Muslim Sexual Ethics: Consent and Forced Marriage
For traditional Muslim jurists, as indeed for most societies in the pre-modern world, marriage was not primarily about the free choice of life partners by individuals, though an element of individual choice was recognized. Rather, it was about the selection of suitable spouses by families. To that end, a type of guardianship (wilaya) for marriage is a critical element of the marriage regulations the early jurists devised. Two types of guardians (wali, sing.) are distinguished, though both have to be adult, male, Muslim, free, and sane. First, a father (and possibly, under certain circumstances, a paternal grandfather) is considered to have the power to compel marriages, referred to as jabr or ijbar. Second, in the absence of a father, another guardian is required under certain circumstances for the validity of the marriage, but he may not force his charge to marry.
All four Sunni schools recognize the power of a father to contract binding marriages for both his sons and his daughters so long as they are minors (up to the age of nine or onset of menstruation for girls and puberty, up to age fifteen at the latest, for boys). The children have no say in the matter (though a boy married against his wishes may, of course, exercise his power to divorce his wife unilaterally once he matures). There is disagreement on whether other guardians may contract marriages for minors under their care. Some hold that guardians aside from the father may not contract marriages for minors at all. Others hold that they may, but both boys and girls will have the option to reject the marriage when they come of age. In either view, as minors, both boys and girls are subject to compulsion to marry to an equal degree.
After maturity, the rules for males and females differ, though least so in the Hanafi school of legal thought. All jurists agree that a male, once he is no longer a minor, can contract a marriage for himself without the requirement of a guardian to act on his behalf. Only the Hanafi school recognizes that a female may do the same but unlike a male, her marriage is subject to challenge by her guardian if it fails to meet certain criteria (the groom must be her social equal (kuf’) and she must stipulate at least the full dower appropriate to a woman of her family status and personal characteristics. Most Hanbali jurists holds that a female over the age of nine is no longer subject to her father’s power of compulsion, but that she must have a guardian to conclude the marriage on her behalf. This is the case even after her first marriage. The Maliki and Shafi’i schools of legal thought, along with a minority of Hanbalis, subscribe to the clearest differentiation between males and females. For these jurists, a father may compel his daughter to marry against her wishes so long as she remains a virgin (bikr).
For jurists from all four schools, however, a mature virgin’s consent is required for anyone besides her father to marry her off. Once she is no longer considered a virgin, her consent is required for any subsequent marriage, in the unanimous view of the jurists, regardless of which guardian contracts the marriage. However, for the Malikis and Shafi‘is, just as for the Hanbalis, a guardian must contract any marriage on her behalf. Only the Hanafis consider an adult woman capable of legally concluding a marriage contract on her own.
Issues surrounding consent to marriage have been raised numerous times in modern Muslim societies. Many jurisdictions have attempted to resolve these issues by setting minimum marriage-ages that are past the agreed-on start-dates for maturity. Some nations that have traditionally allowed the forced marriage of adult virgin women have changed laws to reflect the need for all adult women’s consent, regardless of previous marital status. And changing social mores and demographic realities have contributed to a decline in the numbers of marriages of minors and marriages where women and girls are married against their will to partners not of their choosing.
Content by Kecia Ali
Senior Research Analyst, FSE
Revised June 19, 2003