A CRITICAL ANALYSIS ON THE IMPACT OF THE CONCEPT OF IJBAR ON THE PRACTICE OF CHILD MARRIAGE UNDER ISLAMIC LAW


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TABLE OF CONTENTS

Title Page
Abstract
List of Abbreviations
List of Statutes
List of Cases
Table of Contents

CHAPTER ONE
GENERAL INTRODUCTION
1.1       Background of the Study
1.2       Statement of the Research Problem
1.3       Aim and Objectives of the Research
1.4       Research Methodology
1.5       Scope of the Research
1.6       Literature Review
1.7       Justification/Significance of the Research
1.8       Organizational Layout

CHAPTER TWO
THE CONCEPT OF MARRIAGE UNDER ISLAMIC LAW
2.1       Introduction
2.2       Definition And Nature Of Marriage In Islamic Law
2.3       Significance Of Marriage In Islamic Law
2.4       Legality Of Marriage Under Islamic Law
            2.4.1    Wajib (Compulsory)
            2.4.2   Mandoub (Recommended Or Sunnah)
            2.4.3    Mubah (Permissible Or Nafl)
            2.4.4    Makhruh (Disapproved/Objectionable)
            2.4.5    Haram (Forbidden)
2.5       Objectives And Legal Effects Of Marriage Under Islamic Law
            2.5.1    Protection Of Chastity And Morality
            2.5.2   The Preservation And Continuity Of Human Race
            2.5.3   Sustenance Of Mental Peace, Mutual Love And Affection
2.6       Elements And Formalities Of Marriage In Islamic Law
            2.6.1    Sigha (Formula):
            2.6.2    Dower (Sadaq):
            2.6.3    Marriage Guardian (Wali):
            2.6.4    Witnesses (Shuhud):
            2.6.5    The Contracting Parties (Mahal):
2.7       Classification Of Marriage In Islamic Law
2.8  Rights And Duties Of Spouses
2.8.1   Rights Of The Wife/Duties Of The Husband In Marriage
2.8.2    Rights Of The Husband/Duties Of The Wife In Marriage
2.8.3    Mutual Rights Of Husband And Wife

CHAPTER THREE
MARRIAGE GUARDIANSHIP (WILAYAT-UN-NIKAH) IN ISLAMIC LAW
3.1       Introduction
3.2       The Concept Of Guardianship (Al-Wilayah)
            3.2.1    Natural Or Legal Guardian
            3.2.2    Defacto Guardian
            3.2.3    Testamentary Guardian
            3.2.4    Guardian Appointed By Court
3.3       Marriage Guardianship (Wilayat-Un-Nikah)
3.4       Rationale And Objectives Of Marriage Guardianship
3.5       The Legal Authorities On Marriage Guardianship
3.6       Order Of Priority Among Persons Who Qualify As Marriage Guardian
3.7       Conditions To Become Marriage Guardian (Wali)
3.8       Classification Of Marriage Guardians
            3.8.1    Wali Al-Mujbir
            3.8.2    Wali Ghair Al-Mujbir Or Wali Ikhtiar

CHAPTER FOUR
THE CONCEPT OF IJBAR AND ITS IMPACT ON CHILD MARRIAGE IN ISLAMIC LAW
4.1       Introduction
4.2       Legality Of Child Marriage In Islamic Law
4.3       Nature Of Child Marriage In Islamic Law
4.4       The Concept Of Ijbar
4.5       Cessation And Limitations On The Power Of Ijbar
4.6       Remedies And Safeguard Against Improper Exercise Of The Power Of Ijbar
            4.6.1    Khiyar-ul-Bulugh (Option Of Puberty)
            4.6.2    Kafa‟ah (Equality/Compatibility) Of Spouses
            4.6.3    Mother‟s Custody Of Minor Wife
4.7       Impact Of Ijbar On Marriageable Age
            4.7.1    Age Of Taimiz (Understanding)
            4.7.2    Age Of Puberty Or Majority (Bulugh)
            4.7.3   A Critique On The Modern Notion Of “Marriageable Age”
4.8       Impact Of Ijbar On Minor‟s Consent In Marriage
4.9       An Analysis On Contemporary Arguments For And Against Ijbar Vis-À-Vis The Practice Of Child Marriage In Islamic Law
4.9.1   Arguments Of The Proponents Of Ijbar And/Or Child Marriage
4.9.2    Arguments Of The Opponents Of Ijbar And/Or Child Marriage
4.9.3    Cross Analysis On The Proponent‟s And Opponent‟s Views On Child Marriage Vis-À-Vis The Concept Of Ijbar
4.9.4    Reforms In The Muslim World Against The Doctrine Of Ijbar And/Or Child Marriage
4.10     An Analysis On Judicial Attitude Towards The Concept Of Ijbar In [Northern] Nigeria

CHAPTER FIVE
SUMMARY AND CONCLUSION
5.1       Summary
5.2       Observations
5.3       Recommendations
Bibliography



ABSTRACT

This study critically analyzes the impact of the concept of ijbar on the practice of child marriage under Islamic law. While child marriage is widely criticized by the feminists on the basis of human rights, its practice is nevertheless defended on the basis of Islamic law and culture. This is because, ijbar is a concept related to marriage guardianship (wilayat-un-nikah) and it connotes the power entrusted upon parents/guardians to marry off his ward in order to secure the protection of his/her welfare and in instances where it becomes apparent that the parent/guardian acted wrongly or in defiance of the rationale of ijbar, certain safeguards were instituted to cope with the situation. This involves the exercise of the option of puberty (khiyar-ul-bulugh) under which the marriage would be annulled. Prompted by the raging debate and desire for the urgent need to reform Islamic family law whereby a drastic curtailment or even the abolition the concept of ijbar vis-à-vis the practice of child marriage is advocated by the West globally, the main objectives of this research work therefore, is an attempt to critically analyze the contemporary debates for and against child marriage in Islamic law. It is argued that, while puberty marks the legal criteria of Islamic adulthood and in the absence of fixed marriageable age in addition to the exercise of coercive marriage guardianship, the practice of Islamic child marriage goes to secure the welfare of minors and the protection of their best interest in life and in view of this, it was observed that to prohibit or even restrict Islamic child marriage and the exercise of the role of coercive guardianship, is to call for disruption of the moral foundation behind the Islamic institution of the family and at the same time aggressively enforcing western secular family values that delays marriage while paying the least concern on premarital sexual indulgence among teenagers. Further still, it has been argued that the current move by the international community for the curtailment of ijbar and the abolition of child marriage together with recent reforms directed towards these ends in the Muslim world is nothing but motivated by the western conspiracy against population growth in third world countries, more particularly in the Muslim world. Therefore, the study concludes with the firm recommendation that the Islamic concept of ijbar vis-à-vis the practice of child marriage by Muslims should be accordingly maintained and that as a matter of human right, Muslims must be allowed sufficient freedom to practice the tenets of their Islamic personal law, in particular, to have recourse to the practice of child marriage where they deems so.




CHAPTER ONE

GENERAL INTRODUCTION

1.1 BACKGOUND OF THE STUDY

In the present generation, the marriage of minors especially by and among Muslims is one of the topical legal issues that have attracted the attention of feminists and modern human rights scholars who concern themselves with the protection of the rights of the girl-child across the globe albeit from secular conception. With this development, national and international communities are therefore increasingly recognizing child marriage as a serious problem, both as a violation of girls‟ human rights and as a hindrance to key development outcomes.1

The practice whereby a child is married off early under the influence or compulsion (ijbar) from its parents is somewhat a religious and customary practice among Muslims particularly those who follow the Maliki school of Islamic law which sanction the role of matrimonial guardian (wali) as one of the essential elements of validity (arkan) to a marriage contract under Islamic law. The matrimonial guardian (wali) may be one with power to enforce marriage on his ward, i.e., wali mujbir and such a guardian (wali mujbir) is possessed of the power to compel his ward in entering into a marriage contract for purposes that are viewed as satisfying the best interests of the child in question vis-à-vis the wishes of parents to ensure that the child is prevented from getting plunged into the dexterities of immorality and its attendant social consequences in the society.

On the other hand, the critics of the Sharia has likened the concept or practice of Ijbar with forced marriage, wherein contrary to this perception, mutual consent of both parties....

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