Last week, Pakistan’s Islamic constitutional body, Council for Islamic Ideology, decreed that Islam does not prohibit underage marriages. The council, which is responsible for giving legal advice to the government on Islamic jurisprudence, asserted that a minor girl could be married by her guardian, but she could annul the marriage before consummation as soon as she attains marriageable age. Prime Minister Nawaz Sharif reportedly gave tacit approval to the council’s recommendation on underage marriage.
The ruling sparked fury among women’s rights activists and civil society advocates.
“We are going backwards, instead of forwards,” said Humaira Masihuddin, a lawyer and a sharia expert, in a public program. “In sharia, state is the guardian of people’s welfare and a minor cannot enter into contract as per law. These recommendations will confuse people in the name of the sharia law,” she said.
The council should be abolished because it is extra-constitutional, said Dr Farzana Bari, a human right activist.
In contrast, conservative religious scholars defended the council’s recommendations to amend the Child Marriages Restriction Act of the penal code. Mufti Haneef Qureshi, a religious scholar, supported the suggestions made by the council. There is literally no age specified for the marriageable stage, he said.
Although Quran (VI: 6) directs that the required age at marriage is the age of intellectual maturity, the majority of early Islamic legal scholars did not hold such a reading of the Quranic text. According to one Islamic hadith, a reported tradition, Prophet Muhammad married Aisha, one of his wives, when she was six years old, and consummated the marriage when she was nine years old. Although this tradition is inconsistent with various historical facts, and modern scholarly work suggests we cannot confirm at what age Aisha’s marriage occurred. In Islam the content of a tradition (hadith) is more important than what actually took place. Hence, this particular tradition is the basis of a number of different legal traditions that sanctioned or supported child marriage. Some scholars are content with ascribing prophetic privilege to child marriage, thus proscribing it for other Muslims. There are others who argue that child marriages were a norm in the Arab social fabric of prophet’s time, therefore we cannot judge the past practice of child marriage using the norms of a modern liberal democratic society.
The Child Marriages Restriction Act was passed in 1929, prescribing penal sanctions where the bridegroom had not reached the age of 18 and the bride 14. The ordinance is part of the Indian penal code that Pakistan inherited after the partition.
Pakistan, like many other colonial states, has inherited its “ready-made” state structure from its colonial past. While the state structure is in many ways part of the western liberal democratic structure, the religious sphere in the country is still tied with Islam, which demands both public and private spheres of people governed by moral precepts of Islam.
Javed Ahmed Ghamidi— a Pakistani religious scholar who has emerged as a modern rationalist scholar and has been called “fundamentalist moderate” and “rationalist”— argues that numbers were spoken of as approximations in Arabic culture in the early Islamic period. Aisha, when speaking of her age, Ghamidi argues, was speaking in the same terms. In modern times, he says, scholars like Maulana Hakim Niyaaz Ahmad, have proven through historical reasoning that the age of Aisha at the time of her marriage and consummation was at least 16 and 19 respectively. Although Ghamidi’s interpretation of Quran appears to be “modern” and “rationalistic”, we find in his hermeneutics a tendency to singularize interpretation. In this way, he is no different than modern conservative scholars of Islam.
“Both schools [modern rationalist and modern conservative] are entrenched in their views and have an essentialist reading of the history,” said Irfan Moeen Khan, a Ph.D. candidate in Muslim intellectual thought at the Harvard University, in an interview. A conceptual understanding of early Islamic history and tradition is essential for understanding how religion functioned in the early Islamic period, he said. The social norms, he argued, have changed now, so one would expect the paradigm of juridical reasoning to change as well. This is what many Islamic scholars like Fazlur Rahman thought, he said.
“However, I differ from him [Fazlur Rahman] in the assessment of medieval hermeneutic tradition, which he saw as static,” Khan said. “I still think that if political conditions permit, traditional Islamic law stands a better chance of creative innovation than any of the modernists.”
Understanding Khan requires a good deal of knowledge of “legal pluralism” that was characteristic of Islamic law.
In Islamic law, for any given situation requiring legal interpretation, there were “anywhere between two and a dozen opinions” and a “different jurist held each of them,” says Wael Hallaq, a leading scholar of Islamic law, in his book “An introduction to Islamic Law.”
Islamic law not only took into account local custom, it also proffered a diverse range of opinions on the same set of particulars. In other words, the traditional Islamic law, if applied today, will fully take into consideration social norms and values our times. The legal pluralism, says Hallaq, “gave Islamic law two of its fundamental features, one being flexibility and adaptability to different societies and regions, and the other an ability to change and develop over time, first by opting for those opinions that have become more suitable than others to a particular circumstance, and second by creating new opinions when the need arose.”
Pakistan like other colonial states has not found an organic social and political configuration in its liberal democratic state structure. Issues, like child marriages, which are reprehensible by our standards today, can only find complete resolution in a social fabric that condemns these reprehensible acts using traditional legal precepts, which are not reactionary but rather more pluralistic and norm-based as they were in the early Islamic times.
