Legal Status of Minor Marriages in Muslim Countries - Report Example

Islamic law Islamic law Legal status of minor marriages in Muslim countries The presence of minor marriages within predominantly Muslim countries can be attributed to the sharia laws which have either failed to protect children from forced marriages or do nothing to uplift the rights of women1. Most countries in the Middle East, Asia and majority African Muslim countries have been accused of perpetuating early marriages, a situation that significantly affects the education and growth of the girl child. In Iraq, child marriage is common and most of the legislations have supported the marriage of girls as young as nine years, a step that has caused uproar in international arena2. For example, a law that was recently introduced in the country intends to legalese the marriage of girls as young as nine years and also makes it mandatory for wives to submit to sex based on the whims of the husbands3. Though the law has been considered as a move to create different legal grounds for the majority Shiites, it reflects a standard position of other Muslim countries where women and children are viewed as properties of the men4. Before the introduction of the contentious legislation, Iraq recognized marriage at the age of majority though most of the girls were getting married at 15 years following an approval of the parents. The Jaafari personal status law has been developed based on the Shiite religious law as founded by Jaafar al-Sadiq who was a prominent Shiite imam. The cabinet of Iraq has already approved the contentious law despite opposition from rights group who believe that such a law infringe on the legal rights of children and women5. As compared to other laws, this draft law fails to set a minimum for marriage, only mentioning puberty age within the set rules for divorces in marriage based on the lunar Islamic calendar. Based on government reports released in Iraq, 25% of marriages that took place in 2011 involved girls under the age of 18, an increase from 21% in 2001 and 15% in 19976. Such statistics demonstrates the retrogressive laws that Iraq have legislated over the years, moving towards an infringement on women rights. Yemen and Pakistan have also failed to introduce legal safeguards to ensure that child marriage is eliminated and the rights of women in the Muslim countries are eliminated. For example, more than a quarter of girls get married before they reach the age of 15, a situation that has affected the development of women in the country7. Most of the women in the country who were married at a younger age face pregnancy complications and birth issues due to their underdeveloped genitals. A number of cases have been reported of death during delivery or even death during sexual intercourse which occurs due to internal bleeding8. For example, a 12 year old child recently died in Saudi Arabia following a marriage with an 80 year old Saudi Arabian man who was already married with elderly kids9. The sanctioning of this retrogressive tradition within Muslim countries can be attributed to the actions of Muhammad which conservative Muslims have decided to hold onto and perpetuate. Muhammad married Aisha when she was barely nine years old, a practice that has over the years been indoctrinated in Islam and considered right based on the available Islamic texts which support such statements10. Despite the enactment of laws that state the right age for marriage to be 18 years and above, child marriage has persisted in most Asian countries that have adopted a predominant Muslim culture11. In south Asia, the issue of rampant child marriage has been blamed on poor law enforcement and the reluctance of the parents to provide equal opportunities to their children. Most child marriage in India or even Pakistan occurs under the watch of the parents and the local leaders but without consideration of the child’s desires. Islam places higher value of women sexuality, a notion that has perpetuated child marriages in different parts of south Asia12. Gender discrimination, legislation gaps, poor enforcement of the anti-child marriage laws, lack of access to quality education, poverty and civil instability have been highlighted as some of the issues that have perpetuated the vice in south Asia and northern African countries13. Through early marriage, Islam tradition hope to preserve the chastity and sexuality of girls and to provide her family with honor and respect, a notion that is hypocritical bearing in mind the pain that such girls undergo after forced marriages14. Child marriage legal framework in south Asian states Different south Asian states have introduced laws aimed at protecting children from forced marriages and ensuring that the age of majority is attained before any female can be allowed to get married. Despite the presence of most of these legal frameworks, most countries in south Asia have failed to implement their provisions and ensure that the rights of the girl child are upheld15. In Afghanistan, he protracted war contributed to the massive violation of the rights of children especially girls who are vulnerable to manipulative techniques of the elderly men. Though Afghanistan is a country that has combined both Islamic, legislative and customary laws, the actions of most of its people are governed by customary and Islamic laws16. As a result, most of the provisions of the constitution that prohibits child marriage and advocates for equality irrespective of gender are disregarded. According to article 22 of the afghan constitution, both men and women have equal fundamental rights and duties as citizens of the country and must be treated in a manner that is acceptable before the law17. Article 40 which covers civil law define marriage as a contract between a male and a female of a majority age which is based on individual consent and consideration of issues raised by the two sides. The country’s civil law indicate that 16 years is the right age of marriage for girls and 18 for boys which is common in other Asian countries and aimed at protecting the rights of both the parties to a marriage18. However, subsection 1 of article 17 confers powers of the right to marriage to the father, a provision that has been violated and led to forced marriages in most families. Confusion on the right age of marriage arise from the failure to define adulthood in sharia laws which only highlight the need for consensus and sanity before any marriage can be considered legal19. The definition of marriage by adulthood has provided leeway for child marriages in most Islamic countries where sharia laws are practices as adulthood is considered as the age of menstruation which in most cases begin at nine years. In Bangladesh, 75% of the women were married off before they even attained the age of majority, a fact that has been attributed to lack of proper legal framework to protect children from forced marriages. Despite the child marriage restraint act of Bangladesh setting the right marriage age at 16 for women and 18 for men, the presence of customary laws has contributed to confusion that is currently witnessed. The social norms, patriarchal values and the traditions of the Bangladesh people intersect with poverty and perpetual conflict, social insecurity among other issues20. Most families view girls as a burden or a source of economic empowerment through force marriage to older and economically empower men within the same societies. Though the constitution of the people’s republic of Bangladesh gives equal rights to all the people, sharia and customary laws have taken prominence21. The children act of Bangladesh defines a child as anyone below the age of 18 years, a definition that by extension means that marriage should only be considered legal if it occurs between adults age 18 years and above. The child marriage restraint act of Bangladesh defines that marriage can only be considered legal if it occurs between two consenting adults as any other form of marital arrangement is punishable by law22. Just like in other countries, confusion between the constitutional laws and the sharia laws has provided leverage for continued marriage of children below the age of 18 as the sharia laws defines adulthood based on the age of puberty. Though the penal code of Bangladesh defines as rape non-contentious marriage with a woman aged below 15 years, it is a common scenario in many parts of Bangladesh. According to a report released by UNICEF, only 39% of girls are married age 18 year in Senegal while a majority get married below the majority age due to lack of proper legal structures. The country records over 410 maternal deaths per 100,000 births and analysts have attributed this to the challenges that young girls face during birth. Weak antiviolence laws against women in Senegal have contributed to abuses against women and high incidences of forced marriages in the country. Despite the legal structures established in the countries, judges have been blamed for showing lack of interest in prosecuting cases of violence against women as a way of demonstrating their commitment to the elimination of the vice in Senegal. References Baugh, C. (2009). An Exploration of the Juristic Consensus (ijmā) on Compulsion in the Marriages of Minors. Comparative Islamic Studies, 5(1), 33-92. doi:10.1558/cis.v5i1.33 Gohir, S. (2010). The hypocrisy of child abuse in many Muslim countries. The guardian. Retrieved from http://www.theguardian.com/commentisfree/2010/apr/25/middle-east-child-abuse-pederasty Nasir, J. J. (2009). The Status of Women under Islamic Law and Modern Islamic Legislation. Leiden: Brill. Yacoub, S. & Salaheddin, S. (2014). Iraq child marriage bill would allow girls to wed, severely limit women’s rights. The Huffington post. Retrieved from http://www.huffingtonpost.com/2014/03/14/iraq-child-marriage-bill_n_4962247.html Read More