Assalamu alaikum wa rahmatullah wa barakatuh,

In the tafsirs (exegesis) of ayah (verse) 4 of sura (chapter) 65, it is said that the waiting period for a divorced woman who has not gotten her period is the same as that of an adult woman. Does this mean that Islam allows marrying non-adult girls who have not yet reached the age of menstruation? If so, how come, if they are still children? Being children means they are incapable of consenting to or rejecting marriage, which is a condition for the marriage of a virgin according to the Prophet (pbuh)? In addition, at this age, they are not fit for any sexual practices, which may harm their psychological development. Please clarify.

Jazakum Allah khair.

In the Name of Allah, the Beneficent, the Merciful,

All praise is due to Allah, and may peace and blessing be upon the Messenger of Allah, upon his household, his companions and those who have followed him. To proceed:

The verse from Surat al-Talaq speaks of the `iddah, or waiting period, of a woman who has not yet reached the age of first menses [puberty] as it speaks of the `iddah of a woman who has lost hope of her menses returning [menopause] in order to fully cover every detail of the issue of `iddah in the Book of Allah (Mighty & Majestic). This verse does not, however, address the details of what is lawful and unlawful in marriage. Rather, it discusses the `iddah (the post-divorce period during which a woman must wait before she may marry again), were such a marriage to have occurred in the first place. The permissibility of marrying girls who have not yet experienced their first menses cannot be established solely on the basis of this verse. It is the same as if one said that fasting is invalidated by drinking water and by drinking alcohol; no one can derive from that the permissibility of drinking alcohol. Likewise, if you were to say that the fast is invalidated by zina (unlawful sexual intercourse), but it is not invalidated by theft, you cannot derive from this the prohibition of zina and the permissibility of stealing. That is because the statement is about that which invalidates the fast, not about what types of beverages or actions are lawful and which ones are unlawful. Think about it. Even in the laws of this country, you see details concerning the rights of pregnant girls who are under the age of legal majority and about providing medical care and social services to girls like that without it being understood from this that it is okay for minors to get married legally.

From another perspective, Allah (Glorious & Exalted) has said (interpretation of the meaning): {And try orphans (as to their maturity) until they reach the age of marriage…}[Surat al-Nisa’ 4:6] In this verse there is an indication that orphans are not eligible for marriage in general, and an orphan is someone whose father has died before he or she reaches the age of puberty.

However, it remains for you to know that marriages like this were common in the pre-Islamic society. A young girl used to be betrothed and married by the permission of her wali (marital guardian). Then Islam came and approved of this within the context of security precautions, the foremost of which was that the girl controls her situation when she reaches the age of legal majority. So, if after reaching puberty, she decides to renounce his marriage, she has the right to do so, and no one can overturn her decision in matters like this.

Another of these security precautions is that conjugal relations are dependent upon her ability to handle that. Scholars like Imam Malik, Imam al-Shafi`i and Abu Hanifah have clearly stated that no woman is to be made to have sex unless she can endure it, and women differ in this according to their natural range of differences; it is not determined by a specific age. Once a girl has reached maturity, as we have mentioned, she may continue in this marriage or reject it.

There is still one more issue which is that the ruler has the right to restrict some things that are permissible for the sake of the common good or if these lawful things are being abused, and the prohibition of marrying young girls may fall into this category, if, in some societies, this is a means of taking advantage of them or of unjustly depriving them of their rights. Most personal status law in Muslim countries has done this - raising the legal age of marriage - but it does not hear marital claims in unofficial marriage cases (zawaj urfi) which do not take place under the auspices of the law unless there is a paternity case. Should a ruler issue a restriction of this sort, it would be binding by virtue of his general judgment.

And Allah Almighty is the Most High, and He knows best.