The concepts of minimum age of marriage, the need for the parties’ or others’ consent to the marriage, and the parties’ capacity to marry, or whether they can agree to marry on their own or need a wali or guardian to approve the marriage, are intertwined. This section covers minimum age of marriage and consent to the marriage.

Support from Islamic sources

• The onset of puberty is in these days no indication of sufficient maturity for marriage. Surah an-Nisa’ 4:6 requires that orphans reach the age of marriage and be found to be of sound judgment before they marry. This indicates that a person must have sufficient judgment and maturity to marry, and attaining the age of majority alone is not sufficient.

Support from universal human rights standards

• The Universal Declaration of Human Rights (UDHR) requires: ‘[Men and women] are entitled to equal rights as to marriage, during marriage and at its dissolution’ (article 16(1)). Article 16(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) states: ‘States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; …’. Differential minimum ages of marriage are a form of discrimination against women and inequality between men and women, and CEDAW requires States parties to take steps to end such discrimination and inequality.
   
• States parties to CEDAW and the International Convention on the Rights of the Child (CRC) are generally perceived to have a duty to protect children, and in international law, children are generally defined as persons below the age of 18. Article 1 of the CRC states, ‘A child means every human being below the age of eighteen years …’. This is a standard definition throughout the international arena.
   
• The CEDAW Committee has stated that it ‘considers that the minimum age for marriage should be 18 years for both man and woman’, and that provisions for different ages of marriage for men and women should be abolished. The Committee on the Rights of the Child has stated that different ages for boys and girls violates the Convention and that States parties to the CRC must ensure that boys and girls are treated equally with respect to minimum age of marriage and also recommends that 18 be the minimum age for both boys and girls. In addition, the Human Rights Committee and Committee on Economic, Social and Cultural Rights have stated that a difference in ages violates the instrument, that the legal minimum age should be 18 for both boys and girls, and that early marriage has harmful effects on children.
   
• CEDAW article 16(2) states: ‘The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory’.
   
• The Beijing Platform for Action (BPFA) states, ‘Overall, early marriage and early motherhood can severely curtail educational and employment opportunities and are likely to have a long-term adverse impact on their and their children's quality of life’ (para. 268), and calls on Governments to ‘enact and strictly enforce laws concerning the minimum legal age of consent and the minimum age for marriage and raise the minimum age for marriage where necessary; …’ (para. 274(e)).
   
• The Committee on the Elimination of Discrimination Against Women, the body that oversees compliance with CEDAW, states in its General Recommendation No. 21: ‘According to the World Health Organization, when minors, particularly girls, marry and have children, their health can be adversely affected and their education is impeded. As a result their economic autonomy is restricted. This not only affects women personally but also limits the development of their skills and independence and reduces access to employment, thereby detrimentally affecting their families and communities’.
   
• Children are generally perceived to have a right to education, and encouraging secondary education is considered to be in the best interests of children. The BPFA specifies that among the actions to be taken by Governments and international and non-governmental organisations with regards to girls is to ‘[g]enerate social support for the enforcement of laws on the minimum legal age for marriage, in particular by providing educational opportunities for girls’ para. 275(b). The Putrajaya Declaration made by the Ministerial Meeting of the Non-Aligned Movement in May 2005 not only stresses the importance of education for girls and women, but the member countries committed themselves to ensuring girls and women can obtain education through at least the secondary level. The Declaration reads: ‘We hereby commit ourselves to: … (c) Take all appropriate measures to enforce compulsory education to 12th grade instead of 9th grade; (d) Take all appropriate measures to ensure that women and girls have equal opportunity and access at all levels to formal, informal and non-formal education as well as technical and vocational trainings …’. Allowing girls to marry earlier than age 18 would present a major impediment to achieving this goal.

Support from national constitutions, laws and policies

► Because constitutions, laws and policies differ dramatically between countries, NGOs, activists, lawyers, academics and government officials should examine the laws and policies of their own countries to determine how to use these to promote equality in the family.

Support from social and cultural realities

• Early marriage has many negative health, educational, economic consequences for girls and negatively affects the strength of the family. There is an extremely negative health impact of early marriage. The Beijing Statement and Platform for Action states, ‘More than 15 million girls aged 15 to 19 give birth each year. Motherhood at a very young age entails complications during pregnancy and delivery and a risk of maternal death that is much greater than average. The children of young mothers have higher levels of morbidity and mortality. Early child-bearing continues to be an impediment to improvements in the educational, economic and social status of women in all parts of the world.’
   
• Early marriage forces girls into sexual relations, which can have serious psychological and physical health consequences. Furthermore, younger women often have less knowledge of their own bodies and less strength to stand up to their husbands if they are sick, hurt or in domestic violence situations.
   
• Girls who marry later will be more easily able and expected to complete a high school education and pursue higher education, which accords with the fundamental idea that seeking knowledge is a right and a responsibility of every Muslim. This also translates into a better-educated society and gives women a better chance to pursue professional goals and contribute to a nation’s economy.
   
• When girls marry young, they often decide to leave school, leading to lower employment opportunities. Because they are not able to secure well-paying jobs, they are often more vulnerable to economic dependence and have lower bargaining powers within the marriage. 
  
  The concepts of adulthood, maturity, and the roles of husband or wife are dramatically different today than they were during the classical era when the rules of fiqh were solidified. In the case of a girl, the age of puberty is usually associated with the age of menstruation. Fourteen hundred (1400) years ago, menstruation would typically occur between the ages of 14 and 17. Today, it can occur in girls as young as 9 years of age.
   
• Socially, the role of wife/mother/parent/adult is vastly different than it is today, what with changes in education, careers, the structure of the family, etc., as well as the psychological, economic, social and biological functions of being a wife and mother.
   
• Early marriage of girls under the age of 18 is a form of violence against those girls. They are deprived of their adolescence and freedom and forced to take up heavy household and family responsibilities, sometimes on top of their educational or employment responsibilities. Such heavy burdens on young girls may lead to marital problems and subsequent divorce.
   
• Household structures are changing, with a gradual increase in nuclear families and decline of extended families living together. This translates into a decrease in family support for young brides as they try to cope with the difficulties of married life.

Examples from various countries

• Algeria: Following the February 2005 reform, the minimum age of marriage is 19 for both females and males. The judge can grant an exception to the minimum age of marriage for females and males on the grounds of benefit or necessity.
   
• Bangladesh: Under the Child Marriage Restraint Act (1929, amended in 1984), the minimum age for marriage is 18 for females and 21 for males; exceptions are not permitted.
   
• Jordan: A 2001 royal decree raised the minimum age from 16 for males and 15 for females to 18 for both genders. The decree has not yet been formally incorporated into the law.
   
• Morocco: Under the 2004 revision of the Moudawana (Family Code), the legal age of marriage is 18 for both boys and girls. A judge may grant an exception to the minimum age ‘in a well-substantiated decision explaining the interest and reasons justifying the marriage, after having heard the parents of the minor … with the assistance of medical expertise or after having conducted a social enquiry’.
   
• Turkey: Under the amended Civil Code, the minimum age for marriage has been raised from age 15 to 18 for females and from age 17 to 18 for males. Under exceptional circumstances, the minimum age can be lowered to age 16 with the court’s permission.

The issue of consent involves whether both parties must give their full and voluntary consent to marry the other person. It also involves whether any other person’s consent (such as that of the existing wife or the guardian) is necessary for the marriage to take place. Capacity for marriage relates to whether the person has legal capacity to contract the marriage, or whether another person must contract it on their behalf. Generally, a person who is a minor or is insane is not considered to have legal capacity for marriage. An ongoing debate is whether women who are considered adults in every other way have such capacity.

Support from Islamic sources

• There is no authority in the Qur’an or the Sunnah of the Prophet (s.a.w.) for the doctrine of ijbar, or compulsion in marriage. Ijbar is entangled in many complexities that can be traced to its historical background of tribal norms which go back to the early period of Roman Law. This doctrine is enmeshed in the legal maze of questions interconnected with the conception of family, marriage and the criteria of mate selection in a particular society, and grew against the backdrop of those socio-legal conditions. As Mohammad Hashim Kamali states in his book, Islamic Law in Malaysia, ‘A perusal of the relevant evidence suggests that the power of constraint in marriage, known as wilāyat al-ijbār, has little support in the Qur’an and Sunna and it is most likely to be rooted in social customs of the Arab society that survived and were eventually adopted by the [classical] jurists’.
   
• In April 2005, Saudi Arabia’s top religious authorities banned the practice of forcing women to marry against their will, stating that the practice contravenes the provisions of Syariah. The clerics said that whoever forces a woman to marry against her will is disobeying God and His Prophet (s.a.w.), and that coercing women into marriage is ‘a major injustice’ and ‘un-Islamic’. The kingdom’s mufti even recommended imprisoning fathers who insist that their daughters marry men against their will.
   
• The Hanafi school of law held that the wali is required only for marriages involving minor boys and girls, and that no wali is needed for the marriage of a competent adult woman.
   
• No ayat in the Qur’an and the Sunnah of the Prophet (s.a.w.) explicitly stipulates guardianship as a condition for the marriage contract. Ibn Rushd (d. 1198 C.E.) stated that ‘it is well-known that during the lifetime of the Prophet there were many people without a guardian, but no one has reported the Prophet to have acted as guardian to conclude a marriage on their behalf, nor has he, in fact, authorised others to represent him in that capacity’ (Mohammad Hashim Kamali, Islamic Law in Malaysia, pp. 112-113). In the absence of injunctions or evidence in the Qur’an or the Sunnah, the Hanafi law on guardianship is the most acceptable in present day society.

Support from universal human rights standards

• A number of human rights instruments guarantee both the right to enter into marriage after free and full consent by both parties and the right to freely choose a spouse. See, for instance, article 16 of the Universal Declaration of Human Rights, articles 1 and 2 of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, article 23 read together with article 3 of the International Covenant on Civil and Political Rights, article 10 read together with article 3 of the International Covenant on Economic, Social and Cultural Rights, article 5(d)(iv) of the International Convention on the Elimination of All Forms of Racial Discrimination, and articles 16(1) and (2) of CEDAW. These are often considered the right to decide if, when and whom to marry.
   
• The Universal Declaration of Human Rights states ‘Marriage shall be entered into only with the free and full consent of the intending spouses’ (article 16(2)). Article 16(1)(b) of CEDAW again calls for the elimination of discrimination against women in matters relating to marriage and family relations and equality between men and women by giving them ‘the same right freely to choose a spouse and to enter into marriage only with their free and full consent’. The BPFA echoes these calls by requiring Governments to take action to ‘[e]nact and strictly enforce laws to ensure that marriage is only entered into with the free and full consent of the intending spouses’ (para. 274(e)). 
   
• A basic human right is that both spouses must give their consent, and that consent cannot be given for them. The CEDAW Committee has stated, ‘A woman’s right to choose a spouse and enter freely into marriage is central to her life and to her dignity and equality as a human being’. Early marriage compounds the problem of consent. If a girl is not old enough to agree to the marriage on a legal or a maturity-level basis, she has not fully and freely consented to the marriage, as required by several human rights instruments.
   
• Article 15(2) of CEDAW requires States Parties to the Convention to ‘accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity’. Taking away a woman’s ability to contract her marriage and giving it to a wali prevents a woman from exercising her legal capacity at all, let alone on the same level as a man. In addition, international human rights instruments validate a woman’s right to freely choose her spouse, not just consent to the spouse chosen for her. Giving women both the ability to choose her spouse and the ability to consent are essential for equality between men and women.

Support from national constitutions, laws and policies

► Because constitutions, laws and policies differ dramatically between countries, NGOs, activists, lawyers, academics and government officials should examine the laws and policies of their own countries to determine how to use these to promote equality in the family.

Support from social and cultural realities

• When Saudi Arabia’s clerics ruled against coercing women into marriage without their consent, news reports stated that the high number of forced marriages in Saudi Arabia is believed to be the main reason behind the sharp increase in divorce.
   
• Requiring the consent of a wali has a negative impact on a woman’s autonomy, independence and self-esteem, all characteristics society is trying to promote in order to encourage women to be more active in economic, political and social sphere. It is consistent with modern times to allow women to act as independent, rational and capable human beings. Requiring a guardian to grant his consent to a marriage even for women who are legal adults in all other aspects makes women minors their entire lifetimes. This is derived from the concept of ‘protecting’ women as they enter into marriage, which is paternalistic and does not recognise the present-day circumstances of women who are educated and earning their own living.
   
• Requiring a male guardian for a woman over the age of 21 also devalues a woman’s ability to actively and powerfully participate in public and political life. Women should not be forced to ask for a guardian’s permission to marry or a guardian to negotiate their marriage contracts when they can hold executive roles in multi-national corporations or ministerial positions in Government.
   
• Guardianship does not protect women other difficulties in marriage, including divorce, domestic violence, and health risks such as HIV/AIDS. If women are required to grant free and full consent to their marriages and are able to commit themselves to marriage without needing a guardian’s protection and permission, they might be better able to choose compatible spouses.

Examples from various countries

• Algeria: It is forbidden for the wali to compel a woman to marry; he may not give her in marriage without her consent.
   
• Bangladesh and Pakistan: Courts have upheld a woman’s right to marry without the consent of a wali. In Pakistan, case law (Mst. Humera Mehmood v The State and others, PLD 1999 Lahore 494) provides that marriage without consent is void. Ijbar is not recognised.
   
• Iran: The chief official of the marriage registry is obliged to read out the conditions of the marriage contract to the parties and have them separately sign each of the conditions to indicate acceptance of the conditions.
   
• Morocco: Under the new Moudawana, couples may not be coerced into marriage under any circumstances. A woman gains the capacity to contract her own marriage upon reaching the age of majority. She may contract her marriage herself or delegate this power to her father or one of her relatives.
   
• Tunisia: There is no marriage without the consent of both spouses. A marriage contracted without such consent is declared null and void. The article that provides this is interpreted in case law to mean that consent should be manifested in an undisputable manner by saying ‘Yes’ before the officiating officer. If the marriage is unconsummated, there are no consequences if it is then declared invalid. If the marriage is consummated and then declared invalid, the woman can claim her mahr; the paternity of any children from the marriage is recognised; and the woman must observe iddah before remarrying. Both husband and wife have the right to contract their marriage themselves or appoint proxies. The consent of a wali is not required.
   
• Saudi Arabia: In April 2005, Saudi Arabia’s top religious authorities banned the practice of forcing women to marry against their will (ijbar), stating that the practice contravenes the provisions of the Shari‘a. The clerics said that whoever forces a woman to marry against her will is disobeying God and His Prophet (s.a.w.), and that coercing women into marriage is ‘a major injustice’ and ‘un-Islamic’.
   
• Sri Lanka: A wali is not required for Hanafi women who have attained puberty.