Islam on Having Sex with Minors

I share the legal rulings and opinions of the Muslim website IslamWeb (https://islamweb.net/ar/; https://islamweb.net/en/)., in respect to having sex with prepubescent, premature minors. The readers will see that Muslim scholars do allow men to have sex with girls younger than 9 years old provided they are able to handle penetration.

Question

What is the ruling on marrying a minor? Is the marriage contract valid?

If the marriage contract is valid, what is the ruling on having sexual relations with her?May God reward you.

Answer

Now then:

In Islamic law, childhood ends with puberty. The Islamic Jurisprudence Encyclopedia states: "Technically, it is a description that applies to a person from birth until they reach puberty." Therefore, it is not permissible in Islamic law for a girl to reach puberty through menstruation or other means and still be described as a child, to which certain legal rulings apply. This includes the issue of marriage; there is no disagreement among scholars that a girl who has reached puberty is not considered a child in this regard. Puberty can occur at a young age, such as ten. Al-Bukhari included a chapter in his Sahih (collection of authentic hadiths) entitled "The Reaching of Puberty and the Testimony of Boys," citing the verse: {And when the children among you reach puberty, let them ask permission} [An-Nur: 59]. Mughirah said: "I experienced a wet dream when I was twelve years old." And women reaching puberty during menstruation, as God Almighty says: {And those of your women who have despaired of menstruation} [At-Talaq: 4] until He says {that they deliver their burdens} [At-Talaq: 4]. Al-Hasan bin Salih said: “I met a neighbor of ours, a grandmother, who was twenty-one years old.”

It is well known that this grandmother married at a young age and became pregnant at the age of ten, and pregnancy is a definitive sign of puberty. Such a matter should not be subject to dispute. Therefore, it is not religiously permissible for some people to condemn a girl's early marriage, as long as she has reached the age of legal maturity and is capable of marriage and its responsibilities. The signs of puberty are explained in Fatwa No. 10024.

As for a young girl who has not yet reached puberty, the question regarding her concerns two issues: First, the marriage contract with her. Second, the enjoyment of her, whether through intercourse or anything less.

The answer to the first question is that the marriage contract with a young girl is valid according to the majority of scholars, to the point that consensus has been reported on this matter. However, a few scholars have disagreed with its validity, namely Ibn Shubrumah, Uthman al-Batti, and Abu Bakr al-Asamm, who said that a young boy or girl should not be married until they reach puberty, based on the verse: “Until they reach the age of marriage” (An-Nisa: 6).

Al-Sarakhsi, in his book Al-Mabsut, explained their reasoning, saying: “If marriage were permissible before puberty, there would be no benefit in it. Furthermore, guardianship over a minor is established due to the needs of the ward. Even in matters where no such need exists, guardianship is not established, such as in donations. There is no need for marriage in these cases, as the natural purpose of marriage is to fulfill desire, and its legal purpose is procreation, both of which are incompatible with childhood. Moreover, this contract is for life, and its rulings become binding upon them after puberty. Therefore, no one has the right to compel them to it, as no one has guardianship over them after puberty.”

This view was adopted by some contemporary scholars, such as Sheikh Ibn Uthaymeen, who stated in his Al-Sharh Al-Mumti’: “The preponderant opinion is that the consent of a virgin who has reached puberty is essential. As for a girl who has not yet reached puberty, meaning one who has completed nine years of age, is her consent required or not? The correct view is that her consent is required, because a nine-year-old girl begins to experience desire and develop feelings for marriage, so her permission is necessary. This is the opinion of Sheikh Al-Islam Ibn Taymiyyah, and it is the truth.” As for a girl under nine years old, is her consent valid? They say: A girl under nine years old does not have valid consent because she knows nothing about marriage. She may give consent knowingly, or she may not give consent because she doesn't know. Therefore, her consent is not valid. But is it permissible for her father to marry her off in this case? We say: The default ruling is that it is not permissible, based on the Prophet's saying: "A virgin should not be married off until her consent is sought." This girl is a virgin, so we do not marry her off until she reaches the age at which she is capable of seeking consent, and then she should seek it. However, some scholars have mentioned a consensus that he may marry her off, citing the hadith of Aisha. We have already explained the difference. Ibn Shubrumah, one of the well-known jurists, said: It is never permissible to marry off a young girl who has not yet reached puberty because if we stipulate consent, then her consent is not valid. We do not allow coercion in the case of an adult, so this is even more so. This opinion is the correct one: that a father should not marry off his daughter until she reaches puberty, and if she does reach puberty, he should not marry her off until she consents. But let's suppose the man finds this suitor suitable, but he is elderly, and he fears that if he passes away, the girl will fall under the guardianship of her brothers, who might manipulate her and marry her off according to their whims, not her best interests. If he sees it in her best interest to marry her to a suitable man, then there is no harm in that. However, she has the choice when she grows up; if she wishes, she can say, "I am not satisfied with this, and I do not want him." If that is the case, then the safest course is not to marry her off and to leave her to God, the Exalted and Glorified. Perhaps he sees this man as suitable now, but the man's circumstances may change, and perhaps God will provide her with a better man when she reaches marriageable age, because all matters are in the hands of God, the Most High.

The Sheikh elaborated on this matter and discussed the evidence of the majority in his commentary on Sahih al-Bukhari, in the chapter: “A Man Marrying Off His Young Children.” As for the opinion of Ibn Taymiyyah mentioned by the Sheikh, it pertains specifically to a girl who is nine years old and has not yet reached puberty. Al-Mardawi said in al-Insaf: “A virgin who is nine years old or older, up to the age of puberty, can be married off without her permission, according to the soundest opinion of the school, and this is the view of the majority of the scholars… It is also narrated from him that it is not permissible to marry off a nine-year-old girl except with her permission.” Al-Sharif Abu Ja’far said: “This is the explicit statement of Imam Ahmad.” Al-Zarkashi said: “This is the most evident opinion…” Abu Bakr and Sheikh Taqi al-Din chose the view that a nine-year-old girl, whether a virgin or previously married, should not be forced into marriage. In the narration of Abdullah, he said: “If a girl reaches nine years of age, neither her father nor anyone else can marry her off except with her permission.” Some of the later scholars of the school said: “This is the strongest opinion.”

The point is to emphasize that this issue is subject to some disagreement and is not definitively settled. However, the prevailing opinion in our view is that of the majority who consider the contract valid. See fatwas 108613 and 117878 for further details.

The majority of scholars who deem marriage contracts valid for minors prefer that their fathers wait until they reach puberty to obtain their consent. An-Nawawi said: “Know that Ash-Shafi’i and his followers said: It is preferable that a father or grandfather not marry off a virgin until she reaches puberty and seek her permission, lest he force her into a marriage against her will. This does not contradict the hadith of Aisha, because their intention is that he should not marry her off before puberty unless there is a clear benefit that would be lost by delaying the marriage, as in the hadith of Aisha. In such a case, it is preferable to secure that marriage, because the father is obligated to act in the best interest of his child and should not let it be lost.”

This is also the opinion favored by Dr. Abdul Karim Zaidan in his encyclopedia, “Al-Mufassal fi Fiqh al-Usrah” (The Detailed Guide to Family Jurisprudence), where he stated: “We consider it preferable, as a matter of preference, that a father not marry off his daughter until she reaches puberty, unless there is a valid reason for marrying her off while she is still young.” He mentioned several reasons for this, which can be found there.

This is also the view chosen by researcher Suha Al-Qaisi in her master's thesis, "Child Marriage in Light of Determining the Age of Marriage," where she favored the validity of the marriage contract but then stated: "It is preferable not to marry her off unless a compelling interest is evident." She cited four reasons for this. It should be noted here that marrying off a minor is only done in consideration of her best interests, not merely according to her father's wishes. Indeed, some scholars have stated that a marriage is invalid if the minor's best interests are not considered, and that the judge must then annul it. Al-Shawkani said in "Wabl al-Ghamam 'ala Shifa' al-Awam fi Ahadith al-Ahkam" (The Rain of Clouds on the Healing of the Needy in the Hadiths of Rulings): "If there is no valid interest, then the marriage is not valid in the first place. The judge is permitted, and even obligated, to separate the minor from her husband. She has the right to flee whenever she wishes, whether she has reached puberty or not, unless she gives her consent after reaching puberty." In his research paper, "Guardianship in the Marriage of a Minor," published in the Journal of Islamic Research, Dr. Abdullah bin Abdul Aziz Al-Jibreen stated: To ensure that a father marries his young daughter to someone in her best interest, some scholars have stipulated several conditions for the validity of such a marriage. The most important of these are:

1- That there be no apparent enmity between her and her father.

2- That there be no enmity between her and the prospective husband.

3- That he does not marry her to someone whose marriage would cause her clear harm, such as an elderly man, a castrated man, or the like.

4- That he marries her to a suitable match who is not unable to pay her dowry. 

Furthermore, it is worth mentioning, as evidence of a father's consideration for his daughter's best interests when accepting a proposal from someone older than her, the hadith of Buraydah: Abu Bakr and Umar proposed to Fatimah, but the Messenger of God said: "She is too young." Then Ali proposed to her, and he married her to him. This hadith was narrated by An-Nasa'i and authenticated by Al-Albani. Al-Qari said in Al-Mirqat: It is possible that she was young when she was proposed to, and then after some time, when she had grown up and reached fifteen, Ali proposed to her. Or, the meaning is that she was young in relation to them due to their advanced age, and he married her to Ali because of the suitability of their ages, or because a revelation came down instructing her to marry him. Al-Sindi said in his commentary on Al-Nasa’i: “(So Ali proposed to her) meaning immediately after that, without delay, as indicated by the conjunction ‘fa’. Thus, it is understood that he considered their young age, and what remained of that was Ali’s age, so he married her to him. This shows that compatibility or similarity in age is taken into account because it is more conducive to harmony. Yes, this may be disregarded for something of a higher status, as in the marriage of Aisha.” As for Fatima’s age when she married, as Ibn Abd al-Barr said in Al-Isti’ab: Her age on the day of her marriage was fifteen years, five months, and a half, and Ali’s age was twenty-one years and five months. This is the view of most historians, such as al-Mizzi, Ibn Kathir, Ibn al-Athir, al-Yafi'i, Ibn al-'Imad, and al-'Isami. Al-Dhahabi said in his History of Islam: Ali married her after the Battle of Badr, when she was fifteen years old or older. Al-Manawi said... In (Ithaf al-Sa’il bima li-Fatima min al-Manaqib wa al-Fada’il): When Fatima grew up and matured, and reached the age of fifteen years. It was said: sixteen years. It was said: eighteen years. It was said: twenty-one. Ali married her. End quote.

As for the second issue, which is the issue of having intercourse with a young girl or consummating the marriage, most scholars have stated that a girl too young to endure intercourse is an impediment to handing her over to her husband. The Hanbalis agree with them regarding girls who have not yet reached nine years of age. An-Nawawi said: Regarding the timing of the marriage of a young girl and consummating the marriage, if the husband and her guardian agree on something that does not harm the girl, then that should be done. If they disagree, Ahmad and Abu Ubayd said: A girl of nine years of age can be compelled to do so, but not a girl of any other age. Malik, Ash-Shafi'i, and Abu Hanifa said: The limit is when she is able to endure intercourse. This varies according to their individual circumstances and is not determined by a specific age. This is the correct view.

The Islamic Jurisprudence Encyclopedia states: The jurists held that one of the impediments to consummation of marriage is minority. Therefore, a young girl who cannot withstand intercourse should not be given to her husband until she grows up and this impediment is removed, because excessive lust might drive him to have intercourse, causing her harm. The Maliki and Shafi'i schools held that the impediment of minority is removed when she is able to withstand intercourse. The Shafi'is said: If the husband says, "Give her to me, and I will not have intercourse with her until she is able," then she should not be given to him, even if he is trustworthy, because he cannot be certain of the possibility of his lust being aroused.

As for the Hanafis, Ibn Nujaym said in (Al-Bahr Al-Ra'iq): They differed regarding the time of consummation with a young girl. It was said: He does not consummate with her until she reaches puberty. It was said: He does consummate with her when she reaches nine years of age. It was said: If she is fat and large and capable of intercourse, he does consummate with her, otherwise not. End quote.

The Indian Fatwas state: Most of the sheikhs agree that age is not a factor in this matter, but rather the factor is strength. If she is large and fat and can withstand men and there is no fear of illness for her as a result, then the husband may have intercourse with her EVEN IF SHE HAS NOT REACHED NINE YEARS OF AGE. If she is thin and emaciated and cannot withstand intercourse, and there is a fear of illness for her, then it is not permissible for the husband to have intercourse with her even if she is old, and this is the correct view. End quote.

The Prophet consummated his marriage with our mother Aisha after she had reached this age. Therefore, it was delayed for about three years after the marriage contract, as mentioned in the two Sahihs on the authority of Aisha that the Prophet “married her when she was six years old, and consummated the marriage when she was nine years old.” Al-Dawudi said: Aisha had grown into a fine young woman. End quote.

What confirms the consideration of this meaning before Aisha’s marriage is that she said: My mother wanted to fatten me up for my entry into the presence of the Messenger of God but I did not accept anything she wanted until she fed me cucumbers with dates, and I fattened up on them in the best way. Narrated by Abu Dawud and Ibn Majah, and authenticated by Al-Albani.

Here we emphasize that the incapacity that prevents consummation IS NOT the same as the incapacity OF PUBERTY, but rather the inability to have intercourse. An-Nawawi said in Rawdat at-Talibin: “By ‘young girl’ and ‘young boy’ is meant one who is incapable of intercourse, and by ‘old boy’ is one who is capable of intercourse, and this includes the adolescent.”

Thus, it becomes clear that consummation of marriage with a minor depends on her ability to have intercourse, not merely on the marriage contract. The general principle in this matter is the saying of the Prophet: “There should be no harm nor reciprocation of harm.” Narrated by Ahmad and Ibn Majah, and authenticated by Al-Albani.

This is one of the five fundamental principles upon which Islamic jurisprudence is based. Whenever harm is proven to be legitimate, Islamic law mandates its removal and prohibition. Therefore, all forms of intimacy short of intercourse should be regulated to ensure they do not cause harm, provided the girl is capable and mature enough. A girl may be too young to be completely prohibited from engaging in such intimacy, and desiring her would be considered an abnormal and unusual act, similar to a child who has not yet reached the age of discernment. Therefore, looking at her private parts is not prohibited. See also Fatwa No. 112255.

This is one of the issues that requires clarification, namely: Is it permissible to enjoy things short of intercourse before the ability to have intercourse?

Our inclination is to consider the general capacity for intercourse, or reaching puberty, as the condition permitting all other forms of enjoyment. This is to prevent potential harm to the young girl who does not understand such matters. Supporting this view is what Ibn Abidin said in explaining the obligation to provide for a young wife who desires intercourse short of penetration, where he stated: "Because it appears that one who is in this state is generally capable of intercourse." He thus linked the desire for things short of intercourse with the general capacity for intercourse.

Ibn Hajar al-Haytami was asked about a man who divorced his wife with an irrevocable divorce, and they had a five-year-old daughter. Her father married her off to another man, and that man wanted to take her from her mother, provide for her, and raise her in his own home or with someone he chose. The question was whether he had the right to do so, and whether the mother's custody rights would be forfeited as a result. He replied: The mother's custody rights would not be forfeited because the husband only has priority over all other relatives in custody if he has the right to marital relations with his wife, meaning she is capable of intercourse. Otherwise, she is not to be entrusted to him. Thus, he established the ability to have intercourse as the means of marital relations and the basis for entrusting the child to him.

And here is another matter that must be considered, especially concerning marriage, which is custom. If it is generally considered reprehensible to have sexual relations with a young girl who lacks understanding and discernment, then this should be taken into account, and the wife should not be given in marriage before reaching maturity. Shaykh al-Islam Ibn Taymiyyah said in his Major Fatwas: “If the requirement of the marriage contract, namely the exchange of possession, is based on custom, then it is not customary for a woman to be given to him as a young girl, and he is not entitled to do so because she is incapable of benefiting from him.” (Ruling on marrying a minor and enjoying her company: https://www.islamweb.net/ar/fatwa/195133/%D8%AD%D9%83%D9%85-%D8%A7%D9%84%D8%B2%D9%88%D8%A7%D8%AC-%D8%A8%D8%A7%D9%84%D8%B5%D8%BA%D9%8A%D8%B1%D8%A9-%D9%88%D8%A7%D9%84%D8%A7%D8%B3%D8%AA%D9%85%D8%AA%D8%A7%D8%B9-%D8%A8%D9%87%D8%A7?ref=answeringislam.blog)

And:

Question

What are the legitimate signs of puberty in Islam?

Answer

Now then:

Puberty in Arabic means: reaching, it is said: the thing reached, it reaches, and it ended. And the boy reached: he had a wet dream, and he reached the time of obligation, and likewise the girl reached.

Technically: the end of the age of infancy, so that one becomes eligible for religious obligations.

Puberty has obvious natural signs, some of which are common to both males and females, and some of which are specific to females:

What is common is:

First: Wet dreams, which is the emission of semen from a man and a woman, while awake or asleep, at the time when it is possible. God Almighty said: “And when the children among you reach puberty, let them ask permission [before entering] as those before them asked permission. Thus does God make clear to you His verses, and God is Knowing and Wise.” [An-Nur: 59]

Secondly: Pubic hair growth, which is the appearance of pubic hair. This requires removal by something like shaving, unlike the fine down that grows on young children. This is supported by the hadith in which the Prophet appointed Sa'd ibn Mu'adh to judge the Banu Qurayza, ruling that their fighters should be killed and their women and children taken captive. He then ordered that their lower garments be uncovered. Those who had grown pubic hair were considered fighters, and those who had not were considered children. This hadith was narrated by the compilers of the Sunan, and al-Tirmidhi said it was a sound hadith. Umar wrote to his governor instructing him not to kill anyone except those who had reached the age of puberty.

The view that the growth of hair is a sign of puberty in all cases is the doctrine of the Hanbalis and the Malikis.

Third: Reaching the age of fifteen lunar years; based on the hadith of Ibn Umar: “The Messenger of Allah presented me for combat on the day of Uhud when I was fourteen years old, but he did not permit me. He presented me again on the day of the Trench when I was fifteen years old, and he permitted me.” Agreed upon. This is the wording of Muslim. When Umar ibn Abd al-Aziz heard this hadith, he said: “This is the difference between a young person and an adult.”

As for what is specific to females, there are two signs:

The first is menstruation, based on the hadith: "Allah does not accept the prayer of a menstruating woman unless she is wearing a head covering." Narrated by Abu Dawud and al-Tirmidhi, who said: "It is a good hadith." The term "menstruating woman" refers to a woman who has reached puberty, and she is called that because she has reached the age of menstruation.

Second: Pregnancy; because God Almighty has established the custom that a child is created from the sperm of the man and the sperm of the woman. God Almighty said: “Then let man consider from what he was created. He was created from a fluid emitted, emerging from between the backbone and the ribs.” [At-Tariq: 5-7] This sign - I mean pregnancy - is related to the sign of nocturnal emission mentioned above. (Fatwa No. 10024, Signs of puberty in males and females)

Further Reading

Aisha: Do 9-year-olds Become Women?