At 04:22 AM 1/1/2013, Jojo Jaro wrote:
<http://www.answering-islam.de/Silas/childbrides.htm#s4>http://www.answering-islam.de/Silas/childbrides.htm#s4
This post is a response to that web page. For
this post Jojo Jaro is irrelevant. I will thank
him, however, for pointing me to this page,
because it is an opportunity for me to become
clear about an issue that comes up in religious
apologetics. To the page.... quotations, unless
otherwise specified, are of Silas, the anonymous author of the page.
Silas presents many facts, off-hand, that are not
accurate. I'll note them, but will not debate
them, other than to make counter-assertions along the way.
I believed what many Muslims asserted: Muhammad
sexually consummated his marriage to the nine
year old Aisha following her first menstruation.
Many Muslims assert this, though the actual
sources do not indicate "sexual consummation" as
such, nor do they indicate the numbers of menses
past. The practice of Islamic law, as far as I've
been able to determine, is united on one point:
if *no menses* have occurred, and if a woman is
not obviously otherwise mature, and is apparently
a child, to consummate the "marriage" is rape.
What Silas does here is to overstate the case,
based on what "many Muslims" assert, which can
then be a total minority position.
I realized that the Quran, the Hadith, and
Muslim scholars writings state that a Muslim
husband can engage in sex with a child-bride before she has her first menses
Remarkable. He's concluded from sources what has
apparently escaped the notice of most Muslim
scholars. Is there *one* who would agree with him?
Many Muslims dont know this and by their own
standards Muhammad did the wrong thing in having sex with a child.
I'll say this right now, before reading Silas's
sources. If the sources actually show this, *they
are corrupt.* However, I already know some of the
elements that Silas probably puts together. Yes.
By our standards -- and this includes, as far as
I know, so far -- even the most befogged Muslim
scholars -- having sex with a child (defined in
this case as a female who has not reached sexual
maturity, and with no accessory condition that
would allow marriageability, such as being, say,
old but non-menstruating, never having menstruated) -- is an "enormity."
A 49 year old man asks his best friend if he
could have his permission to marry his 6 year old daughter.
That may not have been the sequence; the stories
I recall do not initiate the conversation with
Muhammad, but with a relative. But never mind. It
doesn't matter. Just so it's clear that "marriage," here, means "betrothal."
Some 2 to 3 years later, just after he had fled
to Medina, he consummated his marriage with her.
He was 52 and she was 9. This occurred prior to
Aishas first menses and by Islams legal
definition Aisha was still considered a child.
Islam teaches that a child enters adulthood at
the beginning of puberty. (This is
scientifically inaccurate, the onset of puberty
does not equal adulthood see Appendix 3).
It's also religiously inaccurate. Advanced
puberty is not the only condition for adulthood
(and marriageability) in Islam. There are other
conditions, as we would expect. It is merely *one* of the conditions.
Silas is presenting a common Muslim opinion as to
the age when Ayesha went to the Prophet's house.
Those traditions do not actually establish the
age at consummation. If that were legally
important, in a modern case, we'd need additional
evidence as to actual intercourse. Rather, "going
to the house" would establish a condition where
they could be alone together. It's very clear
from real examples of Muslim law that if, under
these conditions, she were not sexually mature,
and he has intercourse with her, it is *rape.* If
she is young, and has not mensturated, that
establishes a presumption of legal incapacity to
consent to sex. That makes the intercourse what
we call "statutory rape" in the U.S. And that's
how a Yemeni court recently decided.
If you are in doubt concerning those of your
wives who have ceased menstruating, know that
their waiting period shall be three months. The
same shall apply to those who have not
menstruated. As for pregnant women, their term
shall end with their confinement. God will ease
the hardship of the man who fears him. 65:4, Dawood
Yes. This is about divorce, and it assumes a
consummated marriage. The concern is that the
woman might be pregnant, that's obvious. If a
marrage has not been consummated, there is no waiting period.
This is really brilliant, I must say, the best deceptive argument I've found.
"Not menstruated" here applies to all situations
of a consummated marriage where the woman has
*never* menstruated. That's a real possibility
that has nothing exclusively to do with "girls."
There are other standards that allow marriage for
women who do not menstruate. These women could
be, for example, fully physically and socially
mature, but have never menstruated. Does this
verse establish the legality of consummation with
a woman who is not sexually mature. No. It
establishes what to do if the woman is not
mensturating. I haven't looked at the Arabic
here, I'm smelling a bit of translation creep, but it's not important here.
Silas then presents the arguments of Sam Shamoun,
who is? However, the first argument is roughly
what I've said. Silas comes back with:
Since Muslim men are to wait 3 months before
divorcing a prepubescent child it means that they
have been engaging in sex with those children.
Nope. He just assumed his conclusion, applying
the Qur'anic regulation in a circumstance
apparently not contemplated by it. Yes, if a man
-- or "boy" -- were to engage in sex with a
prepubescent girl (which means more than just
menses, by the way), there would be some kind of
waiting period, on the off chance that she
actually became pregnant, but he'd also be
*prosecuted* for rape, if it came to the
attention of authorities and this was not
otherwise unjust. (This, by the way, shows why
real judges don't decide hypothetical cases!)
It is to avoid a situation like this that the
laws exist. There is no happy outcome.
Samir then cites Ibn Kathir.
There is a third type of divorce, which is
neither a Sunnah nor an innovation where one
divorces A YOUNG WIFE WHO HAS NOT BEGUN TO HAVE
MENSES, the wife who is beyond the age of having
menses, and divorcing one's wife before the marriage was consummated.
Yes. This source does not establish that one may
consummate a marriage with a prepubescent girl.
In fact, the term "young" here is dicta, you can
remove it and the meaning remains the same. It is
merely that this condition is most common with relatively young women.
The essential error here is an assumption that a
single condition applies to marriageability, when
there are multiple conditions. Menstruation is
generally taken as a sign of sexual maturity,
which is one of the conditions, but that
condition can be bypassed if all the other
conditions hold. Essentially, and most
essentially, the woman must consent to
consummation, and she must be capable of consent.
(If a woman were to consent to *marriage*, but
not to consummation and if consummation were
forced, and somehow this could be shown, it would
be *rape.* If a woman is not competent to
consent, for any reason, consummation is not
lawful. However, advanced age is normally
considered to establish a default right of
consent. There is a confusion here of pubescence
with menarche. One can complete puberty without
menstruating. It's abnormal, that's all.)
Silas then cites Tabari, but indirectly.
The interpretation of the verse And those of
your women as have passed the age of monthly
courses, for them the Iddah (prescribed
period), if you have doubt (about their
periods), is three months; and for those who
have no courses [(i.e. they are still immature)
their Iddah (prescribed period) is three months
likewise. He said: The same applies to the
idaah for girls who do not menstruate because
they are too young, if their husbands divorce
them after consummating the marriage with them.
Notice: "still immature" is a comment of the
translator, not the source. "He said" is unclear
in reference. The commentator is covering the
bases, so to speak. This verse does *not*
establish that such consummation is lawful. It is
not on that point at all. It's about divorce. The
verse shows only that the subject condition is
*not impossible.* There are many topics in
Islamic law where what to do if one has broken
the law are covered. And there are possible
circumstances where the subject condition could
occur with *no violation of law.*
Silas links to his source,
http://islamqa.com/en/ref/12708 I have no opinion
about the probity or qualifications of this
source, but the page goes on and makes the
interpretation *on our point here* very clear,
and, of course Silas ignores that:
The fact that it is permissible to marry a minor
girl does not imply that it is permissible to
have intercourse with her, rather the husband
should not have intercourse with her until she
becomes able for that. Hence the Prophet (peace
and blessings of Allaah be upon him) delayed
consummating the marriage to Aaishah (may Allaah be pleased with her).
Silas is citing Islamic sources, all right, but
is ignoring how these sources are interpreted by
the very Muslims he is quoting. The source is
very clear: intercourse with an immature girl is
*unlawful*. But what if it happens anyway? And
then, what to do with a divorce? Suppose the
husband is prosecuted for rape, which is what
actually happened in a case known. Is there a
divorce? Yes. There could be. There was a
consummated marriage, though consummated through
rape. The girl must not be lawful for anyone
else, as she would be when divorce is complete,
until it is clear that she is not pregnant,
because we don't actually know if she is fertile
or not. Women can be fertile before their first
mense. Menstruation, in general, happens *after*
the first ovulation. It happens to clear the
uterus for the next cycle. Since intercourse
during menstruation is *also* unlawful, the real
time for first consummation would be in the second cycle.
And this is true regardless of the age at first menstruation.
And, then, Maududi is cited.
"Therefore, making mention of the waiting-period
for girls who have not yet menstruated, clearly
proves that it is not only permissible to give
away the girl at this age but it is permissible
for the husband to consummate marriage with her.
Now, obviously no Muslim has the right to forbid
a thing which the Quran has held as
permissible." (Maududi, volume 5, p. 620, note 13, emphasis added)
I'll be brief with this one. Maududi is an
ignorant but popular writer on Islam, he's made many blunders like this.
He is what we would call, in the West, a
"fundamentalist," who feels no discomfort in
discarding the *entire consensus of the Muslim
scholars.* And this is the only source which
actually claims lawfulness. He cites as a "clear
proof" what does not prove the matter *at all.*
To be sure, I checked Maududi, which I have.
(It's a commentary on the Qur'an, and I have
every one that I was able to find, at the time
when I was accumulating books.) The Qur'an does
*not* hold as permissible intercourse without
maturity, and he simply ignores part of the
evidence. He is deriving the lawfulness of an
action from a verse that doesn't establish
lawfulness at all, but that simply deals with a
contingency, which could mean that a law was broken, or not.
The issue only comes up in *commentary.* The
waiting period for divorce is "three courses."
First, it is generally considered to be unlawful
to declare divorce while a woman is menstruting.
So the sequence is that the divorce is declared,
the woman has three "courses," then, when she is
no longer mensturating, the divorce can be
complete. And then the verse deals with the
situation that she doesn't have periods, which
can happen under many conditions, such as the
woman being after menopause, or she might be
pregnant. Or simply not menstruating. In trying
to be complete, some have *explained* this as
including a situation where she has never had a
period, but that's all dicta. The Qur'an is here
not making lawful, intercourse with a
prepubescent girl. The verse isn't about that at all!
Great example of the corruption of fundamentalism, actually.
Maududi is not a respected Muslim scholar, except
among the Muslim equivalents of people like Jojo or Silas.
The rest of that page is similar.
Silas considers what are often "explanatory
translations" as if they were authoritative. Much
is made of the confusion between betrothal and
marriage. Silas assumes that information on
Ayesha's age is *authoritative*, that it is
*accurate*, and, further, confuses what is
generally translated as "taken to the house of
the Prophet" with actual consummation, which certainly occured later.
Silas does cites Abu Dawud, where there is a
tradition where, allegedly -- I have not read the
Arabic, and don't have it -- Ayesha explicitly
says she was nine at consummation. We don't know
how she knew that, and that's actually important.
It's been said that the hadith on Ayesha are
notoriously unreliable. And what is in one story
in one way can show up as further interpretive
embellishment on another. The telephone game. So we don't know.
What's been acknowledged, again and again,
however, is that the belief that Ayesha was nine
at consummation is common. What is missed by the
critics, however, is that her age was not
considered important by the early collectors of
hadith. They just collected all the stories they
could, sometimes without a lot of care for
exactitude. Many hadith contradict each other.
EVIDENCE THAT MUHAMMAD HAD SEX WITH AISHA PRIOR TO HER FIRST MENSES
This boils down to a combination of confusion
with being taken to the house of the Prophet as
being consummation -- which it might be -- and
involves a claim that she must be prior to menses
if she had dolls when she went to the house of
the Prophet. The possession of dolls is no
evidence at all as to sexual maturity, nor, in
fact, to any kind of maturity. And he cites a
"Muslim source" as proof on the doll question. He
doesn't name the source, but gives a link, with some text.
A Muslim scholar says that it is okay for Aisha
(and other children) to play with dolls because they are not considered adults:
Al-Khattaabee said: From this Hadeeth it is
understood that playing with dolls (al-banaat)
is not like the amusement from other images
(suwar) concerning which the threat (wa'eed) of
punishment is mentioned. The only reason why
permission in this was given to 'Aa'isha (may
Allah be pleased with her) is because SHE HAD
NOT, AT THAT TIME, REACHED THE AGE OF PUBERTY
OMG. Bin Baz. Bin Baz can be worse than Maududi.
He's a Saudi fundamentalist, famous for his
opinion that the earth is flat. He is not writing
on marriage. He's writing on "images," about
which the fundamentalists have extreme views. And
dolls are "images," and he's struggling with the
fact that children were permitted dolls.
However, he does not appear to be guilty here.
He's been quoted out of context. He was not
quoting Khataabi with approval. He's actually
doing the "Muslim scholar thing." Here is the complete passage:
Al-Khattaabee said: From this Hadeeth it is
understood that playing with dolls (al-banaat)
is not like the amusement from other images
(suwar) concerning which the threat (wa'eed) of
punishment is mentioned. The only reason why
permission in this was given to 'Aa'isha (may
Allah be pleased with her) is because she had
not, at that time, reached the age of puberty.
[al-Haafiz says:] I say: To say
with certainty, [that she was not yet at the
age of puberty] is questionable, though it
might possibly be so. This, because 'Aa'isha
(may Allah be pleased with her) was a fourteen
year old girl at the time of the Battle of
Khaibar - either exactly fourteen years old, or
having just passed her fourteenth year [and
entering into the fifteenth year], or approaching it (the fourteenth year).
As for her age at the time of the
Battle of Tabook - she had by then definitely
reached the age of puberty. Therefore, the
strongest view is that of those who said: "It
was in Khaibar" [i.e. when she was not yet at
the age of puberty], and made reconciliation
(jam') [between the apparent contradictory
rulings, of permissibility of dolls, in
particular, and the prohibition of images, in
general] with what al-Khattaabee said (above).
This shows, by the way, that there is controversy
over the age. Khattaabi was extreme even for Bin Baz.
Silas is not arguing creditably. What he's done
with this last tidbit is to take a translation of
a source (those translations are unreliable) that
is *rejected* by the one who cited it, and on
whom that whole source may depend, an otherwise
obscure source, possibly, and cite it as applying
to a *completely different context*, to attempt
to prove what is universally rejected among competent Muslim scholars.
I'm done here, I suspect.
