We have seen that from time to time Religious beliefs and their practice had changed and new Philosophy was added. Human natural Rights and the demand of society play a critical role in any major Religion amendment. eg. witch-hunting in Europe and UK, untouchability in India.
WHO IS MUSLIM
Those who call themselves ‘Muslim’ seldom understand the meaning of this Arabic word. In English, ‘Muslim’ literally means ‘Submission’. A ‘Muslim’ is a person whose ‘Submission’ to the edicts as revealed to Moses in the Torah, David in the Psalms, Jesus in the Gospels and Muhammad in the Quran, is an important article of his/her faith:[1] ''We believe in Allah and that which has been sent down to us and that which has been sent down to Abraham, Ishmael, Isaac, Jacob, and to the offspring of the twelve sons of Jacob, and that which has been given to Moses and Jesus, and that which has been given to the Prophets from their Lord. We make no distinction between any of them, and to Him we have submitted’' (Quran 2:136)
Concept of Marriage under Islam
The concept of marriage also varies – it can be formal or informal, governed by civil law, common law or religious law, or simply be a customary practice. In many parts of the world, for example, marriages may be recognized by the community without legal registration, marked simply with a ceremony. In countries where polygamous marriage is not permitted by civil law, second and third marriages often take place without formal registration.
Hedaya1 - Marriage is a legal process by which the several process and procreation and legitimation of children between man and women is perfectly lawful and valid.
Ameer Ali 2:- Marriage is an organization for the protection of the society. This is made to protect the society from foulness and unchestity.
According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, marriage in Islam is recommendatory, however in certain individuals it becomes Wajib or obligatory. Imam Shafi considers it to Nafl or Mubah (preferable)
Nikah in pre-Islamic Arabia meant different forms of sex relationship between a man and a woman established on certain terms, in pre Islamic days,women were treated as chattels, and were not given any right of inheritance and were absolutely dependent. it was prophet Mohammad who brought about a complete change in the position of women.
The most common and recognized types of marriage at this time consisted of: marriage by agreement, marriage by capture, marriage by mahr, marriage by inheritance and "Mot'a" or temporary marriage. In Mesopotamia, marriages were generally monogamous, except among royalty, who would have harems consisting of wives and concubines. The Sasanian society followed Zoroastrianism, which viewed women to be possessions in marriage, although consent was required in both marriage and divorce.
footnote
1- Hedaya P. 25,205
2- Bailie P. 4
3- Mohammadan law by B.P BHATNAGAR
http://14.139.60.114:8080/jspui/bitstream/123456789/3204/1/024_1966_Mohammedan%20Law.pdf
Capacity to marriage under Islam
The word “zawj” is used in the Qur’an to mean a pair or a mate. In general it usage refers to marriage. The general purpose of marriage is that the sexes can provide company to one another, love to one another, procreate children and live in peace and tranquility to the commandments of Allah. Marriage serves as a means to emotional and sexual gratification and as a means of tension reduction.
Marriage is “mithaq” – a solemn covenant (agreement). It is not a matter which can be taken lightly. It should be entered into with total commitment and full knowledge of what it involves.. One should be mature enough to understand the demands of marriage so that the union can be a lasting one. For a marriage to be valid certain conditions must be met.
Consent of both parties.
” Mahr” a gift from the groom to his bride.
Witnesses- 2 males.
bride’s father or brother to giving a marriage.
Both the parties should have attained puberty or the marriage contract should be entered by the guardian on behalf of the party concerned.
Now the question that rise for this concept is ''What is the age of puberty''?
Well the answer differ from place to place and Nation to Nation even under same community it depend upon the individuals,
PROBLEM FACED BY WOMENS IN ISLAM
Guardian has power marry there child without his or her consent
Child marriage is driven by gender inequality and the belief that girls are somehow inferior to boys. Some families marry off their daughters in exchange for money or a house. This has led to the perception that girls are commodities in a deal. A girl’s beauty is considered to be important in determining how high her bride price is. Naval string marriages involve a girl being “pledged” to marry a cousin or distant relative when she is born through a symbolic cutting of the umbilical cord.
Quran 4:34: "Men are in charge of women, because Allah hath made one of them to excel the other, and because they spend of their property (for the support of women) so good women are obedient, guarding in secret that which Allah hath guarded........."176 Evaluating above verse alone it is found that women have been portrayed as obedient creatures. They have been connoted as powerless; men possess all authority over them. They have been called weak.
CONDITION IN INDIA
A report of national survey, 43 round (1987-88) speaks about Muslim illiteracy in rural areas as 76.1% and 59.5% in urban areas which is highest among all other religious sects of India. In 2005, the Sachar committee integrated by former Prime Minister Mr. ManMohan Singh to prepare report on social, economic and educational status of Muslims in India. I discovered something as a result of research , Sachar committee describing educational condition of Muslim women are -
(a) Muslim girls have highest dropout.
(b) Education attainment status of Muslims is approximately similar to SCs/STs.
(c) Despite of various schemes for raising the educational standard of Muslim women, they have failed to read out the benefits. Report cites an increase upto 65% in enrolment of Muslims in schools.
(d) Marginal share of Muslims in Post-Graduation courses. Muslims still rely on Madarsas and Maktabs. As per report, Muslim women are the most backward in education. Madarsa and Maktabs are left to be the only refuge for their education. Bottlenecks of formal education need reform to provide education to weaker sects at affordable price. In addition to this, upgradation of Madrasas and Maktabs is needed for ensuring better learning conditions especially for those who can't afford formal education is schools
.As per the 2016 National Family Health Survey (NFHS)-4, 27 per cent of girls are married before they turn 18 and 31 per cent of married Indian women give birth by the age of 18. There are multiple reasons why increasing the age of marriage is a good move.
The differing legal standards on the age by which men and women can marry “contributes to the stereotype that wives must be younger than their husbands,” argues the Law Commission in a 2018 consultation paper on reform in family law. However, the Commission had back then recommended the minimum age of marriage for both genders be set at 18.
The largest proportion of child marriages in the country take place in Rajasthan, followed next by Andhra Pradesh.
The Supreme Court’s 2018 judgment on the marriage of Hadiya nee Akhila and Safin Jahan, .
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Read more at: http://timesofindia.indiatimes.com/articleshow/71072845.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
The Madras High Court has held that the act prohibiting child marriages was not against the Muslim Personal Law and would prevail over the latter as it had been enacted for the welfare of girl children.
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Foot Note-;
1.Ministry of Women and Child Development, An Analytical Study of Education of Muslim Women and Girls in India Available at
http://www.jeywin.com/wp-content/uploads/2009/12/AnAnalytical-Study-of-Education-of-Muslim-Women-and-Girls-in-India.pdf (9 Apr,2018) 213 Shodhganga, A brief History of Madarasas
3. The Holy Qur'an, Surah-An-Nisa [4:34], (1934), https://quran.com/4/34?translations=101,19,84,22,18,21,95,20,17
Chapter (74) sūrat l-mudathir (The One Enveloped), in The Holy Qur'an (1934)
PUBERTY AS CAPACITY OF MARRIAGE
I personally consider marriage before 18 years is considered to be a harmful practice because it denies girls the right to the highest attainable standard of general, sexual, and reproductive health, and to a life free from violence . Under-age marriage also constrains evolving physical, emotional, and personal maturity required to safely and successfully transition to adulthood It places restrictions on opportunities in life, such as the right to education. Under-age marriage also restricts women’s ability to fully participate in family, socio-cultural, and civic activities. Collectively, these consequences have major implications for public health. In many low- and middle-income countries, a greater proportion of females than males marry “under-age,” or below the UN legal threshold of 18 years. In 2011, an estimated 720 million women aged 18 years or older were married under-age compared with 156 million boys . The reasons for which the two sexes marry under-age most likely differ and merit appropriate consideration. However, in this review of public health implications, we focus on why girls marry under-age.
Between 2000 and 2011, one in three women aged 20–24 years in the global south (excluding China) were estimated to have married before they reached the age of 18 years (9). In 2010, this was equivalent to nearly 67 million women, with approximately one in nine or 12% marrying as children, before the age of 15 years (9). At the current rate, 39,000 girls are projected to marry under-age age each day, amounting to over 14.2 million girls each year over the next decade
.More than 650 million women and girls alive today were married before their 18th birthday. Twenty-one percent of young women (20-24 years old) around the world were child brides. And while child marriage is most prevalent in low- and middle-income countries, it also takes place in high-income countries.
HEALTH ISSUSE
Early childbearing is associated with high maternal morbidity during pregnancy and labor. An analysis of 312,297 deliveries across 29 countries (including India and Nepal) participating in the WHO Multi-country Survey on Maternal and Newborn Health found that compared with mothers aged 20–24 years, adolescent mothers under 16 years of age had higher risks of cesarean section delivery, eclampsia (seizures which can lead to coma, cerebral hemorrhage, and cardiac arrest), puerperal endometritis (uterine infection), and systemic infections.
Iran
According to the latest available data from 2010, 17% of girls in Iran are married before the age of 18 and 3% are married before the age of 15.
The UN Special Rapporteur on the Situation of Human Rights in Iran reported that about 40,635 marriages of girls under 15 years of age were registered between 2012 and 2013, of which more than 8000 involved men who were at least 10 years older.
According to a member of the Judicial and Legal Commission of the Iranian Parliament, thousands of children get married unofficially without registration, and in many cases, a girl’s actual age is not correctly recorded.
In Iran, child marriage is also driven by:
Poverty: Some families marry off their daughters in exchange for money or a house. This has led to the perception that girls are commodities in a deal. A girl’s beauty is considered to be important in determining how high her bride price is.
Harmful traditional practices: Child marriage can take different forms in Iran. Blood marriages are reportedly still practiced in tribal areas, and involve a girl being married off in order to resolve a feud between two tribes. Naval string marriages involve a girl being “pledged” to marry a cousin or distant relative when she is born through a symbolic cutting of the umbilical cord. Temporary marriages (Sigheh), used to get around Islamic restrictions on sex outside wedlock involving minors, are also common.
Religion: Sharia-based Iranian law states that the legal age for marriage is 13 for girls and 15 for boys, but marriages can still be carried out at a younger age with the consent of fathers and permission from court judges. This has enabled a culture whereby child marriage is considered somewhat socially acceptable.
Iran ratified the Convention on the Rights of the Child in 1994, which sets a minimum age of marriage of 18, but made a reservation to articles and provisions which may be contrary to the Islamic Sharia law. Iran is one of few countries that has not signed or ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
During its 2019 Universal Periodic Review, Iran agreed to review recommendations to raise the minimum age of marriage to 18 years for both boys and girls without exception and eliminate the practice of early and forced marriage.
Morocco recently updated their family law
But there are still traditional rules as well. The case of 16-year-old Amina Filali made headlines in 2012 when she killed herself after being forced to marry her rapist, who evaded prosecution this way. However, her case ultimately led to Morocco repealing the law allowing rapists to avoid prosecution by marrying their victims.
In Egypt,
Puberty has been set as an age for marriage i.e. 14 years. A Mahomedan has an exclusive right to give extra judicial divorce unilaterally in Egypt. A women can only operate the Judicial divorce (Faskh) which takes 8-10 years to get complete. In India Talaq-ul-biddat i.e. triple talaq (irrevocable) is a matter of great concern. Muslim women's right to maintenance is suspended. According to Sharia, husband has only financial obligation to provide deferred part of dower and maintenance (Nafaqa) till Iddat lasts. It is contrary to section-125 of criminal procedure cable, 1973 which requires maintenance to be given even after divorce to indigent wives.189 Authoritative and patriarchal interpretation of Sharia to create deterrence over women to obey Allah's word is wrong and needs to be abolished, both in India and Egypt.
Afghanistan
Birth of a girl child is often taken as a cause of second marriage in Afghanistan. Girls are married at very young age of 13-16 years or in certain cases between 10-12 years. They lack right to choose their life partners, which is a task entrusted to the parents/Guardians only.
Syria
Saba is a Syrian refugee. She shares a small, spare caravan in the Zaatari refugee camp with her four siblings and mother, Izdihar..
She and Izdihar spend their free time advocating against child marriage, a practice that has increased dramatically among Syrian families that have fled the devastating war back home.
Child marriage existed in Syria before to the war, they say, but it was comparatively uncommon. “Girls back in Syria sometimes married young, too, but we see it happening much more frequently here,” said Izdihar. Saba encouraged her friend to delay pregnancy until her body was more mature. But the pressure to have a child was too great. “Three months ago, she was pregnant with twins but had a miscarriage.
The antidote to child marriage, they say, is education.
Saudi Arab
Saudi Arabia is a conservative country, with deep historical, religious and cultural roots. It is the custodian of the two holy mosques. Early marriage is enshrined in religious scriptures, as many claims that it follows the strict interpretation of Shariah that allows girls to marry as soon as they reach puberty.
Despite last month’s decision by the government, the issue is still being debated. Bringing the issue of child marriage to the forefront in both the religious and cultural spheres.
This decision was also not made in isolation. It followed several notable changes in the Kingdom, including allowing women to travel and obtain a passport without the permission of their male guardians. Women are now also allowed to register the birth of their child and apply for marriage or divorce.
Child marriage remains a global concern. It cuts across geographical borders, religions, cultures and class systems. It is a means for many to get out of poverty, to chastise their children, or to cover up for a rape or an illegal pregnancy. This is not just a step in the right direction, as most critics describe it, but a leap forward for this Muslim country. It validates Crown Prince Mohammed bin Salman’s bold plans to modernize the Kingdom and make new laws that will guarantee the rights of women and children.
This is why the decision by the Kingdom was historic. Saudi Arabia acceded to the Convention on the Rights of the Child in 1996, which sets a minimum age of marriage of 18, and ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 2000, which obligates states to ensure free and full consent to marriage.
In 2018, the CEDAW Committee expressed concerns about the persistence of child and forced marriage in Saudi Arabia. The Committee recommended Saudi Arabia to take measures to eliminate the practice, especially in rural and remote areas, and prescribe and enforce a legal minimum age of marriage of 18 years for both women and men
Turkey
Turkey has one of the highest rates of child marriage in Europe, with an estimated 15% of girls married before the age of 18 and 2% married before the age of 15.
Syrian refugee girls in Turkey are at a heightened risk of child marriage. According to the 2018 Demographic and Health Survey conducted among Syrian people in Turkey, 45% of Syrian girls in Turkey were married before the age of 18, and 9% before the age of 15
In early January 2018, Turkey’s highest religious body (“Diyanet”) suggested girls aged 9 could marry under Islamic law, which led to another public outcry.
As reported by ECPAT International, in 2018 a specific action plan on the issue of child, early and forced marriage, for the period of 2019-2023 had been prepared, which would build on activities implemented in the National Action Plan on Violence Against Women 2016-2020. However, as of March 2020, this plan was not publically available.
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How to change
The Theory of Change stresses the importance of long-term, sustainable interventions that are coordinated, well-resourced and the result of shared learning.
Ending child marriage and supporting married girls require work across four areas:
Empower girls
Mobilise families and communities
Provide services
Establish and implement laws and policy
Indian steps
Shivali Village, Maharashtra:
In 2014, the tribal village of Shivali in Palghar district, Maharashtra, passed a resolution against child marriages. All 175 families in the village took a vow to never get their daughters married before the age of 18.
Kriti Bharti, Saarthi Trust, Rajasthan:
In the past decade, this social justice warrior has annulled more than 30 marriages and stopped over 900 more, besides rehabilitating thousands of women and children. From Jodhpur, Rajasthan, Kriti started the Saarthi Trust in 2011.
References:
Books:
1. Abdullah Saeed, Islamic Thought: An Introduction, 90 (2006).
2. Ayaan Hirsi Ali, The Caged Virgin: An Emancipation Proclamation for Women and Islam (Reprint Edition ed. 2008).
3. M.P. Jain, Justice Jasti Chelameswar & Justice Dama Seshadri Naidu, M P Jain Indian Constitutional Law (8 ed. 2018).
4. Priscilla Offenhauer, Women in Islamic Societies: A Review of Social Scientific Literature Women in Islamic Societies (2005)
Committee on the Elimination of Discrimination against Women, Concluding observations on the combined third and fourth periodic reports of Saudi Arabia,2018, p. 7 and 17, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fSAU%2fCO%2f3-4&Lang=en (accessed March 2020).
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