Is it permissible to marry a young lady without her consent?

The Details of the Question

According to an Islamic fatwa site, an-Nawawi said: As for the marriage contract of a girl who is married at a young age, it can be done if the husband and the guardian of the girl agree on something that will not harm the little girl. If they cannot agree, according to Ahmad and Abu Ubayd, marriage can be conducted when the girl reaches the age of nine, even if she does not consent, but this does not apply to the younger ones. Accordingly, as Abu Ubayd states, why is marriage allowed without the consent of the girl? Is it not regarded as rape?

The Answer

Dear Brother / Sister,

A woman cannot be married without her consent.

It is not permissible to marry a woman without her consent.

Even if their guardians have conducted their marriage, they are considered not to have reached the age of marriage (in this sense, puberty) unless the boy turns 18 and the girl turns 17.

In fiqh, there are differences in ijtihad on such issues. Islamic Sharia is not only one of them.

The Ottoman State used to apply Shari’ah rules. The relevant article in the 1917 legislation is as follows:

Article 4. In order to be authorized for marriage, it is necessary for the male to be over the age of 18 and the girl, woman to be over 17 years old.

Article 7. A young boy who has not completed the age of 12 and a young girl who has not completed the age of 9 cannot be forced to marry by anyone.

Reason:

Since the four imams hold the view that it is permissible for the guardians of the young boy and girl to marry them off, the practice has been like that so far. However, it has been deemed necessary to adopt another method due to the change of circumstances in our time:

At all times and especially at this time, when the struggle for life is extremely violent, the first duty of the parents for children is to train and educate them so that they can be successful in this world and reach the state to establish an orderly family. However, in our country, parents generally neglected the education and upbringing of their children completely and betrothed them while they were still in the cradle in order to see their happiness or to enable them to inherit their property.

As a result, helpless young people were married off without enjoying life and their weddings became the basis for their disasters. Most of the families formed by such children who did not go to school, who could not read and write even a word about and who did not know any order of the religion were sentenced to destruction in the first months of their marriage like stillbirths.

In our country, this is one of the reasons that cause the unfoundedness of families.

In order to understand the degree of lawsuits arising from such marriages, it is enough to have a look at the parts dealing with the parents’ and even the guardians’ marrying off the young children in fiqh books, and the chapters dealing with the use of the state of the choice of puberty of young children in the Family Law Decree 77, and to examine the records of the courts of Shari’ah.

In fact, Ibn Shubruma and Abu Bakril-Asam hold the view that the guardianship for young children is aimed at only for the benefit of them, and that even in places where there is no need, such as acceptance of donations, the guardianship will not be certain, and it is not permissible for anyone to marry them off since there is no expected religious benefit in terms of their nature and lineage and since they do not need to marry; they also add that marriage in particular is not something temporary and that it is a contract that lasts lifelong and even and if the marriage contract that the guardians conducted for them is valid, no one has the right to act in a way that will limit their action after the marriage. Since the disastrous experiences that have continued for centuries confirmed this opinion of the two scholars in question, their opinion was accepted and article seven was arranged in that way.

According to these articles and justifications, unless boys are 12 years old and girls are nine years old, someone else cannot marry them off. Even if their guardians conduct their marriage, they are considered not to have reached the age of marriage (in this sense, puberty) unless the boy turns 18 and the girl turns 17.

This ijtihad and regulation are an Islamic solution. Moreover, it was applied for a while in a state like the Ottoman State.

Once the Islamic state decides to apply one ijtihad, judges cannot apply other ijtihads.

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