By : Dr. Nur Rofiah, Bil. Uzm. and Iffatul Umniati Lc, MA.
To marry a girl-child in her very young age also means had been customized them to be treated as adult. Having sexual intercourse is one of its consequences. Therefore, a child (especially a girl-child) which had been married in her young age, means that she will not only having sexual course in an incorrect time but also to make her pregnant, deliver a baby and breastfeed the kids which only should done by adults.
A girl-child’s reproductive organs in her children age had not been matured comprehensively, so it had not been ready to be functioned optimally. When it is enforced, so a girl-child will have some disturbing situation such as feeling pain during she have a sexual intercourse because of her narrow hips, as well as the killing disease that occurred. They also had not been ready to play a new role and duty as a wife and a mother mentally. A child marriage enforced a girl-child to do some actions that should only done by adults people. The children are supposed to have more time to play and to learn without any burden.
Children Age Marriage in the Fiqh Context
The muslim society in many parts of the world has a tradition to marry their children in the very young age. Some communities in Indonesia has a tradition to search a couple for their children, since they are still babies although they had not been considered to live as a human being. Of course according to the fiqh rules, suddenly they come in to baligh (puberty), they have rights whether to accept or to reject the marriage. But the unequal power relation, between the children in their puberty age and their parents as well as between the parents in law candidates, make the children’s opinion are often unheard. In addition to that, actually the children themselves actually had not been considered yet about the meaning of marriage with the rights and responsibilities of husband and wife as its consequences.
The children age marriage in their young age that is commonly practiced in muslim society, actually a consequence or impact of the Fiqh opinion that in general considered those kind of marriages are legal. In the classical text-book, actually it was not mentioned how old is the limit of minimum age for somebody to marry. Mushtafa Al-Siba’i in Al-Mar’ah Baina al-Fiqh wa al-Qanun explained 3 kinds of ulama views on child marriage.
The first opinion, allow the children age marriage for boys and girls at all. They refer to QS. Ath-Thalaq (65) : as mentioned below :
“And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah . That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah – He will make for him a way out. (2) And will provide for him from where he does not expect. And whoever relies upon Allah – then He is sufficient for him. Indeed, Allah will accomplish His purpose. Allah has already set for everything a [decreed] extent. “(3)
Another reason is the history on the practice of marriage performed by Prophet Muhammad, PBUH with Hazrat Aishah when she was 9 years old, and another practices of marrying young girls that had been performed by the Shahabat (Prophet’s companions).
The second opinion, to differensiate between children age marriage for boys and girls. Ibn Hazm Al-Zhahiri, for example only allow children marriage for the girl-child, because according to him the existing text arguments only about girl-child. While to make the analogy a young boy and a young girl acoording to him is not allowed.
The third opinion, prohibiting children age marriage for both boys and girls totally. A guardian can’t marry somebody with a child, whether she is a boy or a girl. The children age marriage is isnvalid (illegal) and doesn’t have any law consequences at all. This is opinion from Ibn Syubrumah, Abu Bakar al-Asham and Utsman Al-Batty. They refer to QS. al-Nisa/4:6 as mentioned below :
It means :
“And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice].”
The verse mentioned above explained that age to get marry is the end of childhood. It means before they reach the baligh (puberty age), they should not be a marriage happened. If not, the meaning of limitation here is not exist. In addition to that, the guardianship of a child has a purpose to ensure and to realize family well-being (maslahah), so that it is not allowed to practice a guardianship for the things which not contained the well-being situation, furthermore to the thing which will make them in a bad situation (madharat). The guardianship for children in a marriage will not benefit them, because the fulfillment of sexual needs and to create future generation as a purpose of marriage had not been owned and felts by young children.
The narration on the marriage of Prophet’s Muhammad PBUH with Aishah, actually is a part of thing which is specialized for the Prophet only. In addition to that, those kind of marriage and the similar marriage performed by his companions had been done before the command of asking permission to a girl or asking for a consent from a widow to get married revealed yet. According to Musthafa As-Siba’i, no doubt that the lesson learned from the purpose of marriage strengthen this opinion because that there is no benefit (maslahah) in marrying a young children; eventhough it will create some disadvantages (madharat).
The Age of Marriage According to the Quranic Exegesis (Tafsir)
The Quran doesn’t specifically mention at what age somebody should get marry. But, there are 2 (two) verses that is often associated with the marriage age as seen in the previous Fiqh discourse. The first is Surah Ath-Thalaq/ 5 : 4
It means :
” And those who no longer expect menstruation among your women – if you doubt, then their period is three months, and [also for] those who have not menstruated. And for those who are pregnant, their term is until they give birth. And whoever fears Allah – He will make for him of his matter ease.”
The previous text was revealed related with the question which had been raised by the companion of the Prophet regarding the iddah (waiting periods) of the women who no longer expect her menstruation; because the text which had been revealed before (Al Baqarah /2 : 228) only explained about the waiting period for the women who still experience menstrual period. The mufassir (Quranic interpreters) had different opinions in explaining term ‘’lam yahidhna” as the key words of the child marriage issues. Ath Thabary (224-310 H) in the Quranic Exegesis books (Tafsir Book) entitled Jami’ al-Bayan fi Ta’wil al-Qur’an; translated the word with ”a girl who had never experienced menstruation because she is still very young”. The similar explanation raised by Jalaluddin al-Mahalli and as-Suyuthi in Tafsir al-Jalalain, Ibnu Katsir (700-774 H) in Tafsir al-Qur’an al-Adhim, and Al-Alusy in the book Ruh al-Ma’ani.
Another different explanation was raised by Abu Hayyan Muhammad bin Yusuf in Tafsir al-Bahr al-Muhith who interpreted ”wallaa-i yaisna min al-mahiidhi min nisaa-ikum” with the girl who had not experienced menstruation because she is still very young and the women who never experience menstruation although she had been mature. The similar explanation also said by Abdurahman bin Nashir bin as-Sa’di in Taisiru al-Karim ar-Rahman fi Tafsir al-Kalam al-Manan, Ibnu Asyur dalam At-Tahrir wa at-Tanwir, Abu Bakar Al-Jazairi dalam Aysaru at-Tafasir.
The interpreters generally do not linkage the explanation of the keywords meaning with the issue whether it is allowed or not to marry a child. On the contrary, in the Fiqh to give meaning of these keywords is quite determining. When this world is translated with ” a girl who never experienced menstruation” so it can be understood as a justification to child marriage under the reason if the iddah (waiting period) of the young girl who had not been menstruated is regulated in the Quran, so it means that to marry a girl-child is allowed. On the contrary, if this word is translated with ’an adult woman who never experienced the mentruation at all’ , so the interpretation of the text can not be used to allow marrying a girl-child in the early-children age or before she got her menstruation. Unfortunately, the second opinion is less popular rather than the first opinion.
The second verse which is associated with the marriage age is QS. An Nisa’/4 : 6 as following :
It means :
“And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them sound judgement, release their property to them. And do not consume it excessively and quickly, [anticipating] that they will grow up. And whoever, [when acting as guardian], is self-sufficient should refrain [from taking a fee]; and whoever is poor – let him take according to what is acceptable. Then when you release their property to them, bring witnesses upon them. And sufficient is Allah as Accountant.” (QS. An Nisa’/4 :6)
The previous verse mentioned on when a wali (guardian) should be ready to give the authorities for the orphans to take care of themselves, which can be defined at the time they (they orphans) had reached minimum age to get marry (balaghuu al-nikah). The mufassir (interpreters) had different opinions regarding these issues. According to Ath Thabary, this word means after getting ’wet dream’. Jalaluddin as-Mahalli and as-Suyuthi interpreted it as after getting wet dream or had reached 15 years old as similar as Imam Shafii’s opinion. Ibnu Katsir also had the same opinion, that if somebody had got wet dream or had reached 15 years old. Al-Alusy in Ruh Al Ma’any prefer to the opinion thad said that minimum age of marriage is 18 years old for the free people is, and 17 years old for the slaves. Abu Hayyan Muhammad bin Yusuf in Tafsir al-Bahr al-Muhith explained the opinion of An-Nakhai and Abu Hanifah which said that the orphans must be waited until reaching 25 years old.
The opinions of the mufassir (interpreters) which had been mentioned above is interesting to be considered, because the mentioned minimum age of a (male or female) orphans that were perceived to be able their own properties. The Quran mentioned that they should be tested whether they can do that or not when they reached the age of marriage (balaghu al-nikah) and the mufassirs mentioned 15, 17, 18, up to 25 years old. Unfortutaety, these opinions were never used as basic arguments to decide the minimum age of marriage in the Fiqh (Islamic Jurisprudence), whereas maintaining the fameily and household matters such as the alimony, the number and distance of children in the family in order to raise the children in a qualified situation, and the fulfilment of family members need either phisically, mentally, and spiritually in order to feel the sakinah, mawaddah wa rahmah (peace, love and compassion) in the family during the whole marriage life cycle is more interesting rather than just to manage the inheritance property which belongs to the orphans.
Affirming the Prohibition of Early Age Marriage
One of arguments raised by the ulamas (Islamic scholars) about the possibility of child marriage is the rules in the Quran regarding the iddah (waiting period) of a woman who have not experienced mentruation yet. This kind of reason is interesting to think about because the Quranic verses not only contained ideal message or something that will be applied all the time. But also contained contextual message that is purposed to give the practical guide to solve the concrete problem that happened during that time.
The question is whether the rules in the Quran regarding the iddah (waiting period) of a woman who have not experienced mentruation showed that the Quran idealize the practice of marrying a girl befor she got her menstruation ; or just giving a practical guidance to solve the the problem which happened at that time? Because during that time, there are so many girl-children had got married, experienced the sexual intercouse and became a divorcee before they experienced their first menstrual period (menarche), without any purpose that these kind of marriage is always happen? The similar questions can be raised to the facts that there are many verses in the Quran which regulated the slavery matters? Does it mean that the Quran idealize a society with slavery, so that this must be regulated? Or the regulation of slaverys was only a practical guidance to solve the slavery problems which was existed at that time, without any purpose to perpetuate this situation forever?
The existing of so many verses that regulated slavery which no one expressly prohibited the practices of course it can not be understood as a permission to the slavery, even though concluding that ideal muslim society have a slavery system. The regulation of the slavery in the Quran only showed that the slavery is a real problem in ths society that need practical guidance to solve it without purpose to give permission to the slave each other person. Similarly the regulation on the iddah (waiting period) of a woman who have not experienced mentruation yet. If the word ”alla-i lam yahisna min al-mahidl” should be translated as a girl-child who never experience menstruation, so that terms only means that at that time a girl-child often married to a man by their parents, then experienced sexual intercourse, then become a divorcee before they experienced their menstuation, it should not be understood as a permission to do so.
The Quran in surah An Nisa/4 : 21 explained that a marriage is a commitment that should be maintained well and can not be mocked; therefore it is called with mitsaqan ghalizha ( a solid agreement). Allah mentioned this words only in three contexts. Another two contexts were about the solid agreement between Allah the Almighty with his Messengers (QS. Al-Ahzab/33 : 7) and the solid agreement between Prophet Musa (Moses) with his people (QS. An Nisa’/4: 154). To have the such solid commitment, of course the physical and mental readiness of the bride and groom is needed and this is signed by the enough age to marry.
In Fiqh (Islamic Jurisprudence), the maturity of a child will be explained through the baligh (reaching puberty) concept. The baligh or puberty of a girl is signed by having menstruation (haidl); while for a boy it is signed by having wet dream (ihtilam). A child who had reach the puberty (baligh) is seen as an adult person, so he/she can be burdened with religious responsibility (or called as mukallaf). The menstruation and wet dream my be enough to use as indicators of physical maturity so that somebody can be burdened with prayer, alms, fasting, and pilgrimage because what should be done regarding those religious obligation do not required complete physical maturity; even the girl or boy who haven’t experienced menstruation and wet dream they can do it. Even though, the menstruation and wet dream are not enough as a sign of maturity (adulthood) to enter the marriage life.
Both men and women need the maturity (baligh) either mentally and socially to marry.
Marriage is not merely related to sexual intercourse, but also the birth of the children with the rights and responsibilities implication that should be prepared well by the parents. Child marriage must be prevented, because it will not only created the disadvantages (mudharat) by the children, especially the girl-child either physically and psycologically, but also disadvantages for the society because there will be a generation which will grow not in the sakinah, mawaddah, warahmah (peace, love , and compassionate situation), which required the well fulfilment of physical and psychological needs