Sam Shamoun "Was Aisha really only Nine?" (3)

Sam Shamoun "Was Aisha really only Nine?" (3)

 

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 associated with 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 words of the Quran have no specificity of age and are interested in dealing with determination of pregnancy via menstruation -a device that cannot cover prepubescent girls, unless they are well into the age of puberty but did not have their first period yet- and in addition the conditions are attached to the word nisaa in the beginning of the sentence, which only means physically mature women.

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. 

There are several physiological reasons for otherwise normally menstruating women that might cause them to fail having their courses, including pregnancy, medical conditions, hormonal dysfunctioning, stress, too much physical exertion, diet etc. It can be delayed and some women may not bleed very much, to the point its hardly noticeable such as what happens in the menopausal stage, before the postmenopause which is the period where women cannot get pregnant anymore.

Those women "who have not had their courses" therefore covers all these categories. The verse also speaks of those that might be in postmenopause and unable to carry children anymore but one isnt 100% sure they have reached such stage, hence the words "if you have a doubt" in the phrase 

"And (as for) those of your women who have despaired of menstruation, if you have a doubt".

 It speaks of women in a condition of despair as regards their monthly courses, women who are beyond the normal age limit and who have not had their courses anymore as they should. Any woman who has seen the effects of that natural phase in other women knows how well off she was during her menstrual phase and relatively mild bothersome symptoms that she experienced.

In comparison there are much more increased risks of health issues to a postmenopausal woman, like heart and bone diseases among many other conditions, not to speak of the mental factor of having to accept infertility, especially for those women without children and who married late. Some unsuccessfully tried to argue that since postmenopausal women must wait 3 idda despite them not having had their courses for a long time and having only a slight chance at pregnancy, then nothing negates that prepubescent girls must also wait 3 idda since, just like the former case, they too have not menstruated for long and in addition they too have a little chance of pregnancy about a month prior to their first courses.

However the wording denies their inclusion. Although one may "doubt" whether a pre-pubescent girl with whom one had intercourse is pregnant or not, just like one may doubt if a woman in postmenopause is pregnant, a pre-pubescent girl is certainly not one who has "despaired of her menstruation". Only one who is well into, if not already passed the normal age range at which women become postmenauposal, qualifies as "despaired of her menstruation". And besides, to include prepubescent girls among those who have "despaired of their menstruation" would entail they are well into, if not passed the normal age limit at which girls get their first period, ie the very late teens. This of course, doesnt serve the purpose of those claiming the Quran allows sex with females regardless of age and psycho-physical readiness.

An important thing to note here, in regards to the precision of the verse's wording, is that "doubt" over "possible" menstruation doesnt cover 

"those too who have not had their (menstrual) courses". 

The advocates of sex with psycho-physical immature females, need the "doubt" to cover them but it doesnt. It only concerns the women who are in postmenopause as described earlier. 

"those who havent had their courses" are women, again, flagged as NISAA', of menstrual age and in addition have already actually menstruated. They are fully expected to keep on menstruating, but they are not currently for the physiological reasons already given.

The purpose of the 3 month waiting period of idda is to determine if the woman about to divorce is pregnant 2:228. For a woman who is expected to menstruate normally, such delay might almost certainly mean pregnancy and also the womb starts to take on visible signs of pregnancy at that stage. This is why 33:49 states those that are divorced prior to sexual intercourse do not have to go through the idda waiting period. Obviously without sexual intercourse, there is no possibility of pregnancy.

That the issue of idda is all about ascertaining potential pregnancy via menstruation is also seen with the second part of the verse 65:4 which mentions the case of confirmed pregnant women, while the first part dealt with those that were potentially pregnant, saying their waiting period is no longer 3 months, but the whole length of the pregnancy.

In light of the above, the lack of menstruation concerns specifically women who are EXPECTED to have their period, which isnt the case of pre-pubescent girls. There is a reason the Quran contrasts the menstruation in terms of expectation (potential pregnancy) versus non-expectation (confirmed pregnancy). The fact that one claims such a verse refers to girls that can't even get pregnant is the utmost absurdity, because nobody expects them to get pregnant. Additionally, if one argues it does refer to pre-pubescent girls, then it renders the whole argument that consummation can only happen after puberty as null and void.

During both cases -that of a woman potentially pregnant having to wait for 3 idda and a confirmed pregnant woman having to wait until delivery- the man must fully sustain the woman without any kind of oppression, though they are going through a hard phase that will probably end in divorce 65:6-7.