This excerpt is taken from the book by Fazilat-ul-Sheikh Abdul Salam Rustami From Denial of Hadith to Denial of Quran.
Nineteenth Doubt: Marriage Before Puberty
The analysis of the doubts raised by Parvez and his associates regarding this is as follows:
➊ The Holy Quran has described puberty as the age of marriage. The Quran states that when children become orphans, you test them through transactions.
حَتَّىٰ إِذَا بَلَغُوا النِّكَاحَ
"Until they reach the age of marriage."
Reference: (4-An-Nisa:6)
➋ The Holy Quran has defined marriage as a contract, and in a contract, the consent of both parties and being of sound mind is a condition. For the consent to marriage, Mr. Parvez has presented this argument
Reference: (Qur'anic Decisions, p. 134)
.لَا يَحِلُّ لَكُمْ أَن تَرِثُوا النِّسَاءَ كَرْهًا
"It is not lawful for you to take women as inheritance by compulsion."
Reference: (4-An-Nisa:19)
➌ From a medical point of view, an underage girl is not fit for intercourse. Such intercourse is harmful and can be a precursor to many physical ailments.
Answer:
The permissibility of marriage before puberty is established from the Holy Quran. The command of the Almighty is:
وَأُحِلَّ لَكُم مَّا وَرَاءَ ذَٰلِكُمْ أَن تَبْتَغُوا بِأَمْوَالِكُم مُّحْصِنِينَ
"And [also prohibited to you are all] married women except those your right hands possess. [This is] the decree of Allah upon you. And lawful to you are [all others] beyond these, provided that you seek them [in marriage] with [gifts from] your property, desiring chastity, not unlawful sexual intercourse."
Reference: (4-An-Nisa:24)
ما وراء ذٰلك "Except those" — under the generality of this word, an underage girl is also included; there is no correct and explicit evidence to restrict it.
Also, it is stated:
وَأَنكِحُوا الْأَيَامَىٰ مِنكُم
"And marry the unmarried among you."
Reference: (24-An-Nur:32)
أيامىٰ is the plural of أيم, and أيم refers to every man who does not have a wife, and similarly, it refers to every woman who does not have a husband. This is also general and includes no distinction between adult and underage.
Also, it is stated:
وَاللَّائِي يَئِسْنَ مِنَ الْمَحِيضِ مِن نِّسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ
"And those of your women who have despaired of menstruation, if you doubt, then their waiting period is three months, and [also for] those who have no menstruation."
Reference: (65-At-Talaq:4)
This verse mentions one type of 'iddah' (waiting period), which is three months, and this is for two types of wives. One is the one who has become old and whose menstruation has ceased due to old age, called آيسة in Arabic. The other is the wife who has not yet started menstruation due to lack of puberty. The mentioned verse concerns the issue of 'iddah' after divorce, meaning the marriage was contracted and then divorce was given, and now the 'iddah' must be observed. It is established that for the permissibility of divorce, marriage must have taken place first; therefore, this verse proves the permissibility of marriage before puberty.
Some ignorant people have written about لم يحضن that it refers to women who are adults but do not menstruate due to some ailment, so it is not correct to use this as evidence for the permissibility of marriage to an underage girl.
Answer:
➊ This is a distortion of meaning and is completely against Arabic grammar. The rule of Arabic is that when the letter لم enters a present tense verb, it changes the meaning of that present tense verb to past tense. So then the meaning of لم يحضن is "they did not menstruate." Urdu commentators have given a similar meaning. Shah Rafiuddin said: "And those who did not menstruate." In Fath al-Hameed it is: "Those who have not yet started menstruating." And in Tafheem-ul-Quran it is: "And the same ruling applies to those who have not yet menstruated." There are more evidences for this meaning, whereas the translation mentioned in the objection is not supported by any Urdu translations. Thus, the clear meaning of "did not menstruate" is that she is immature.
➋ If the meaning mentioned in the question is accepted, then this part of the verse لَمْ يَحِضْنَ applies generally to three types of women:
● Not menstruating due to immaturity
● Not menstruating for a long time due to some illness
● Never menstruating throughout life
So by the generality, the first category is also included, and still the verse indicates that marriage with an immature girl is permissible. After discussing the reasoning from the Quran, we come to the answers to their doubts. Their doubts along with answers are as follows: Their first argument is from حتىٰ إذا بلغوا النكاح "until they reach the age of marriage (puberty)."
● The answer to this argument is that this verse does not establish the rule that puberty is a condition for marriage, rather the purpose of the verse is that when a person becomes mature and wants to marry by his own will, then he needs wealth, so after determining wisdom, give him his wealth, i.e., النكاح contains the definite article "al" in "ahdi." This marriage refers to what is mentioned in Surah An-Nisa, verse 3, in the imperative form, meaning marriage by one's own will.
● Another answer could be that sometimes the conditions mentioned in the Quran are not mandatory but stated for a particular benefit. Here the benefit is that when a person becomes mature, he needs marriage and wealth for it, but if he becomes mature and does not want to marry, then after testing his capability, his wealth is given to him.
● Here the word marriage (nikah) is meant in its literal sense, i.e., sexual intercourse, and the purpose of this condition is that when sexual desire arises in a person, the ability to protect wealth also comes.
➌ Marriage is a contract and the consent of both parties is a condition, and for consent, maturity is necessary.
It is true that the consent of the contracting parties is necessary for the conclusion of marriage, but there are two types of consent: ① Direct consent provided the parties are competent. ② Indirect consent through a representative, guardian, deputy, etc. Worldwide, contracts, buying and selling, employment, and jobs are concluded by both methods, as Allah Almighty said:
فَإِن كَانَ الَّذِي عَلَيْهِ الْحَقُّ سَفِيهًا أَوْ ضَعِيفًا أَوْ لَا يَسْتَطِيعُ أَن يُمِلَّ هُوَ فَلْيُمْلِلْ وَلِيُّهُ بِالْعَدْلِ
"If the one who is obligated to pay is mentally deficient or weak or unable to dictate himself, then let his guardian dictate with justice."
Reference: (2-Al-Baqarah:282)
Allah Almighty has authorized the guardian to contract in three cases in this verse:
① Mentally deficient.
② Weak, which includes immature children because the attribute of weakness is mentioned in the Quran for children, He said:
وَلَهُ ذُرِّيَّةٌ ضُعَفَاءُ
"For him are weak, small children."
Reference: (2-Al-Baqarah:266)
③ Unable to dictate, meaning does not understand language or is mute, while all three attributes are simultaneously present in an immature person. For the marriage of an adult, the guardian's consent is a condition, through which the marriage contract and other contracts can be valid. Regarding the condition of the woman's consent, Parvez Sahib used
لَا يَحِلُّ لَكُمْ أَن تَرِثُوا النِّسَاءَ كَرْهًا
"And it is not lawful for you to take women by compulsion to inherit from them."
Reference: (4-An-Nisa:19)
as an argument, which is flawed. It refers to the marriage of an adult woman. The meaning of the verse is that if a person dies and he has a wife, then the heirs cannot marry her themselves or marry her to someone else without her consent, so it is clear that the wife is an adult. And if she is not adult, then کرھا means that marriage cannot be contracted without the guardian's consent.
➌ From a medical point of view, intercourse with an immature girl is harmful. This objection arises if both marriage and consummation occur in childhood. The Arabs used to marry in childhood but consummate after puberty, as some people do in our region as well. Similarly, Aisha (may Allah be pleased with her) was married in childhood and consummation took place at the age of nine (after puberty). Parvez has conditionally accepted Aisha's marriage at the age of six.
Reference: Qur'anic Decisions, p. 35
But then he declared it invalid, although this view is incorrect. Furthermore, from a medical perspective, the idea that intercourse with an immature girl is harmful is wrong. Often intercourse can occur before puberty during adolescence without any physical harm.
◈ Note: The hadith about Aisha's marriage at six and consummation at nine is authentic; Imam Bukhari and Imam Muslim (may Allah have mercy on them) narrated it with authentic chains.
Reference: Sahih al-Bukhari, Manaqib al-Ansar, chapter on the marriage of the Prophet (peace be upon him) to Aisha and her arrival, hadith: 3894, and Sahih Muslim, Nikah, chapter on the permissibility of a father marrying off his virgin daughter, hadith: 1422
However, some self-styled critics of the present era have criticized the chain of this hadith, which is not reliable.
