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The title of this essay is calling to deal with an issue that can cause a very emotional response in a person with ideas about justice and human rights. Indeed, Islamic Law may seem barbaric in the modern age, and for that reason modern legislation in most Muslim countries is trying to adjust their law to the modern western ideas and legal codes. The difficulty of that work is that absolute majority of Muslims believes Shari'a to be the law of God, and any changes to it - result of human corruption; in addition, majority in most of these countries do not find their traditional laws oppressive, so the desire for change usually comes from a small group of intellectuals.
Family Law in particular is generally less affected by change, in legislation, because it carries less political importance, and in practice, because people rarely adjust their private lives to the law.
In fact, one cannot talk about Shari'a as a single code, as far as sunnis are concerned - there are four main ones, therefore rulings on each issue have to be discussed according to the four madhhabs, schools of thought: Hanafi, Shafi'i, Maliki and Hanbali. In the matter of a woman's marriage, further differences are in the questions of whether she is a minor or has reached majority, and whether she is a virgin or has been married previously.
An Islamic marriage contract is concluded by the offer from one of the parties and acceptance by the other. Parties concluding the contract have to be major, sane, free from legal impediments, and in all, but Hanafi school, male.
A guardian too has to satisfy certain criteria to be eligible: he should be major, sane, of the same religion to the ward, and, in some schools, of good character. Malikis, however argue, that if a father is known to be a bad person it does not mean he should be forbidden from marrying out his daughters.
At this point a definition of who can act as a guardian is due. First of all, it is agnates - male relatives through male line - in order of inheritance, starting with descendants (son, grandson...), then ascendants (father, grandfather..), then brothers, then uncles and their sons. In Hanbali school ascendants take precedence over everyone. In the absence of those only Hanafis place female relatives (mother, paternal grandmother...) next in order, before other relatives within prohibited degrees. For those who have no other guardian, the judge fulfils that role. A guardian can also nominate a successor in his will, or delegate his right to another person. It is a guardian's duty to act in his ward's best interests, if he does not, he might lose his right of guardianship.
It is generally accepted in Islamic jurisprudence, that majority is reached on the attainment of puberty and a girl can reach puberty between the ages of nine and fifteen years (according to Abu Hanifa, the top limit is seventeen years). The distinction between minority and majority is especially important in the Hanafi school. This is the only school which allows a major woman to contract her own marriage. Her guardian therefore can not give her in marriage without her having an opportunity to express her opinion. There is still a distinction between a virgin and non-virgin in that a previously married woman has to express her consent in words when asked at the marriage ceremony, while if a virgin remains silent, it is still regarded as "yes", because a young girl may feel too shy to pronounce acceptance. Marriage under duress is still valid according to this school, so a guardian who wants to marry out a previously unmarried girl against her will only needs to ensure her silence. If a contract is concluded without his consent, he can still dissolve it on the basis of kafa'a - marriage inequality as described by the law or if the dower was less than appropriate; he loses this right only if the woman gets pregnant.
The other three schools rule that a woman's guardian should contract marriage on her behalf, and she herself does not have the capacity to do so. In the Shafi'i school it goes to the most extreme, in that a marriage contracted by a woman is void and is potentially zina (fornication). According to Maliki school such marriage is irregular until the guardian gives his consent, which makes it valid. Without guardian's agreement the marriage has to be dissolved. Hanbalis require the marriage to be contracted again, this time by the guardian.
Although in non-Hanafi schools a woman does not contract her marriage, consent of a previously married woman has to be obtained. Those who possess a right of compulsory guardianship, can give a virgin in marriage, whether she agrees to it or not, she does not even have to be consulted. They are her father, also grandfather, according to Shafi'is; Malikis and Hanbalis allow it to the father's delegate, but Hanbalis restrict it by demanding father's expressed permission to his appointee to do so. If she was not consulted, the girl, however, may claim that the marriage was not in her interests, but rather was to the guardian's own advantage, which violates the purpose of guardianship, or if he for no apparent reason refuses her a marriage with her equal for a proper dower it constitutes adl, and in the first case she can seek her marriage to be dissolved and the right of guardianship transferred further along the line in both cases.
Shari'a sets no minimum age for marriage, and a case is cited that "Qudamah b. Maz'un had contracted his marriage with the daughter of Zubayr on the day she was born and had said that, in the event of his death, she would be his heir" (Dr. Tanzil-ur-Rahman, "A Code of Muslim Personal Law"). In "Chapters on Marriage and Divorce. Responses of Ibn Hanbal and Ibn Rahwayh" there is a discussion on the consequences of a wife nursing her co-wife, in the other place, Ibn Hanbal assigns custody of a girl over seven years of age to her father, because "he gives in marriage girls of such age".
Restriction on the marriage of minors is that only persons who have the right of compulsory guardianship can give minors in marriage in Maliki, Hanbali and Shafi'i schools. In Hanafi any guardian has this right, but unless it was the girl's father or grandfather, she is allowed to repudate the marriage as soon as she reaches puberty, it is called the option of puberty, khiyar al bulugh. The implication is that father (or grandfather) loves the child and would never do anything to harm it. But even if one of them was the guardian in marriage, she can still seek the marriage dissolved on the same basis, as a girl married by coercion in other schools: if she can prove to the court that the guardian acted against her interests, negligently and that he is not a trustworthy person.
As soon as the marriage of minors was outlawed in the countries of Hanafi madhhab, the question of marriage without a woman's consent was solved, because in Hanafi law a major woman contracts her own marriage. The first piece of legislation limiting the age of marriage in a Muslim country was The Ottoman Law of Family Rights, 1917. Article 4 limited the age of marriage to 17 for a girl and 18 for a boy, articles 5 and 6 allow a judge to give permission to marry earlier to a boy or girl who have reached puberty, but article 7 stated: "Nobody is permitted to contract into marriage a minor boy who has not completed the age of twelve years or a minor girl who is below the age of nine years."
The Ottoman Law of Family Rights has become the basis for further legislation in most countries which had been under the Ottoman rule. First of all, in Jordan, where this Law was in force until 1947, in the West Bank, and Gaza it applied until 1950; Lebanon, and Syria.
In some of its articles, especially on the guardianship in marriage, Jordanian Law of Personal Status of 1976 seems to go back to the Shafi'i madhhab, which was professed there before it came under the Ottoman rule, and then remained in customary use. Example of this is article 13 which can be understood to imply that previously unmarried woman or a woman under the age of eighteen requires her guardian's consent for marriage. However, any possibility of compulsory guardianship is ruled out by the article 14 which requires a marriage to be contracted by an offer and acceptance of the betrothed couple.
In Lebanon, The Law of the Rights of the Family of 1962, article 57, rules that "Marriage by coercion shall be invalid", but no provision is made that a woman herself should make the contract, or if it is concluded by her guardian, that her consent should be obtained. Of course, these provisions are not necessary in the countries where Hanafi laws are applied in all matters not stated clearly in the modern legislation.
In Syrian Law marriage is a contract between a man and a woman (article 1), and if they are the contracting parties, the guardian, if he is father or grandfather, has his place only in the marriage of adolescent boys and girls, below the age of legal capacity (17 for a girl), in that his consent is required for their marriage.
Similarly, in Iraqi Law marriage is a contract between a man and a woman and a person may not be compelled to marry. The contract of marriage concluded under duress is void unless consummation takes place (article 9.1).
In my opinion, there is a difference between a marriage against a woman's will and without her consent, because when a guardian contacts a marriage of his ward without consulting her, it does not automatically mean that the marriage is forced upon her.
This distinction is relevant, for example, to the Moroccan Law, which follows Maliki school, and states in article 12.1: "...the guardian shall not contract her marriage unless she authorises him to do so, except in the case of ijbar (compulsion) specified hereafter". Article 12.4 specifies that even the father cannot compel to marry his virgin daughter, who is of age (fifteen in Morocco), but must obtain her permission and consent. The loophole in the Law is article 9, which effectively leaves intact both coercive guardianship and the marriage of minors. Unlike legislation in other countries (Algeria, Jordan, Lebanon, Syria, and so forth) which allows marriage to adolescent persons under the legal age after a consideration and permission by a judge, Moroccan law puts no lower age limit or condition that puberty is reached. Condition for a marriage before the legal age is merely the guardian's consent, and nothing else. This legislation might be out of date today, after a new law was passed in 1994, but I have not had access to its text.
Kuwaiti Law No 51 of 1984 concerning Personal Status, also originated in the Maliki madhhab, bows both to the tradition and to the concept of free will. There is no compulsory guardianship, because article 25 states that "Marriage of a person who is coerced shall not be valid", and article 29 stipulates that a girl who is a virgin and below twenty-five years of age does not have freedom of choice, but her and her guardian have to be in agreement.
Likewise, in another law of Maliki origin, the Law of Libya (1984), article 9, agreement between the ward and guardian is a condition for the validity of marriage. On top of that, article 8 says that a guardian is neither permitted to force his ward to marry, nor to prevent a marriage desired by her.
In originally Maliki Algeria although presence of the marriage guardian is one of the conditions of a marriage, along with it is the consent of the future spouses (article 9). A guardian is forbidden to compel his ward to marry and may not give her in marriage without her consent (article 13).
Its neighbour Tunisia has the most radical legislation in the marriage field in that it completely prohibits polygamy. On the matter of guardianship and the age of marriage it does not differ greatly with the other codes I quoted in that it says: "Marriage shall only be contracted with the consent of both spouses", but does not require a woman herself to make the contract.
Yemeni code makes no provision for the marriage before the legal age of fifteen (article 15), therefore a provision that a contract based on coercion is not valid if the persons are of age (article 10), does not mean that they can be married by coercion before that age, because they can not be validly married until they are fifteen. Further provision requires for the husband and the wife's guardian to register the contract within one week of the date of the contract, which makes it impossible for a marriage to stand until the spouses reach required age and it can be validated then. Article 23 states that consent of a woman is required, it has to be expressed if the woman has been married previously, while for a virgin her silence is her consent.
In Egypt marriage of minors is not outlawed, a guardian can contract such a marriage, but discouragement is in that no court suit shall be heard if the husband is below eighteen and the wife below sixteen years of age. (Dawoud El Alami, "The marriage contract in Islamic law in the Shari'ah and personal status laws of Egypt and Morocco",1992). It means that though a woman of full legal capacity can contract her own marriage, minors, who are not supposed to be married, do not have their rights protected. After Moroccan, this is another legislation where compulsory guardianship still has its place.
Some contries still have no codified law. They are Saudi Arabia, United Arab Emirates, Oman and Bahrain. There the rulings of their traditional schools of thought are applied.
In practice, however, all these legal provisions make little difference, especially that only Iraq states the penalties for breech of these laws or contracting a marriage outside the Registry Office. Even in Britain anything is done outside the Registry Office: child marriages are contracted, men marry several wives and so on. Furthemore, as I mentioned before, in a patriarchal society a girl would never be able to resist coersion, even when she has the right to make her own marriage. In Britain we hear a lot about people being forced into arranged marriages, the fact that they have to pronounce their consent making no difference. The major difference is brought about by the modern development and education, and in Morocco, where the Law does not forbid it definitely, there might be less marriages of minors or by coercion, then in Yemen. It should also be noted that a prohibition would be stricter where the practice is more widespread, and I hope that by the time Emirates, Saudi Arabia, Oman and Bahrain will come up with their codified laws, there would be no need to worry about the wording on the prohibition of something already almost extinct.