Whether a Muslim girl below the age of 18 years could contract a valid marriage-Nikah-without the consent of her parents? Explain in light of the basic principle of Islamic jurisprudence.

Question: Whether a Muslim girl below the age of 18 years could contract a valid marriage-Nikah-without the consent of her parents? Explain in light of the basic principle of Islamic jurisprudence. [HJS 2015]

Find the answer only on Legal Bites. [Whether a Muslim girl below the age of 18 years could contract a valid marriage-Nikah-without the consent of her parents? Explain in light of the basic principle of Islamic jurisprudence.]

Answer

Marriage among Muslims is not a sacrament but purely a civil contract. There are two factors that decide the competency of parties to enter into a marriage under Muslim law – age and soundness of mind. Once the girl and boy have attained puberty, they become competent to be a party to the institution of marriage.

This also means that they are allowed when the girl and the boy are sexually competent to consummate a marriage. Now, since it is based on physical and emotional features, it becomes difficult to ascertain the exact age at which it would be a valid marriage.

Throughout history, the usual age is 9 for a girl and 12 for a boy. With the passage of time, the Privy Council, in the case Muhammad Ibrahim v. Atkia Begum & Anr., 16 Ind Cas 597, has set the maximum age at fifteen years, and this age criterion applies to both the man and the woman. The Privy Council gave two conditions:

1. Attainment of the age of 15 years of the woman
2. Attainment of puberty, whichever is earlier.
3. And once puberty is attained, the power of authorization, either by self or to whoever is accepting on their behalf, arises.

Thus, applying the aforesaid conditions to the present case at hand, a Muslim girl below the age of 18 years could contract a valid marriage-Nikah-without the consent of her parents once she has attained puberty or come to 15 years of age, whichever being earlier.

The other consideration is soundness of mind, where it must be seen whether it is a case of idiocy, i.e., consistent and permanent unsoundness, or lunacy, i.e., acquired unsoundness with periods of sanity in between. The former is entirely incompetent to contract, but the latter may marry by giving consent in the period of sanity.

In the case of a minor or a lunatic person who cannot authorise, the power of guardians, parents, and family can be regarded. The offer and acceptance on their behalf can be given by the guardian.

The guardians who are allowed to authorize the marriage of a minor are:

1. The father,
2. The paternal grandfather or anyone higher
3. Brother
4. Mother
5. Maternal uncle or aunt or someone from the family.

This is the hierarchy that needs to be adhered to when the marriage of a minor comes into question. But when none of the guardians mentioned above is there, then a qazi or any government authority can assume the position of a guardian in the case of a minor child.

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