Delhi HC verdict on 15-year-old Muslim girl marriage.

The recent Delhi High Court verdict upholding the marriage of a 15-year-old Muslim girl has come as a rude shock. The court validated its judgment on the basis of Mohammedan law on marriage, which says that a girl could marry a person of her choice if she has attained puberty.

In the present case, the Delhi High Court ruling has come over "elopement marriage" of a minor girl, who fled from her home to marry her paramour against her parent's wishes and happens to be a Muslim. The girl's marriage also comes under the purview of child marriage.

The judgment of an Indian court over this issue, despite her parent pleading to declare the marriage null and void and treat it as a case of abduction, threatens to raise serious repercussions in several ways now. 

First, the court has seemingly approved "elopement marriage" of a legal minor, which might open floodgates prompting minor children to elope and marry their lovers, deriding their parents' wishes. The ruling also threatens to create social chaos and rip apart India's fabled traditional ethos. In recent times, honor killings have become rampant in the wake of abrupt increase in "elopement marriages". Though, I am strongly against such honor killings, but the same is absolutely not true with majority of Indians.

Second, the court ruling is a tacit approval to child marriage citing Mohammedan law as a ruse. In India, child marriage is widely prevalent among Hindus, and is seldom found among Muslims. However, Indian laws strongly disapprove of child marriage, and social activists have been constantly waging a war against this. The court's verdict also brings into question the issue of child rights and the fundamental Right to Education. Apparently, the court deliberately ignored these vital factors while pronouncing its judgment.

Third, the court, while upholding women's rights, has appeared to be insensitive towards girl child and her rights. The judgment is solely based on the girl's physical puberty, and completely ignores her mental puberty. Instead of taking a holistic view, the court acted inhumanely and anti-girl child, which is surely not expected from the upholders and guardians of law.

Double Standards of Muslim leaders/Organizations

As expected, this bizarre and absurd judgment has been warmly welcomed by Muslim clerics and leaders. Maulana Anisur Rahman Qasmi of Patna-based Emarat-e-Shariah hailed the ruling and said that there is nothing wrong in it. Mufti Mohammed Mukarram Ahmed, the Shahi Imam of the Fatehpuri Masjid in Old Delhi, said that as per Muslim law a 15-year-old girl can marry. Prominent members of All India Muslim Personal Law Board (AIMPLB) Kamal Farooqui and Raheem Quraishi have welcomed the Delhi High Court ruling saying that the court did the right thing. Justifying the marriage of minor Muslim girl, Kamal Farroqui said that today kids are very mature, know a lot about sex and can make their own choices. Muslim organizations like All India Muslim Majlise Mushawarat have also hailed the verdict.

Much to chagrin, the AIMPLB has even gone to the extent of demanding an amendment to the Prohibition of Child Marriage Act to exempt Muslims from it. According to AIMPLB, marriage is one subject where the Sharia should be applicable under the Shariat Application Act. In demanding this, the AIMPLB is acting as though the issue of marriage is the be all and end all for Muslims and it is what concerns them the most. The AIMPLB is completely insensitive toward the rights of Muslim girls and their education and upbringing.

The fact is that most Muslim leaders are debauch as far as important issues of the community are concerned. These self-serving leaders and Muslim organizations like AIMPLB, AIMMM and others flagrantly practice double standards and mostly believe in the concept of "meeting, eating and shitting" (holding meetings and seminars, eating luncheons and shitting to prepare for the same routine next day), They tend to propagate retrogressive ideas for the community and strongly pitch for their implementation; as in the present case of the marriage of a minor Muslim girl. 

A glimpse into the personal lives of some these prominent Muslim leaders is enough to prove that they are downright progressive in their day-to-day lives and deeply abhor the implementation of retrogressive ideas or Shariah laws in their own families. You won't find a single Muslim leader who married off their children at the age of 15 years. But, see how shamelessly these leaders are supporting child marriage in the name of Shariah and supporting the Delhi High Court verdict. 

Even reputed organizations like AIMPLB are doing a great disservice to the community in seeking the exemption of Muslims from the Prohibition of Child Marriage Act. People like Kamal Farooqui have only used AIMPLB to further their own selfish political agendas and join political parties. Farooqui is presently a member of Samajwadi Party. If AIMPLB can continue to accommodate people like Kamal Farooqui, then why not people like BJP leader Shahnawaz Hussain be also made member of AIMPLB.

Islamic sects divided over marriage age

There is a lot of contention on the permissible marriage age in Islam. According to some Islamic sects, Muslim marriage law permits marriage of minors. Shafi school of thought has declared that the age of 15 years should be taken as marriage age. However, other schools of Islamic thought are at variance with each other and do not give any specific age of marriage. But, most of them agree that the age of marriage can be different in different regions depending upon the age of puberty.

According to English Common Law, a male at the age of 14 and female at the age of 12 years were allowed to marry with their parents' consent. The English Marriage Act of 1753 abolished English Common Law but still permitted previously established marriage age. In 1927, the English legislature raised the marriage age to 16 years for the both sexes.

In the U.S., English Common law was initially followed, allowing the male of 14 and female of 12 to enter into a marriage contract. However, the law kept on changing continuously, and presently the marriage age for both sexes is different in different states of the United States.

In 1962, the UNO adopted a ‘Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages’. There are 55 countries which are parties to the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages, which requires them to specify a minimum marriage age by statute law, thus overriding customary, religious and tribal laws. The Article 2 of the resolution states that parties to the Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses. However, the states who have not fixed the marriage age, whether signatories or not, have legislated differently for age of marriage.

Different countries have formulated a lower bar for male and female to marry with consent of their parents. The Muslims living in these countries are bound to follow the coded marriage age. The age and other requirements vary between countries, but generally it is set at 18, although most jurisdictions allow marriage at slightly younger ages with parental and/or judicial approval, or in case of pregnancy. When the marriageable age under a law of a religious community is lower than that of the state ("country"), the state law prevails. However, some religious communities do not accept the supremacy of State law in this respect.

According to Wikipedia, here are the marriage age being currently practiced in some the Muslim countries around the world. Algeria: 21 for males and 18 for females, lower with judicial permission if necessity or benefit is established; Egypt: 18 for males and 18 for females, the age was raised in 2008 from 16 to 18 for females; Libya: 20, lower with judicial permission on grounds of benefit or necessity and with wali's agreement; Morocco: 18. (This is not always followed in rural areas and many judges do not uphold this law and let women younger than 18 marry.); Afghanistan: 18 for males and 16 for females, more than half of marriages involve females under 16; Azerbaijan: 18 for males, 17 for females. 17 or 16 correspondingly in special cases; Bangladesh: 21 for males and 18 for females, lunar calendar; penal sanctions for contracting under-age marriages, though such unions are not considered invalid; India: 21 for males and 18 for females. If any partner(s) engages in marriage at a younger age, (s)he can ask for the marriage to be declared void / annulled. A recent recommendation by the Law Commission aims to equalize the marriage age for males and females to 18, automatically declares marriages under 16 as "null and void", while marriages at the age of 16 or 17 are "voidable". In 2012, high court has declared that Muslim women can marry at 15; Indonesia: 19 for males and 16 for females, younger ages with parental consent; Iran: 18 for male, 16 for female; Iraq: 18, 15 with judicial permission if fitness, physical capacity and guardian's consent (or unreasonable objection on part of guardian) are established; Jordan: 16 for males and 15 for females, lunar calendar; court permission required for females under 18 to marry men older by 20 years or more; Tunisia: 20 for males and 17 for females, lower with judicial special permission for pressing reasons and on the basis of a clear interest for both spouses; Malaysia: 21, 18 with parental consent. Muslim girls under 16 can marry with the permission of shariah authorities, and some girls as young as 14 have been permitted to marry; Maldives: According to custom, the minimum age for marriage is 15; the Law on the Protection of the Rights of the Child discourages marriage before the age of 16; Pakistan: 18 for males, 16 for females; Palestinian territories: 16 for males and 15 for females, lunar calendar; and Saudi Arabia: None currently, legislation for age 18 is being considered.

With the given statistics, it is apparent that in most Muslim counties the permissible marriage age for girls is 18 years. In the Indian context, the legal marriage age for girls is also 18 years. The Delhi High Court judgment in the case of a 15-year-old Muslim girl is therefore mala fide, communally biased, anti-girl child, anti-development, anti-progress and anti-education. If India is still not a signatory to UNO ‘Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages’, then it is incumbent on the Government to immediately sign it without losing further time and legislate a minimum age of marriage for all the citizens of the country, which should be mandatory and binding on them irrespective of religion, language, caste and creed.

Fallacy of Muslims

The Holy Quran does not state a specific age as the age of marriage. Surah an-Nisa’ 4:6 requires that when orphans reach the “age of marriage” or “a marriageable age” they can be tested for “sound judgment” or “maturity of mind.” This indicates that a marriageable age is linked to soundness of judgment and maturity of mind. The onset of puberty alone is no indication of sufficient maturity for marriage.

When it suits their convenience, Muslims, particularly Clerics and proponents of child marriage, expertly cite the marriage of Prophet Muhammad (SAW) to Aishah, whom he married at the age of nine, taking as the exemplary age of marriage for Muslims. But, after all why Muslims and the Mullahs simply ignore the fact that Prophet Mohammad’s (SAW) first marriage was to a businesswoman Khadija, a widow 15 years older than him? Apart from this, Prophet Muhammad’s (SAW) other wives included widows, divorcees and slaves.

Forget about marriage to widows and divorcees, in present times marriage to older girls is looked down upon by Muslims. After all, why is Prophet’s Sunnah being completely ignored in this context? Shouldn’t the Mullahs and Muslims also ponder over the issue of marriage with older girls, widows and divorcees, just in the same vein as they have welcomed Delhi HC verdict upholding the marriage of 15-year-od Muslim girl?

Hazards of marrying girls below the age of 18

Several studies have been carried out elaborating the harmful effects caused to girls marrying below the age of 18. Such marriages result in grave consequences, including denial of childhood and adolescence (the loss of childhood and adolescence, the forced sexual relations and the denial of freedom and personal development have profound psychosocial and emotional consequences on girls); denial of education (once married, girls tend not to go to school); health problems (these include premature pregnancies which cause higher rates of maternal and infant mortality and cause hormonal and physical changes which confuse the girl child’s body growth. Teenage girls are also more vulnerable to sexually-transmitted infections, including HIV); and, abuse (this is common in child marriages. Research in several countries found that women who marry before the age of 20 were more likely to report experiences of physical or sexual violence when they started living with their husbands). 

Why not implement Uniform Civil Code?

Shiv Sena chief Bal Thackeray, whose views are mostly seen as communally biased and anti-Muslim, has rightly expressed concern over the recent Delhi High Court judgment allowing Muslim girls attaining puberty the right to get married. Thackeray said in a recent editorial in the party mouthpiece Saamna: “This is nothing but promoting ‘balika vadhus‘ (child brides) among the Muslims, while the same (child marriage) is illegal among the Hindus.” Thackeray elaborated saying that as per the Indian laws, no girl below the age of 18 and no boy below 21 are legally permitted to marry.

Firebrand Shiv Sena chief Bal Thackeray deserves praise for speaking out his mind on this absurd judgment and showing concerns and large heartedness on the issue of Muslim girls, who continue to remain subjugated under the male-dominated Muslim society.

If Indian Muslims are already following the law of the land in civil and criminal matters, then why shouldn’t they also follow Indian laws on matters of marriage, inheritance and rights of women? In fact, the Government of India should consider the process of implementing Uniform Civil Code taking into account vital issues related to Muslim Family Personal Law. The Government of India should make it mandatory on all the citizens of the country, irrespective of religion, caste, language and creed, to marry their girls at the age of 18 years. 

Muslim organizations like AIMPLB should become more proactive, particularly on issues where Muslim women are being suppressed. Today, a majority of Muslim women are being deprived of their rightful share in their parent's properties, which strictly goes against the teachings of Islam. My late mother has herself been a victim of this parental and brotherly apathy. After all, what role has AIMPLB played so far except paying lip service and ultimately doing nothing. I find that Hinduization of Muslims is complete in India today. However, Islamization of Muslims is the need of the hour, both in letter and spirit. Or else, only Muslims will be held accountable for their own misfortune and backwardness.

Article By: Danish Ali Khan, Founder Manager of IMB