Legal Age of Marriage

Legal Age of Marriage in Common Law Jurisdiction (Malaysia) and Islamic Law

1. AGE OF MARRIAGE ; SIGNIFICANT DEVELOPMENT IN PRESCRIBING THE LIMIT FOR AGE OF MARRIAGE IN COMMON LAW JURISDICTION AND ISLAMIC LAW. WHAT IS THE APPROPRIATE AGE OF MARRIAGE? SITI NUR JANNAH BT HASANUDDIN G1813858

2. INTRODUCTION Q1 - EXAMINATION OF SIGNIFICANT DEVELOPMENT IN PRESCRIBING THE LIMIT FOR AGE OF MARRIAGE IN COMMON LAW JURISDICTION AND ISLAMIC LAW Q2 - WHAT IS THE APPROPRIATE AGE OF MARRIAGE

3. CONTENT

4. SIGNIFICANT DEVELOPMENT IN COMMON LAW JURISDICTION A) MALAYSIA He is a 41-year-old man. She is barely 11 . Case in Kelantan.

5. About 15,000 child marriages have been recorded within the past 10 years, with Sarawak holding the highest number of cases The statistics were based on recent findings by the Ministry of Women, Family, and Community Development between 2007-2017 10,000 of the underage marriages were Muslim while 4,999 couples were non-Muslim.

6. 1) Ratified CEDAW & CRC Government of Malaysia had ratified CEDAW in 1995. CEDAW sets out a definition of discrimination against women, and outlines the obligations of the state and the measures to be taken by the state to eliminate discrimination. However , Malaysia placed reservations to several articles of the Convention due to concerns that they might conflict with the provisions of Islamic law and the Federal Constitution. There is also no domestic application of CEDAW in the form of federal law, but Malaysia has incorporated some of the Convention’s principles in domestic legislation as well as in Article 8(2) of the Federal Constitution

7. The Government had also ratified CRC , the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, and the Optional Protocol on the Involvement of Children in Armed Conflict. Again , Malaysia has placed reservations to some articles of the CRC, but recognition of the Convention as a whole has brought significant changes to the development of the rights of children in Malaysia. For example, Parliament enacted the Child Act 2001, which came into force in 2002, and made further amendments in 2016.

8. 2 ) Establishment of Taskforce In 2013 the Government had established a taskforce to scrutinize and develop a comprehensive action plan specifically to address the practice of child marriage in Malaysia. The taskforce was initiated by the MWFCD through its Coordinating Council for the Protection of Children, consisting of related government agencies, academics and children’s rights activists

9. 3 ) NGOs role & C ommittee Society should be taught that child marriages posed a real danger to the young brides. - health, emotional, higher incidence of domestic violence Eg ; - Gov ; SUHAKAM - Non- Gov ; HAKAM, SIS, YAYASAN CHOW KIT Eg ; launch # PelajarBukanPengantin (# StudentNotSpouse or # SchoolNotSpouse ), a social media campaign to end child marriage - International; Girls Not Brides -  is a global partnership of more than 1000 civil society organisations from over 95 countries committed to ending child marriage and enabling girls to fulfil their potential.

10. 4 ) National Fatwa Council of Malaysia at its 106th discussion on Islamic affairs in Malaysia in October 2014, the National Fatwah Council of Malaysia made it clear that marriage between Prophet Muhammad and Aisha could not and should not be used as religious justification for underage marriage. The Council argued that child marriage was not a “healthy practice ” and that although there was an exception in the country’s laws that allowed child marriage, it should not be encouraged or allowed without weighing the benefits and the consequences for the children involved.

11. 5 ) New Gov manifesto At the 69th (CEDAW) in February 2018, the committee pointed out that child marriages continue to be permitted under both the Law Reform (Marriage and Divorce) Act and the Islamic Family Law, despite the withdrawal of Malaysia’s reservation of article 16 (2) of the Convention. The Committee also observed that the rate of child marriages in Malaysia is increasing. In response, the Committee reiterated its previous recommendation that the minimum age for marriage should be increased to 18 years for women and men for both civil and Muslim marriages and that the full consent of women be given for any marriage.

12. Ministry/States - raise the minimum age for marriage to 18 Recently elected Alliance of Hope government (‘ Pakatan Harapan ’) has incorporated this recommendation in its election manifesto, that is, the introduction of a law that sets 18 as the minimum age of marriage. This is part of its commitment to ensuring that legal system protects women’s rights and dignity under their section on “Special Commitment for Women” With its plural society, Malaysia provides different legal frameworks for Muslims, non-Muslims, the Bumiputera of Sabah and Sarawak and the Orang Asli of Peninsular Malaysia. - This has created different legal conditions when dealing with child marriage. -Therefore, as a first step towards addressing the resulting gaps, a clear minimum age for marriage that is in conformity with international standards (18 years of age) must be set in legislation for all legal frameworks.

13. 6 ) Syariah Court’s Role Shariah Court judges took into account three main issues before allowing an application: sexual and reproductive health, the children’s preparedness for marital life and family matters (economic conditions).

14. So what’s next? Ways Forward T he government in the process amending the Child Act 2016 and the Islamic Family Law Enactments to raise the marriageable age for women from 16 to 18 . Raising more awareness – media masses as children are tech-savvy Create special fund for children from poverty families to pay for extra schooling costs

15. B) UK The Home Office estimates that between 5,000 and 8,000 people are at risk of being forced into marriage every year in the UK. In 2014, England and Wales criminalised forced marriage under the Anti-social Behaviour, Crime and Policing Act . - Forcing someone, including children, into marriage is now liable to a maximum of seven years in jail. -The Act also criminalises forcing a British national into marriage outside of the UK. - Importantly , breaching a Forced Marriage Protection Order now carries a maximum penalty of five years in jail.

16. The Forced Marriage Unit (FMU) is a joint initiative of the Foreign and Commonwealth Office (FCO) and the Home Office which was set up in January 2005 to lead on the Government’s forced marriage policy, outreach and casework. The FMU is unique in that it provides support to individuals at risk and/or affected by forced marriage inside the UK, and to British nationals living overseas, through its network of embassies. The FMU also provides - a confidential helpline - arranges repatriation and resettlement Active NGOs ; Karma Nirvana National Plan UK

17. 1 st case; a mother who tricked her 13-year-old daughter into traveling to Pakistan to marry an older man was jailed for four and a half years, becoming the first person in England to be convicted of forced marriage . 2 nd case; a couple who duped their daughter into traveling to Bangladesh to marry her cousin and threatened to “chop her up” when she refused were found guilty of forced marriage.  

18. C) PAKISTAN Pakistan has  one of  the highest numbers of  child brides  in the world . Child marriage in Pakistan is connected with tradition, culture, and customary practices. It sometimes involves the transfer of money, settlement of debts or exchange of daughters ( Vani   /  Swara   or  Watta Satta ) sanctioned by a  Jirga  or  Panchayat  (council of elders from the community). Sindh has the highest rate of child marriage of any province in Pakistan. Second, Lahore. Pakistan’s Child Marriage Restraint Act (CMRA) 1929 sets the legal age of marriage for boys to 18 and 16 for girls.

19. T here was a move to end child marriage problem by proposing Child Marriage Restraint (Amendment) Bill 2014. The proposed legislation recommended giving out harsher punishments to those entering a marriage with a minor, as well as raising the minimum age of marriage for women to 18-years-old . However, it was rejected by the government on the grounds that it was ‘anti Islamic’ & ‘blasphemous’. Even, the existing law stipulated in the Child Marriage Restriction Act of 1929, has been ruled as non-compliant with Islamic laws and the gov reiterated its earlier ruling that girls as young as nine-years-old were eligible for marriage if “the signs of puberty are visible”.

20. D) BANGLADESH Drivers- cultural, religious belief , natural disasters, poverty, dowry, parents ’ desire to secure economic and social security for their daughters, and the perceived need to protect girls from harm, including sexual harassment. The minimum legal age for marriage in Bangladesh is 18 for women and 21 for men. However, the Child Marriage Restraint Act 2017 includes a loophole where a court can allow child marriage in “special cases”. The act does not explicitly define what those “special cases” might be. The bill also introduces stricter punishments for those who marry children. A man or a woman who marries a child could face up to two years imprisonment, a Tk100,000 (US$1,200) fine, or both.

21. In September 2014, the Cabinet approved to lower the minimum age of marriage from 18 to 16 years for girls, resulting in international outcry. The Act was delayed and amended in 2016. In February 2017, Parliament adopted the Child Marriage Restraint Act 2017 despite widespread concerns over a special provision allowing child marriage in “special cases”. The act does not define what those “special cases” might be. The Government has also begun developing, under the leadership of the Ministry of Women and Children Affairs, a National Action Plan to Eliminate Child Marriage 2015-2021. However, progress on adopting and implementing the plan has stalled in the face of backlash against recent regressive legal proposals.

22. National multi-media campaigns launched by the Ministry of Women and Children Affairs, the campaign has been developed with technical and financial support from UNICEF, UNFPA , and Canada . Part of the campaign involves television and radio broadcasting of public service announcements and drama series surrounding child marriage issues.  NGOs introduced multiple social programmes and support to stop child marriage effectively and promoting empowerment of women. 

23. CIVIL LAW - INDONESIA poverty ,  economic dependency ,  financial incentives , dowry practices ,   a lack of access to education and health services . According to the 1974 Marriage Law, girls can marry from the age of 16, while boys can only marry at age 19 with parental permission . In 2014, a grassroots movement called Koalisi +18 campaigned to increase minimum age of marriage to 18 without exception. Female clerics / " ulema ", also issued a fatwa to end child marriage. However, in June 2015,the Constitutional Court upheld the current Indonesian marriage law of 1974. This case spurred a national dialogue around child marriage in the country where millions of girls continue to marry as children.

24. ISLAMIC LAW There is no specific definitive ( qat‘ī ) provision on the age of marriage in the  Qur’an. There are, however, three relevant  non-definitive ( zannī ) Qur’anic verses that the classical jurists relied upon for their different jurisprudential views on the issue.  These are ; - Q4:6 – “And test the orphans [in their abilities] until when they are mature for marriage ( hatā idhā balaghū al- nikāh ); and if you perceive in them sound judgement ( rushd ), release their property to them”, - Q24:32 – “Marry those who are single ( al- ayāmā ) amongst you ”

25. Q65:4 – “And for women who have passed the age of menstruation, their prescribed waiting period [in case of divorce], if you have any doubts, is three months, and [also] for those who have not menstruated [ wa al- lā’ī lam yahidna ); but for those pregnant with babies in their womb, their prescribed period is when they deliver their pregnancy…”.  Hadith the Prophet married Aisya ; “ The Prophet of God ( pbuh ) married me when I was six years old, and I was admitted to his house when I was nine years old” (Narrated by both al- Bukhāri and Muslim). The MAJORITY classical view, held by the  Hanafī , Mālikī , Shāfi’ī , Hanbalī    schools of Islamic jurisprudence is that marriage of minors is permissible and may be contracted by the  father or guardian acting in the minor’s best interest .

26. The nucleus of the classical majority view is that while marriage of minors is not the general norm under the  Shari’ah , it may be necessary in the minor’s own interest and thus its permissibility under Islamic law . It must be noted, however, that in case of such marriages,  consummation must not take place until after maturity. Also , according to some of the jurists under this view, such marriages remain voidable by the minor upon reaching puberty under the concept of the so-called  khiyār a- bulūgh  (option of puberty) before consummation of the marriage.

27. MINORITY view held by classical jurists such as Abdullah Ibn Shubrumah al- Kūfī , a famous jurists of Iraq in the 8th century; that the marriage of minors is not lawful until majority ( bulūgh ). Ibn Hazm recorded in his  al- Muhallā  that Ibn Shubrumah’s view was that it is not permissible for a father to give his minor daughter in marriage until she attains puberty and able to give her consent as is required generally under Islamic.  The nucleus of the minority view is that  marriage of minors is unwarranted as minors have no need for and are not bound by the rights and responsibilities in marriage which can only arise after the attainment of maturity and sound judgement .

28. The minority jurisprudential position under classical Islamic jurisprudence has been accepted as the better view based on the concept of  istihsān  (juristic preference) by different  contemporary Muslim scholars  and organisations in the Muslim world on the question of marriage of minors, with some calling for its criminalisation.  Based on evidence that the practice is generally harmful to children both socially and medically, there have been attempts at reforming the law in different Muslim-majority states in the larger interest of society based on relevant Islamic law principles of  maslahah  (public interest or human benefit) and  darūrah  (necessity)

29. Articles 4- 6 of the OLFR 1917 forbid guardians from marrying off girls younger than nine and boys younger than twelve. The OLFR required the permission of the court for the marriages of girls between the ages of nine and seventeen and boys between the ages of twelve and eighteen.

30. Moroccan Family Code ( Mudawwanah ) (2004). Art. 19:  Sets minimum age of marriage at 18 for both sexes . Jordanian Personal Status Law (2010). Art. 10:  Sets minimum age of marriage at 18 years, but judges with the agreement of the Chief Justice, may in special circumstances grant permission for the marriage of persons aged 15 years old.

31. OPINION WHAT IS THE APPROPRIATE AGE? Professor Mashood Baderin ; On the fact that  marriage of minors is not compulsory ( wājib ) but merely permissible ( mubāh ) for the perceived interest of the minor concerned under classical Islamic jurisprudence, it can therefore be abolished or restricted through principles of Islamic law such as  siyāsah shar’iyyah   (executive policy),  maslahah  (public interest or human benefit) or  darūrah  (necessity) by the ruling authority of a Muslim-majority State for the larger public interest and benefit of minors.

32. # the universal age 18 y/o is the appropriate age. Nevertheless the permission/consent by the authority/judges are still needed in order to overcome special cases under the universal age. This is to avoid greater harm such as wedlock/social problem.

33. CONCLUSION The welfare of the children is the priority. End child marriage as it brings more harm than good. T he law needs to be adequate in order to accommodate the child marriage issues. However, it would be very difficult to implement the law unless people perceive the matter as their 'problem'. In other words, 'institution building' through popular participation should become a major focus of any social reform or intervention strategy. – Eg ; US,