Answered by Shaykh Abdurragmaan Khan
Question: Assalam alaykum,
An individual shared the following opinions with me (see below). I had been taught that the minimum conditions for intercourse were (i) menstruation, (ii) being 9 years of age, and (iii) having a valid marriage contract.Is it permissible for a pre-menstruating individual to engage in intercourse simply based on her father’s permission to do so?
(1) Al-Nawawi:
“And the sleeping with a minor age wife and having intercourse with her, if the husband and the guardian of the wife agreed upon something that is not harmful for the minor age wife, it is legitimate and if they did not agree upon then Ahmad and Aboo Ubayd say that if she is at nine years of age she can be forced to, not the younger ones, and Malik and Shafi’i and Aboo Hanifah say that the criteria is that she can bear intercourse, and the differences of opinion about this issue comes from these scholars. But the correct opinion is that it does not depend upon age.
Source: Saheeh Muslim Sharh Al-Nawawi. Vol. 9, Pg. # 206.
(2) Ibn Hajar:
“Nikah of a minor age to an adult is allowed, there is consensus of scholars on this, even if she was in cradle, but he should not sleep with her until she can bear it.”
Source: Fath ul-Bari fi Sharh Saheeh al-Bukhari . Vol. 11, Pg. # 347.
Answer: Wa alaykum al-Salam
The quotations you presented above are correct and accurate in so far as the theory may be concerned. A young girl may be married if the following conditions are met.
1. Her father marries her off. It is not permitted for anyone, other than the father to marry her off.
2. The father must be sane and possess integrity.
3. There must be a benefit or welfare for the young lady in the marriage.
Once the young girl is married, she may move in with her husband and partake in sexual intercourse, whether she reached the age of puberty or not, when the following conditions are met:
1. The father permits and deems it an acceptable practice.
2. She could physically bear sexual intercourse
3. Society in terms of its practice and culture approves of it
4. That the law of the country one lives in, is not contravened.
Taking points 3 and 4 into consideration, one may safely deduce that sexual relations for minors would not be permitted in most countries around the globe today. Societies and cultures have changed and one has to follow the law of his country, as long as it does not contradict an injunction of the Sacred Law.
Governments are allowed to establish a law that sees to the welfare of its citizens. Citizens who fail to uphold this law, may not be held accountable in the court of Allah, but may be punished accordingly by the government. These concepts are well established under the branch of our Sacred Law known as al-Siyasah al-Shar’iyyah.
Finally, and as a last thought, the Shari’ah is realistic. While the idea of permitting a minor to engage in sexual activity sounds almost barbaric, the reality is that cultures are forever changing. What was accepted in Christian Europe a thousand years ago is of course no longer accepted in modern day Europe. In the current world, where sexual activity for minors are considered abhorrent, the reality is that so many easily available statistics speak of girls from the ages of 10 and 11 already being sexually active. The current author is in no way encouraging sexual activity for minors, but drawing to light that our religious texts, such as those quoted above, refers to a norm in both the Muslim and non-Muslim worlds of yesteryear. Some of which can still be seen in this modern age.
And Allah knows best
Wassalam
[Shaykh] Abdurragmaan Khan
Shaykh Abdurragmaan received ijazah ’ammah from various luminaries, including but not restricted to: Habib Umar ibn Hafiz—a personality who affected him greatly and who has changed his relationship with Allah, Maulana Yusuf Karaan—the former Mufti of Cape Town; Habib ‘Ali al-Mashhur—the current Mufti of Tarim; Habib ‘Umar al-Jaylani—the Shafi‘i Mufti of Makkah; Sayyid Ahmad bin Abi Bakr al-Hibshi; Habib Kadhim as-Saqqaf; Shaykh Mahmud Sa’id Mamduh; Maulana Abdul Hafiz al-Makki; Shaykh Ala ad-Din al-Afghani; Maulana Fazlur Rahman al-Azami and Shaykh Yahya al-Gawthani amongst others.