Fatwa: "It Is Permissible to Have Sexual Intercourse with a Prepubescent Girl"
This is a fatwa from IslamOnline.net, which is the sixth most popular Islamic website on the internet, according to Wikipedia. As the author of this fatwa points out, this ruling is entirely based on the Qur'an and the example of Prophet Muhammad, who is considered the perfect example for Muslims in all ages.
Answer: In the name of God, praise be to God, and prayers and peace be upon the prophet of God.
Scholars very nearly agree that it is the right of the father to marry off his young, immature daughter. This is owing to his authority over her, for as he is responsible for directing her and providing for her, he is also responsible for doing what he believes is in her interest on the issue of marriage.
Ibn Qudama in al-Mughni said: "No one but the father can compel a woman, or marry off a young girl, whether a grandfather or otherwise." This was spoken of by Malik, Abu-'Ubayd al-Thawri, and Ibn Abu-Layli. This was also spoken of by al-Shafi'i, except he said it of the grandfather, making him like the father, because he has the authority of a parent, including to compel her like the father.
Al-Hasan, 'Umar Ibn-'Abd-al-'Aziz, Tawus, Qatada, Ibn-Shirama, al-Awza'i, and Abu-Hanifa said: "No one but the father can marry off a young girl; but she has the choice if she has matured." All of them but Abu-Hanifa said: "None but the father can marry two children, for they have the choice if they have matured."
It is important for us to understand that it is not a duty for a father to give his young girl in marriage, but it is restricted to her best-interest. For it is not permissible unless he believes that her best-interest requires it, and God is his judge on that.
Concerning the best-interest, you might imagine, for example, that the girl has no brother, and therefore the father fears for what will happen after [he's gone], so he marries her off to a righteous man. Let us not forget that from old nothing was waiting for the girl except marriage. She was not in college or school, expecting to graduate therefrom. Therefore if her femininity has completed, and she has matured, then why wait?
Nor should we forget that the culture of the time was restricted, and it was predetermined that [the girl] would be given away at a young age. The situation was not as today, where a male or female child continues to stumble through reading and writing even beyond their tenth year.
At the time in which we see our children now, with the number of illiterates, they stay in school until their tenth year. It used to be that the child, male or female, would memorize the Qur'an before reaching their ninth year, and would memorize Arabic poetry and prose. This is the culture which is missing in the men of today, as well as in their children. It is also important that we understand that the scholars, while they permitted marrying off young girls, they forbade her husband from having intercourse with her until she could bear it, which [i.e. the age at which she could bear it] varies according to time, place, and environment.
The Noble Qur'an has also mentioned the waiting period [i.e. for a divorced wife to remarry] for the wife who has not yet menstruated, saying: "And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated" [Qur'an 65:4]. Since this is not negated later, we can take from this verse that it is permissible to have sexual intercourse with a prepubescent girl. The Qur'an is not like the books of jurisprudence which mention what the implications of things are, even if they are prohibited. It is true that the prophet (PBUH) entered into a marriage contract with 'A'isha when she was six years old, however he did not have sex with her until she was nine years old, according to al-Bukhari.
Therefore the issue is fixed in the Qur'an and the Sunnah. There is no jurisprudence without it being accused of being a 'male jurisprudence'!!! For a portion of the women in our day deny the jurisprudential efforts of scholars with the accusation that their masculinity leads them to jurisprudence which is in their best-interest, and against women. It appears that those who are led by this idea have the image stuck in their minds of a father or shaykh of a mosque, who would resort to religion. As this was his (description), it was not desirable. But this is not how it was, according to what was related by Allah Almighty: "But if the right is on their side, they come to him with all submission" [Qur'an 24:49]. Wherefore the history of jurisprudence is abounding [with examples] which dispel this mania, and this is not the place to lay them all out. But what can those who follow the Western feminist agenda say to this Qur'anic text, and to the marriage of the Prophet to 'A'isha (may Allah be pleased with her)!!!
If those who believed this were really seeking the public's best-interest, then why are they not satisfied with the age of puberty? Do doctors say that intercourse is harmful for the mature girl? It seems there is more to the issue than this, for they also call for the boy and girl to remain under juvenile law until this age (18), and that the penal code should not extend to them until they reach this age, no matter their crime. This call contradicts all of Islam, and not just jurisprudential rulings. Islam holds people responsible once they reach puberty. Does it make sense for the boy to be held responsible by Allah before the most important fate in this world and the next (the garden and the fire, Islam and disbelief), and not to be held responsible for the crimes which he commits in the world!! Do these have more concern for the people than does their Creator--Allah forbid!
Let us leave (the question) of intentions to the Lord of all hearts, despite its being revealed with evident characteristics. Does not an objective examination and observation of the number of cases in which a father has put his self-interest above his daughter's require us to say, "Do these cases represent a phenomenon which needs a binding law?"
The importance of this examination lies in the fact that if we create a binding law which prohibits marriage before a set date, inevitably there are those who will be harmed thereby. There is the girl who does not expect to graduate from a university because she does not study at all. Or there is the girl who shortened her path and confined herself to only middle school, and perhaps she missed the opportunity to marry during her studies because of this law?
Who will bear the sin of the girl who spends her lust on that which is forbidden, because she is forbidden from marrying before the legal age? Who will bear the sin of the civil marriages [i.e. marriages not performed according to Islamic law] of various types which are nothing but an agreement between a young man and girl to commit adultery? Criminalizing marriage before a certain age is a major reason for this phenomenon... We need to take a strong look at both the effects that will result from prohibition, and those that will result from allowing it, so that we can weigh the pros and cons. This in order to enable us to reach the appropriate solution, far away from 'feminine thought' or 'masculine thought'. The language of observation is that of numbers, and numbers do not add up differently for one sex over the other. [ellipsis in original]
I think it's important that I convey here the opinion of a jurist, a doctor on the question, that we may take from him something that will somewhat dispel the lying delusions in people's minds, in the name of the facts. This comes from the Encyclopedia of Medical Jurisprudence by Dr. Ahmad Muhammad Kan'an, chief of the infectious diseases section in the administration of primary health care in the Eastern Province of Saudi Arabia:
"It is permissible for the child to marry before puberty--whether male or female--and for his guardian to carry out the contract and marry him. It is not valid for the little boy to divorce his wife, whether it was done with reason or not. The Hanbalis are the exception to this, for they permitted divorce for him if it was done with reason, meaning the divorce... The waiting period for the little girl who has not menstruated is counted as three months, in accordance with the saying of the Most High: "And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated" [Qur'an 65:4]. [ellipsis in original]
It is no secret that marriage of children is not free from medical warnings, for their sexual organs are not yet equipped for intercourse. Children are also not prepared psychologically to engage in sexual intercourse, especially the little girl who tends to be physically harmed, especially if her husband is a large man! Sex with her could cause harmful psychological and physical complications which will accompany her throughout her life, and will influence her sexual future! For this reason, scholars are of the opinion that the child bride who cannot endure intercourse should not be delivered to her husband until she gets older and reaches an age where she can endure intercourse, even if the husband is wise and faithful, and has promised to not touch her, because perhaps an outburst of lust from within him could lead him to have sex with her and harm her. The opinion of the Hanbalis is that if she has reached nine years of age, then she can be given to her husband. This is based on the sound hadith that the Prophet (peace be upon him) "consummated the marriage with 'A'isha when she was a nine-year-old girl." However, if the girl is afraid for herself, then she has the right to forbid him from having sex with her. He may treat her as he would one who was menstruating, until she gets older and is ready for sex.For our part, we counsel from the medical standpoint against marriage before puberty, at the least. Puberty is an innate indicator that the body has become ready for marital relations. Also the man, through puberty reaches the acceptable level of societal consciousness which helps him to create a family... Knowing that most of the existing laws in both Islamic and non-Islamic countries prohibit marriage before the age of adulthood, or 18 years. [ellipsis in original]
Submitted by Ahmad, IslamOnline, December 24, 2010