Is betrothal in the cradle permissible in our religion?
A Brief Description of the Question:
Is betrothal in the cradle permissible in our religion?
The Answer:
Marrying – in some regions promising or agreeing to marry - children before they reach the age of puberty by their parents is called betrothal in the cradle.
Let us summarize the decrees about marrying small children – without giving them the right of choice – in fiqh (Islamic Jurisprudence) and in practices.
1. Some scholars, not all, say, “children can be married before they reach the age of puberty by their parents”; however, they lay some conditions for the parents and the children to be married; they give the judge or the child the right to annul the marriage – when they reach the age of puberty - if those conditions are not met. The permission of marrying a child by his/her parents when he/she is small is based on the marriage of Hazrat Aisha with our Prophet before she reached the age of puberty by her father and the traditions of Arabs regarding the issue. However, the person to marry is our Prophet (pbuh), who is mercy for the worlds, and his state is an exception; and he always ended the marriages that were carried out by force when women or girls who had been married to people that they did not wanted when they applied to him.
2. There are Islamic scholars who do not regard the marriage of small children by their parents permissible; The Ottoman State, which applied Shariah, adopted that view in the Law of Family, enacted it as a law (item 7) and applied it in the courts that were affiliated with the Caliphate. The simplified summary of the reason of the relevant item of the law is as follows:
Since it was permissible and valid to marry small girls and boys by their parents according to the leaders of the four madhhabs, the practice was in accordance with that view. Things have changed in our time and it is necessary to adopt a new method. In our time when the struggle for life has become very hard, the first duty of the parents is not to marry small children but to educate and train them.
Many parents who neglect education marry their children in order to receive bride price, to experience the happiness of their children’s marriage or to receive inheritance; they start their children’s destruction through marriage; most of those marriages are born dead at the beginning.
It will suffice to look at fiqh books and court registers to see that there are so many cases regarding those kinds of marriages and that they are amazing. Abu Bakr al-Asamm and Ibn Shubruma, who were both mujtahids, decreed that nobody had the right to marry small children because the children did not need to marry and it limited their freedom according to views that do not regard it possible to annul the marriage.
(According to those mujtahids: people qualifed to make legal decisions, the incidence of Hazrat Aisha is peculiar to our Prophet; it cannot be generalized.) The disastrous experiences that continued for a long time confirm the views of those imams. Therefore, item 7 of the law was rearranged in accordance with the view of those mujtahids.
If the Ottoman State had not been destroyed, that law would be valid; that is nobody would marry small children. As a matter of fact, the application in Islamic countries that arrange the family law in accordance with Shariah is based on that view.
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