Marriage of Underage Girls in Lebanese Sharia Courts: Redefining Willful Consent

2014-05-15    |   

Marriage of Underage Girls in Lebanese Sharia Courts: Redefining Willful Consent

Editor’s Note: Recently, the Lebanese media has raised the issue of the phenomenon of marriage of underage girls (qasiraat), which remains permissible according to a number of personal status laws applied by certain sects. In the context of participating in this discussion, The Legal Agenda conducted interviews with four judges, two at Lebanon’s Sunni Sharia court and two at the Jaafari [Shia] court. As the interviews below show, the dominant approach of the judges was the legitimization of underage marriages under the label of “early marriage”, a concept that redrew the limits of childhood based on a narrow interpretation of Sharia.

Puberty as the Marker of Adulthood

Upon suggesting to them that the marriage of underage girls is problematic, some Sharia courts judges (both Sunni and Jaafari) are keen to reformulate the concept in accordance with their religious and juristic definitions and standards. In this context, one of the Jaafari judges we interviewed was swift to correct the question put forward to him and changing it to the following: “Is it permissible to marry off a minor girl (al-saghira)?”. According to him, the state of being a minor is linked to the absence of the physical signs of puberty, exemplified “by menstruation and the growth of hair” on certain areas of the female body.

Likewise, and along the same lines, a judge from the Sunni Sharia court pointed to the fact that the controversy surrounding the marriage of underage girls is limited to girls under the age of nine. In this sense, Sharia judges consider visible maturity as represented by physical development, as guaranteeing the elimination of the features of childhood. This reformulation would lead, in one way or another, to an elimination of the dividing line between childhood and adulthood as was established by the Convention on the Rights of the Child of 1989. This agreement settled the debate by defining the identity of a child as any person who has not yet reached the age of 18. This definition is also reflected in Lebanese law. This raises an even more controversial debate, as the question of marrying off “minors” defined in this context, as marrying girls who have not yet reached nine years of age -alerts one to the existence of [certain] juristic premises- which would further compound the feelings of concern that the issue of underage marriage provokes today in public debate.

Accordingly, there is no special protection for minors (in the legally defined sense) before Sharia courts, where the act of marriage transforms a minor girl into an adult woman, subject to all of the Sharia rulings that regulate marriage (her marital duties, divorce, etc.).

As for the matter of determining the maturity of the girl, this is subject to the judge’s discretion. As a first step, the judge determines the girl's capacity for marriage through an examination of her physical build, appearance and height, seeking to establish the existence of signs of “womanhood”. After this visual examination, according to one of the Sunni Court judges, the girl is taken to a female doctor, who is sworn before the court, and who conducts a gynecological exam to confirm that the process of maturity is complete. This further confirms that the girl is capable of marrying and undergoing sexual intercourse, according to a judge from a Sunni Sharia court.

This process of approval is reinforced by the nonexistence of a clear legal text defining the age of marriage within a Jaafari court, and it raises questions regarding the ambiguity of the law used in Sunni Sharia courts. The Family Rights Law -an Ottoman legislation employed by Sunni Sharia courts- stipulates in its fifth article that a precondition of eligibility for marriage is that the engaged woman be 17 years or older.[1] However, in a subsequent article, this condition is qualified as the judge is given the right to marry off “an adolescent girl who has not yet reached 17 years of age, if she claims to have reached maturity and her appearance renders the claim possible” (Article 5 of the Family Rights Law). In this framework, the article concludes by stating that the minimum age of marriage is nine years of age.

This legal formulation must be considered in tandem with the custom practised in courts. Three out of the four judges interviewed rely upon the exception as the basic rule. Only one of the Sunni Sharia judges said he refuses to conclude a marriage contract for any girl under the age of 17, in compliance with the condition set out in Article 5 of the Family Rights Law. The judges also reported that there were no cases of girls under the age of 13 or 14 brought before the courts, which they attributed to the development of society and to education.

A Girl’s Qualification for Marriage Linked to her Ability “To Manage Her Affairs”

Investigating whether a girl qualifies for marriage is inseparable from the extent of her awareness of the action she is about to take (either voluntarily or by compulsion). According to the Jaafari Sharia judges, the matter of evaluating the maturity of the girl whose marriage is desired is limited to a “test or exam”. The judge interviewed regretted that judges were not obliged to conduct the test, which consists of a discussion between the judge and the girl with the aim of determining the following: “Is she discerning? Does she know how to buy and sell? Can she manage her own affairs?”.

The exam’s content, if anything, demonstrates the preference given to the role of the girl as a housewife, with a nearly complete disregard for her ability to handle the idea of marriage from a psychological perspective. In confirmation of that, a judge from a Sunni Sharia court made reference to cases of annulment that were brought before the court. These marriages were annulled as a result of the inability of the girls in question who had married or been married off at the age of 15 or 16 to handle the consequences of their marriage. Further, from the goals of the test, it is clear that once a girl’s physical maturity and her ability to “buy and sell” are established, the outcome is predetermined and the matter of determining whether she is qualified to marry is settled.

The judiciary does not customarily conduct any kind of test or exam to measure awareness (Does she know where she is going and what will happen? Does she have an idea about the first night after the wedding?). For them, her awareness is dependent upon social “consciousness” – such as a mother instructing her daughter about the wedding night. Thus, for example, one judge recounted the case of a girl who married at 15 and who did not know anything about marriage. The girl’s mother was blamed for not making her daughter aware:

“The girl was 15 years old, and in terms of her height and physical appearance, even the judge was not able to tell that she was only 15. On the night of her wedding, she did not know where to go or what to do. She was afraid, broke down, and would not let her husband near her. Based on custom and tradition, her mother was outside, waiting to confirm whether all went well or not. The mother entered the room and tried to calm down her daughter, with no success. The girl reached a point such that her family was requested to restrain her in order to enable her husband to approach her. No relations took place between the two spouses on the first night. The husband tried multiple times, without success. He sent her back to her father’s house, where her father beat her and sent her back to her husband. The girl became afflicted with a phobia, and the young man did not know what to do. After four months, the two spouses became “happy and all was well”. According to the judge, the reason for the improvement of the relationship was that the young man was patient, and the girl had become more aware.

Attempting to Determine the Willful Consent (Iradah) of the Girl

All of the judges we interviewed concurred that the consent of the girl was a fundamental and essential condition for concluding a marriage contract – and that a marriage cannot take place without her consent. This is despite the fact that the notion that a girl would appear before a Sharia judge -where the eyes and ears of the two families are prevailing over her- and verbally expresses her refusal of a marriage, in a side conversation or publicly, remains theoretical.

The judges affirmed that no such situation occurred in any case throughout their work in the courts.[2] They did not conceal or rule out the possibility that there were instances in which there was coercion in marriage (coercion on the part of the girl’s family, occurring before their appearance before the court). However, that which is made “evident” to the judge through the girl’s verbal consent to marriage “takes precedence over the order of (any judge)” and prevents him from verifying the soundness of the girl’s wishes.[3]

One of the Sharia judges that we interviewed indicated that “there is a problem in confirming the girl’s willful consent”. He added that “a number of women sometimes consent to marriage in light of difficult family circumstances, and the judge may suspect that it is not in the best interest of the girl to marry, but is unable to conduct a thorough investigation of the matter”. This judge compared this example to what takes place before a notary, “as [the notary] does not interfere with the presentation of the conclusion of a contract of sale in terms of the soundness of the agreed-upon price”.

One of the judges from the Sunni Sharia courts confirmed that procedurally, all Sharia courts seek, to the greatest extent possible, to determine that the decision to marry stems from the full wishes of the girl and that she is not being coerced. This is done by isolating the girl at court, away from the presence of the family. “This is a first step”, according to another of the court’s judges, “but whatever traumatizing forms of coercion (irhab) takes place at home, we cannot know!”. The judge added, “if we sense that she seems under some strain, we can postpone the matter, and not conclude the marriage contract immediately; but by contrast, if she is stable and aware, and affirms ‘I want this!’, then when it comes to verifying the wishes of the girl, it is not possible to do any more than that”.

The situation is portrayed as though the Sharia judge is subservient to the wishes of the girl, and that he has no other recourse. However, in reality, he is subordinate, in an indirect way, to the coercion or terrorizing enacted upon the girl on the part of her guardian. If we concede that a 14-year-old girl “knows what she wants” and that her family is yielding to her firm desire to marry, then the Sharia judge’s “surrendering” to the insistence of the girl regarding marriage is controversial, and raises questions.[4]

This compliance is tantamount to absolving the judge of his responsibility, on the basis that ‘God has willed it, and not much can be done’. Regarding this dilemma, the interviewed judge concluded that “the judge is not the [appropriate] social institution for questioning and verifying the situation among the girl’s family”. In light of the judges’ surrender to their limited authority and ability in investigating the matter, a legitimate question arises: How reliable are the widely repeated statements – used to justify the occurrence of underage marriage in Sharia courts – regarding cases in which “the girl herself insists upon early marriage”?

Sharia Courts and the Authority of Unaffiliated Religious Clerics

Sharia courts absolve themselves from the cases of underage marriage that the media has reported on recently, thereby raising the problem of “clerical authority” outside the supervision of Sharia courts. The judges are keen to hold this parallel authority as being responsible for the abuses that have taken place. These abuses are exemplified by a religious cleric (outside of the Sharia court) who was so bold as to conclude a marriage contract for an underage girl without the consent of her guardian. In these cases, however, the judge does not fully annul the legitimacy of a marriage contract from a religious point of view – at least not in cases of “pregnancy or the loss of virginity”. In the latter case, by way of the best “interests” of the girl in question and considerations of protection, the marriage might remain valid even in the event of her father’s refusal, on the principle that “what’s done is done”.

As for the actions of this category of religious clerics, the judges confirm that holding them accountable falls outside the jurisdiction of Sharia courts, in light of the fact that these clerics are not full-time employees of the court. Sharia court judges further stated that the responsibility for holding these men accountable lies with the Public Prosecution. The solution, according to one of the judges from a Sunni Sharia court, lies in limiting the conclusion of marriage contracts to Sharia courts and public authorities, and the consideration of contracts made outside of the courts as being tantamount to an infraction of the law. This solution, however, falls within a framework of regulating the practices that occur outside of these courts, rather than a gateway to address the underlying issue of putting an end to underage marriages.

This article is an edited translation from Arabic.


[1] The Family Rights Law is an Ottoman law issued on October 25, 1917, and is used within Sunni Sharia courts. It covers all issues connected to matters that fall under the court’s jurisdiction.

[2] This phrase was used by two judges, one Sunni and the other Jaafari.

[3] This statement is based on one of the interviews.
[4] This statement is based one of the interviews.

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