Nasiruddin al-Albani (1914-1999), a contemporary hadith ulama which was appointed to become a Professor of Hadith in the Medina Islamic University, which sometimes with his sanad (contents) critic method himself had weakened the valid (sahih) hadith position, (Amin, 2009: 71-116), also ensure that the hadith texts were sahih (valid). Although the such validity process, for some of the hadith experts were seen as vain activities, because it thad been validated by the grand ulama such as Bukhari Muslim (‘Itr, page 254).
But, in the online discussion forum especially in some bloges, by using the entry “the marriage age of Aisha”, “early age marriage”, “under age marriage”, or “Prophet married a girl child” , some articles which criticized the validity of the such hadith texts were easily found. One f them which probably can be said as an initial article –at least according to author’s search- was article entitled “ Was Ayesha A Six-Year Old Bride? The Ancient Myth Exposed” by T.O. Shanavas, which had been firstly published in 1999 through The Minaret. Another articles, especially which had been written in Bahasa Indonesia, only repeated Shanavas’s argumentation. Including in Syafii’s Antonio’s article in his book ”Muhammad: The Super Leader The Super Manager” (2008: page 302-304).
In Shanavas’s (an Indian muslim intellectual) article, there are three main arguments in rejecting the hadith of very young age of Aisha to get marry. First, on the main narrator ma,e;y Hisyam bin Urwah, who narrated from his father Urwah bin Zubair, who heard from his aunt ‘Aisha bint Abi Bakr ra. Second, there are some contradictions among several historical narrations related to Aisha’s personal life history when it juxtaposed with other Prophet’s companion. Third, the contradiction of early age marriage concept which are seen from those hadith, with another fundamental concept of Islamic teaching. The first critic were related to sand (transmission track line), second critic related to matan (the content of the hadith), while the third one related to understanding which had been explored from the matan (content of the hadith).
By referring to the biographical books of the Hadith narrators, such as Tahdzîb at-Tahdzîb of Ibn Hajar al-‘Asqallani (d. 852 H/1449 M) and Mîzân al-I’tidâl of adz-Dzahabi (d. 784 H/1383 M), Hisyam bin ‘Urwah in the eyes of Shanavas and Antonio Syafi’i were seen as untrusted narrators, especially for the hadith which was narrated when he had moved from Medina to Iraq when he was 70 years old. The text of early age of marriage of Aishah included the text which he narrated in Iraq. Hisyam was seen as too old, senile, less strong in memorizing, to narrate the hadith during his stay in Iraq. Therefore, Hisyam can’t be trusted, so that the transmission of narration should be cancelled.
This critic, although had been noted in Hisyam’s biography, but it seems as too excessive if it is applied to the such Aisha’s hadith contexts. In addition to that, there are another positive appraisal of the Hisyam’s personal life, from the critical hadith scholars, including when he had moved to Iraq. More fundamentally, the hadith texts were narrated by Imam Bukhari and Muslim. It means, the both of 2 Imams trusted the sanad line track “..from Hisyah from Urwah from Aisha..”. In the Bukhari’s sanad line-track was mentioned that there were 4(four) of Hisyam’s students who narrated the Aisha’s hadith directly from Hisyam. Those were Ali bin Mushir al-Kufi, Abu Usamah, Sufyan ats-Tsauri, dan Wuhaib bin Khalid al-Basri (see: al-Bukhâri, 2004: page 456/no. 3894 dan 3896, and page 622/no. 5133 dan 5134). Therefore, it was a distant possibility that four students of Hisyam would narrate, if their teacher was senile or disturbed his memory.
Imam Muslim in his Shahih book also had 2 other sanad lane track beside Hisyam bin Urwah’s lane-from Uwah bin Zubair- from Aishah. Those were, first from sanad line from Ma’mar-from Az Zuhri- from Urwah ibn Zubair. Second, from the lane of al-A’masy-from Ibrahim an-Nakha’i- from Al Aswad from Aisha (‘Abd al-Bâqi, 2002: juz IX, page 176-178). From the both two lanes, it means who heard from Urwah Bin Zubair not only Hisyam but also Az Zuhri, and who heard from Aisyah were not only Urwah, but Al Aswad, too. Adz-Dzahabi (d. 784 H/1383 M) himself in Mîzân al-I’tidâl, although mentioned several critics of the scholar (ulamas) to Hisham, also praised his ability to memorize (1995: juz VII, hlm. 85-86).
The second argument, is the problem of data contradiction which available in the hadith books and history. In some hadith narrations, it was mentioned 6 and 7 years old. While in the narrative history, there were so many data which indicated that Aisha was older than that. It was indicated that she was 12 years old, 15 years old, or probably there had been another indication that she got married on 17 and 18 years old. The historical data which had been mentioned by Ibn Katsir (d. 774 H/1373 M), ad-Dzahabi, and Ibn Hajar al-‘Asqallani for example, said that Aisha’s age at that time were 10 years younger than her elder sister, Asma bint Abi Bakr ra. If Asma passed away in 73 H when she was 100 years old as mentioned in those sources, it means that during the Hijrah time, Aswa was 27 years old. During the Hijrah, then Aisha was 17 years old, namely the age of Aisha married and coexisted with Prophet Muhammad PBUH.
The third argument is that the contents of hadith texts on Aisha’s marriage in her very young age are contradictory with the concept of adulthood which become a main capacity that are required from somebody to become subject of law. The concept had been firmed in several Quranic verses and Prophet’s hadith texts. In some of the hadith texts, it was mentioned that Prophet rejected a male companion whose age below 15 years old to go to war. While Aisha in several hadith narrations and historical records, involved in Badr and Uhud war which happened in the early history of Hijrah (move) of muslim to Medina.
Through those three arguments, Shanavas assumed that story of Aisha who married in her very young age was unfounded myths, so that it should not be trusted. She rejected those hadiths and the possibility of the occurance of the wedding that happened in Aisha’s children age with the Prophet PBUH who become the role model, because as long as he understand Islam didn’t permit the early age marriage at att. Of course, there are some rebuttal and critics which addressed to Shanavas and Syafi’I Antonio regarding those arguments. Among the written rebuttal which had been widespread on the internet, that said by Syekh Gibril F. Haddad and among Indonesian author which had been raised by Asep Sobari, Lc. The general rebuttals, providing the more valid data according to the sanad method, so that when the contradiction was indicated, so that it should be taken the most valid one, namely narration which said that Aisha of course had got married when she was 6 or 7 years old.
Surely, the hadith texts were noted in the book Sahih Bukhari and Sahih Muslim, several other hadith books, and historical sources. So, it can be said the issues had been created and widespread by the orientalist as mentioned by Antonio. But the hadith and historical sources also recorded some notes which can indicated many things, so that rejections on the hadith texts as said by Shanavas and Antonio can be understandably. But surely in this mpyes, there some dimensions that appeared from the marriage of Aisha with the Prophet PBUH. Those are cultural, social, even political dimension and also the revelational dimension. All of the dimensions, especially the sacred revealed text, no longer present exactly as the continuing contexts, or at least very different , so that the understanding of the text will be also different. Here is the space on how then the ulama use the Ushul Fiqh principles to explore the meaning and lessons from the such Aisha hadith texts.
Interpreting the Hadith of Aisha
If we refer to comment of Imam Nawawi (d. 676 H/1277 M) on Sahih Muslim for example, that there are many various opinions of the ulamas (Islamic scholars) although generally they allow the marriage in a very young age under several requirements. But, on the issue about who have the right to do that, how, when, and whether there will be the rights on the dissolution of marriage when the bride had been adult, there were very strong disagreements. Imam Syafi’i (d. 204 H) himself suggested that the marriage should be done when the bride and groom had been mature. This suggestion, according to Imam Nawawi are not contradictory with the such hadith texts on Aisha, because the marriage in young age are allowed if it can ensure the real benefit to both bride and grooms, Because of worry with the guarantee of the benefit, Imam Syafi’i recommended that the marriage should be done in their adult age. (‘Abd al-Bâqi, 2002: juz IX, hlm. 176-178).
The debated aspects were also the rights of the bride who had been married by their parents when she was very young, whether she has rights to cancel the marriage when she reached adult age. Some of them said that she has right, because marriage is an individual right which attached to the person (who marry), not attached to the parents. So that, if a young girl was married by her parents/guardian (wali), when she reached adulthood she has right to cancel the marriage through fasakh process. Whereas another ulama said that there will be no right to do fasakh, as long as the early age marriage done in accordance with the terms and conditions. Regarding the definition of ‘young age’, some ulamas (Islamic scholars) have different opinion. Imam Abu Hanifah (d. 150 H) perceived that under 18 years old for men and under 17 years old for women, while Imam Syafi’i said under 15 years old for both men and women. (Kharofa, 2004: page 57-58).
If the majority of ulama still allowed early age or young age marriage, based on the hadith text on Aisha, with several terms and conditions, some previous salaf ulamas precisely prohibited that. This kind of views were conveyed by early generation the Ulama of Fiqh (Islamic jurisprudence scholar) like Utsman al-Batti (d. 143 H/), Ibn Syubrumah (d. 144 H/) and Abu Bakr al-Ashamm (d. 225 H/840 M). Regarding to the hadith on Aisha who married in her very young age, Ibnu Syubrumah for example believed that in only can be applied to Prophet Muhammad PBUH, but not for his followers. Therefore every marriage still requires to be done when somebody had reached adult age. These kind of perspectives which then used as the inspiration of codifying the Family Law in the majority of muslim world.(Muhammad, 2001: 71).
Therefore, as had been mentioned in first part of this article , that the trend of Modern Family Law in majority of muslim world give the restriction or limitation of adult age on when somebody are perceived capable to get marry. In this trend, several people rejected the hadith on Aisha under several arguments, while another people accepted this as the heritage and law sources. Not a few who received it and interpreted it in the contemporary contexts. In this kind of interpretation, some requirements appear. Such as the benefit for the both couple (bride and grooms), mentally and physically maturity, permission of the parents, even though who require for the sake of the mission (dakwah) when allowing the early age marriage. If the such requirements can’t be fulfilled, so the early age marriage is prohibited. (Binti, 2008: page 69-85).
In the efforts of interpretation of this issue, which must be prioritized is to ensure the marriage principles will become the basic discussion of the such controversial issues. Therefore, the early age marriage issues can’t be partially separated from the basic teaching of Islam. The principles which had been purposed are maturity and adulthood (QS 4: 6 dan 5: 152), the willingness (consent) of the both parties /bride and groom (QS 2: 233), the benefit of marriage which are popular called with sakinah, mawaddah, wa rahmah (QS 30: 21), and mu’asyarah bil ma’ruf (mutual cooperation and well treatment) ( QS 4: 19).
Based on these principles, women must become subject in marriage not merely objects of men’s will, whether her spouse candidate (groom) or her own wali/guardian. Women’s voice and expectation must be heard. In some cases regarding women’s rights, Prophet Muhammad PBUH often hears their voices and supports them. As the Prophet heard the voice of Khansa Binti Khidam who was enforced to get marry and supported her to be free from the enforcement. Prophet Muhammad PBUH also heard and fulfilled the women’s demand who rejected the beating which had been done by their husbands. (Abdul Kodir, 2007: page 49-90).
By becoming the subject, women who want to marry must prepare herself as same as men. Though this preparation, furthermore if in the recent contexts the preparation will also touch the dimension of education and reproductive health, automatically will make the early age marriage will not become a conscious choice of a woman and man. The early age marriage must be done because of enforcement or compulsion. By this ‘conscious choice’ as suggested by Imam Syafi’I above, will not be a contradictory at all with the hadith of Aisha as mentioned above. Wallahu a’lam. Allah knows best! {}
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