The Marriage of Minors in the Context of Doctrin and Case
Journal Title: Eskiyeni - Year 2019, Vol 7, Issue 38
Abstract
The marriage of minors before puberty or before reaching a certain age was generally seen as permissible in the doctrine of classical jurisprudence. As a provision based on a certain factuality and also at the same time explained by some individual or social arbitrations, it has been the subject of conflict and debate in the last century. The issue continues to be the subject of heated debates nowadays as raised by those who consider it as a definitive and unchangeable provision of the fiqh by ignoring its historical and social aspects. This article, based on a paper, will look for answers to such questions: How was the marriage of minors considered in the doctrine of fiqh as a factual-historical background? Who said what depending on which evidence? Does the same phenomenon continue as of today? What is the situation in contemporary Muslim and non-Muslim societies? Therefore, can we say anything other than the approaches exhibited in the past today? In line with this search, it will show the proofs of those who allow to marry minors and of those who do not, and then it will reach a conclusion by evaluating them. But before this, at the beginning of the article, the vision of fiqh which the author adopts and the subject will be built upon it will be presented. Summary: The word “minor” is used in various meanings in different legal systems and social traditions. Minor or child is defined sometimes according to age, sometimes according to adolescence (puberty) and sometimes to maturity (rushd) and sometimes according to subject or the crime committed. In fact, it can be witnessed that even within the same legal system, there is no definition of a minor or child valid in all areas of law. For example, while the Turkish Civil Code does not mention a certain age range in determining minority, the Turkish Penal Code and the Child Protection Law describe the child as the person who has not yet completed the age of eighteen. In the Law on the Establishment, the Rules of Procedure and Trials of the Children's Courts, minority is defined in terms of some actions as 12 years old, and in terms of some actions up to 15 years old. As it is understood from this information, the definition of minor or child varies according to culture, society and subject. When fiqh literature is concerned, minority / childhood very clearly refers to pre-puberty / pre-bulla period. The validity, legal capacity, custody of the legal savings of a child during this period and the issues of custody on the property of the child are also discussed in detail. One of these issues is also his/her marriage. The classical tradition of jurisprudence in general acknowledge it legitimate that minors can be married by their parents. In addition to some indirect expressions of the Qur'an by those who accept this, clear determinations in the Sunna and many applications in the period of the Companions are evidence of this legitimacy. However, in the context of the classical view, the following important detail should be pointed out: The marriage of minors and the actual sexual intercourse with them after the marriage are evaluated separately. The permissibility of sexual intercourse depends on their ability to tolerate this in their physical development. The guardian of the minor has the right to block it. In the times when classical fuqahas had these views, basically, the same approach was generally accepted in both the eastern and western non-Muslim societies. Nonetheless, some of mujtahids -who remain few in numbers- in the classical period did not accept the afore-mentioned practice because they did not find it compatible with the requirements and benefits of the marriage institution. This opinion was adopted in the 1917 Law and Family Decree which came into force in the last period of the Ottoman Empire. This view is also dominant among today's fuqaha. This article examines this issue through the evidence and approaches of the parties. The conclusion of the author in a cool-headed analysis is this: Marriage of minors is a subject closely related to the social phenomenon, conjectural requirements and social reality. Religious texts (nass) or first period practices which directly or indirectly allow this should also be explained by this fact and necessity. There may be situations in which time and geography are experienced and this practice can be considered as legitimate. But, as of today, there is no factual background that will legitimize this practice.
Authors and Affiliations
Ahmet Yaman
Keywords
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