Child marriage fair in Islam, foul by law

By Boo Su-Lyn - The Malaysian Insider


PETALING JAYA, April 9 — Religious experts are split whether child marriages are legal in Islam but all agree that Malaysia’s civil laws prohibit such nuptials.
The issue came to light when an 11-year-old girl named Siti Nur Zubaidah was married off to a 41-year-old man in Kampung Jelawang, Kuala Krai last month. Also in Kelantan was a case involving a 10-year-old girl who was allegedly forced to marry a man in his 30s.
Kelantan Women, Family and Health executive councillor Hajah Wan Ubaidah Omar said Islam condoned such marriages if they were approved by the Syariah court.
“In God’s eyes legal, but in laws of the country (Malaysia) not legal,” said the Kijang state assemblywoman when questioned on the legality of child marriages.
Speaking about the 11-year-old, Ubaidah said that it was clearly wrong as the girl’s father had not received permission from the Syariah court to marry the girl off to the older man. She added that the girl’s mother had requested for the religious department to annul the marriage.
Section 8 of the Kelantan Muslim Family Law Enactment (2000) states that any girl below 16 cannot marry, except with written permission from the Syariah Court.
When questioned on what criteria would merit such consent, Ubaidah replied that in cases where a girl and her partner are “madly in love beyond control”, the court would grant them permission to marry. A father who wishes to marry the girl off to a rich man may also receive similar authorisation from the court.
Although Ubaidah said that a girl’s consent and understanding is needed before marrying her off, she said: “Silence is consent”. If a girl is married off without her consent, she can seek help from her relatives or approach the religious department herself, Ubaidah added.
Ubaidah explained that in Islam, it is the father who usually gives his daughter up for marriage. This role is called the wali or guardian. If the father is not available, the role of the wali can be played by the girl’s grandfather, brother, or uncle.
However, former Perlis mufti Dr Mohd Asri Zainul Abidin rejected the Syariah view that invests power in the father to give his daughter up for marriage. “Fathers do not have absolute power,” he said in a telephone interview.
“Women must make their own decision,” he stressed, adding that before marrying, a girl must have reached puberty, is mature, and be able to make decisions.
Non-governmental organisation, Sisters in Islam (SIS), was adamant that child marriages were wholly unacceptable, as stated in their letter to the editor on March 12, 2010.
SIS argued that puberty alone is not an indication of sufficient maturity for marriage, citing the need for soundness of judgment and maturity of mind as indicators of marriageable age, based on Surah an-Nisa’ 4:6 which requires orphans who reach the “age of marriage” or “a marriageable age” be tested for “sound judgment” or “maturity of mind”.
SIS also called for the government to raise the minimum age of marriage for Muslim girls from 16 to 18, in line with the Child Act that defines children as those below 18 years of age.
The Department of Islamic Development Malaysia (Jakim) could not be reached for comment on the matter.
Islam is a state matter under the respective state rulers although Jakim has been tasked to ensure all Islamic laws are uniform in Malaysia.