In answer to the video "Surah 65:4 and Child Marriage in Islam"
The Quran ties puberty with intellectual maturity together as a prerequisite for starting one's own life, showing that marriage is not only a question of physical maturity 4:5-6. Wealth is handed back to them when they reach maturity/rushd, determined intellectually, as well as a mariageable age, determined physically. If, by the way, the "reaching" of that age isnt determined through observable physical signs as occurs at puberty, but rather the reaching of a specific age, why doesnt the verse simply give that age? The reason is that these bodily changes occur at different ages. Further, to specify an age of marriage would be unpractical. Life expectancy varies depending on many factors. Some countries' average is in the 30s, even today. These conditions necessitate childbearing to happen at the earliest possible time so as to avoid demographic decline. Also, this marriageable age does not have to be at the very start of puberty. It is left to the parent's appreciation who must also evaluate mental readiness. This is done by talking and interacting socially with a person. By their behaviours in different situations and answers to topics like married life, one can evaluate readiness. Anyone who has children understands this process of maturity. The approach to marriageable age in Islam is thus holistic, instead of arbitrary as is the case in modern, secular societies. Muslim fathers, and traditional fathers in general are very protective towards their children and girls in particular. They will never just give away their daughters in marriage without making sure they are ready for full marital life, which includes being capable of shouldering multiple household tasks. Neither would they accept anyone marrying their daughters who is not in the best interest, spiritual, physical, material, to their daughter.
Age of consent in non-muslim countries has varied greatly throughout recent history. It went from "undefined" (ie during puberty) to around 15 years old. The reason they began raising the age was to avoid abuse and child prostitution. On the flip side, these unnatural regulations generated other problems. A child of 8-15 hitting puberty starts experiencing strong sexual desires. The best course of action is to have the consensual option of channeling those desires within the safe bonds of marriage. But modern societies prefer having their children engaging in hidden deviations including fornication, masturbation, pornography. Abstinence is a known failure in this age range and especially in our time of overexposure to information and temptations, as well as almost limitless gender mixing. The true fact is that in these Judeo-Christian liberal societies, by the time a girl reaches what is considered an acceptable marriage age in her mid 20s, she would have already accumulated multiple sex partners. The burden is thus on Judeo-Christian and secular societies to propose an alternative to the Islamic solution.
Also, and as is obvious in our modern times, mental maturity occurs much later than it did in earlier societies. In Islam however there is no such thing as age of consent. Sex is only possible if both parties enter into marriage agreement. And this necessitates mental readiness as amply seen from the Quran and sunna. Neither the Quran nor the prophet ever allowed abusing anyone.
The verses 4:5-6 state that the orphans about to live independently are to be put through intellectual trials prior to their reaching the age of nikah
"And test the orphans until they attain mariageable age".If the orphan reaches the age but fails those tests then he cannot be left to fully unite with another and consume the marriage, since starting a life of married couple necessarily includes managing a family and property. A woman receives the dower agreed upon with the husband, either before or after the marriage but always before there can be sexual contact 2:236-7,4:4,19,24-25,5:5. This is a very important point. The husband cannot retain this amount under any circumstances unless the wife willingly chooses to remit some part of it. An immature woman cannot freely dispose of her wealth, not even a portion of it, meaning her mental maturity is a prerequisite for releasing the dower which must happen before sexual contact.
This shows again that mental and physical maturity are tied together as a prerequisite for living together as a married couple and starting one's own life.
All this is demonstrated in the case of female orphans whom the guardian is taking care of and managing the property. The verses 4:5-6 are part of a passage dealing with the well being of orphans. It urges the guardian to make sure the orphans under his care are fully able to enter independently into society. Why would the same guardian do any differently with his own children? This is why commentators including ibn Abbas and ibn Kathir argue for the general application of the verse 4:5-6 to any immature individual. Similarly in 60:12 there is nothing specific for believing women. Bukhari reports that the Prophet, based on this verse addressing women, used to take pledge from believing men on exactly the same terms as believing women.
Elsewhere the Quran refers to marriage as a covenant/mithaq 4:21. As there can be no agreement unless both parties give their consent to it, marriage in Islam can only be contracted with the free consent of the two parties. The fiqh of even the classical schools argue that a female needs to be consulted regarding her marital status.
There is absolutely no such concept as a forced marriage in Islam and every female enters into the contract willingly and mentally capable to understand the situation she is getting into. The actual complete expression is mithaq ghaleezan/a solemn covenant and is used elsewhere to denote a serious bilateral agreement unbefitting of a child 4:154,33:7.
A Girl once came to the prophet, anxious and saying she dislikes the man her father has arranged for her, the Prophet answered
“If you do not like him, that is an end to the matter. You have full authority. Go and make the choice of man whom you would like to marry.”This attitude from the Prophet was unheard of in a time where girls had nothing to say in that matter. His daughters married the men of their choice, when Ali came to him asking the hand of Fatima, he answered
"Several persons have come to me to ask the hand of az-Zahraa but by the displeasure of her countenance she has refused them. Now I shall inform her of your request.”
65:4"And (as for) those of your women/nisaa who have despaired of menstruation, if you have a doubt, their prescribed time shall be three months, and of those too who have not had their courses; and (as for) the pregnant women, their prescribed time is that they lay down their burden; and whoever is careful of (his duty to) Allah He will make easy for him his affair".
The verse comes in the context of divorce obviously as seen from the preceding verses, and is an expounding of the general rule mentioned prior in 2:228. It speaks of nisaa. Nisaa' only means mature women, not atfal/children who havent reached puberty 24:58, and obviously only nisaa can menstruate 2:222.
Even the commentators often quoted to support child marriages never speak of children in their analysis of 65:4 and "those who have not had their course". Ibn Kathir or ibn Abbas for instance infer that the reason for delayed menses is them being young. Since when did youth only cover children? ibn Abbas himself states that the age of nikah spoken of in 4:6 is puberty. Girls can reach puberty without menstruation. Body changes like body shape, breasts or pubic hair happen around 2 years before the first period. Sometimes menstruation is delayed longer due to medical and environmental reasons. But the girl will still be of marriageable age despite the delay, provided that she is also mentally ready. Those who often accuse Islam of allowing "pedophilia" have in mind sex with non-menstruating girls. The age of consent in some European countries today like Italy, France or Germany is 14-15. Yet, as stated earlier, many girls reach those ages without menstruation. Would this entail that even those most secular countries allow pedophilia? Those who defend that system would then argue that consent only applies to boys and girls of similar ages. It is thus better morally, spiritually and for the fabric of society to have 2 minors fornicating than a minor marrying an adult with her and her guardians' consent? Where are the parents in the equation, can they disagree and prevent a girl of 15 to have sex with another teenage boy? Does "age of consent" implies knowing what is good for oneself, especially in our modern societies where boys and girls are everything but mentally mature at this stage? Also, a 17 year old boy fornicating with a non menstruating girl of 14 is fine but if the boy is 18 he becomes a pedophile? Even more absurd is that a girl of 17 marrying a man of 25 is pedophilia while the same girl at 18 marrying a man of 50 is fine.
Yes, even in the patriarchal model, abuse is possible. Parents can be corrupt or careless and agree to a bad marriage. Just as they could be abusive and irresponsible to their children even while under their care. But at least they always are part of the equation whenever it comes to deciding for their well being, contrary to secular Judeo-Christian societies. And parents, for the most part will always do and agree only for what is best for their children. The premise of parenthood and guardianship in the Quran and every healthy society is that of care and protection of those under authority. These are the people who are intended in the spirit of the shariah, not abusive and careless guardians.
From a purely medical perspective, pelvic and general body size, as well as fat deposits are almost complete when the first period occurs, mostly between the 8-13 age range. In other words a girl reaches her adult shape at menarche, hence the reason they generally appear bigger than boys of the same age. There is no evidence of minor marriage and consummation at menarche intrinsically causing any more psycho-physical harm than for a girl in her mid 20s, especially not in a traditional backgrounds where girls are safeguarded by their guardians, only married depending on their overall readiness. The statistics showing harmful early marriages do not occur in such contexts and are most often due to poverty, improper medical care, absence of specialists, trained midwives etc. Such social factors elevate the risks of pregnancy and delivery across all age ranges. Spiritually, even evolutionary speaking it makes no sense that a girls' body is made capable of childbearing but that this potential is negated. Peak attractiveness of females is considered to be youth and fertility, not maturity, status or college education. Clear studied have shown that the majority of mature men have sexual thoughts and desires at the sight of minor and early pubescent girls. Due to post-modern social stigma, these men for the most part did not openly admit it, unless the ages of the girls were hidden. Attractiveness of males generally occurs in the late 20s, with features such as status, maturity, and general manliness like facial hair, bone and muscle density.
The secular and modern Judeo-Christian argument boils down to saying that humanity has only now discovered that early marriages are harmful, even deadly due to physical and mental effects, than later marriages.
Going back to the classical jurists, al Shafi'i states that no virgin is to be given in marriage "until she reaches the age of puberty and they ask her permission". Same for ibn Taymiyya. This is based on the Quran's clear statement in 4:5-6 as well as the prophetic practice, who disolved arranged marriages where the bride wasnt asked permission and seemed unhappy. An nawawi quotes al Shafi'i and agrees with him "what they said does not go against the hadith of Aisha". Of course the classical scholars used ijtihad to apply the verse to marriages of interest done very early on in the ancient times. These unions were contracted but not consummated until both parties were physically and mentally mature. As ibn battal says "The scholars agreed that it is permissible for fathers to marry off their young daughters even if they are in the cradle, except it is not permissible for their husbands to consummate the marriage with them until they are prepared to safely have intercourse".
The jurists stipulate that in such situation, the girl remains in her guardians' home until they deem her mature enough to consummate the marriage. This is established on physical appearance and mental development, which varies depending on many factors, internal to the person and environmental. At that point, and as shown earlier, the girl is free to reject the marriage proposal, prior to consummation as unanimously agreed. The prophet said
"A previously married woman has more right (to decide) about herself (with regard to marriage) (than her guardian), and a virgin should be consulted by her father. [Sunan an-Nasa’i 3264]""A virgin should not be given in marriage until her permission is granted. [Sahih al-Bukhari 6970]".
Consent, which obviously implies mental maturity, is therefore always understood as part of the equation whenever the jurists discussed marriage procedures. Even if she accepts the marriage, no complete intercourse is allowed to occur if there is fear of physical and mental harm. And this can be due to many reasons besides youth, including illness or thinness. What is allowed then, are other type of harmless sexual acts husband and wife normally happily consent to.
When the classical jurists practiced ijtihad to determine the minimum age of marriage, they did not use Aisha's age as reference. Hanafi for instance define it as puberty based on 65:4. Hanbali, Shafi'i and Maliki place it at what they deem the average age of mental/physical maturity as per Quran 4:5-6, at around 15years old. Marrying a 9, 15 or 40 year old is not more of a command Muslims must follow than riding camels for transport or searching for a well to fill a bucket with water, just because the prophet did what was appropriate to his time, needs, context.
Thus the Muslim layman, scholars and jurists never saw the early marriage of Aisha to the prophet as sunna, a practice incumbent on Muslims to emulate. This is seen by the fact that statistically and since the beginning of Islam, girls being fully married around the early age of 9 was very rare. The numbers are dwarfed in comparison to the rapes and abuses of prepubescent boys and girls and minors, institutionalized and covered for centuries by the Catholic Church throughout the world and till this day. Yet these are the people who would like to paint Muslim societies in light of their own failures.
The 2 potential roots of the word nisaa denote either forgetfulness (n-s-y) or delay (n-s-hamza) and the manner in which these meanings relate to a physically mature women is that she has either forgotten when she had her last period or that her period is delayed. Both situations describe a woman who is potentially pregnant or that may become one. In the verse, there is no shift from talking about women to talking about children. A woman divorced prior to having her period should wait 3 menstrual periods to significantly reduce the chance of a pregnancy wrongly associated with the new husband.
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