It is claimed that Qur’an in 65:4 allows prepubescent girls to be married off:
وَاللاَّئِى يَئِسْنَ مِنَ الْمَحِيضِ مِن نِّسَآئِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَـثَةُ أَشْهُرٍ وَاللَّـتِي لَمْ يَحِضْنَ وَأُوْلَـتُ الاٌّحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ وَمَن يَتَّقِ اللَّهَ يَجْعَل لَّهُ مِنْ أَمْرِهِ يُسْراً
And those who no longer expect menstruation among your women – if you doubt, then their period is three months, and [also for] those who have not menstruated. And for those who are pregnant, their term is until they give birth. And whoever fears Allah – He will make for him of his matter ease.
A number of commentaries are shown to confirm that marriage with those who have not menstruated can be done. I have not quoted any of these as this paper does not argue against them and it tackles only the relevant part i.e. intercourse with prepubescent girls. What the scholars say is admitted without question this paper does not divert from the classical Islamic position in any way.
Who are included in those who have not menstruated?
- Those women who do not menstruate due to medical condition. Either their process is delayed or it does not take place at all. This verse includes them and this is natural and understandable.
- Those women who have not menstruated and there is no medical condition. This category of women is the subject of controversy and is discussed further below.
Why does Islam allow marrying those who have not menstruated?
Before proceeding, what must be understood is that Islam differentiates between marriage and consummation. Marriage is something similar to what we call engagement in our times. The different cultures consider it differently and we today consider the ancient Arab custom of this marriage as an engagement. The Prophet (ﷺ) married Aisha (رضي الله عنها) when she had not reached puberty i.e. he got engaged to her while she continued to live in her own home with her parents. Such a marriage is akin to engagement in our times. Hence, we see that engagement with a minor is allowed (with conditions elaborated below) while intercourse is not.
One may counter argue that the verse (65:4) says that those who have not menstruated must wait for three months when they are divorced while the verse (33:49) states that there is no waiting period for those who have not consummated their marriage:
يأَيُّهَا الَّذِينَ ءَامَنُواْ إِذَا نَكَحْتُمُ الْمُؤْمِنَـتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحاً جَمِيلاً
O You who have believed, when you marry believing women and then divorce them before you have touched them, then there is not for you any waiting period to count concerning them. So provide for them and give them a gracious release [Q.33:49].
Since Q.33:49 states that those married women who haven’t consummated their marriage have no waiting period and Q.65:4 states that those who haven’t menstruated must wait for three months until they can remarry, it is evident that those who have not menstruated in Q.65:4 refer to those who have consummated their marriage. Hence, it is claimed that the women mentioned in Q.65:4 are consummated minors.
This is an appeal from silence. It may work if there is no explicit text to the contrary. However, the truth is that Islam explicitly forbids intercourse with minors. The women who fall under Q.65:4 are those who have reached puberty and the age of maturity but have not menstruated for whatever reasons. If they are divorced after consummation of marriage, they wait for three months till they can remarry.
Since the scholars are clear that Q.65:4 also includes prepubescent girls, how is one to understand this verse? The fact that it is permissible to marry a young girl does not mean that it is permissible to have intercourse with her; rather that should not be done until she is able for it. A girl may reach the age where she develops desire for physical intimacy and has developed a body for the purpose as well but only lacks menstruation; in such a case, Islam does not hold her from the right to intimacy. Scholars have a consensus that intercourse must not be done when the girl cannot bear it – it must not take place before the age when she develops desire for intimacy. The great scholars of Islam, after which schools have developed, Maalik, al-Shaafa’i and Abu Hanifah have said that the marriage may be consummated when the girl is able for intercourse, which varies from one girl to another, so no age limit can be set (in the Shariah). If countries lay down laws stipulating a minimum age, Islam does not stop us from honoring them.
With regard to consummation of the marriage with a minor, it does not become permissible by merely drawing up the marriage contract; rather the husband should not consummate the marriage with her until she is able to have intercourse, which is not necessarily at puberty. This is something that varies from one environment and time to another. With regards to that, Shariah pays attention to physical makeup. [*]
It should be noted that al-Shafi’i and his companions said: It is preferable for fathers and grandfathers not to marry off a virgin until she reaches the age of puberty and they ask her permission, lest she end up in a marriage that she dislikes. What they said does not go against the Hadith of Aisha, because what they meant is that they should not marry her off before she reaches puberty if there is no obvious interest to be served that they fear will be missed out on if they delay it, as in the Hadith of Aisha. In that case it is preferable to go ahead with the marriage because the father is enjoined to take care of his child’s interests and not to let a good opportunity slip away.[*]
What does best interest of the girl mean?
لكن ذكر بعض العلماء الإجماع على أن له أن يزوجها، مستدلين بحديث عائشة ـ رضي الله عنها ـ، وقد ذكرنا الفرق، وقال ابن شبرمة من الفقهاء المعروفين: لا يجوز أن يزوج الصغيرة التي لم تبلغ أبداً؛ لأننا إن قلنا بشرط الرضا فرضاها غير معتبر، ولا نقول بالإجبار في البالغة فهذه من باب أولى، وهذا القول هو الصواب، أن الأب لا يزوج بنته حتى تبلغ، وإذا بلغت فلا يزوجها حتى ترضى.
لكن لو فرضنا أن الرجل وجد أن هذا الخاطب كفء، وهو كبير السن، ويخشى إن انتقل إلى الآخرة صارت البنت في ولاية إخوتها أن يتلاعبوا بها، وأن يزوِّجوها حسب أهوائهم، لا حسب مصلحتها، فإن رأى المصلحة في أن يزوجها من هو كفء فلا بأس بذلك، ولكن لها الخيار إذا كبرت؛ إن شاءت قالت: لا أرضى بهذا ولا أريده.
وإذا كان الأمر كذلك فالسلامة ألا يزوجها، وأن يدعها
إلى الله ـ عزّ وجل ـ فربما أنه الآن يرى هذا الرجل كفئاً ثم تتغير حال الرجل، وربما يأتي الله لها عند بلوغها النكاح برجل خير من هذا الرجل؛ لأن الأمور بيد الله ـ سبحانه وتعالى ـ.
Ibn Taymiyyah narrated from Ibn Shubrumah that he said: It is not permissible to arrange a marriage for a young girl who has not reached the age of puberty, because if we say that that is subject to her consent, her consent does not count (because she is too young to make such decisions), and when she does reach the age of puberty we believe that she should not be forced into a marriage. Ibn Taymiyyah said: This view is the correct one, that the father should not arrange a marriage for his daughter until she reaches the age of puberty, and when she reaches the age of puberty he should not arrange a marriage unless she gives her consent.
But if we assume that a man regards this suitor as compatible and he (the father) is old, and there is the fear that if he passes away and guardianship of the girl passes to her brothers, they may not take the matter of her marriage seriously and they may arrange her marriage according to their whims and desires, not according to what is in her best interests, and he thinks that it is in her best interests to arrange her marriage to someone who is compatible, there is nothing wrong with that, but she will have the choice when she grows up; if she wishes she may say: I do not agree to this and I do not want it.
If the matter is like this, then the safest option is not to arrange her marriage and to entrust her to Allah, may He be glorified and exalted. Perhaps now he thinks that this man is compatible but then the man’s situation may change, and perhaps when she reaches the age of marriage Allah will bring her a man who is better than this man, because all things are in the hand of Allah, may He be glorified and exalted. [Al-Sharh al-Mumti‘, 12/57-59]
There is no forced marriage
Islam neither allows nor recognizes forced marriages. The Prophet (ﷺ) said:
الثَّيِّبُ أَحَقُّ بِنَفْسِهَا وَالْبِكْرُ يَسْتَأْمِرُهَا أَبُوهَا
A previously married woman has more right (to decide) about herself (with regard to marriage) (than her guardian), and a virgin should be consulted by her father. [Sunan an-Nasa’i 3264]
لاَ تُنْكَحُ الْبِكْرُ حَتَّى تُسْتَأْذَنَ
A virgin should not be given in marriage until her permission is granted. [Sahih al-Bukhari 6970]
- Girls who have not yet reached puberty may be married off (or engaged as per our modern standards) by their guardian depending only on some strict conditions
- When this marriage takes place, she is not sent over to the husband (or fiancé as per our modern standards) but stays with her parents or guardians
- The girl has the right to accept or turn it down when she reaches the age of maturity
- There is no concept of forced marriage in Islam
- Intercourse with a girl that has not reached the age of maturity is not allowed in Islam
- There is no specific age limit set as a minimum for marriage and varies from person to person
Indeed, Allah knows best.