to exercise his or her choice in sexual matters and unable to decide whether he or she will like or dislike a certain woman or man as wife or husband.
It is true that Jurisprudence, following the general law of contracts, recognizes, in the case of a marriage contract, the legality of the consent of a guardian on behalf of his ward, but there is no case on record showing that the marriage of a minor through his or her guardian was allowed by the Holy Prophet after details of the law were revealed to him at Madīnah. His own marriage with ‘A’ishah which took place when she was nine years of age, is sometimes looked upon as sanctioning the marriage of a minor through his guardian, but there are two points worth consideration in this matter. In the first place, ‘A’ishah’s nikāḥ at nine was tantamount only to an engagement, because the consummation of marriage was postponed for five years, to allow her, no doubt, to attain majority.22 In the second place, ‘Ā’ishah’s nikāḥ was performed in either party; it is only after the nikāḥ has been performed that the two parties are bound to each other.
No particular age has been specified for marriage in the Islāmic law; in fact, with the difference of climatic conditions, there would be Makkah long before the details of the Islamic law were revealed to the Holy Prophet, and therefore her marriage at nine can be no argument for the marriage of a minor. There is no reliable ḥadīth showing that marriages were contracted by minors through their guardians in the time of the Holy Prophet, after the revelation of the fourth chapter which identifies the age of marriage with the age of majority. In the chapter headed “The giving in marriage by a man of his minor children” (Bu. 67 :39), two arguments are brought forward, first, the report relating to ‘Ā’ishah’s marriage which has just been dealt with; and, secondly, a verse of the Holy Qur’ān (65:4), whereon light is thrown in the next paragraph. Similar chapters in other books23 mention simply the case of ‘Ā’ishah.
22 I have discussed the question of the age of ‘Ā’ishah fully, in my Early Caliphate.
23 M. 16:10; AD. 12:33.