Headings
Introduction- the Bane of Child Abuse
The evils of child marriage should not be something that we have to debate in the first place. I hope that most Muslims agree with me here. But for those who do not, these are the reasons in short in my own words and an approach to how the Bible deals with the issue.
Pre-pubertal sexual acts can not be consensual because a child cannot consent to that which they do not desire nor comprehend. Thus every such act is rape and assault. In the initial years after the commencement, the child still does not have libido, and this is especially true of the girl child, whose interests are still childish pursuits. Thus again at this age sexual acts cannot be consensual because she still does not desire not even at this stage comprehend its implications.
For example, a child at this age does not desire her own family, the propagation of her dynasty, nor does it comprehend what healthy parenting and nurturing of offspring entails. At the very least, this violates the Golden Rule, “do unto others what you would have them do to you”. To spell it out, if you were a child you would not want that. Assault can lead to severe post-traumatic psychological problems in mature adults, so how much more in the developing brain of the child. Finally, there is the possibility of severe injury with significant immediate as well as long-term consequences to the health in under-age sex.
It is sometimes said that the Bible does not itself specify a particular age of marriage. However in all its teachings on morality, and age of marriage being no exception, the Bible gives principles, not particulars. In contrast, the Qur’an, and Islam in general is a religion of particular prescriptive practise. Thus the same principles do not apply to their interpretation when it comes to practice. If there is an age at which marriage would be abusive and exploitative, then a Christian charity would forbid its practise among believers. The fact that there is no explicit prohibition against slavery is another example. The important thing is not to allow ourselves to be measured by their standards. The general and universal command to self-effacing love is the greatest Biblical teaching and everything is subsumed under it. Islam has nothing like it, they have ad hoc morality.
What does the Qur’an itself say?
“O Prophet, when you (and the believers) divorce women, divorce them for their prescribed waiting-period and count the waiting-period accurately (…) And if you are in doubt about those of your women who have despaired of menstruation, (you should know that) their waiting period is three months, and the same applies to those who have not menstruated as yet.” (Q 65:1-4)
The reason for the waiting period is to make sure that the woman isn’t pregnant. If there was any doubt, surah 33:49 makes it clear that the waiting period is only related to women who have been “touched”.
In the following verse is not certain from the language as to whether the advice is to marry the females from among the orphan children themselves or to marry women so that the orphan children can be better looked after. Likely these, as in the next verse, are orphaned relatives, hence the responsibility for their care:
“If ye fear that ye shall not be able to deal justly with the orphans girls (l-yatama), then marry what seems suitable to you of the women (l-nisai), two or three or four; but if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess, that will be more suitable, to prevent you from doing injustice.” (Q 4:3)
We can see here that orphan girls might be considered of marriageable age even prior to gaining right judgement, which indicates immaturity. As far as I’m aware the word for sex and marriage n-k-h is the same in Arabic, as in the “marital act”. This is similar to what we see in other ancient languages, where sex and marriage are synonymous, there is no word for sex apart from marriage. There is a word that refers purely to marriage which is zawaj.
“Test well the orphans (l-yatama), until they reach (balaghu) the age of marrying (l-nikaha); then, if you perceive in them right judgment, deliver to them their property; consume it not wastefully and hastily ere they are grown. If any man is rich, let him be abstinent; if poor, let him consume in reason. And when you deliver to them their property, take witnesses over them; God suffices for a reckoner.” (Q 4:6)
We can see by comparing with 4:127 that there is a theme of giving them “what is prescribed for them”, which is presumably their property of which the person is the caretaker.
They will ask thee for a pronouncement concerning women. Say: ‘God pronounces to you concerning them, and what is recited to you in the Book concerning the orphan women (yatama l-nasai) to whom you give not what is prescribed for them, and yet desire to marry them, and the oppressed children, and that you secure justice for orphans. Whatever good you do, God knows of it.’ (Q 4:127)
What do the Hadith say?
“It was narrated from ‘Abdullah bin Buraidah that his father said: “Abu Bakr and ‘Umar, may Allah be pleased with them, proposed marriage to Fatimah but the Messenger of Allah said: ‘She is young.’ Then ‘Ali proposed marriage to her and he married her to him.”
أَخْبَرَنَا الْحُسَيْنُ بْنُ حُرَيْثٍ، قَالَ حَدَّثَنَا الْفَضْلُ بْنُ مُوسَى، عَنِ الْحُسَيْنِ بْنِ وَاقِدٍ، عَنْ عَبْدِ اللَّهِ بْنِ بُرَيْدَةَ، عَنْ أَبِيهِ، قَالَ خَطَبَ أَبُو بَكْرٍ وَعُمَرُ رضى الله عنهما فَاطِمَةَ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم “ إِنَّهَا صَغِيرَةٌ ” . فَخَطَبَهَا عَلِيٌّ فَزَوَّجَهَا مِنْهُ .
Sunan an-Nasa’i 3221. Grade: Sahih (Darussalam)
And the age of Fatimah was 15 years old, while that of Abu Bakr was more than fifty ,and Omar was in the late 40s, as for Ali he was in his early 20s.
The following is from Bukhari’s chapter introduction for chapter 39, Book an-Nikkah. It appears immediately before the first and only hadith of Chapter 39, Sahih Bukhari 7:62:64 and can be seen in the Dar-us-Salam print edition, volume 7.
Giving one’s young children in marriage (is permissible) by virtue of the Statement of Allah: ‘And for those who have courses’ (i.e. they are still immature) (Sura 65:4) And the ‘Iddat [waiting period for a woman before lawful sexual intercourse] for the girl before puberty is three months (in the above Verse). Bukhari (Chapter 39)
The following is from Fath al-Bari, the most authoritative commentary on Sahih Al-Bukhari.
واللائي لم يحضن , فجعل عدتها ثلاثة أشهر قبل البلوغ ) أي فدل على أن نكاحها قبل البلوغ جائز
“and those who never had menses, their prescribed period is three months before puberty, which indicates that giving her into marriage before puberty is permissible.” Fath Al-Bari by Ibn Hajar
Prepubescent slaves:
This is from QuranX: https://quranx.com/Hadith/Malik/USC-MSA/Book-29/Hadith-108/
Yahya related to me from Malik that he had heard that the Messenger of Allah, may Allah bless him and grant him peace, visited Umm Salama while she was in mourning for Abu Salama and she had put aloes on her eyes. He said, “What is this, Umm Salama?” She said, “It is only aloes, Messenger of Allah.” He said, “Put it on at night and wipe it off in the daytime.”
Malik said, “The mourning of a young girl who has not yet had a menstrual period takes the same form as the mourning of one who has had a period. She avoids what a mature woman avoids if her husband dies.”
Malik said, “A slave-girl mourns her husband when he dies for two months and five nights like her idda.
Malik said, “An umm walad does not have to mourn when her master dies, and a slave-girl does not have to mourn when her master dies. Mourning is for those with husbands.” Al-Muwatta 29:108
Examples of fatwas
Fatwas are decisions given by local mullahs on issues pertaining to the populace
A fatwa collection issued by the Ministry of Religious Endowments and Islamic Affairs in Kuwait, included the following fatwa:
هل يصح عقد الزواج على الرضيعة ويجوز التمتع بها بالتقبيل وغيره -سوى الجماع- بما لا يضرها؟
الجواب: إذا كان العقد مستوفيًا لشروطه الشرعية، فإنها تصبح به زوجته من كل الوجوه، ويحل له منها النظر إليها ولمسها وتقبيلها، ولا يحل له جماعها حتى تطيقه من غير ضرر، فإذا أطاقته حل له منها ذلك أيضًا.
مجموعة الفتاوى الشرعية، فتوى رقم 6058
Question: Is it allowed to marry a suckling baby and is it allowed to pleasure myself with her by kissing her and doing other unharmful acts excluding sex?
Answer: If the marriage contract fulfills the Islamic legal requirements then she’s considered to be his wife in all respects and he’s allowed to look at her, touch her and kiss her. He’s not allowed to have sex with her until she can endure sex without causing her any harm.
Majmu’at Al-Fatawa Al-Shar’iyya, Fatwa no. 6058
What do the Tafasir say?
Commentaries: https://quranx.com/tafsirs/65.4
What does the fikh say?
This is Imam an-Nawawi who is a major scholar for Islam. On this page he comments on the four schools of fiqh and how they all say that sex with prepubescents is acceptable: https://al-maktaba.org/book/1711/2085?fbclid=IwAR0cdZtUIM4T9SQI7fj5KDPJxb77TMbqrufBOGfvt5vvWmS3P_LM5tbuNnA.
ِAl-Khatib Al-Sharbini (d.1570 ِAD), who was a scholar from the Shafi’i legal school, said in his commentary on “Al-Minhaj” by Al-Nawawi:
وَيَحْرُمُ وَطْءُ مَنْ لَا تَحْتَمِلُ الْوَطْءَ لِصِغَرٍ أَوْ جُنُونٍ أَوْ مَرَضٍ أَوْ هُزَالٍ أَوْ نَحْوِ ذَلِكَ لِتَضَرُّرِهَا بِهِ، وَتُمْهَلُ حَتَّى تُطِيقَ، فَلَوْ سُلِّمَتْ لَهُ صَغِيرَةً لَا تُوطَأُ لَمْ يَلْزَمْهُ تَسَلُّمُهَا؛ لِأَنَّهُ نَكَحَ لِلِاسْتِمْتَاعِ لَا لِلْحَضَانَةِ، وَإِذَا تَسَلَّمَهَا لَمْ يَلْزَمْهُ تَسْلِيمُ الْمَهْرِ كَالنَّفَقَةِ
مغني المحتاج للشربيني (ت 977هـ)، دار الكتب العلمية، ج4 ص373
It’s forbidden to have sex with someone who can’t endure sex due to young age, illness or thinness because she would be harmed. She should wait until she can endure it. If a wife was handed over to her husband while she’s a minor who can’t endure sex then the husband isn’t obliged to take her because he married her for pleasure and not for custody. If he takes her then he’s not obliged to give her the dowry.
Mughni Al-Muhtaj by Al-Sharbini (d.1570 AD), published by Dar Al-Kutub Al-‘ilmiyyah, vol.4 p.373
Mukhtasar Khalil is a major book in the Maliki legal school which is one of the four major legal schools. Al-Kharashi (d.1690) said in his commentary on this book:
وقوله وأمكن وطؤها أي بلا حد سن بل يختلف باختلاف الأشخاص ولا يشترط الاحتلام فيها كالرجل؛ لأن من أطاقت الوطء يحصل بها للرجل كمال اللذة
شرح الخرشي على مختصر خليل، المطبعة الكبرى الأميرية، المكتبة الشاملة، ج3 ص258
“It’s possible to have sex with her” meaning there’s no specific age. Every person is different. And it’s not required for her to reach puberty because a man can receive full pleasure if the female can endure sex.
Al-Kharashi, Sharh Al-Kharashi, published by Al-Matba’ah Al-Kubra, Al-Maktabah Al-Shamilah, vol.3 p.258