Is it permissible to force minors into marriage?

Dear Brother / Sister,

Forced Marriages of Minors by Their Guardians

It is unanimously accepted that a male who has reached puberty can marry of his own free will, and that his guardian does not have the right to force him to marry someone against his will.

According to most fiqh scholars, a widow cannot be married off by her guardian without her consent or against her will. According to Imam Shafi’i, the decree is the same even if the widow has not reached puberty.

The hadiths below and similar ones are the sources for the decrees above:

“The widow has no connection with the guardian.”

“A widow has more control over herself than her guardian but the consent of an unmarried person is required.” [Bukhari, Nikah, 41; Abu Dawud, (Awnul-Ma’bud, II, 197)]

Imam Malik and Imam Shafi’i granted fathers the authority to force their daughters into marriage once they have reached puberty.

According to Abu Hanifa, no one can force a girl who has reached puberty into marriage. Marriages made without the girl’s consent are invalid because the Messenger of Allah (pbuh) said:

“A widow cannot be married off without her explicit permission, nor can an unmarried girl be married off without her consent.” When he was asked, “How can her consent be understood?” he replied, “Through her silence.” (Bukhari, Nikah, 40).

A girl’s behavior indicating her willingness to marry is determined based on environmental conditions and customs.

Marriage without the guardian’s permission and without the guardian’s consent

It is unanimously agreed that normal males who have reached puberty can marry independently (on their own). We have already discussed the issue of a guardian’s right to force a girl who has reached puberty in the paragraph above. The issue at hand here is whether girls who have reached puberty may marry on their own.

According to Imam Abu Hanifa and Abu Yusuf, a girl who has reached puberty can marry without the permission of her guardian and with her own declaration of will. There is no evidence to prevent it, and the concept of legal capacity necessitates it; a person who has the right to freely dispose of their property also has the right to dispose of themselves.

According to Imam Malik and Imam Shafi’i, girls and women, even if they have reached puberty, cannot marry without the permission of their guardians and with their own declaration of will; both marriages without the permission of their guardians and marriages by their own declaration of will, even with the permission of their guardians, are not valid. This ijtihad is based on the verse, “Marry those among you who are single” and the idea that women, by their very nature, may act carelessly in this matter and cause harm to themselves and their families.

The Ottoman Family Law (Article 8) codified the Hanafi ijtihad.

The truth emerging from those two articles is as follows:

1. According to Islam, there is no commandment that mandates the marriage of minors; however, whether such marriages are permissible is debatable.

2. The right of girls and boys of marriageable age to be parties to a marriage contract and to conclude the contract through their own declaration of will has been debated, and Hanafi madhhab has adopted the opinion that this right exists.

3. Approximately a century ago, the Ottoman state, governed by Shari’ah law, both prohibited the marriage of minors and allowed young people who had reached marriageable age to marry even if their guardians did not wish it, and even allowed them to conduct the marriage contract themselves.

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