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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.

  1. 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?
  2. 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.

  3. 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.

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  • I don't know any sources or anything, so I will just comment that in our culture, 50 60 years ago, people used to wed their children like that. Actually this was not 'wedding' per-se. It was more like an agreement to uphold the family-ties. People were not literate enough, so they would make this arrangement so their children specially daughters don't get left out when they grow up. To secure their future. They wouldn't do 'Nikah'. They would just say 'I marry my child to his when to come of age' and more like a promise. Islam says marriage can only be consummated when children reach puberty.
    – user14305
    Commented Feb 8, 2016 at 6:29
  • Sayyid. The marriage is valid, please read the links I gave our cite different sources. Sorrel, I understand that cultures are different. I am still interested in religious commands however, which require references. But I agree with what you said. Regarding what Islam says, it does not say "when she reaches puberty", it says when she can handle it. In effect, sexual penetration of a prepubescent girl is allowed if she is considered old enough. (More in the links I have)
    – ZakC
    Commented Feb 8, 2016 at 9:30
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    Friends, I agree with you. My problem is that no source I could find agree with us. And I have been looking for a very long time. This is why I ask the question. I am not looking for, what can be called, "common sense" answers, that I already have. I am looking for shari'a references that back that common sense.
    – ZakC
    Commented Feb 8, 2016 at 10:27
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    @Zakaria Chichani, I suggest you to read the following sites “as more helpful info.” . (Beside, I deem your detailed query as a helpful question, well done). : Everything About Divorce (Complete Book) . / . Conditions Of Divorce? . / . How To Do Divorce? . / . Divorce-Khul’? . / . Commented Feb 21, 2016 at 10:11
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    i had gone in that direction, to check mazhabs' books, and have found a book of shafii mazhab shamela.ws/browse.php/book-11444/page-1907 , but i cannot read it. i asked to translate it in this site but that question was deleted: en.wikipedia.org/wiki/Talk:Wali_mujbir#Source_for_wali_mujbir .
    – qdinar
    Commented Jan 12, 2017 at 8:34

4 Answers 4

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+50

Bismillah,

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 ?

Forcing marriage is done to the virgin daughter who has reached puberty and who must be asked, and the marriage doesn't take place if she says no, but it's not considered 'forced' on the young one who is not capable of deciding what's good and what's bad for her, and does not understand the meaning of marriage.

Edit: The reference is in the link below in Arabic

You also mentioned the mother of the believers Ayisha (RA), isn't that a Shari'a reference by itself that this kind of marriage is not considered forced? Regardless of the different opinions about how old our mother Ayisha (RA) was when she married our beloved Prophet (PBUH), and how old she was when the Bina' occurred, do you think that the Prophet (PBUH) would carry on with that marriage if it was considered forced? Not to mention that, according to Sunni references, Imam Ali (RA) also married his daughter Um-Kulthum, who was also young, to Sayyidna Omer Ibn Al-Khattab (RA).

Now, let's cover the other 3 questions..

  1. If a girl that was married when she was 6 months old grows up and reaches puberty, can she un-mary on the grounds that she did not give her consent when she was a baby?

Yes she can Islamically, even if the husband is a very good person and she has no reason to ask for divorce other than the one you mentioned, she can still get divorced. Why? Because Islam is a religion of justice and mercy. If the virgin who must be asked for marriage has the right to say yes or no, similarly, when the young girl reaches the same age, she gets the same right and she can say yes and continue in her marriage, or say no and ask for divorce. This is called Qiyas قياس in Shari'a..

  1. 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?

The answer is also yes, you can do that, BUT you have to evaluate the situation wisely before doing that, for example, marrying a 6-year old is different than marrying a 9-year old (assuming that both of them CANNOT bear intercourse). The 9-year old would most likely to, somewhat, understand and feel those pleasures, also depends on where she is from, for instance, a 9-year old in USA, where I live, is exposed to scenes of kissing whether in public, at school, or on the TV, some of them are even exposed to more serious types of sexual pleasures or at least they know something about them, that type of a girl can understand and handle the sexual pleasures that you mentioned, unlike the one who is 6-years old.

Also, I'm not sure if you already know this or not, but one of the conditions for marrying a young girl that most of the scholars agreed upon is that the young girl doesn't leave her parents house and move with her husband until she can bear intercourse (she doesn't have to wait until she hits puberty).

  1. what is the wisdom of marrying a child?

Unfortunately, there is no specific answer for that. You will find lot of Ijtihad from lot of scholars, but here are few of them mentioned by Sahykh Abdullah ibn Al-Jbreen:

1- The girl could be living during a time of Fitnah (tribulation), and the father wants to make sure that she is safe with someone, so he decided to get her married.

2- The father could be poor, handicapped, or unable to earn enough money for the family, so he decides to get his young girl married so that she has someone who can take care of her and provide a better living for her.

3- The father could see lot of benefits for his daughter if she gets married to a specific man, even if those benefits are in the future not right now.

Bottom line is, the child marriage can only be done for the benefit of the girl, not for the benefit of the father or anyone else.

I know you are looking for references, and I don't blame you, but sometimes in Shari'a the reference is not a verse in the Qur'an or a Hadith, rather it's what is called Ijtihad اجتهاد or Qiyas قياس. Even then, I'm including some references for you in Arabic, English and Urdu.

Allah knows best!

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    Comments are not for extended discussion; this conversation has been moved to chat. Commented Feb 19, 2016 at 15:10
  • "one of the conditions for marrying a young girl that most of the scholars agreed upon is that the young girl doesn't leave her parents house and move with her husband until she can bear intercourse" - i'd like to see sources for this.
    – qdinar
    Commented Feb 28, 2017 at 15:58
  • "the young girl doesn't leave her parents house and move with her husband until she can bear intercourse" - hadithes that support it: sunnah.com/bukhari/63/120 , sunnah.com/urn/1261940 : Narrated Aisha: The Prophet (ﷺ) engaged me when I was a girl of six ... We went to Medina and stayed at the home of Bani-al-Harith bin Khazraj. Then ... Later ... my mother, Um Ruman, came to me while I was ... She called me, ... Unexpectedly Allah's Apostle came to me in the forenoon and my mother handed me over to him, and at that time I was a girl of nine years of age.
    – qdinar
    Commented May 5, 2017 at 11:10
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A child marriage would be considered forced. Even if she accepts then this consent is meaningless similar to how taking the consent of an insane person does not carry any weight as they lack the ability to give real consent. Further, it is valid to marry her off even if she objects.

أجمعوا على أن الأب يجبر البكر غير البالغ

There is consensus that a father can force his virgin minor daughter to marry

Bidaayat al-Mujtahid

أجمع كل من نحفظ عنه من أهل العلم، أن نكاح الأب ابنته البكر الصغيرة جائز، إذا زوجها من كفء، ويجوز له تزويجها مع كراهيتها وامتناعها

Every scholar from whom we learned was agreed that it is permissible for a man to marry off his virgin daughter who is still a minor, if he marries her to someone who is compatible, and it is permissible for him to marry her off even if she objects and refuses.

al-Mughni - Ibn Qudamah

The father has such guardianship over his daughter because fathers usually love their children, know them well and have the best interest of their children in mind. The child herself does not have the necessary understanding and experience to decide what is beneficial for her, and so she needs a guardian who can look after her interests in a proper manner.

Hence fathers are held responsible for deciding on behalf of their children and are allowed to make contracts and transactions on their behalf when they think that it would be beneficial to their children. And such contracts are treated the same way as if they were undertaken by the child themselves.

A father will e.g. get medical treatment for his daughter, will educate her, will manage her property etc. regardless of her consent. In the same way he will decide whether and to whom she gets married.

Question 1: Can she nullify the marriage when she reaches puberty?

No. She can request the husband to divorce her (Khula'), but she does not have a right to obtain seperation against the husband's will - neither directly from the husband nor through a judge. If she was married off by her father then she does not get an option to divorce when she reaches puberty:

فإن زوجهما الأب أو الجد يعني الصغير والصغيرة فلا خيار لهما بعد بلوغهما

If minors are married off by their father or grandfather then they do not have any choice to withdraw from the marriage after reaching puberty

Al-Hidayah fi Sharh Bidayat al-Mubtadi

The reason is that the marriage was valid and the decision was made by one who had the authority to decide on her behalf. Her case would be similar to an adult woman who initially consented to marriage but later changed her mind.

Let us take another example to explain this: Say there was an infant girl whose mother died and left her an expensive car in inheritance. Her father being her legal guardian decided to sell the car and use the money to get her into an good school as he thought that she would benefit more from education rather than from the car. Years later the daughter grew up and decided that she would have rather have kept the car. Can she cancel the original sale or force the purchaser to return it? No she can not. She can only request for it and maybe try to convince the original purchaser by offering him more money. In the same way she can not force a divorce, she can only request it.

There are exceptions to this, for example where the husband has some clear defect or is not a suitable match, or where the dowry was not suitable, or where she was an orphan who was married off by a relative other than her father, or when it is established that the father had animosity towards his daughter and did not act in her best interest. But in the general case she can not cancel the marriage or force a divorce.

Question 2: Can the husband have intimacy with a minor wife other than penetration?

See Can intercourse be done with a wife who is a minor?.

Question 3: What is the wisdom behind such a marriage if it is neither reproduction nor intimacy?

One might find a suitable match and there is no guarantee that opportunity will remain available until the child has grown up. It is essentially locking a contract in the present which is expected to bring benefit in the future.

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One of your questions has a false premise. You said it is allowed to have sexual intercourse with prepubescent girls. That Quran verse you use to support this does not say that. It says for girls who haven't reached menstruation. Puberty is identified when one has a wet dream and menstruation is stage 5 of puberty. And sometimes menstruation is delayed until late teens and sometimes 20s.

-3

I dont understand why my other answere got downvoted but whatever. I know this whole matter is on the mind of a lot of Muslims. Just understand one thing. Islam follows the Harm principle. Do as you will with that. That's why I'm assuming Prophet Muhammad (peace be upon him) waited 3 years before consumation. I assume having sex with prepubescent girl is inevitably harmful so that is the evidence to why it's safe to assume it's shouldn't be allowed; as said by Mohammad Hijab that verse in surat at talaq if used by itself then Islam would allow sex with prepubescent and that's why Quranists are flawed in only using Quran. as he said The Reason why its not allowed to have sex with prepubescent child is not in the Quran but in the Hadiths. such as the "laa darara was laa dirar" and some others. So Islam follows harm principle and from atheists secular perspective even if you weren't Muslim you have no proof that this is wrong on liberalistic principles and such since its all in accordance to Harm principle. pleas don't downvote my answer whoever reads this and comment if you wanna challenge what I say and il edit comment regularly to answer since I don't have enough reputation to comment unless I could comment on my own idk. But pleas if you have issue with that I said comment down and educate me. I don't know everything lol and would love to learn my mistakes

I know I didn't really answer question but that's because idk. Allahu Alam. Ask Allah on the day of judgment why

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