EDIT: I am putting a bounty on this question. Therefore I added references and precisions to address the comments (some of which, I believe, seem to have been posted without reading this question).
This may seem like a question that was answered here, or here, or here (links from this site). But I looked everywhere, and no, none of these, or any other sites I found, would answer my question. All answers, all hadiths, all sources say that the consent of the girl is mandatory for the marriage to be valid and that her silence is a mark of agreement.
As treated in this question, marriage with an infant girl, no matter how young, is allowed. (Yes, I am aware that sexual penetration is not permitted - see question 2, below). I am talking solely about the marriage contract.
That is also confirmed here, with more than ample references and links to other sources. I cite here some of that link:
Ibn Qudaamah (may Allah have mercy on him) said in al-Sharh al-Kabeer, 7/386:
With regard to females, the father may give his minor, virgin daughter who has not yet reached the age of nine in marriage, and there is no difference of opinion concerning that, if he gives her in marriage to someone who is compatible. Ibn al-Mundhir said: All of those scholars from whom we acquired knowledge unanimously agreed that it is permissible for a father to give his minor daughter in marriage if he arranges her to someone who is compatible, and it is permissible for him to do that even if she is reluctant. End quote.
Now, to be clear: yes, a girl who is old enough to understand the situation must be asked, and if she says no, the marriage cannot occur as it would be forced and therefore invalid (since her consent is mandatory). All the sources and references I looked up agreed on that.
The marriage of an infant, however, can be decided by her father because her father has the right to make that decision in her stead, much like he can manage her money in her stead, until she comes of age.
So the marriage of an infant is allowed, but sexual penetration should be postponed "until she is physically able to bear intercourse"-quote from link above. One should insist, at this point, that "physically able to bear intercourse" does not mean "puberty", since intercourse with prepubescent girls is allowed (see all exegeses of this verse). It simply means what it says: able to bear penetration.
Getting back to the marriage contract, which is the main point of this question: if the girl is too young to protest, since she could not have possibly given her consent and remained "silent", she would grow up into a relationship and a situation that she did not choose. And even if sexual intercourse is postponed, she would eventually be subject to it. How can that marriage not be considered forced ?
That was the main question of this thread. However, if you have answers, and sources, to the following additional questions, I would be very grateful. I looked for a some years now, I read all the books I could find in three languages, and I did not find what I was looking for.
- If a girl that was married when she was 6 months old grows up and reaches puberty, can she un-marry on the grounds that she did not give her consent when she was a baby? I know that in Islam, a girl cannot divorce, only the man can, but I know she can make her case to a judge and in some cases the judge can side with her if the husband is unsuitable. But let us suppose her husband is very kind, very religious, very faithful, can provide for her and generally satisfies absolutely all conditions for a good husband. Can a judge allow the divorce solely on the basis that she did not give her consent? Did this ever happen?
As said above, sexual penetration is specifically only allowed when "she is physically able to bear intercourse", but are other forms of sexual pleasure allowed ? This is crude, I know, but there should be no "haya'" (shyness, حياء) in religion, and I have no way of making myself understood otherwise: For example, can a man masturbate with her hands or thighs? can he kiss her like he would kiss a grown woman? Can he touch her? Those are pleasures that "her body can bear". The only Hadiths I could find mentioned penetration, not other, one would say "non intrusive", forms of pleasures. I know Khomeini says so in his Tahrirolvasyleh, but he offers no sources, only he opinion, and that is not enough. On the other hand, the other sources I could find clearly talk about intercourse (when they say the man should wait). They do not, however, forbid such things as foreplay, kissing, and other forms of non-penetrating pleasures. I am looking for such references.
If the answer is no, then I have a follow up question. As I understand it, marriage in Islam has two main justifications: The first is to provide a legal frame into which a family can be built - kids brought up, etc. The second justification is to provide a legal frame into which sex can be had (to avoid fornication). Marriage to a child does not satisfy the first justification -since the girl is unable to have kids before puberty - but could satisfy the second justification. However, if the answer to question 2 is no, if even the second justification is out of the picture, what is the wisdom of marrying a child?
Finally, and this is important, please understand that this is not a question about the marriage of the prophet with Aicha. All questions asked on that matter were answered time and time again. Please only restrict the answers to general Islamic rules that apply to everyone.
Also, a gentle reminder: We agree that forced marriage is forbidden. If you know anyone who can answer, please do let them know.
Second EDIT: I just would like to add that this is not a question about paedophilia in Islam (for which ample discussion has been had here). Please do not debate the "different cultural perceptions of readiness and maturity for sexual relations", it would be besides the point. I am sorry for being firm on this, but it is a question that haunts me since I found out about this subject and I would be saddened if the discussion goes astray.
Third EDIT: It has been brought to my attention that question 1, above, is not clear regarding what I meant by "a woman cannot get a divorce, a man can". What I meant was "cannot get automatically" a divorce, unlike the man who decides alone if he wants to divorce, a woman's initiating of a divorce is known as خلع or (khul'a) and is not the same thing as a divorce (in that her saying "I divorce you" is not enough). Although this misunderstanding is not critical to the overall question, I needed to add it to avoid having the discussion go astray.
