Islam is ambiguous and vague in the text of Quran and Sunnah. Some of the prohibitions were not stated clearly. Thus, secondary sources such as ‘Urf (custom) and Maslahah Mursalah (public interest) arose and being derived to get clearer solutions.
No age limits have been fixed by Islam for marriage and “quite young children may be legally married”. The urf or practice takes place every day in the Muslim world to innocent girls as young as six, making it shockingly widespread and become more common day by day. They claim that child marriage is sanctioned, and thus common in the teachings of Islam . The girl may only live with the husband until she is prepared for marital sexual relations . As a result of the lack of reference and being ambiguous in the Quran, the decision is always made based on Muhammad’s lifestyle of approval on any age marriage, but to abstain from consummating the marriage until the age of puberty is reach. God in His infinite wisdom never abandon a human being alone and unable to face all of life’s trials that is set upon him, supported with the statement “Your wealth and your children are only a trial, whereas God, with Him is a great reward (Paradise).” Recently in Malaysia, the controversy regarding the urf of child marriage of an 11-year-old child to a 41-year-old man has brought into focus the immediate need to end child marriages in Malaysia.
The federal government recently said it was powerless to stop child marriages because Kelantan’s Islamic laws allow children under 16 to get married with the permission of a Shariah Court judge . There are two reasons for the marriage to be taken place. The first reason is the LRA is not applicable to a Muslim or to any person who is married under Islamic law. This is because Muslim marriages are governed by state legislation. Under the Federal Constitution, Muslim marriages fall within the state list.
This means that only the state legislative assembly may make laws on Muslim marriages. The federal Parliament has no power to do so. Under Kelantan state law, Section 8 of the Islamic Family Law Enactment 2002 provides that “no marriage may be solemnised under this enactment where either the man is under the age of 18 or the woman is under the age of 16 except where the Shariah judge has granted his permission in writing in certain circumstances”. This means that the 11-year-old girl can get married as long as she has permission from the Shariah judge of the state, eventually this become the custom or urf in the society. The second reason is the Age of Majority Act 1971 deems that the 11-year-old girl has the capacity to get married.Referred to the issues above, many could said that amend or changing the existing law is easy. Indeed it is as long as there is the political will to end this urf child marriages.
However, changing the law alone will not solve the problem because child marriage remains a tradition and culture for certain sections of society. Changing the law without prior advocacy or consultation could have the unintended effect of driving child marriages underground, not to mention the political backlash from certain sections of society. It is essential that the federal government takes a firm stand on this issue instead of disowning responsibility, and embarks on a mission to advocate the end this urf of child marriages to all sections of society. It seems that the society and the government itself are not able to follow the Islamic instructions, values and tenets that whatever the constitution and penal code of a Muslim dominated country suggests, — especially on the hot issue of child marriage. In most Muslim countries, laws and even constitutions, collided with Islamic trends although it existed for the past 1,400 years, seem to have absolutely no effect.