ISLAMIC LAW MARRIAGE
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The marriage is regarded as the important social institution that defines the relationship between the male and females. Besides, the approaches towards the understanding of the marriage differ in the manner that the countries of the diversified systems of the law define the minimal age for the marriage in the alternative manner to each other. In this regard, Islamic law recognizes the marriage of minors in the countries having Islamic system of law what contradicts to the responsibility to protect the life and freedom of the children based on the primary international conventions. Through the paper, the notion of the marriage of minors and the approaches of the several countries to the marriage of minores will be considered for the examination of its impact over the life of the child and the legal consequences. At the same time, the approaches in Islamic countries depend on the existing controversial approaches to the traditional views of the marriage linked to the cultural notions and the duties of the countries to perform the international obligations under the majority of the human rights conventions.
Overview of the approaches of the schools of Islamic law towards the marriage
There are several schools in Islamic law that interpret the marriage of the minors. These schools have the following titles: Abu Hanifa, Malik ibn Anas, Muhammad ibn Idris al-Shafi'i and Ahmad ibn Hanbal. Despite the fact that the marriage is based on the religious matter due to the fact that any individual has the power to have the marriage and family relations, the approaches of these schoold differ. For example, Haanfi school and Shafi define that the female and male have the power to enter the marriage in case their age reach 15 what confirms the puberty time. At the same time, the follower of this school believe that this age represents the legal capacity of the person to decide upon the future life. In contrast, Jafari followers stand to the opinion that the boys may have the marriage at 15 years old, while the girls should be nine years old. However, Hanafi school is loyal to the opinion that the puberty age can not come at twelve years old. Besides, these schools have the common understanding that the legal capacity to sign the marriage contract should be linked to the age of the puberty in order the female or male can recognize the consequences of these actions.
Notion of the marriage of minors
Consequently, under the marriage of minors one should understand the union between two partners of the age under 18 years old. The general practice presents the evidence that usually the parents agree over the future relationships of their children in order to improve the welfare, financial situation or protect the personal interests as the marriage with the influence person pay provide the other family with new opportunities in the society. The families where Islam takes place, in particular, Nigeria, Egypt decide that the girl which is underage should be married to the older man in order to help her family to survive. According to this approach, the rights of the females are violated by such treatment. Given the abovementioned notion of the marriage of minors, some countries including Iran are trying to establish the difference between the early marriage and marriage of minors in order to avoid the infringement of the principles accepted in the countries with the other customes and cultures. In this regard, the Justice of Iran as the responsible judicial body defines that the early marriage represents the category of the forced marriage involving the participation of the female or male of the age under 18 due to the fact that this child can not express his or her consent about the marriage. Moreover, Iran believes that only dealt marriages require the surveillance from the state authorities and the further interventions in case sexual slavery takes place. Besides it is necessary to state that the age for the marriage of minors may differe from country to country. Despite the fact that Islamic Republic civil code establishes the legal age for the marriage between the people from 13 years for the females, this limit may be lowered in case the appropriate evidences will be provide.However, the presence of Islamic law in the numerous countries is still significant. From the historical evolution of the marriage of minors, it is necessary to dwell on the rights of the women under Qu'ran. According to it, the status of the women should be lower than the position of the male due to the division of the responsibilities in the family. Besides, in the contemporary society in the countries with Islamic law the status of the women is still not equal with the position of the men regardless of the fact that family and property rights have been enhanced to the evident extent. Given the rules and provisions included in Qu'ran, the practice of the marriage was provided due to the example of the living of Muhammad. He was involved in the polygony relations as well as the marriage of minors took place. Due for he fact that Qu'ran serves the role of the primary source of Islamic law, the marriage of minors is seemed to be legal. Among all the wives of Muhammad, one of them as the girl of nine years old. Therefore, this practice and stipulation of the relationship confirms the origins of the childhood marriages. Despite the evident purpose of the marriage, Islamic law request from the woman having the aim enter the marriage to be of sound mind and the relevant consenting adult. Moreover, the woman should reach the age with all features of puberty while Islamic law defines that the age of nine years old is regarded as reasonable one to take the girl into the marriage.
Legislation of Islamic states to the marriage of minors
Morocco
The family law covering the relationships in the marriage is governed by the Moroccan Penal Code of 1963. However, the teaching of Maliki school has the primary influence in the country. According to the understanding of the followers of this school, the minimum marriageable age should be at 17 years old for both sexes. Besides, the parents has the power to force his daughter to marry with the particular man only in case she has reached the age of the puberty. In 1993 the particular groups tried to introduce the reforms to the family law, however this reform failed and the marriageable age left the same. In 2004 new reform was initiated so that some changes were introduced. In particular, the court within the judicial procedure should decide upon the permission as to the marriage in case the age of the femals or male is under the established one. In addition, the institution of the guardianship was abolished.
Egypt
It should be said that Egypt until the twentieth century was one of the countries that favoured the marriage of minors. However, since the twentieth century the situation has been changed while the society accepted the risks related to the marriage of the minors and its influence on the further development of the person. In 1931 the leadership of the country took the liberal approach to the introduction of the amendments regarding the minimal age necessary for the entrance into the marriage. In 1971 this age was considered as to be established at 18 years for females and 21 for the males under the Constitution. However, the amendments were approved only in 2000 where the country has decided to establish 16 years for females and 18 years for females. Finally, the recent reforms in 2012 has increased this age in order to prevent the child trafficking spreading the world.
Iran
The practice of Islamic states towards the amendment of the early marriages differs between the countries. For example, the national legislation of Islamic Republic of Iran confirms that there is no policy in the plans of the state authorities to cease the practice of the ealy marriage. Moreover, the United Nations stipulates that Iran disregards the international obligations with regard to the protection of the human rights, while the Sharia law plays the pivotal role. Furthemore, the states authorities of the country rely on the fact that the prevention of the early marriages with the child at the age of 10 is in contradiction with the pillars of the religious law having the bindign force over the population of Islamic states.
UAE
In contrast, such countries as the United Arab Emirates, Qatar and Bahrain have adopted the legislation for the regulation of the family relations which has the form of the codified law. The newly adopted legislation stipulates that the person having the intend to enter the marriage should reach the puberty as the binding condition to have the legal rights for this action. At the same time, in case any party to the perspective marriage is at the age under 18 years old, the subsequent permission and consent of the parents is necessary. With regard to the puberty, the legislation of the United Arab Emirates defines that this condition may be reached at the age of 18. Besides, the special permission may be given on behalf of the judge considering the legality of the relationship. This permission is titles as qadi's under the current legislation of the UAE. Accordingly, the country follows the approach as to the signature of the marriage contracts between the parties. In this regard, the male of female has the power to sign this type of the agreement in case he or she reaches 15 and 18 years respectively. Regardless of the legislation of the several countries having Islamic law, the overview of the approaches of the legal schools should be addressed.
Saudi Arabia
In Saudi Arabia the Hanbali school has the influence in the interpretation of the rules and the customs guiding the relations between the parties. In this regard, the Hanbali as the strictest school within Islamic system of the law defines that the person may enter the marriage in case the physical features take place. These features should symbolize the achievement of the puberty. In case they are absent, the minimum age for the marriage is seen as 15 years old. Besides, this approach is tried to be changed due to the interference did the Human Rights Commission in order to cease the practice of the marriages of the minors. However, this experience has led to no result.
Qatari
Consequently, the legislation of Qatari similarly to the approach of the state authorities of the UAE recognizes that any party to the perspective marriage should have the responsible guardian with the power to decide upon the rights and duties of the person. The power of the guardinan can be limited to the issue of the signature of the marriage agreement and the following representation in the court. Moreover, this person should meet the requirements established by the legislation so that to perform the functions of the reliable person acting for the protection of the interests of the child. Moreover, under Qur'an the marriage is titled as mithaqanghaliza. This notion stipulates that the marriage between the people havs the sacred basis and the agreement allowed by the God. At the same time, Islamic population believes that due to its nature, this agreement prevails by the force any other relations that are concluded by the people in the civil relations.
Reformation of the classical approaches
In order to identify the perspectives as to the amendment of the approaches of Islamic states to the marriage, the following statements should be considered. First of all, the majority of the parents in Islamic countries believe that the parents are vested with the power to decide upon the future of the children and choose the appropriate partners. In this regard, the overwhelming amount of the marriages are conducted based on the marriage contract related to the gunshot and called as Sawara or Wanni. Meanwhile, there is a category of the people having the dual nationality so that the marriage is seen as the suitable tool for the resolution of the further welfare of the daughter or son. It should be said that the women are treated as the good by the husbands as they do not have the freedom the decide upon the important issues and take the decisions important for their live and further living of their children. Besides, Islamic legislation defines that upon the achievement of the puberty any woman has the rights to challenge the marriage contract that has been signed by her parent or any other representative. Although, the statistics available in Islamic states that the women rarely refer to this legal opportunity with the achievement of the puberty age as some of them are afraid of the further treatment of the husband that may result in the harrassment. Moreover, in relation to the early and forced marriages of the minors, it is necessary to note the decision in the case K (Arranged marriage) [2005] EWHC 2956 (Fam) (16 December 2005). This decision plays the significant role for the interpretation of the validity of the marriages between the young females and the older man which took place upon the decision of the parents. In accordance with the merits of the case, the woman alleged her marriage with 27 years old husband. Upon the cosideration of all the facts, the court came to the conclusion that the parents put the daughter under the high risk with the agreement to marry her with the older man. Meanwhile, the court interpreted that the parents acts from the perspective to perform the parental responsibility as they considered that this marriage will benefit the life of the daughter. Given the fact that the police officers did not identify any actions of the physical abuse, this marriage is regarded as the forced and early marriage which is allowed by Islamic law but contradicts to the international principles. Therefore, it is possible to state that the new legislation of some Islamic states as the United Arab Emirates, Qatari shows that the population is ready to change the practice of the marriage with the child under the age of 18. This approach is influenced by the processes taking place in the rest of the countries, while the amendment of the legislation will improve the status of Islamic countries in the world. Besides, the more steps should be taken in order to eliminate this practice for sure.
International obligations of Islamic states
Irrespective of the compliance with the pillars provided in Qu'ran, Islamic countries are obliged to fulfill the international obligations taken under the numerous international acts as the Universal Declaration on the human rights, etc. Besides, in order to move the limits of these obligations, Iran in terms of the marriage of minors establishes the prohibition for the man having the wife of the age of nine years old to enter the sexual intercourse in order to guarantee her safety. Meanwhile, it should be said that the leadership of the country is considering today about the introduction of the amendments as to the age of the marriage in order to continue the practice of the European countries as to the marriage. For example, Iran relies on the provisions in the Child Protection Law and has the intend to increase the age for the marriage from 13 to the most appropriate one. Furthermore, Islamic states are responsible to complete the obligations under the provisions of the Convention on the rights of the child. In particular the article 19 of the convention defines that the states parties are vested with the duty to prevent any physical or mental abuse to the life or health of the child. In this regard, the state should develop and adopt any legislative, administrative measures in order to comply with these obligations. In addition, from the legal perspective, it should be said that the maintenance of the practice of the marriage of minors within the countries of Islamic law can not be justified under the reservations to the conventions. Given the fact that Islamic law recognizes and accepts the practice of the childhood marriage, the countries with this legislation should remove the practice of the marriage of minors in order to realize the provisions of the convention otherwise the sanctions for this state may be considered. With that, it is possible to state that Islamic countries should adjust to the realities of the contemporary world regardless of the historical practice. At the same time, there is another international convenant that shoud be respected by Islamic countries. Article 10 of the International Covenant on Economic, Social and Cultural Rights stipulates that the marriage should be based on the free consent in additon to the fact that the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery does not provide any room for the justification of the early marriage between the females and males in Islamic states.
Conclusion
Islamic schools of the law have different views in the interpretation of the marriage of minors. In general, some scholars follow the position that minors should be provided with the legal opportunity to enter the marriage with the age coming before the puberty time, while the other stand to the position that the female or male should be health in mind in order to adopt the personal decisions relating to the marriage. In this regard, the marriage age differs within the countries of Islamic law from 9 years old to 15 or 18 years old based on the approaches of the school. Besides, there are numerous modern initiatives in such countries as Egypt, Saudi Arabia, United Arab Emirates confirm the process of the ongoing changes in the interpretation of the marriage in the society due to the fact that the countries should adjust to the international obligations. Finally, the reorganization of the classial approaches to the marriage of minors is possible due to the particular steps taken by Morocco, UAE and other countries.
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