A Critical Analysis on the Impact of the Concept Of Ijbar on the Practice of Child Marriage Under Islamic Law
ABSTRACT
This study critically analyzes the impact of the concept of ijbar on the practice of child marriage under Islamic law. While child marriage is widely criticized by feminists on the basis of human rights, its practice is nevertheless defended on the basis of Islamic law and culture.
This is because, ijbar is a concept related to marriage guardianship (wilayat-un-nikah) and it connotes the power entrusted upon parents/guardians to marry off his ward in order to secure the protection of his/her welfare and in instances where it becomes apparent that the parent/guardian acted wrongly or in defiance of the rationale of ijbar, certain safeguards were instituted to cope with the situation.
This involves the exercise of the option of puberty (khiyar-ul-bulugh) under which the marriage would be annulled.
Prompted by the raging debate and desire for the urgent need to reform Islamic family law whereby a drastic curtailment or even the abolition of the concept of ijbar vis-à- vis the practice of child marriage is advocated by the West globally, the main objectives of this research work,
therefore, is an attempt to critically analyze the contemporary debates for and against child marriage in Islamic law.
It is argued that, while puberty marks the legal criteria of Islamic adulthood and in the absence of fixed marriageable age in addition to the exercise of coercive marriage guardianship, the practice of Islamic child marriage goes to secure the welfare of minors and the protection of their best interest in life and in view of this,
it was observed that to prohibit or even restrict Islamic child marriage and the exercise of the role of coercive guardianship,
is to call for the disruption of the moral foundation behind the Islamic institution of the family and at the same time aggressively enforcing western secular family values that delay marriage while paying the least concern on premarital sexual indulgence among teenagers.
Further still, it has been argued that the current move by the international community for the curtailment of ijbar and the abolition of child marriage together with recent reforms directed towards these ends in the Muslim world is nothing but motivated by the western conspiracy against population growth in third world countries, more particularly in the Muslim world.
Therefore, the study concludes with the firm recommendation that the Islamic concept of ijbar vis-à-vis the practice of child marriage by Muslims should be accordingly maintained and that as a matter of human right,
Muslims must be allowed sufficient freedom to practice the tenets of their Islamic personal law, in particular, to have recourse to the practice of child marriage where they deem so.
GENERAL INTRODUCTION
BACKGROUND OF THE STUDY
In the present generation, the marriage of minors especially by and among Muslims is one of the topical legal issues that have attracted the attention of feminists and modern human rights scholars who concern themselves with the protection of the rights of the girl-child across the globe albeit from secular conception.
With this development, national and international communities are therefore increasingly recognizing child marriage as a serious problem, both as a violation of girls‟ human rights and as a hindrance to key development outcomes.1
The practice whereby a child is married off early under the influence or compulsion (ijbar) from its parents is somewhat a religious and customary practice among Muslims,
particularly those who follow the Maliki school of Islamic law which sanction the role of matrimonial guardian (wali) as one of the essential elements of validity (arkan) to a marriage contract under Islamic law.
The matrimonial guardian (wali) may be one with power to enforce marriage on his ward, i.e., wali mujbir, and such a guardian (wali mujbir) is possessed of the power to compel his ward in entering into a marriage contract for purposes that are viewed as satisfying the best interests of the child in question.
vis-à- vis the wishes of parents to ensure that the child is prevented from getting plunged into the dexterities of immorality and its attendant social consequences in the society.
On the other hand, the critics of the Sharia have likened the concept or practice of Ijbar with forced marriage, wherein contrary to this perception, mutual consent of both parties (ridha al-Zawjain) is ever an essential requirement to the formation and validity of a marriage contract under Islamic law.
Feminists have, in the name of health, poverty, population, and fertility control together with the quest for the attainment of universal basic education globally with particular attention on the girl-child, the practice of early or child marriage has come to be abominable altogether in the Western society, it being largely a prohibited practice in several countries.
In fact, in the slogan of the feminists, it is regarded as a “harmful traditional practice” that impedes the developmental rights of the child.
Thus, the move for the abolition of the so-called child marriage has transcended from Western society to other African and Asian countries and it has deeply crept into the Muslim world. For example, the Ottoman Mecelle (1917)2 was the first regular modern legislation forbidding the marriage of minor children.
This was followed later by a law in Egypt that prohibits the registration of marriages of males below eighteen and females below sixteen years of age.3 In the Indian sub-continent,
the Child Marriage Restraint Act of 1929 also prohibited the marriage of males below eighteen and females below fourteen years. Later in Pakistan, the marriageable age of females was raised to sixteen by the Muslim Family Laws Ordinance of 1961.4
In all these pre-modern and reform-minded legislation, one basic thing is observable, that is to say, the crux of the matter is regulation of marriageable age as a legal device to delay marriage. But under classical Islamic family law,
the age of the parties bears no legal weight as physical puberty is the basis of the majority and this stance of the law poses a challenge to the modernist and western-oriented Muslims in some Muslim countries.
As it becomes open that under sharia, once a child attains puberty, he/she becomes eligible for marriage, to counteract this possibility, modern family law scholars have therefore recognized devising a specified age as an essential qualification for marriage with the eventual prohibition of child marriage under threat of penalty.
However, contrary to popular opinion especially in the West, the sharia establishes no specific age to wait for marriage. Islamic law permits a marriage contract of young children to be entered into years before the marriage itself is actually executed or ratified.
In other words, the marriage contract is drawn up, but the contract is not executed until a later date. So, even though the marriage contract can be concluded, the girl will not be handed over to the husband until many years afterward.
Thus, a father can marry off his young daughter to a man before she comes of age, but the husband may not consummate the marriage until after she attains maturity.
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