A CRITICAL ANALYSIS ON THE IMPACT OF THE CONCEPT OF IJBAR ON THE PRACTICE OF CHILD MARRIAGE UNDER ISLAMIC LAW
This study critically analyzes the impact of the concept of ijbar on the practice of child marriage under Islamic law. While child marriage is widely criticized by the feminists on the basis of human rights, its practice is nevertheless defended on the basis of Islamic law and culture. This is because, ijbar is a concept related to marriage guardianship (wilayat-un-nikah) and it connotes the power entrusted upon parents/guardians to marry off his ward in order to secure the protection of his/her welfare and in instances where it becomes apparent that the parent/guardian acted wrongly or in defiance of the rationale of ijbar, certain safeguards were instituted to cope with the situation. This involves the exercise of the option of puberty (khiyar-ul-bulugh) under which the marriage would be annulled. Prompted by the raging debate and desire for the urgent need to reform Islamic family law whereby a drastic curtailment or even the abolition the concept of ijbar vis-à-vis the practice of child marriage is advocated by the West globally, the main objectives of this research work therefore, is an attempt to critically analyze the contemporary debates for and against child marriage in Islamic law. It is argued that, while puberty marks the legal criteria of Islamic adulthood and in the absence of fixed marriageable age in addition to the exercise of coercive marriage guardianship, the practice of Islamic child marriage goes to secure the welfare of minors and the protection of their best interest in life and in view of this, it was observed that to prohibit or even restrict Islamic child marriage and the exercise of the role of coercive guardianship, is to call for disruption of the moral foundation behind the Islamic institution of the family and at the same time aggressively enforcing western secular family values that delays marriage while paying the least concern on premarital sexual indulgence among teenagers. Further still, it has been argued that the current move by the international community for the curtailment of ijbar and the abolition of child marriage together with recent reforms directed towards these ends in the Muslim world is nothing but motivated by the western conspiracy against population growth in third world countries, more particularly in the Muslim world. Therefore, the study concludes with the firm recommendation that the Islamic concept of ijbar vis-à-vis the practice of child marriage by Muslims should be accordingly maintained and that as a matter of human right, Muslims must be allowed sufficient freedom to practice the tenets of their Islamic personal law, in particular, to have recourse to the practice of child marriage where they deems so.
LIST OF ABBREVIATION
1 AP Additional Protocol
2 AU African Union
3 CRC Child Rights Convention
4 EU European Union
5 ECtHR European Court of Human Rights
6 HR Human Rights
7 ICCPR International Covenant on Civil and Political Rights
8 ICESCR International Covenant on Economic, Social and Cultural Rights
9 IHRL International Human Rights Law
10 OIC Organization of Islamic Countries/Conference
11 UDHR Universal Declaration of Human Rights
12 UK United Kingdom
13 UN United Nations
14 US United States (of America)
TABLE OF CONTENTS
Title Page – – – – – – – – – –
Declaration – – – – – – – – – –
Certification – – – – – – – – –
Dedication – – – – – – – – – –
Acknowledgment – – – – – –
Abstract – – – – – – – – –
List of Abbreviations – – – – – – –
List of Statutes – – – – – – – – –
List of Cases – – – – – – – – – –
Table of Contents – – – – – – – – –
1.1 Background of the Study – – – – – – –
1.2 Statement of the Research Problem – – – –
1.3 Aim and Objectives of the Research – – – – – –
1.4 Research Methodology – – – – – – –
1.5 Scope of the Research – – – – – – – –
1.6 Literature Review – – – – – – – –
1.7 Justification/Significance of the Research – – – – –
1.8 Organizational Layout – – – – – – –
THE CONCEPT OF MARRIAGE UNDER ISLAMIC LAW
2.1 Introduction – – – – – – – – – –
2.2 Definition And Nature Of Marriage In Islamic Law – – – – –
2.3 Significance Of Marriage In Islamic Law – – – – – –
2.4 Legality Of Marriage Under Islamic Law – – – – –
2.4.1 Wajib (Compulsory) – – – – – – – –
2.4.2 Mandoub (Recommended Or Sunnah) – – – –
2.4.3 Mubah (Permissible Or Nafl) – – – – –
2.4.4 Makhruh (Disapproved/Objectionable) – – – –
2.4.5 Haram (Forbidden) – – – – – – –
2.5 Objectives And Legal Effects Of Marriage Under Islamic Law – –
2.5.1 Protection Of Chastity And Morality – – – – –
2.5.2 The Preservation And Continuity Of Human Race – – – –
2.5.3 Sustenance Of Mental Peace, Mutual Love And Affection – –
2.6 Elements And Formalities Of Marriage In Islamic Law – – – –
2.6.1 Sigha (Formula): – – – – – – – –
2.6.2 Dower (Sadaq): – – – – – – – –
2.6.3 Marriage Guardian (Wali): – – – – – –
2.6.4 Witnesses (Shuhud): – – – – – – – –
2.6.5 The Contracting Parties (Mahal): – – – – –
2.7 Classification Of Marriage In Islamic Law – – – – – –
2.8 Rights And Duties Of Spouses – – – – –
2.8.1 Rights Of The Wife/Duties Of The Husband In Marriage – – –
2.8.2 Rights Of The Husband/Duties Of The Wife In Marriage – – –
2.8.3 Mutual Rights Of Husband And Wife – – – – –
MARRIAGE GUARDIANSHIP (WILAYAT-UN-NIKAH) IN ISLAMIC LAW
3.1 Introduction – – – – – – – – –
3.2 The Concept Of Guardianship (Al-Wilayah) – – – – – –
3.2.1 Natural Or Legal Guardian – – – – – – –
3.2.2 Defacto Guardian – – – – – – –
3.2.3 Testamentary Guardian – – – –
3.2.4 Guardian Appointed By Court – – – – – –
3.3 Marriage Guardianship (Wilayat-Un-Nikah) – – – – –
3.4 Rationale And Objectives Of Marriage Guardianship – – – –
3.5 The Legal Authorities On Marriage Guardianship – – – – –
3.6 Order Of Priority Among Persons Who Qualify As Marriage Guardian –
3.7 Conditions To Become Marriage Guardian (Wali) – – – –
3.8 Classification Of Marriage Guardians – – – – – –
3.8.1 Wali Al-Mujbir – – – – – – – –
3.8.2 Wali Ghair Al-Mujbir Or Wali Ikhtiar – – – –
THE CONCEPT OF IJBAR AND ITS IMPACT ON CHILD MARRIAGE IN ISLAMIC LAW
4.1 Introduction – – – – – – – – –
4.2 Legality Of Child Marriage In Islamic Law – – – –
4.3 Nature Of Child Marriage In Islamic Law – – – – – –
4.4 The Concept Of Ijbar – – – – – – – –
4.5 Cessation And Limitations On The Power Of Ijbar – –
4.6 Remedies And Safeguard Against Improper Exercise Of The Power Of Ijbar -79
4.6.1 Khiyar-ul-Bulugh (Option Of Puberty) – – – – –
4.6.2 Kafa‟ah (Equality/Compatibility) Of Spouses – – –
4.6.3 Mother‟s Custody Of Minor Wife – – – – –
4.7 Impact Of Ijbar On Marriageable Age – – – – – –
4.7.1 Age Of Taimiz (Understanding) – – – – – –
4.7.2 Age Of Puberty Or Majority (Bulugh) – – – –
4.7.3 A Critique On The Modern Notion Of “Marriageable Age” – –
4.8 Impact Of Ijbar On Minor‟s Consent In Marriage – – – – –
4.9 An Analysis On Contemporary Arguments For And Against Ijbar Vis-À-Vis The Practice Of Child Marriage In Islamic Law – – –
4.9.1 Arguments Of The Proponents Of Ijbar And/Or Child Marriage – –
4.9.2 Arguments Of The Opponents Of Ijbar And/Or Child Marriage – –
4.9.3 Cross Analysis On The Proponent‟s And Opponent‟s Views On Child Marriage Vis-À-Vis The Concept Of Ijbar – – –
4.9.4 Reforms In The Muslim World Against The Doctrine Of Ijbar And/Or Child Marriage – – – – – –
4.10 An Analysis On Judicial Attitude Towards The Concept Of Ijbar In [Northern] Nigeria – – – – – – – –
SUMMARY AND CONCLUSION
5.1 Summary – – – – – – – – –
5.2 Observations – – – – – – –
5.3 Recommendations – – – – – – – –
Bibliography – – – – – – – – – –
CHAPTER ONE GENERAL INTRODUCTION
1.1 BACKGOUND OF THE STUDY
In the present generation, the marriage of minors especially by and among Muslims is one of the topical legal issues that have attracted the attention of feminists and modern human rights scholars who concern themselves with the protection of the rights of the girl-child across the globe albeit from secular conception. With this development, national and international communities are therefore increasingly recognizing child marriage as a serious problem, both as a violation of girls‟ human rights and as a hindrance to key development outcomes.1 The practice whereby a child is married off early under the influence or compulsion (ijbar) from its parents is somewhat a religious and customary practice among Muslims particularly those who follow the Maliki school of Islamic law which sanction the role of matrimonial guardian (wali) as one of the essential elements of validity (arkan) to a marriage contract under Islamic law. The matrimonial guardian (wali) may be one with power to enforce marriage on his ward, i.e., wali mujbir and such a guardian (wali mujbir) is possessed of the power to compel his ward in entering into a marriage contract for purposes that are viewed as satisfying the best interests of the child in question vis-à-vis the wishes of parents to ensure that the child is prevented from getting plunged into the dexterities of immorality and its attendant social consequences in the society.
On the other hand, the critics of the Sharia has likened the concept or practice of Ijbar with forced marriage, wherein contrary to this perception, mutual consent of both parties
1ICRW (2011) Solutions to End Child Marriage: What The Evidence Shows, International Center for Research on Women (ICRW). Available online at www.icrw.org/childmarriage
(ridha al-Zawjain) is ever an essential requirement to the formation and validity of a marriage contract under Islamic law. Feminists have, in the name of health, poverty, population and fertility control together with the quest for the attainment of universal basic education globally with particular attention on the girl-child, the practice of early or child marriage have come to be abominable altogether in the Western society, it being largely a prohibited practice in several countries.
In fact, in the slogan of the feminists, it is regarded as a “harmful traditional practice” that impedes the developmental rights of the child. Thus, the move for the abolition of the so-called child marriage has transcended from Western society to other African and Asian countries and it has deeply crept into the Muslim world. For example, the Ottoman Mecelle (1917)2 was the first regular modern legislation forbidding the marriage of minor children. This was followed later by a law in Egypt which prohibits the registration of marriages of males below eighteen and females below sixteen years of age.3 In the Indian sub-continent, the Child Marriage Restraint Act of 1929 also prohibited the marriage of males below eighteen and females below fourteen years. Later in Pakistan, the marriageable age of females was raised to sixteen by the Muslim Family Laws Ordinance of 1961.4
In all these pro-modern and reform minded legislations, one basic thing is observable, that is to say, the crux of the matter is regulation of marriageable age as a legal device to
2 Ottoman Law of Family Rights 1917
3 Raza Naqvi, S. A. Modern Reforms in Muslim Family Laws – A General Study, Islamic Studies (Journal of the Islamic Research Institute, Pakistan)  Vol. XIII, No. 4, pp. 235-252 at pp. 237-238 4 Ibid
delay marriage. But under classical Islamic family law, age of the parties bears no legal weight as physical puberty is the basis of majority and this stance of the law poses challenge to the modernist and western oriented Muslims in some Muslim countries. As it become open that under the sharia, once a child attains puberty, he/she becomes eligible for marriage, to counteract this possibility, modern family law scholars have therefore recognizes devising a specified age as an essential qualification for marriage with eventual prohibition of child marriage under threat of penalty. However, contrary to popular opinion especially in the West, the sharia establishes no specific age to wait for marriage. Islamic law permits a marriage contract of young children to be entered into years before the marriage itself is actually executed or ratified. In other words, the marriage contract is drawn up, but the contract is not executed until a later date. So, even though the marriage contract can be concluded, the girl will not be handed over to the husband until many years afterwards. Thus, a father can marry off his young daughter to a man before she comes of age, but the husband may not consummate the marriage until after she attains maturity.
It is pertinent to mention that, the fact that it is permissible in law to marry a young girl does not mean that it is permissible in practice to have intercourse with her. Rather, that should not be done until she is able for it. For this reason, it is understood that the Prophet (saw) delayed the consummation of his marriage to A‟ishah (RA) until such time when A‟ishah (RA) had attained physical maturity.5 Therefore, the reality is that the Prophet (saw) was just betrothed to Aishah (RA) when she was an immature girl, but the marriage was only consummated upon her becoming a mature adult.
5 Sahih Muslim, English translation, Vol. 9, p. 206 http://www.islamqa.com/index.php?ref=22442&ln=eng
It is interesting also to note that, when minors are married off early, it was never meant to permanently bind such young ones into the bond of marriage against their wishes but in their overall best interest. In that, under Islamic law, there is safeguard against eventual dissatisfaction by the minor and these safeguard is manifest in the concept of khiyar al-bulugh (option of puberty). It means, while an immature daughters‟ marriage can be arranged by her guardian (wali mujbir or wasiyyi), she has the right to annul the marriage at the attainment of the age of puberty, if she is not compatible with the husband or simply dislikes him.6
In Nigeria, the institution of an Islamic marriage is within the purview of Shariah legal system (being one of the three streams of legal systems flowing in Nigeria).7 It therefore implies that, Muslims are at liberty to follow the dictates of their religion in matters of marriage including the latitude to have recourse to the practice of ijbar as per the teachings of the Maliki School that is followed by Muslims in Nigeria. This position has further reinstated the legal challenges to the regulation and reform of matters that have to do with Islamic marriage including the legal possibility for the prohibition of child marriage among Muslims by legislative authorities in Nigeria
1.2 STATEMENT OF THE RESEARCH PROBLEM
Over the centuries, Islamic family law has been able to maintain its unique and differing characteristic in recognizing no fixed age limit for parties to a contract of marriage thereby allowing the practice of child marriage. This being still the applicable legal
6 Tuhfat al-Muhtaj and al-Umm 7 See Item No. 63 of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2011)
position to those who intend to follow classical understanding of earlier Muslim jurists on the issue in some Muslim countries (including among Muslims in Nigeria), the development of international human rights law as well as feminism jurisprudence have continued to pose legal questions as to the protection of the rights of the child from sexual abuse and early marriage.8
In that, an attempt has been made to codify minimum age and consent for marriage,9 which to proceed from the hypocrisy theory, it is viewed by some analysts as an effort to curtail or reduce active fertility period especially of the girl-child by delaying marriage to a later age in the name of education in order to put a check on population growth more so in the absence of prohibition of polygamy and child spacing policies in majority of Afro-Asian countries inhibited by Muslims. These developments are perceived by many Muslims as derogatory to the legal position under Islamic law. In that, it poses and continues to pose legal challenges as to the compatibility of human rights law with Islamic law on child marriage on the one hand and the acceptance of its abolition by Muslims in Nigeria who, at all times, desires the practice of Shari‟ah in the alternative.
To the feminist conception on the issue, any marriage wherein the couples are below the age of 18 years is a child marriage and that it is a fundamental human rights violation to do so. In their view, child marriage disproportionately affects young girls who are much
8 Proponents of child rights has identified child marriage as constituting one of the most severe forms of child abuse with a disproportionately negative impact on the girl child. It is both a cause and consequence of the most severe form of gender discrimination. The practice harms girls by denying the right to education and health, as early marriage leads to early childbirth for which girls are mentally and physically unprepared. See 9 See The 1964 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage (Article 2); The Child Rights Convention (Article 1); The Convention on the Elimination of All Forms of Discrimination Against Women (Article 16); The Child Rights Act 2003; Protocol to the African Charter on Human and People‟s Rights on the Rights and Welfare of the Child; etc.,
more likely to be married as children than young boys.10 Some international estimates indicate that worldwide, more than 60 million women aged 20–24 were married before they reached the age of 18 years.11 The issue is that, what implications does the above stand and yearnings of feminists and advocates of child marriage abolition have on the teaching of the sharia on the issue? Is the Islamic family values that are targeted for reform under the pretext of child marriage to absolve western values in place of the sharia? Or, are they really philanthropists that sympathize to the causes of the child? In the face of this challenges, have the sharia failed to take to the fore the best interests of the child in failing to recognize a fixed marriageable age? Or, is the exercise of the power of ijbar in all certain circumstances naturally prejudicial to the interest of minors? By and large, has the guidance of the sharia on the issues relative to child marriage primitively obsolete as to give way for the ascendancy of the morally corrupt and deficient modern western civilization in family affairs? Or, are Muslims especially in Nigeria possessive of the right to conduct their affairs as per the teachings of their religion including on the possibility of child marriage without the least encroachment by secular authorities?
10 Mathur, S., Greene, M. & Malhotra, A. (2003). Too Young to Wed: The Lives, Rights and Health of Young Married Girls. Washington, D.C: International Center for Research on Women (ICRW); UNICEF. (2005). Early Marriage: A Harmful Traditional Practice: A Statistical Exploration. New York, NY: UNICEF; Save the Children. (2004) State of the World‟s Mothers 2004. Westport, CT: Save the Children. 11 UNICEF. (2007). Progress for Children: A World Fit for Children Statistical Review. 6, 45. New York: UNICEF.
Furthermore, is the concept of ijbar per se a mischievous practice that hinders the plights of minors? Or, is its misapplication giving rise to its present criticisms? At whose interests is the practice of Ijbar, to the minor or his/her parents or both? How harmful is the practice of early or child marriage in our contemporary society? To the Muslims, is it a religious or traditional practice? In this era of human rights, would its compulsory abolition as a matter of law not amount to human rights violation, such as the right to culture and freedom of thought, conscience and religion?
This research would, therefore, look into these legal issues and problems with a view of articulating a practicable and sustainable way out that would bridge the gap between the advocates of its abolition and those for its practice particularly in the Muslim community of Northern Nigeria.
1.3 AIMS AND OBJECTIVES OF THE RESEARCH
The principal aim of the research work is to critically analyze the impacts of the concept of ijbar on the practice of child marriage under Islamic law. The research focuses upon the following specific objectives:
1. To examine the spirit and wisdom behind the power of ijbar and whether it is protective of the rights of the child within the framework of the sharia.
2. To examine and analyze whether in the contemporary setting, the concept and practice of ijbar by and among Muslims is in its totality a mischievous practice; or, whether it is of particular advantage to the rights of the girl-child having regards to the child‟s best interests in life.
3. To examine and analyze the contemporary concern of feminists in objecting to child or early marriage particularly among Muslims in Northern Nigeria with a view to reasserting its continued practice or abolition among Muslims in Nigeria.
1.4 SCOPE OF THE RESEARCH
The scope of this research will be restricted only to the reflection on the rationale of the law and/or practice of child marriage under Islamic law vis-à-vis the concept of Ijbar. A particular emphasis would be given to an analysis on its practice by Muslims in Northern Nigeria. The legal regime will focus primarily on Islamic Law and where necessary, to comparatively consider the Nigerian laws on the subject.
1.5 RESEARCH METHODOLOGY
Doctrinal method of legal research was primarily employed. Recourse has been made to published legal materials on the subject, i.e., books, journals, conference and seminar papers, statutes, case law, etc.
1.6 LITERATURE REVIEW
The question of child marriage vis-à-vis the concept of ijbar has been a topical issue of concern before the international community, more particularly the feminists and child rights advocates; and as such, a lot has been written on the subject ranging from books, articles to seminar and research papers.
The famous Muslim scholar on the subject of Islamic family law, Hammuda Abd al-Ati12 has, in one of his books, eloquently presented the arguments surrounding essential nature of child marriage in Islamic law. He argued that child marriage is more of a
12 Abd al-Ati, H. Family Structure in Islam, American Trust Publication (1977) pp. 72-73
betrothal that implies deferring consummation to a later date; that preliminary arrangement may have been made at an early age, but consummation usually take place when the parties were fit for marital congress which depends, among other things, on their physical conditions. He succeeded in identifying two interrelated issues on child marriage in Islamic law, the legitimacy of child marriage and compulsion in marriage (ijbar). He further elaborated that Islam sets no age limit on marriage and that consummation is subject to the attainment puberty.13
Similarly, the well-known Muslim scholar, Prof. M. A. Abdur-Rahim in his famous book, The Principles of Muhammadan Jurisprudence,14 has in his chapter on family law, discussed capacity to enter into marriage contract as well as guardianship for the purposes of marriage. He dwelt on the rationale behind marriage guardianship, stating that it is allowed because of necessity for securing proper and suitable match and that when a minor is given in marriage by a guardian other than the father, he/she can exercise option of puberty (khiyar-ul-Bulugh) and thus refuse to be bound by the marriage.15
However, it may be noted that, as regards both Hammuda Abd al-Ati and Prof. M. A. Abdur-Rahim, these Islamic writers had exposited enormously on the topic as at the time when feminism jurisprudence has not grown wild as it does in these days. Consequently, their discussion could not be said to have adequately captured current feminist‟s criticisms against the Islamic child marriage. Therefore, our attempt to further delve into this aspect of Islamic law would deal with it contextually under the general argument
13 Ibid. at p. 76 14 Abdur-Rahim, M. A. The Principles of Muhammadan Jurisprudence According to the Hanafi, Maliki, Shafii and Hanbali Schools, All Pakistan Law Publishers, pp. 226-339 15 Ibid, pp. 330-332s
that, child marriage is a viable mechanism under the Shariah for the protection of the rights of girl-child contrary to what obtains or the way it has been conceived and applied by the West today. And, the feminists perspective of considering Islamic child marriage as hampering the future of the girl-child in terms of education, negation of reproductive rights and health implications, etc., are baseless criticisms that seeks to satisfy western imperial interests in the Muslim world.
Khurram Murad, in his book titled, “Shariah: The Way of Justice”,16 has discussed woman‟s consent as an essential legal condition for marriage in Islam. He further explains that if such consent is not being obtained in Muslim societies today, the problem is a result of social circumstances, not of the legal provisions of the shari‟ah and that the situation must change once the shari‟ah is implemented.17 While agreeing with this author, it is intended to further the discussion in the sense that notwithstanding the presence of the Islamic concept of ijbar vis-à-vis the legality of the practice of child marriage, the consent of the girl-child is still reckoned with and the false allegation by western literatures of associating the Islamic child marriage as being “force marriage” is not only biased but untenable.
Abul A’ala al-Maududi18 while discussing essentials of marriage contract, only talked about the discretionary role of women in the formation of marriage contract emphasizing that the consent of a woman is an indispensable condition of marriage in Islamic law.19 He altogether neglected or failed to envision the interrelationship of child marriage within
16 Khurram Murad, (1981) Shariah: The Way of Justice, The Islamic Foundation, London 17 Ibid, pp. 13-14 18 Abul A‟ala al-Maududi, The Laws of marriage and Divorce in Islam, Islamic Book Publishers, Safat, Kuwait (1983, 1st ed.) pp. 69-70 19 Ibid, at p. 70
the context of consent to marriage within the framework of marriage guardianship. But, given the status of the author as pro-Islamic Muslim scholar, his omission to include discussion on Islamic child marriage and its modern criticisms would not be taken as a bye-passive approach to sideline its existence.
Likewise, Prof. I. A. Doi in two of his books20 while discussing the concept of marriage has treated the requirement of free consent of parties to marriage alongside power of ijbar but he did not focus on the position of child marriage in Islamic law. In the recent edition of the book,21 the choice of partner and the power of compulsion (ijbar) have been discussed, stating that ijbar is a safety measure in the interest of the girl concerned whereby, if in view of immaturity or over-zealousness, a girl is proposing to marry a man possessing a bad character or a man lacking proper means of livelihood, her guardian may stop her from marrying that man and instead, finds a suitable person to whom to give her in marriage.22 While only the substantive Islamic principles are discussed, what in our view, is left un-discussed in this book, is the modern challenges posed by the feminists and women‟s rights activists.
Abdulmalik Bappa Mahmud in his book titled “Marriage under Islamic Law”,23 has discussed issues relating to Islamic child marriage but his choice of words or style in his treatment of ijbar and the attendant role of wali mujbir under the heading “compulsory marriage” is misrepresentative of the Islamic concept of ijbar as being synonymous to
20 Doi, I. A. Shariah: The Islamic Law, Ta-Ha Publishers, London (1990) p. 123; Doi, I. A. Women in Shariah (Islamic Law), (1983) p. 70 21 Doi, I. A and Clarke, (2008) A. Shari‟ah: Islamic Law, Ta-Ha Publishers, London, pp. 206-208 22 Ibid, p. 207 23 Mahmud, A. B. (1981) Marriage Under Islamic Law, Gaskiya Corporation Ltd., Zaria, Nigeria, pp. 41-42
“compulsory marriage”. This is because; if ijbar is synonymous to compulsory marriage as the author tend to mistakenly give such an impression, what then is the value of Islamic requirement of free consent in marriage. Thus, he mistakes ijbar with compulsory marriage when nothing of the sort exists under Islamic law. In fact, any practice that would otherwise constitute compulsory marriage is out rightly un-Islamic. But, that apart, notwithstanding his treatment of marriage guardianship under the title “compulsory marriage”, his exposition on the subject has adequately depict the rationale of the sharia behind guardianship in marriage as being protective of the welfare and interest of the minor concerned.
Prof. I. A. Aliyu24 in his book on the protection of the rights of women has discussed women‟s right to choose a partner for marriage, accept or reject marriage proposal; their consent being a prerequisite to the validity of a marriage contract in Islamic law.25 That it is obligatory upon guardian of a woman to seek her consent to marriage and that this is the reason why the Shari‟ah objects to marrying a woman forcefully to a man she doesn‟t like rendering such a marriage void or at least voidable.26 This author, while being expert on Muslim family law and existing as at the time when feminism jurisprudence is corrosively encroaching upon the tenets of Islamic law, has however shy away from considering the vitality of discussing contemporary debate surrounding child marriage and its practice in Islamic law vis-à-vis consent to marriage and the role of legal guardian thereto.
24 Aliyu, I. A. Protection of Women‟s Rights under the Shariah, Dakwah Corner Bookstore, Jeddah, Saudi Arabia (2010, 1st ed.) pp. 36-40 25 Ibid, at p. 36 26 Ibid
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