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Under traditional Islamic law a person can enter into marriage on attaining the age of puberty. However even below the age of puberty a girl could be given in marriage by her lawful guardian, subject only to the condition that she can repudiate the marriage on attaining puberty.

But many Muslim countries now prescribe a minimum age of marriage for both men and women because of the negative implications of early marriage. Early marriage could lead to pregnancy at a tender age. Pregnancy in very young girls sometimes lead to health complications for both the mother and child and emotional problems for the mother.

Girls who get married when they are very young also most often the opportunity to complete their education or pursue higher education or learn other skills. This means that after marriage they become completely dependent on their husbands. If they were to get divorced, it becomes very difficult for them to support themselves and their children.

To avoid health complications and also in order to give women the opportunity to become more educated and independent, it is better that girls do not marry when they are very young.

Our readers may be aware that there is no minimum age of marriage for Muslims in Sri Lanka. The wali or the father can give his minor daughter in marriage at a very early age. In an attempt to discourage child marriages however, the Muslim Marriage and Divorce Act of 1951 in sec. 23 states that a marriage of a Muslim girl who is below 12 years of age shall not be registered unless the Quazi has authorised the registration after an investigation. But as registration is not mandatory under the Act, child marriages can be solemnised in disregard of this protective provision.

Law reform initiatives

There has been from time to time some debate and discussion on the need to set a minimum age of marriage for Muslims in Sri Lanka. As far as 1937, the Board of Quazis recognised the need to amend the provision on child marriage in Muslim law when it declared that "....in the best interest of the Muslim community this social evil should be eradicated by the creation of public opinion." Since then the Muslim Law Research Committee in its March 1973 report also considered this issue and made recommendations for reform.

Progressive legislation in other countries

The most recent commission to consider reform of Muslim law, the Sahabdeen Committee makes no mention of child marriages. The National Child Protection Authority has now initiated a dialogue with leaders within the Muslim community on this issue and is in the process of obtaining views on the desirability of establishing a minimum age of marriage for both girls and boys.

As mentioned earlier personal law enactments of several Muslim countries now prescribe a minimum age of marriage for both males and females which is higher than the age of puberty prescribed by Islamic Law. In the South Asian region, the Child Marriage Restraint Act prohibits child marriages. In Algeria, Malaysia etc. marriage can be allowed by the court at a lower age as an exceptional case, with the consent of the guardian and authorisation of the court.

When discussing the age of marriage in Sri Lanka, we need also keep in mind the law relating to tape. While under the General Law and the Kandyan Law the minimum age of marriage is now 18 years for both males and females, under provisions of the Penal Code of Sri Lanka, sexual intercourse with a girl who is under the age of 16, with or without her consent, amounts to the offence of rape (Sec. 363(e) of the Penal Code). The age of consent was raised from 12 to 16 by an amendment to the Penal Code in 1995 (Penal Code (Amendment) Act No. 22 of 1995).

However the amendment recognised that sexual intercourse with a person's wife who is below the age of 16 but above the age of 12 will not be considered rape, provided the parties are not judicially separated (see sec. 363 (e)). This concession was made on account of the low age of marriage among Muslims. But the question remains whether sexual intercourse with a girl below the age of 12, even though she is the wife of the man, would amount to rape.

From: Muslim Women's Research and Action Forum newsletter.

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