KUALA LUMPUR, April 6 — Marriages of rape victims to their rapists and child marriages that are approved by Shariah courts should be by consent and never by compulsion, Shariah lawyer Musa Awang has said.
Musa, the president of Shariah Lawyers Association of Malaysia (PGSM), said the Islamic family laws used in all state enactments in Malaysia fixes the minimum marriage age for men and women at 18 and 16 respectively, noting that the minimum age for non-Muslims is also the same.
But he said state Islamic laws allow for Muslim child marriages to be carried out if the Shariah courts consent to it.
Under local laws, a non-Muslim girl aged 16 may marry despite being below the legal marriage age of 18 if the respective Mentri Besar or Chief Minister consents to it.
“The marriage of children below the age that has been set is very much discouraged.
“However that marriage can be carried out with the permission of Shariah courts for Muslims. Certainly the court will also ask whether the woman agrees or not to marry the future husband (that is also the rapist),” he told Malay Mail Online when contacted.
“Although marriage of underage children seldom happens, there have also been situations where the courts are forced to give permission for marriage to avoid immoral acts such as zina (illicit sex) or khalwat (close proximity) that are offences under the Syariah Criminal Offences Act,” he said.
“However that marriage is dealt with by certain quarters by mutual consent, not by compulsion,” he added.
The Islamic perspective
Musa also explained Islam’s perspective on child marriages, noting that the religion does not fix a minimum marriage age for Muslims but allows them to marry once they hit puberty and display physical signs of such maturity.
Islam also places emphasis instead on the maturity of Muslims who have stepped into adulthood to determine if they are qualified to marry, with differing maturity levels due to factors such as environment factors and education opportunities also a reason why Islam does not fix a minimum marriage age, he said.
However, a child’s wali or guardian would act as the “safeguard” in instances of underage marriage of those who have yet to hit puberty, and the marriage can only take place if the consent of the father as the guardian is first obtained.
“This is the safeguard outlined by Islamic religious scholars regardless of whether the woman is a rape victim or not.
“If the guardian feels that an even bigger problem will be caused by marrying his child to the rapist, then the guardian has the right not to do so,” he said.
Islam lays no obstacles to a rapist marrying the rape victim as long as both the guardian and victim consents and if all the conditions under Islamic law for marriage are fulfilled, he said.
He listed the checklist for a Muslim male spouse as including a man who is marrying of his own willingness and who does not have four validly married wives, besides knowing the actual guardian for the marriage ceremony and knowing that the woman to be wed is eligible to be the wife. He should also not be in the state of ihram or special state of purity before going for Muslim pilgrimage or have any family ties with the potential wife.
As for the checklist for a Muslim female spouse, she has to among other things not have any family ties or be related to the potential husband, and not be a hermaphrodite and not be in the state of purity before Muslim pilgrimages of haj or umrah, not be in the mourning period as a widow and not be someone else’s wife.
“When the guardian and the woman agrees to marry with a man, that means she has agreed to accept the man as her husband, even though the man may be the man who have raped her. The willingness to accept the man shows that Islam places importance on humans forgiving one another although that person had committed a big wrong,” he explained.
Marrying rapist a personal choice
As for the issue of marrying the rapist, Musa said this would ultimately be up to the rape victim.
“There is no compulsion or order in Islam to marry with the rapist. Likewise there is also no obstacle or obstruction in Islam for her to marry with the rapist. Marriage is on the basis of choice, suka sama suka, aimed at finding happiness,” he said.
Musa stressed that it is not the duty of the government or anyone to decide whether one should marry another individual or to force a rape victim to marry the rapist, saying: “Don’t abuse process or abuse the law”.
When asked if a rapist would be allowed to have sexual intercourse with the rape victim that has been married, Musa noted that a legally married couple would have sexual obligations towards each other which he stressed should not be a responsibility shouldered by compulsion.
“That’s why it goes back to the woman’s consent whether to marry the rapist or not,” he said.