Wa `alaykum as-salamu wa rahmatullahi wa barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
In this fatwa:
2- So, Islam doesn’t impose a specific age for eligibility for marriage and leaves it for the legal authorities to decide the proper age for marriage in order to maintain interests of both husbands and wives.
3- This, of course, changes from one country or community to anther depending on many considerable factors.
Responding to your question, Dr. Hatem Al-Hajj, Dean of Shari`ah Academy of America, states:
As for the verse you mentioned, even though some scholars understood it to mean that a female child may be married off, it is not explicit on this meaning. There are many women who don’t get their period until they are fifteen or sixteen, and they would not be considered sick. Some women may even not menstruate until later (as in the many cases of primary amenorrhea,) so it is not about menstruation, but the physique.
It would be unreasonable to prevent a twenty two year old female from marriage because she didn’t have a period yet.
As for forcing women into marriage, generally speaking, a woman, whether previously married or not, will not be forced into marriage by anyone without her consent, even if it is a father.
The Prophet (peace and blessings be upon him) said: “The previously-married woman (al-ayyim) has more entitlement to herself than her guardian, and the virgin should be asked for permission (concerning her marriage).” (Muslim) In another report by him, “…and the virgin’s father should ask for her permission.”
So, even the father has to seek her permission. If the father married her off without her permission to someone she later didn’t like, then she may ask for annulment by the court.
Al-Bukhari narrated that Khansa’ bint Khidham complained to the Prophet (peace and blessings be upon him) that she was previously married, and when she became single, her father married her off, and she did not like that. He (peace and blessings be upon him) annulled the marriage.
Also, Abu Dawud reported from Ibn ‘Abbas (may Allah be pleased with him) a similar case, this time with a virgin, who came to the Prophet (peace and blessings be upon him) and told him that her father married her off against her will. The Prophet (peace and blessings be upon him) gave her the choice (to stay in the marriage or end it).
As for marrying a little girl, not yet mature to object, without her consent, there is a difference between the contract of marriage and the consummation.
As for the contract, aside from Ibn Shubrumah and Al-Asamm who prohibited it, the vast majority indicated that it may be done by a father only, as in the case of the presence of a suitor that he fears may pass her up. (Keep in mind the different cultures, eras of history, locations…etc.)
This was allowed for a father (according to some a grandfather as well) due to his compassion and protectiveness of his children. This was certainly not allowed for uncles or others.
As for the consummation of marriage with a young female, the scholars agreed that the groom shall not be permitted to enter in on the bride until she is ready for intercourse.
In al-Mughni, Ibn Qudamah said that “her family should not permit him to consummate the marriage if she was not physically capable of intercourse, even if she was nine. He added that if they asked him to take her, he may refuse and he shall not be required to sustain her as a wife until she is physically mature.”
The same has been echoed by the three other madhahib (juristic schools), which all indicated that the groom shall not be allowed to move in with her until she is physically capable of conjugal relations; something that should be left for the experts to determine.
Getting married young is the prescription of the prophet for some of the toughest challenges that face the youth and have an enormous impact on the well-being of the society; he (peace and blessings be upon him) said: “O young people! Let those of you who afford marriage get married as it will help them lower their gaze and protect their chastity. And for those who don’t afford it, they may fast for it will curb the sexual desire.” (Al-Bukhari and Muslim)
However, the definition of “early” itself varies according to the circumstances. Notice that the hadith says, “…who afford marriage…” which is to afford it in every regard.
In all nations, people got married earlier than they do now. In Europe, during the time of Shakespeare, if a woman was single at 13, she was considered late to marriage, as reflected in his writings.
An eighteen year old during the time of the Prophet led armies, was dispatched as an ambassador, and ruled a city of the importance of Makkah. Would you trust an eighteen year old to do that nowadays? Having a family is not a small task, and it requires a certain degree of maturity.
Islam doesn’t legislate for you, in the 21st century, in the west alone, but for Bedouins in the desert and people in the middle of the forests of Africa, Asia, or Latin America; for the 21st century, and the seventh, and in between and beyond.
Permitting a practice is not like requiring it; it is to afford people more flexibility so that they may exercise logical discretion within their various norms and needs. In fact, the scholars, like imam Ash-Shafi`i, who indicated that marrying a young girl off by her father is permissible, still said that it was detested.
Finally, prudent thinkers never approach an issue of this complexity by looking at it from one angle. They address all the pertinent factors, and they consider all contexts. To judge an act as good or bad, according to reasonable people regardless of their faith and religion, is not an abstract that is separate from its context and the circumstances that surrounded it.
The change, in people’s norms and customs, of the age of marriage, no one can deny, as that happens in all nations. The State of California in the United States increased the age that allows one to legally have sexual intercourse many times within only a 25 year time bracket. Until 1889 the legal age for sexual intercourse was 10 years old, then it became 14 years, then 16 years in 1897, then in 1913 it became 18 years. However, until today it is still 13 years old in the State of New Mexico and 14 years old in the States of Mississippi and Iowa.
Comprehend, may Allah forgive you and me, regarding the above, that this is a single nation during a single era. What about different nations in different eras with different environments, conditions, needs, norms and customs?
The recent extensive changes in the circumstances of the world have led to great changes in people’s customs and norms. It is unfair and unwise for the people of this era to judge human history based on their current standards and norms.
Allah Almighty knows best.