Distortion of Marriage Age in Asian Muslim Countries

Ernawati

, Moh Shohib

, Erwan Baharudin

and Elok Hikmawati

Faculty of Law, Universitas Esa Unggul, Jakarta, Jl. Arjuna Utara No. 9 Kebon Jeruk. 11530, Indonesia

Faculty of Law, STIH Painan, Jl. K.H. Hasyim Ashari Karv. DPR Neroktog No. 236 Pinang Tangerang

Faculty of Communication, Universitas Esa Unggul, Jakarta, Jl. Arjuna Utara No. 9 Kebon Jeruk. 11530, Indonesia

Keywords: Minimum Age of Marriage, Marriage Law, Asian Muslim Countries

Abstract: The polemic surrounding the marriage of minors is now one of the crucial issues. The minimum limit for

someone to marry is suspected to be one of the triggers of polemic. When viewed from some minimum age

of marriage in the world, it is not always by the reality of the community, meaning that many marriages are

under marriage as agreed in each country. This is the cause and influence of marriage age distortions in

some countries that permit underage marriages. Whereas in 2014, the Secretary-General of the United

Nations recommended specific targets in the post-2015 Sustainable Development Goals to abolish elderly

marriage. This recommendation is supported by 116 member states of the United Nations, including several

Muslim countries. Therefore, a global consensus on the need to eliminate child marriages has become

increasingly prominent in recent years. Motivation in the study that will be studied is the lack of laws of

Muslim countries in enforcing the limits of marriage age so that the number of cases of underage married

children. The purpose of this study is to compare some of the regulations in Muslim countries against the

abolition of marriage age limits that reflect the lack of protection for women from a sense of justice, in order

to change the situation (women) in a better direction. Data collection methods are carried out with library

research. Then specificanalyzes in legislation are done by looking for concepts, the main terminology in the

text. The main finding in this study is that there are many deviations in the age of marriage, even though

there are state laws that regulate the age limit of marriage.

1 INTRODUCTION

Islamic Law does not regulate entirely about the age

limit of marriage. Just call baligh as the minimum

age allowed to marry. The absence of Islamic

religious stipulations concerning the minimum and

maximum age limit to be able to establish a marriage

that is assumed to allow concessions for humans to

regulate it. So that one's maturity in Islam is often

identified with baligh. With the fulfilment of

balighcriteria, it has enabled a person to marry.

Indirectly that maturity is significant in marriage

(Yuslem, 2017).

The polemic surrounding the marriage of minors

is now an important issue. The minimum limit for a

person to marry is suspected to be one of the

polemic triggers. The controversy between

conservatives who tend to uphold the concept of

textual literature and the reformists who tend to

understand contextual texts is a long debate that

leads to differences in the application of the law in

some countries.

In the Convention on the Rights of the Child

does not explicitly define the marriage of the child's

age, but the child is clearly defined as a person under

the age of 18.(Janssen et al., 1992)The United

Nations convention on marriage approval, minimum

age for marriage, and marriage registration has been

in effect since 1964. The Convention emphasizes

that marriage can only be made if both partners have

given their consent freely and fully(Convention on

Consent to Marriage, 1988).

When viewed from some minimum age of

marriage in the world, it is not always consistent

with the reality of society, meaning that many

marriages are under the age of marriage as agreed in

each country. Whereas in 2014, the Secretary-

General of the United Nations recommended a

particular target in the Sustainable Development

Goals post-2015 to eliminate marriage of child aged.

This recommendation is supported by 116 (one

hundred and sixteen) member states, including

Indonesia(United Nations General Assembly,

2014).Many countries in the region set a minimum

Ernawati, ., Shohib, M., Baharudin, E. and Hikmawati, E.

Distortion of Marriage Age in Asian Muslim Countries.

DOI: 10.5220/0009952005250531

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 525-531

ISBN: 978-989-758-458-9

525

age of marriage lower than the minimum

international marriage age. This allows women to

marry earlier than men, who have no marriage age

limit or allow dispensation for the marriage of the

child's age. All of these policies can retain the

acceptance of marriage of the child's age and violate

the rights of the child (Evenhuis M., 2014).

Attempts to eliminate child-marriage are a

response to the growing number of evidence

showing the scale and extent of the problem. More

than 700 (seven hundred) million women living

today are married while still a child, of which one in

three are married before the age of 15 (fifteen)

years(Fund, 2014).Young married girls face poor

conditions for all social and economic indicators

compared to girls delaying marriage age, including

lower levels of education and higher poverty rates.

This lousy impact will also be experienced by their

children and can continue in future generations. This

is the cause and effect of marriage age distortions in

some countries that permit underage marriages.

Therefore, a global consensus on the need to

eliminate the marriage of children has become more

prominent in recent years.

2 LITERATURE REVIEW

Given the importance and sensitive nature of this

problem, there are many efforts to determine the

minimum age standards for marriage through

international agreements. However, because there is

no universal understanding of marriage, it is

impossible to establish principles and regulations

that command universal obedience. These

difficulties are reflected in international agreements

on this issue, which often fail to determine the age

limit that is certain to marry,or the age of marriage is

limited,but there are still irregularities in the form of

concessions to marry underage with various

conditions set in the majority countries Muslims in

Asia.

Rumminger et al.(2012)used data in their study,

“CEDAW and Muslim Family Laws In Search of

Common Ground”.Early marriage of girls under the

age of eighteen is a form of violence. They are

deprived of their childhood and forced to take up

considerable household and family responsibilities,

sometimes on top of their educational or economic

responsibilities. Such heavy burdens on young girls

often lead to marital problems and subsequent

marital breakdown and divorce.

A study by Jisun (2016) on their study

about“Early Marriage of Women: The Case of

Bangladesh”. The state has laws to regulate early

marriage, but these laws are not followed by most of

the people in our country. The influential factors of

early marriage were found to be the respondent’s

education, husband’s education, place of residence,

religion, and respondent’s work status. In another

way, these factors can cause early marriage rise.

It can be seen that many studies have been

conducted around the world to reveal those factors

which linked to early marriage. Different studies

focused on different variables. However, in Asian

countries, there is hardly any significant study

focusing on the research is the distortion of marriage

age in Muslim countries in Asia by discussing legal

issues regarding marriage under the minimum age of

marriage that has been stipulated by marriage laws

in some Muslim countries which reflects the lack of

protection for women and a sense of justice so that

this discussion is needed to change the situation

(women) in a better direction.

3 RESEARCH METHOD

This study discusses several Asian countries with the

majority of Muslims ratified by the Convention on

the Elimination of All Forms of Discrimination

against Women (CEDAW), including: (Indonesia,

Malaysia, Brunei Darussalam, Bangladesh and

Pakistan). Due to limited resources, this study is

limited to several Muslim countries with selected

countries with significant Muslim populations.

Based on this, this study uses a comparative

approach, which is to find out the similar meaning

contained in the CEDAW Convention with the

applicable law in Muslim countries. The method of

collecting materials is done by library research.

4 RESULTAND DISCUSSION

Child marriage is a fundamental violation of the

rights of girls. Child marriage violates the

Convention on the Rights of the Child (CRC), the

Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW), and the

Universal Declaration of Human Rights.

International human rights law states that marriage is

a formal and binding agreement between adults.

CEDAW states that marriage of child age shall not

be declared lawful (Art 16 (2)). The marriage-age

trajectory of children, estimated at 142 million girls

(or 14.2 million per year) will marry before the age

ICRI 2018 - International Conference Recent Innovation

526

of 18 from 2011 to 2020, and 151 million girls or

15.1 million per year marry before the age of 18

from 2021 to 2030 (Loaiza and Wong, 2012).

Minimum age of marriage continues to

vary among Muslim countries. In the most

developed countries have established marital age

equality for men and women. However, it is not

enough to change the minimum age of marriage and

ensure that its citizens will obey the law, this can be

seen from the legal marriage under the minimum age

of marriage which has established marriage laws in

some Muslim countries.

4.1 Indonesia

In Indonesia, the marriage of child age to a certain

degree is still considered valid in Indonesia. The

petition for judicial review of Article 7 of the

Indonesian Marriage Act of 1974 concerning the

minimum age of marriage has led to an intensive

debate in Indonesia. Under the current Marriage Act,

parental consent may be submitted to support all

marriages under 21 (twenty-one) years of age. With

the consent of parents, women can legally marry at

the age of 16 (sixteen) years and men at the age of

19 (nineteen) years. Parents of girls under the age of

16 (sixteen) years may marry off their daughters

while still very young by applying to a marriage or

Religious Court to grant a dispensation. However,

the review of the material was rejected by the

Constitutional Court on 18 June 2015. The

Constitutional Court stated that the marriage age

change is the authority of the House of

Representatives (DPR).(Badan Pusat Statistik and

UNICEF, 2016)

Minimum age of marriage is 19 years for

men and 16 years for women, and provisions for

marriage are below the minimum age, depending on

the court's decision and parental consent. So in this

case, the marriage law not only fails to meet the 18

year age threshold for marriages recommended by

the Convention on the Rights of the Child (CRC)

ratified by Indonesia, but also contradicts the 2002

Law on Child Protection, which requires people

(Article 26, 1c) and define the child as any person

under the age of 18 (Article 1, paragraph 1).

Likewise, marriage law also sets a lower marriage

age for girls than boys. Therefore, girls are more

vulnerable to adverse outcomes than marriage-age

children than boys. Different minimum ages of girls

and boys also reflect discriminatory and harming

views because girls may marry at a lower age than

boys driven by the expected roles of those in the

family and community(Badan Pusat Statistik and

UNICEF, 2016).

4.2 Malaysia

Malaysia, formerly a new law on Malaysian

marriage, in some areas of Malaysia only Johor

makes provisions on the minimum age allowed to be

married. On the contrary, after the renewal, only

Perak is not regulated. The reason may be because it

is considered against the shari'ah. As for the territory

of the alliance, Kelantan, Kedah, Melaka, Negara

Sembilan, Selangor and Pulau Pinang, set a

minimum of 18 (eighteen) for men and 16 (sixteen)

for women. Now indeed the marriage rates tend to

be in Malaysia, but it is assumed that the decline is

not due to factors of legislation but only because of

educational factors and job opportunities.

In the current law in Malaysia, the minimum age

of marriage for women is 16 and for men is 18

years. If married persons are under the age of 16,

Sharia judges must give written permission, which

means there will be court proceedings in which they

must go to court and ask permission to marry

(Nemat, 2006).

Marriage between 16 years and 18 years is only

permitted if there is a legitimate benefit, the parties

agree, minors have reached maturity enough to

understand the nature, rights and responsibilities of

marriage. Minors must agree, and marriage will not

conflict with the best interests of both parties

involved, and Sharia courts should be consulted. In

determining this, the judge must summon minors,

and he should contact the pediatrician to verify

existing evidence forwarded to the court.

Although girls under the age of 18 are eligible to

marry, the Malaysian Children Act 2001 defines

children as "persons under the age of eighteen." The

Committee on the Rights of the Child expressed its

concern about the inconsistency between the

definition of Islamic law and civilization concerning

the minimum age for marriage. In 2007, the

Committee on the Rights of the Child recommended

that the Malaysian government "take all necessary

measures to align the definition of the child,

including the terminology used, in national

legislation thus eliminating inconsistencies and

contradictions"(Women’s Aid Organisation (WAO),

2012).

4.3 Brunei Darussalam

The Muslim community in Brunei Darussalam is

Syafi'i madzhab similar to neighbouring countries

namely Malaysia and Singapore. The Shariah Court

(Mahkamah Qadi) has traditionally dealt with

Islamic civil matters (marriage, divorce, family

Distortion of Marriage Age in Asian Muslim Countries

527

relations, community trust, living and so on) based

on the Syafi'i madzhab. This system is maintained as

a legal and political institution of the Sultan. Since

1898 there have been at least six changes in the

legislation governing the religious life of the people

of Brunei Darussalam, namely the laws of 1898,

1955, 1956, 1957, 1960, 1961 and 1967. This

cursory suggests the dynamics of the life of Islamic

law in Brunei Darussalam(Suchamdi, 2013).

It is worth noting that there were a Revision

Laws of Brunei that renewed in 1984, the law was

revised in exchange for the name of the Deed of

Religious Affairs and the Qadi Court of the

thrashing of 77, in the law the family law issue is

regulated 29 Chapter under the rules Marriage and

Divorce in section VI beginning with Articles 134-

156 and the Maintenance of Dependent in section

VII beginning with Articles 157-163(Mudzhar and

Nasution, 2003).

According to the Committee on the Rights of the

Child released in February 2016, the Committee

remains deeply concerned at a deficient minimum

age of marriage, which is 14 under customary law,

15 for ethnic Chinese girls and not expressly defined

for Muslims.

The minimum age of marriage is shallow, which

is 14 years under customary marriage law, 15 years

for Chinese and 16 years for Muslim. (United

Nations, 2014)Agreement rejected by marriage in

Bruneian law, marriage age is directly related to

ethnicity and religion. Brunei's customary law

allows marriage to take place at the age of 14, while

Chinese girls can be married at the age of 15. No age

is specified for Muslim marriage, but approval must

be given by the guardian and registration

officer(Young et al., 2017).

4.4 Bangladesh

According to the Childhood Restraint Act (1929),

then amended in 1984, the minimum age is 18 years

for women,and 21 for men and exceptions are not

allowed. (Rumminger, Moussa and Anwar,

2011)The penalty for child marriage according to

this act is imprisoned for a month or a fine up to

taka 1000 or both. Despite national laws and

international agreements, early marriage remains a

widespread problem especially in developing

countries such as Bangladesh. This is an obstacle to

the health and future opportunities of millions of

girls(Jisun, 2016).

However, marriages under this age apply and are

not void in order to maintain family consistency and

ensure that the child's legitimacy is not impeded.

However, parents and adults (bridegroom or bride)

will be punished according to law, if any of them are

under the age limit.

The Committee noted with concern that the State

Party has one of the highest rates for marriage

children worldwide, with 66% of girls married under

the age of 18, often due to poverty, lack of personal

security or difficulty verifying their age, and practice

marriage continue to be imposed on the family of

girls. The Committee further worries about the

proposed new amendment to the law on child

marriage which includes a clause enabling the

marriage of girls at the age of 16 with the consent of

a parent or court, thereby legalizing a child's

marriage(UN Committee on the Elimination of

Discrimination Against Women (CEDAW), 2016).

4.5 Pakistan

In 1929, the Child Marriage Restraint Act

established minimum marriage ages: 16 for girls and

18 for boys. The law also provides penalties for men

over 21 who marry children or parents or guardians

who "promote, allow or fail to prevent" such

marriages. Courts are also empowered to issue an

order against such marriages.(Haider, 2000)The

action was also introduced criminal sanctions for

contracting child marriages(Woodrow Wilson

International Center for Scholars, 2005).

Efforts were made to reform marriage age in

Pakistan, on Muslim Family Law and Child

Marriage Act, Marriage stated that violations if

parents marry their children under legal age (16-

year-old daughter and boy 18 years). This indeed

raises a very minimal age drastically. As a result, the

current minimum age of marriage in Pakistan at the

national level is 21 years. However, that does not

mean all countries will marry on average at the age

of 21 years because the previous average marriage

age in Pakistan was 15 years (Nemat, 2006).

For more details on matters related to the

minimum age of marriage shall be regulated in law

No. 29 year 1929 on child marriage restrictions

(Child Marriage Restraint Act) as amended by

Ordinance No. 8 years 1961 MFLO (Muslim Family

Law Ordinance) stipulates that a man over 18 years

of marriage with a woman under the age of 16 shall

be punished with a maximum imprisonment of one

month or a fine of as high as one thousand Rupees or

both, unless he has evidence to convince himself that

what he does is not a marriage of a minor. Then if a

person in the category of less than 18 years of

marriage contracts with a minor, then the parent or

guardian, who encouraged the marriage, or because

ICRI 2018 - International Conference Recent Innovation

528

of their negligence, is punishable by a maximum

imprisonment of one month, or the maximum fine

one thousand Rupees, or both, with the exception

that women are not sentenced to imprisonment.

Although the prohibition of underage marriage has

been imposed by providing threats to either the

perpetrator or the parents or anyone encouraging the

child's marriage, the marriage is not annulled and is

still considered valid. As a result, marriage is still

going on, and the execution of punishment tends to

be low, so it does not cause deterrent effects to the

public (Mudzhar, 2014). After discussing the

distortion of marriage age in some Muslim-majority

countries in Asia,

Table 1 shows a summary of the distortion of

marriage age in several Muslim-majority countries

in Asia Provisions for marriage below the minimum

age (an underage marriage that has been enacted by

the law in each country) can be carried out officially

with discretion given by the judge (depending on

judicial authorization) and parental consent

(guardian). This can be seen in Indonesia, Malaysia

and Brunei Darussalam, with marriages below the

minimum age still permitted with various reasons in

the form of maturity, very important (good reason or

good faith), equality of status (kafa'a), results of

medical evaluation (social investigation ) and

benefits (needs) and with the agreement of the

parties.

Table 1: Summary of the results of the literature on the

distortion of marriage age in several Muslim countries

Country

Restriction

of Normal

Marriage

Age

(Constitutio

Marital

Age

educt

on (Not

Normal

)

Distortion of

Marriage Age

Boy

Girl

Indonesia

19 16 Yes Conditions for

marriage are

below the

minimum age,

depending on the

court's decision

and parental

consent. That is,

the law still

provides a way

out in Article 7

paragraph (2) in

the case of

irregularities

may request

dispensation to

the court or other

officials

appointed by

both their

parent's men and

women.

Malaysia

18 16 Yes Teenage

marriage before

the age of the

Country

Restriction

of Normal

Marriage

Age

(Constitutio

Marital

Age

educt

on (Not

ormal

)

Distortion of

Marriage Age

Boy

Girl

law can be

officially

implemented

with the

discretion given

by the judge.

Only allowed if

there is a

legitimate

benefit, the

parties agree,

minors have

attained

sufficient

maturity to

understand the

nature, rights and

responsibilities

of marriage.

Brunei

Darussala

18 16 Yes Marriages under

a defined age can

be made with

court discretion

in the form of a

benefit or a need

and with the

agreement of the

parties.

Banglade

21 18 Yes This under-age

marriage is valid

and not void in

order to maintain

family

consistency and

ensure that the

child's

legitimacy is not

impeded.

However,

parents and

parties (groom or

bride) will be

punished

according to the

law if any of

them are under

the age of

marriage.

Pakistan

18 16 Yes The prohibition

of underage

marriage has

been imposed by

providing threats

to either the

perpetrator or the

parents or

anyone

encouraging the

child's marriage,

but the marriage

is not cancelled

and is still

considered valid.

There is a difference in Bangladesh and Pakistan

that parents and parties (groom or bride) or anyone

encouraging child marriages, will be sentenced to

imprisonment or fines bythe applicable law there if

Distortion of Marriage Age in Asian Muslim Countries

529

any of those who are married are under the limit age

of marriage. Although marriages under the stipulated

age are valid, they are not cancelled and are still

considered valid and not null in order to maintain

family consistency and ensure that the child's

validity is not hampered. As a result, there are still

many underage marriages, and the execution of

sentences tends to be low so that they do not cause a

deterrent effect on the community.

The equality between Muslim countries that are

compared lies in the existence of underage marriage

distortions that have been enacted by the law in each

country (married below the minimum age) is still

permitted, but depends on the court authorization

(judge) and permits granted parent/guardian if there

is a valid reason for the occurrence of a

marriage.While the difference lies in the lack of

inclusion of penalties and fines in the laws of each

Muslim country. Although there is a threat of

punishment but marriage under age set by each

country, it is not cancelled and is still considered

valid with various reasons and opinions.

The controversy in responding to marriage law is

a very natural thing, especially in some Muslim

countries with diverse ethnicities and cultures as

well as diverse beliefs or streams, so that some

different understandings arise, only from what angle

does it review. However, the law must be wise in

responding to cases, especially regarding the

minimum age limit for marriage and the form of

deviation to marry below the minimum age that has

been set.

By allowing a court to make exceptions to allow

minors to get married, this can be called "false law"

because the law cannot be applied, meaning that

minors can be punished, but underage marriages

remain and are valid Law Although the minimum

age of marriage in Islam is not about numbers, but

try to put things in place, namely the quality of one's

readiness to get married.

5 CONCLUSION

The existence of a marriage age limitation does not

result in a person being obedient and obedient to

marry based on the minimum age of marriage

stipulated by the law of each Muslim majority

country in Asia,but there are still distortions in the

form of concessions to underage marriage with

various requirements set. Among them, the reasons

can be seen in Indonesia, Malaysia, Brunei

Darussalam, Bangladesh and Pakistan with marriages

below the minimum age still permitted with various

reasons in the form of maturity, very important (good

reason or good faith), equality of status (kafa'a),

evaluation results medical (social inquiry) and

benefits (needs) and with the agreement of the

parties. Although there are threats of punishment in

countries (Bangladesh and Pakistan) for parents and /

or parties (groom or bride) or anyone encouraging

child marriage (those who are married are under the

age of marriage), marriages under age determined by

each country, not canceled and still considered valid

with various reasons and opinions.

Regarding marriages under the age that are

legally permissible should not be recognized as legal

under the law, and there must be penalties for

parents and guardians. It is vital to uphold the law

and impose severe sanctions on those who have

violated the minimum age of marriage. So that

exception that allow minimum age marriage must be

strictly limited.

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