The first legal and ethical principle we must adhere to undermines our culture of forcing people to marry. We force people to marry when we do not allow them to object, and/or we threaten to disown our own children when they disobey us. We do this using religion no less. The Qur’an states (17:23):
And your Lord has decreed that you worship not except Him, and to parents, good treatment. Whether one or both of them reach old age [while] with you, say not to them [so much as], “uff,” and do not repel them but speak to them a noble word.
In the above verse, Allah has decreed kindness to parents and not to utter even a word of disrespect. This is also popularly interlinked with obedience to one’s parents. Despite the fact that many scholars have said obedience to your parents is not absolute, we know that parents have the power to coerce and that we dare not, in reality, disobey our parents. Therefore, when elders arrange a marriage between children, it is assumed that the children must comply. Despite the fact that the Qur’an states (4:19):
O you who have believed, it is not lawful for you to inherit women by compulsion. And do not make difficulties for them in order to take [back] part of what you gave them unless they commit a clear immorality. And live with them in kindness. For if you dislike them – perhaps you dislike a thing and Allāh makes therein much good.
It is clear that Allah does not allow women to be taken as brides against their will. The context of the verse clearly talks about sexual relations. Hence, we arrive at the issue of consent, and here it is the consent of the woman, not the consent only of her father or guardian. You must ask yourself if a child can consent to buying a car with your money? Can a child consent to travelling overseas alone? If a child cannot consent to those things, how can a child consent to marriage? Obviously, a child cannot consent to marriage, and hence it is unfeasible to force a child into marriage. In the custom where people practice arranged marriages for their children, it is known that when those children become adults, they have to consent to being married to each other. What is adulthood in terms of the Qur’an? (4:2)
And give to the orphans their properties and do not substitute the defective [of your own] for the good [of theirs]. And do not consume their properties into your own. Indeed, that is ever a great sin.
The verse tells the guardians to release the property of the orphans before warning the guardians not to marry them so as to usurp their property, so as not to release it. The clear indication is that the orphans have reached adulthood. In other words, adulthood requires the intellectual capacity to handle wealth. In another verse, the matter is made clearer (4:6)
And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them sound judgement, release their property to them. And do not consume it excessively and quickly, [anticipating] that they will grow up. And whoever, [when acting as guardian], is self-sufficient should refrain [from taking a fee]; and whoever is poor – let him take according to what is acceptable. Then when you release their property to them, bring witnesses upon them. And sufficient is Allāh as Accountant.
Here we can see that there is an age for marriage, and this is coupled with sound judgement to manage their own property. In other words, from the context of the Qur’an itself, the age of marriage is not only when a woman menstruates, but also when she has sound judgement. You cannot entrust a woman to a man who menstruates and must manage raising children while she has no common sense or sound judgment. Hence, we are wrong to sleep with underage girls who were given to us in marriage by their fathers while they are not of an age to consent themselves, and who are not mentally mature. It is known that a person considered an adult in Islamic Jurisprudence must be both baligh (menstruation/ ejaculation) and aqil (sane), and a child is similar to someone who is insane and therefore cannot be married. It is therefore categorically forbidden by Allah to marry off your daughters and sons against their will, and to marry off your children in arranged marriages unless they later consent when they are adults.
However, I am certain that despite my warning to the people to forsake the unlawful elements in their cultures, many Arab and Indian young men and women will be forced into marriage for financial and familial benefits that go to family and tribe. We cannot overlook that marriage is also a tool in many societies used by families to create alliances. It is also used as a political tool amongst the elite to cement power. No amount of warnings will save people from being subject to such marriages. Hence, there does exist a final step believers can take who are forced into a marriage without the option of escaping it. If you are a man and you are married to a woman whom you are unsure actually desires to be with you, you may not touch her. First, you have to develop a relationship with her such that she invites you to touch her, and then you have to ask her if she accepts the marriage because, technically, without her consent, you are not married to her. It remains unlawful for you to sleep with her until she consents. However, if she never consents, then you are to endure until you can divorce her in front of the people, though you were never really married to her in the first instance. When the laws of Allah are not upheld by the people, you must uphold them yourself by whichever means you can. In principle, all schools of thought agree that the most important condition for marriage is an offer and acceptance, and so if the woman you are publicly married to accepts privately, then you are married though her initial consent wasn’t obtained publicly. There is no need to have another marriage ceremony.
To conclude this discussion, we have ascertained that the Qur’an does not condone forced marriages and requires consent from the women who are usually the victims of such marriages. However, the same could apply to men who are forced to marry women they don’t want to marry. Since a woman must consent to a marriage, we asked the question if a child can consent to marriage. We have shown that the age of marriage seems to coincide with releasing the property of the orphans after ascertaining that they are capable of managing it themselves. In other words, while there is no set minimum age for marriage, there must be a reasonable approach to whether or not someone is ready for it because the parties involved will carry responsibilities that they should be capable of fulfilling. In other words, there is an age at which people can’t get married and at which they can, even though it is not set to a specific number. If anyone was forced into a marriage they cannot escape, they should not touch each other until they actually desire to do so, and not out of duty or submission. When they do sleep together after consent, they are, in fact, married. This brings us to the question of when people are actually married? Is it when the ceremony has taken place? Is it when they have sex? Is it both?
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