Surah Al-Baqara (2) — Ayah 232

232. And when you divorce women and they have reached the end of their waiting period, do not prevent them from marrying their (former) husbands if they agree among themselves in a fair manner [315]. This is instructed to whoever among you believes in Allah and the Last Day. That is purer and more decent [316] for you. Allah knows, and you do not know.

[315] Hazrat Ma'qil bin Yasar ؓ says that my sister (Jameelah) was given (revocable) divorce by her husband (Asim bin Adi), but he did not take her back until her entire waiting period ('iddah) had passed. Then, after the 'iddah had ended, he sent me a proposal for remarriage (while I had received other proposals as well). Out of honor and anger, I spoke harshly to him and refused, and swore an oath that I would not allow her to marry him. At that time, Allah Almighty revealed this verse, and I submitted to this command and paid the expiation for my oath. [بخاري، كتاب التفسير، زير آيت مذكوره]

Nikah Does Not Take Place Without a Guardian (Wali). The Woman's Consent Takes Precedence:

From this hadith, it is incidentally understood that although nikah does not take place without a wali, as is established by several authentic ahadith, nevertheless, Allah Almighty has given precedence to the woman's consent over the wali's consent. Here, the situation was that Jameelah had received several proposals for marriage, including one from her former husband Asim bin Adi. Now, Ma'qil, due to temporary anger and honor, did not want her to marry Asim, while Jameelah herself was willing to marry Asim, as is clear from the words of the verse. So Allah Almighty, giving precedence to Jameelah's consent over Ma'qil's, revealed the ruling accordingly. In matters of marriage, Islam has given precedence to the woman's consent, as is clear from the following ahadith:
1. Hazrat Abu Hurairah ؓ says that the Messenger of Allah ﷺ said that a widow or divorced woman should not be married until her clear verbal permission is taken, and similarly, a virgin should not be married until she gives permission. The Companions ؓ asked, "O Messenger of Allah ﷺ, how does a virgin give permission?" He ﷺ said: "Her silence is her permission." [بخاري، كتاب النكاح۔ باب لاينكح الاب وغيره۔ البكروالثيب الا برضاها]
2. Hazrat Aisha ؓ says that I asked: "O Messenger of Allah ﷺ! A virgin girl feels shy." He ﷺ said: "Her consent is that she remains silent." [ حواله ايضاً]
3. Khansa bint Khidam Ansariyyah ؓ says that my father married me (according to his own will) while I was previously married (thayyib), and I did not like this marriage. Eventually, I came to the Messenger of Allah ﷺ, and he annulled the marriage performed by my father. [حواله ايضاً]
4. Qasim bin Muhammad says that a woman from the family of Ja'far bin Abi Talib feared that her wali might forcibly marry her, and she was displeased with such a marriage. So she sent someone to ask two elderly Ansaris, Abdur Rahman bin Jariyah and Majma' bin Jariyah, about this issue. They sent word: "Why are you afraid? Khansa bint Khidam's father forcibly married her, and she did not like that marriage, so the Messenger of Allah ﷺ annulled that marriage." [بخاري۔ كتاب الحيل۔ باب فى النكاح]
5. Abu Musa ؓ narrates that the Messenger of Allah ﷺ said that marriage is not valid without a wali. (Tirmidhi, Book of Nikah, Chapter: What has been reported regarding marriage except with a wali). Besides Tirmidhi, this has also been narrated by Abu Dawood, Ibn Majah, and Darimi.
6. Hazrat Aisha Umm al-Mu'mineen ؓ narrates that the Messenger of Allah ﷺ said that any woman who marries without the permission of her wali, her marriage is invalid, invalid, invalid. Then, if the husband has had intercourse with her, he must pay her full mahr. Then, if there is a dispute between them, and the woman has no wali, the ruler is her wali. [ترمذي حواله ايضاً] This hadith has been narrated by Ahmad, Abu Dawood, Ibn Majah, and Darimi, in addition to Tirmidhi.

Response to the Arguments of Those Who Deny Its Permissibility:

Ibn Abbas ؓ says that a virgin girl came to the Messenger of Allah ﷺ and said: "My father has married me off by force. I am not pleased." He ﷺ gave her the choice. [ابو داؤد بحواله مشكوٰة۔ كتاب النكاح۔ باب الولي فى النكاح و استيذان المرأة تيسري فصل]
8. Abu Hurairah ؓ says that the Messenger of Allah ﷺ said that no woman should marry off another woman, nor should a woman marry herself off, and the woman who marries herself off is a fornicator. [ابن ماجه بحواله مشكوٰة حواله ايضاً]
9. Abu Sa'id and Ibn Abbas ؓ both said that the Messenger of Allah ﷺ said that whoever has a child should give him a good name and teach him good manners. Then, when he reaches maturity, he should marry him off. If he does not marry him off at the time of maturity and the child commits a sin, the sin will be upon the father. [بيهقي شعب الايمان بحواله مشكوٰة۔ حواله ايضاً] It is clear from all the above ahadith that marriage does not take place without a wali. However, the woman's consent takes precedence over the wali's consent.

Rejecting a Proposal:

And another meaning of this verse could be that if a man has divorced his wife and that divorced woman, after completing her 'iddah, wishes to marry another man, then the former husband should not do anything vile to create obstacles in her upcoming marriage, with the intention of causing her hardship.

Government Restriction on Marriage Before Puberty:

Here, another issue arises which has gained considerable importance in the present era, and that is whether a wali is authorized to marry off his son or daughter or any other close relative during childhood or not? And the second aspect of this issue is whether marriage before puberty or in childhood is valid or invalid? And this is an issue on which there is consensus among all sects of the Muslim Ummah that childhood marriage is valid and the wali is authorized to perform such a marriage. However, some modern reformers of the present age have declared such marriages to be wrong and invalid, and influenced by this group, the Government of Pakistan included in the Family Laws Ordinance 1961 the provision that at the time of marriage, the boy must be at least eighteen years old and the girl at least sixteen years old. Since this clause is against a unanimously agreed issue of the Muslim Ummah, we will discuss it in some detail. First, we will present the arguments for the permissibility of this unanimously agreed issue.

Arguments for the Permissibility of Childhood Marriage:

1. Regarding the waiting period ('iddah) of various types of women, Allah Almighty says in the Quran:
﴿ وَالّٰئٓي يَئِسْنَ مِنَ الْمَحِيْضِ مِنْ نِّسَايِٕكُمْ اِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلٰثَةُ اَشْهُرٍ ۙ وَّالّٰئٓي لَمْ يَحِضْنَ ۭ وَاُولَاتُ الْاَحْمَالِ اَجَلُهُنَّ اَنْ يَّضَعْنَ حَمْلَهُنَّ ۭ وَمَنْ يَّتَّقِ اللّٰهَ يَجْعَلْ لَّهٗ مِنْ اَمْرِهٖ يُسْرًا﴾ [65: 4]
"And those of your divorced women who have despaired of menstruation, if you are in doubt about their 'iddah, then their 'iddah is three months, and also for those who have not yet menstruated, and for pregnant women, their 'iddah is until they deliver their burden." In this verse, old, young, and child—all types of women are mentioned. For the old and the child who do not menstruate, their 'iddah is three months, and for the young woman, if she is pregnant, her 'iddah is until delivery (and if she is not pregnant, then four months and ten days, as has been mentioned in Surah Al-Baqarah). And it is obvious that the question of 'iddah arises only after the husband has either divorced or died. So it is clear from this that marriage of a girl before puberty is permissible and her wali is authorized to do so.
2. Allah says: Verse
﴿ ثُمَّ طَلَّقْتُمُوْهُنَّ مِنْ قَبْلِ اَنْ تَمَسُّوْهُنّ ﴾ [2: 237]
"And if you divorce your wives before you have touched them, then half of the specified dowry is due." Just think, if a young couple is married and the bride has already moved in, is it possible that on the wedding night there is no consummation? And that the husband divorces his wife before consummation? In our opinion, this is only possible in the case, which was common in Arabia, where marriage would take place in childhood and the moving in (rukhsati) would be postponed until puberty. In the meantime, due to family disputes or the man's own dislike, such a situation could arise. So Allah Almighty has given the solution that in such a case, half of the specified dowry should be paid. It was not said that marriage should not be done in childhood, even though in the Prophetic era, childhood marriage was common.
3. The Messenger of Allah ﷺ himself married Hazrat Aisha ؓ when she was only 7 years old, as is clear from the following hadith in Muslim: Hazrat Aisha ؓ says that the Prophet ﷺ married her when she was seven years old, and when she moved into his house, she was nine years old, and her toys were with her, and when the Messenger of Allah ﷺ passed away, she was eighteen years old.
4. The fourth argument is the practice of the Ummah and the consensus of all schools of thought in the Muslim Ummah on the permissibility of this issue. And the absence of any disagreement is itself a strong argument for its permissibility. And those who have disagreed on this issue, their arguments are as follows:

Arguments of Those Who Deny Its Permissibility:

Marriage is a covenant of loyalty between husband and wife, which the Quran has called ﴿ مِّيْثَاقًا غَلِيْظًا﴾. And it is obvious that this covenant can only be fulfilled when both the man and the woman understand it. Therefore, it is necessary for both to be of sound mind and mature. 2. Regarding the protection of the property of orphans, the Quran says that when they reach the age of marriage, return their property to them. From this, it is understood that the age of marriage is when the child becomes sensible and can protect his property. 3. The Quran says in verse ﴿نِسَاؤُكُمْ حَرْثٌ لَّكُمْ﴾ that women are your fields. And a woman can only be a field when she is capable of bearing children. Similarly, as long as a boy is not capable of producing children, his marriage cannot take place. These are the arguments presented by those who deny the marriage of minors. And we openly admit that if the purpose of marriage is only the fulfillment of sexual desires and procreation, then the age of marriage should indeed be puberty. The disagreement is whether marriage has only this one purpose or whether there can be others as well. In our view, the higher and nobler purpose for which Islam has prescribed marriage is to avoid immorality, indecency, and adultery, to ensure a chaste and pure life for both men and women, and thus to establish a clean and pure society. The evidence for this is the following verse:
﴿وَاَنْكِحُوا الْاَيَاميٰ مِنْكُمْ وَالصّٰلِحِيْنَ مِنْ عِبَادِكُمْ وَاِمَايِٕكُمْ﴾ [24: 32]
"And marry off the widows among you, and your slaves and slave-girls who are fit for marriage." The word (ayama) in this verse is noteworthy. Ayama is the plural of ayyim, meaning both a widowed man and a widowed woman. It is used equally for both—a woman without a husband or a man without a wife. Now the question is, whether the widower is a man or the widow is a woman, the general situation is that they already have children, and have passed their youth, and have no further desire for children. Then why are such single men or women being commanded to marry? Is the only remaining purpose not that immorality should be completely eradicated from society? Another important purpose of marriage is to further strengthen the bond of brotherhood and affection. When the Messenger of Allah ﷺ married Hazrat Aisha ؓ at the age of 51, the purpose was merely to further strengthen the bond of affection with Hazrat Abu Bakr Siddiq ؓ. At that time, he already had children, and although Hazrat Khadijah al-Kubra ؓ had passed away, Hazrat Sawdah ؓ was present in her place. Sexual desires also diminish at such an age. Then, even after three years of marriage, the moving in (rukhsati) did not take place. So was the purpose of this marriage only what these people think? And sometimes, through marriage, many religious, political, economic, and social benefits are achieved, which are even more important than having children. Just look at the life of the Messenger of Allah ﷺ: how many marriages did he perform? At what age? With women of what ages? And for what purposes? And how many children resulted from all these marriages? Then this reality will become clear by itself that the purpose of marriage is not merely the fulfillment of sexual desires or procreation, but there can be higher purposes as well. As for having children, this is not the main purpose but an important result, which sometimes occurs and sometimes does not. Man has no control over this. It is quite possible that a mature couple is married, and they never have children throughout their lives. Even in such a case, it cannot be said that the marriage was purposeless. Although such cases are not more than 5%, they cannot be denied. Then, when the purposes of marriage have become diverse, it is necessary that there be exceptions to the age of marriage being puberty. Therefore, we say that although the age of marriage is puberty, it is permissible at any age. In this respect, if on one hand, the marriage of a minor girl to a minor boy, a young man, or an old man is permissible, then on the other hand, a boy or a young man marrying a much older woman, a divorcee, or even a woman divorced two or three times is also permissible. Now, as for the contract, for which it is necessary for both parties to be of sound mind and mature, the answer is that such contracts are not limited to marriage but occur in many types of mutual transactions as well. Here, the question arises: if one party is not of sound mind or mature, will all his affairs come to a halt? Or has Allah Almighty provided a solution for this? Thus, in Surah Al-Baqarah, verse 282, where the writing of contracts for transactions is commanded, a solution for such situations is also provided, which is:

Protection of the Rights of the Incompetent in Contracts Through a Guardian (Wali):

﴿ فَاِنْ كَانَ الَّذِيْ عَلَيْهِ الْحَقُّ سَفِيْهًا اَوْ ضَعِيْفًا اَوْ لَا يَسْتَطِيْعُ اَنْ يُّمِلَّ هُوَ فَلْيُمْلِلْ وَلِيُّهٗ بالْعَدْلِ﴾ [2: 282]
"Then if the debtor is of limited understanding, or weak, or unable to dictate himself, then let his guardian dictate justly." In this verse, Allah Almighty has authorized the wali to act on behalf of the party to the contract in three cases: (1) if he is of limited understanding, (2) if he is weak, and (3) if he is unable to dictate. All three of these apply to a minor. All the more so, if even one of these applies, the wali is given the authority to act. Now, if in a contract of transaction, the wali can act on behalf of the incompetent or minor, why not in the contract of marriage? Note that the wali is given this right because he bears responsible status in the completion of such contracts.

The Real Reason for Opposition to Childhood Marriage:

Our friends who insist on the age of marriage being puberty and declare marriage before that as invalid, their aim is not the purity of society from immorality, but in fact, they are influenced by Western civilization and propagate accordingly. The famous English economist "Hathes" declared population control essential for the prosperity of the country. In this context, one link was also that men and women should marry late so that fewer children are born. Influenced by this idea, in our educated families, marriages do not take place until the age of twenty-five or thirty. Although this causes many problems in society, these people remain silent even when marriages are delayed by ten or twelve years after puberty, because this delay benefits their theory of "small family, prosperous household." And for this reason, they also oppose childhood marriage and use the Quran as support. Otherwise, if they were sincere to the Noble Quran, they would also raise their voices against those who do not marry for a long time after puberty, because the Quran commands the establishment of a clean society, not the propagation of "small family, prosperous household." [For more details, see my work, 'Aaina-e-Parweziyat', Part Three]
[316] That is, the social purity that is found in a woman's marriage does not exist in her remaining unmarried, and the social purity that is found in a woman's marriage to her former husband does not exist in her marrying someone else, and these are matters that only Allah knows well. You do not know.