Khyar-Ul-Bulugh And Its Role In Protecting Minors' Rights In Marriage Under Muslim Law
Author: LawSphereX
Category: Family & Personal Law
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KHYAR-UL-BULUGH AND ITS ROLE IN PROTECTING
MINORS' RIGHTS IN MARRIAGE UNDER MUSLIM LAW
Aditee Singh, B.A.LL.B. (Hons.), Hidayatullah National Law University (HNLU), Raipur
ABSTRACT
The Islamic laws have protection of the rights of minors in the form of Khyar-ul-Bulugh aka `option of puberty` where minor can refuse the marriage that was entered into during minority. Sourced from early stages of Islamic shariah law, it embodies the greatest paradigms of justice, consent, and individualism. Though it equally applies to both sexes, different implementation procedures show discrimination between them, specifically minor girls as they are subjected to higher conditions. Still, the doctrine was demonstrated in case of Mustafa v. Smt. Khursida where the law holds that the minors have a claim to dissolve the marriage which has not been consummated before the attainment of puberty.
This paper reviews the historical, legal, and social aspects of the doctrine used in Egypt and other Arab countries, to describe how it functions as measure for translating between traditional Islamic family and child rearing standards and changing norms of child rights. It also ends on a pragmatic note urging the preservation of cultural culture, marriage and family as cultural values and with the regulation of marriageable age in harmony with emerging human rights instruments and advances in child’s best interest and self-determination. Keywords: Khyar-ul-Bulugh, Minors' Rights, Muslim Marriage Law, Islamic Jurisprudence, Child Marriage, Legal Protections.
Definition and Significance Khyar-ul-bulugh is an Urdu term that means the option of puberty under Muslim law. It is the right with the minor to either nullify or continue her marriage which was entered on their behalf while they were children. 1 This right or option is made so that interests and autonomy of a person is protected, particularly the young girls who have at many times been forced to enter into marriage at a very young age. The importance of this option of puberty lies in the significance of consent of a person and their choice. It also undermines the commitment of Islamic legal system to protect the rights of minors and ensuring that matrimonial unions are on the basis of consent and mutual agreement.
Historical Context and origins The origins of the idea of Khyar-ul-Bulugh can be traced to the early Islamic era, when marriage customs and social conventions were very different from those of today. There were many child marriages, and parents or guardians would frequently choose a kid's bride without consulting the child. Islamic jurists created the Khyar-ul-Bulugh doctrine in order to remedy any potential injustices resulting from these practices. It came forth as a reaction to the necessity of defending children's rights and making sure that marriages were founded on free will and mutual consent. This crucial legal idea was framed by the teachings of the Prophet Muhammad and the subsequent evolution of Islamic law. The notion of Khayar-ul-Bulugh is closely related to the more general Islamic ideas of equality, justice, and the defense of individual rights.
It demonstrates how the Islamic legal system values people's individuality and well-being, especially when it comes to decisions that are as significant and intimate as marriage. 2 Rights of Minor Sharia, or Islamic law, offers a thorough framework for everyone's rights and obligations, including those of minors. Childhood and adolescence are concepts that are more accurately defined by maturity and capacity than by age. 1 Rekhta Dictionary, 'Meaning of Khiyaar-ul-buluug' https://www. rekhtadictionary. com/meaning-of-khiyaar-ulbuluug accessed 25 Nov 2024. 2 iPleaders, 'Khyar-ul-Bulgh & Its Implications in the Muslim Marriage' (iPleaders, 22 November 2020) https://blog. ipleaders. in/khyar-ul-bulgh-its-implications-in-the-muslimmarriage/#:~:text=The%20minor%20on%20attaining%20puberty,(the%20option%20of%20puberty) Accessed
25 Nov 2024.
Right to Life and Protection: The sanctity of life is highly valued in Islamic law. It is a minor's intrinsic right to life, safety from injury, and a secure environment. Right to Care and Maintenance: It is the responsibility of parents or guardians to provide for their minor children's physical, emotional, and spiritual needs. This includes necessities like food, shelter, clothes, medical treatment, and education Right to Education: Islamic law places a strong emphasis on education and promotes knowledge gain. It is the duty of parents to provide their kids access to education. Minors are entitled to inherit belongings from their parents and other family members. On the other hand, guardians usually administer inherited property until the minor achieves adulthood. Right to Justice: Children are entitled to just treatment as well as defense against exploitation and abuse.
Under Islamic law, kids who have been harmed have legal remedy. 3 Transition from childhood to adulthood Islamic law takes into account factors other than age when determining when a kid becomes an adult. It includes things like self-sufficiency in finances, mental and physical development, and maturity. The onset of religious duties like fasting and prayer, which are regarded as indicators of adult responsibility, coincides with puberty, making it a momentous occasion. Furthermore, being able to support oneself financially, or being financially independent, is frequently regarded as a crucial sign of adulthood. In many Islamic communities, marriage also represents the start of an independent adult life, therefore it plays a part in this transition. The precise age at which someone is considered an adult, however, might differ depending on the legal and cultural setting.
4 Gender Differences in Khyar-ul-Bulugh Rights Khayar-ul-bulugh is the option given to both minor girl as well as minor boy. Although there exists some difference in their rights legally. For a Minor girl: There is a provision under Section 2(viii) of Dissolution of Muslim Marriage Act that provides for option of puberty. “If at the time of marriage, the minor girl was given off
3 Law Bhoomi, 'Position and Legal Status of Minor in India' (Law Bhoomi, 3 May 2020)
https://lawbhoomi. com/legal-status-and-rights-of-minor/ accessed 26 Nov 2024. 4 Ramizah Wan Muhammad et al. , 'The Doctrine of Sanctity of Life from the Islamic Perspective' (2016) 21(1) International Journal of Islamic and Middle Eastern Finance and Management https://www. researchgate. net/publication/318760857_The_doctrine_of_sanctity_of_life_from_the_Islamic_pers pective accessed 26 Nov 2024. to marry by her guardian or Wali (father or grandfather) without her consent, she can repudiate the marriage on attaining puberty till 18 years of age. ” There is a condition that marriage should not have been consummated till then. If it is consummated, she will not be able to exercise this right.
5 For a minor boy: if the minor boy is given off in the marriage by his guardian or `Wali` (father or grandfather) without their consent or by any guardian other than his father or grandfather, then he has a right to repudiate the marriage any time after attaining puberty. This comes with the condition that dower should not have been paid and he should not have consummated the marriage in order to repudiate the marriage. 6 It is clear that there are significant inequalities between young girls' and boys' rights to choose when they reach puberty. For young females, if the marriage was arranged against their will and not consummated, they have the option to repudiate it until they become eighteen. On the other hand, if a boy's marriage was forced upon him without his agreement, he can annul it whenever he wants, provided the marriage hasn't been consummated and the dower hasn't been paid.
This discrepancy draws attention to the way Islamic law handles marital consent and dissolution in a way that is gender-specific. Case law: Mustafa v Smt. Khursida7 Mustafa, the husband, filed this appeal under Section 19 of the Family Courts Act in opposition to the Family Court, Jodhpur's judgment of June 11, 2004, which dissolved his marriage to Khursida, his wife, in accordance with the Dissolution of Muslim Marriages Act, 1939. Context: Khursida's age at marriage (7 years, 23 days) and the absence of consummation were the reasons for her petition for a dissolution of marriage. She requested a divorce on the grounds that she was exercising her right to puberty (Khyar-ul-bulugh). Khursida tried to claim her age, but Mustafa refuted her, saying Khursida was at least 13 when they got married.
He maintained that the marriage was consummated and that she was older than eighteen when the petition was filed. The ruling of the Family Court: Khursida's birth certificate was accepted by the court, proving that she was seven years old when she was married. Crucial was Mustafa's declaration that he
5 Dissolution of Muslim Marriage Act 1939, s 2(viii).
6 Mulla, Principles of Mahomedan Law (21st edn.) LexisNexis 2018
7 Mustafa v Smt. Khursida AIR 2006 Raj 31.
did not cohabitate. The court dismissed Mustafa's request for the restoration of their marital privileges and dissolved the union. Grounds of Appeal: Mustafa argued that the Family Court erred in its decision, claiming that Khursida's age should have been taken into account based on family records and purported inaccuracies in the documentary evidence. Legal framework: A woman married under Muslim law may request a dissolution judgment under Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939, if she was married before the age of 15 and repudiated before the age of 18, as long as the marriage was not consummated. The High Court's Analysis: The reliance of the Family Court on Khursida's passport and birth certificate was upheld by the court. Mustafa's statements lacked reliable verification, although Khursida's paperwork consistently attested to her age.
The Family Court's decision was upheld by the High Court, which denied Mustafa's appeal. In summary, The High Court affirmed the divorce of Mustafa and Khursida's marriage, ruling that Khursida had legitimately exercised her right, under the divorce of Muslim Marriages Act, 1939, to renounce her marriage before turning eighteen. 8 In various other cases and jurisdictions, courts have consistently upheld laws against child marriage, even when challenged on religious grounds. The judicial system frequently faces the challenge of reconciling individual religious freedoms with the state's duty to safeguard children’s welfare. Modern judicial practices emphasize prioritizing the child's best interests in legal decisions, setting aside religious or cultural norms. So, while Khayar-ul-Bulugh has deep historical and religious roots, its application today is fraught with complexity and debate.
Balancing traditional beliefs with modern human rights standards highlights the need for a nuanced approach that both respects cultural heritage and prioritizes the protection of children's rights. Conclusion In conclusion, the doctrine of Khayar-ul-Bulugh highlights a crucial balance between historical religious practices and contemporary legal standards. This principle ensures that minors who were married off without their consent can annul such marriages if they remain
8 Mustafa v Smt. Khursida AIR 2006 Raj 31 (Rajasthan High Court, 26 August 2005)
https://indiankanoon.org/doc/221737/ accessed 26 November 2024. unconsummated. The case of Mustafa v Smt. Khursida exemplifies the ongoing relevance of this doctrine, affirming the importance of protecting individual rights. As legal and societal norms evolve, the challenge lies in harmonizing traditional beliefs with modern human rights, emphasizing the need for a nuanced approach that respects both cultural heritage and the protection of children's rights.