A CRITICAL ANALYSIS ON THE IMPACT OF THE CONCEPT OF IJBAR ON THE PRACTICE OF CHILD MARRIAGE UNDER ISLAMIC LAW

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ABSTRACT

This study critically analyzes the impact of the concept of ijbar on the practice of child marriage under Islamic law. While child marriage is widely criticized by the feminists on the basis of human rights, its practice is nevertheless defended on the basis of Islamic law and culture. This is because, ijbar is a concept related to marriage guardianship (wilayat-un-nikah) and it connotes the power entrusted upon parents/guardians to marry off his ward in order to secure the protection of his/her welfare and in instances where it becomes apparent that the parent/guardian acted wrongly or in defiance of the rationale of ijbar, certain safeguards were instituted to cope with the situation. This involves the exercise of the option of puberty (khiyar-ul-bulugh) under which the marriage would be annulled. Prompted by the raging debate and desire for the urgent need to reform Islamic family law whereby a drastic curtailment or even the abolition the concept of ijbar vis-à-vis the practice of child marriage is advocated by the West globally, the main objectives of this research work therefore, is an attempt to critically analyze the contemporary debates for and against child marriage in Islamic law. It is argued that, while puberty marks the legal criteria of Islamic adulthood and in the absence of fixed marriageable age in addition to the exercise of coercive marriage guardianship, the practice of Islamic child marriage goes to secure the welfare of minors and the protection of their best interest in life and in view of this, it was observed that to prohibit or even restrict Islamic child marriage and the exercise of the role of coercive guardianship, is to call for disruption of the moral foundation behind the Islamic institution of the family and at the same time aggressively enforcing western secular family values that delays marriage while paying the least concern on premarital sexual indulgence among teenagers. Further still, it has been argued that the current move by the international community for the curtailment of ijbar and the abolition of child marriage together with recent reforms directed towards these ends in the Muslim world is nothing but motivated by the western conspiracy against population growth in third world countries, more particularly in the Muslim world. Therefore, the study concludes with the firm recommendation that the Islamic concept of ijbar vis-à-vis the practice of child marriage by Muslims should be accordingly maintained and that as a matter of human right, Muslims must be allowed sufficient freedom to practice the tenets of their Islamic personal law,in particular, to have recourse to the practice of child marriage where they deems so.

CHAPTER ONE

INTRODUCTION

1.1 BACKGOUND OF THE STUDY
In the present generation, the marriage of minors especially by and among Muslims is one of the topical legal issues that have attracted the attention of feminists and modern human rights scholars who concern themselves with the protection of the rights of the girl-child across the globe albeit from secular conception. With this development, national and international communities are therefore increasingly recognizing child marriage as a serious problem, both as a violation of girls‟ human rights and as a hindrance to key development outcomes.1 The practice whereby a child is married off early under the influence or compulsion (ijbar) from its parents is somewhat a religious and customary practice among Muslims particularly those who follow the Maliki school of Islamic law which sanction the role of matrimonial guardian (wali) as one of the essential elements of validity (arkan) to a marriage contract under Islamic law. The matrimonial guardian (wali) may be one with power to enforce marriage on his ward, i.e., wali mujbir and such a guardian (wali mujbir) is possessed of the power to compel his ward in entering into a marriage contract for purposes that are viewed as satisfying the best interests of the child in question vis-à-vis the wishes of parents to ensure that the child is prevented from getting plunged into the dexterities of immorality and its attendant social consequences in the society.
On the other hand, the critics of the Sharia has likened the concept or practice of Ijbar with forced marriage, wherein contrary to this perception, mutual consent of both parties
1ICRW (2011) Solutions to End Child Marriage: What The Evidence Shows, International Center for Research on Women (ICRW). Available online at www.icrw.org/childmarriage
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(ridha al-Zawjain) is ever an essential requirement to the formation and validity of a marriage contract under Islamic law. Feminists have, in the name of health, poverty, population and fertility control together with the quest for the attainment of universal basic education globally with particular attention on the girl-child, the practice of early or child marriage have come to be abominable altogether in the Western society, it being largely a prohibited practice in several countries.
In fact, in the slogan of the feminists, it is regarded as a “harmful traditional practice” that impedes the developmental rights of the child. Thus, the move for the abolition of the so-called child marriage has transcended from Western society to other African and Asian countries and it has deeply crept into the Muslim world. For example, the Ottoman Mecelle (1917)2 was the first regular modern legislation forbidding the marriage of minor children. This was followed later by a law in Egypt which prohibits the registration of marriages of males below eighteen and females below sixteen years of age.3 In the Indian sub-continent, the Child Marriage Restraint Act of 1929 also prohibited the marriage of males below eighteen and females below fourteen years. Later in Pakistan, the marriageable age of females was raised to sixteen by the Muslim Family Laws Ordinance of 1961.4
In all these pro-modern and reform minded legislations, one basic thing is observable, that is to say, the crux of the matter is regulation of marriageable age as a legal device to Ottoman Law of Family Rights 1917 Raza Naqvi, S. A. Modern Reforms in Muslim Family Laws – A General Study, Islamic Studies (Journal of the Islamic Research Institute, Pakistan) [1974] Vol. XIII, No. 4, pp. 235-252 at pp. 237-238 4 Ibid delay marriage. But under classical Islamic family law, age of the parties bears no legal weight as physical puberty is the basis of majority and this stance of the law poses challenge to the modernist and western oriented Muslims in some Muslim countries. As it become open that under the sharia, once a child attains puberty, he/she becomes eligible for marriage, to counteract this possibility, modern family law scholars have therefore recognizes devising a specified age as an essential qualification for marriage with eventual prohibition of child marriage under threat of penalty. However, contrary to popular opinion especially in the West, the sharia establishes no specific age to wait for marriage. Islamic law permits a marriage contract of young children to be entered into years before the marriage itself is actually executed or ratified. In other words, the marriage contract is drawn up, but the contract is not executed until a later date. So, even though the marriage contract can be concluded, the girl will not be handed over to the husband until many years afterwards. Thus, a father can marry off his young daughter to a man before she comes of age, but the husband may not consummate the marriage until after she attains maturity.
It is pertinent to mention that, the fact that it is permissible in law to marry a young girl does not mean that it is permissible in practice to have intercourse with her. Rather, that should not be done until she is able for it. For this reason, it is understood that the Prophet (saw) delayed the consummation of his marriage to A‟ishah (RA) until such time when A‟ishah (RA) had attained physical maturity.5 Therefore, the reality is that the Prophet (saw) was just betrothed to Aishah (RA) when she was an immature girl, but the marriage was only consummated upon her becoming a mature adult.
5 Sahih Muslim, English translation, Vol. 9, p. 206 http://www.islamqa.com/index.php?ref=22442&ln=eng
It is interesting also to note that, when minors are married off early, it was never meant to permanently bind such young ones into the bond of marriage against their wishes but in their overall best interest. In that, under Islamic law, there is safeguard against eventual dissatisfaction by the minor and these safeguard is manifest in the concept of khiyar al-bulugh (option of puberty). It means, while an immature daughters‟ marriage can be arranged by her guardian (wali mujbir or wasiyyi), she has the right to annul the marriage at the attainment of the age of puberty, if she is not compatible with the husband or simply dislikes him.6In Nigeria, the institution of an Islamic marriage is within the purview of Shariah legal system (being one of the three streams of legal systems flowing in Nigeria).7 It therefore implies that, Muslims are at liberty to follow the dictates of their religion in matters of marriage including the latitude to have recourse to the practice of ijbar as per the teachings of the Maliki School that is followed by Muslims in Nigeria. This position has further reinstated the legal challenges to the regulation and reform of matters that have to do with Islamic marriage including the legal possibility for the prohibition of child marriage among Muslims by legislative authorities in Nigeria
1.2 STATEMENT OF THE RESEARCH PROBLEM
Over the centuries, Islamic family law has been able to maintain its unique and differing characteristic in recognizing no fixed age limit for parties to a contract of marriage thereby allowing the practice of child marriage. This being still the applicable legal
6 Tuhfat al-Muhtaj and al-Umm 7 See Item No. 63 of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2011) position to those who intend to follow classical understanding of earlier Muslim jurists on the issue in some Muslim countries (including among Muslims in Nigeria), the development of international human rights law as well as feminism jurisprudence have continued to pose legal questions as to the protection of the rights of the child from sexual abuse and early marriage.8In that, an attempt has been made to codify minimum age and consent for marriage,9 which to proceed from the hypocrisy theory, it is viewed by some analysts as an effort to curtail or reduce active fertility period especially of the girl-child by delaying marriage to a later age in the name of education in order to put a check on population growth more so in the absence of prohibition of polygamy and child spacing policies in majority of Afro-Asian countries inhibited by Muslims. These developments are perceived by many Muslims as derogatory to the legal position under Islamic law. In that, it poses and continues to pose legal challenges as to the compatibility of human rights law with Islamic law on child marriage on the one hand and the acceptance of its abolition by Muslims in Nigeria who, at all times, desires the practice of Shari‟ah in the alternative.
To the feminist conception on the issue, any marriage wherein the couples are below the age of 18 years is a child marriage and that it is a fundamental human rights violation to do so. In their view, child marriage disproportionately affects young girls who are much Proponents of child rights has identified child marriage as constituting one of the most severe forms of child abuse with a disproportionately negative impact on the girl child. It is both a cause and consequence of the most severe form of gender discrimination. The practice harms girls by denying the right to education and health, as early marriage leads to early childbirth for which girls are mentally and physically unprepared. See 9 See The 1964 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage (Article 2); The Child Rights Convention (Article 1); The Convention on the Elimination of All Forms of Discrimination Against Women (Article 16); The Child Rights Act 2003; Protocol to the African Charter on Human and People‟s Rights on the Rights and Welfare of the Child; etc.,more likely to be married as children than young boys.10 Some international estimates indicate that worldwide, more than 60 million women aged 20–24 were married before they reached the age of 18 years.11 The issue is that, what implications does the above stand and yearnings of feminists and advocates of child marriage abolition have on the teaching of the sharia on the issue? Is the Islamic family values that are targeted for reform under the pretext of child marriage to absolve western values in place of the sharia? Or, are they really philanthropists that sympathize to the causes of the child? In the face of this challenges, have the sharia failed to take to the fore the best interests of the child in failing to recognize a fixed marriageable age? Or, is the exercise of the power of ijbar in all certain circumstances naturally prejudicial to the interest of minors? By and large, has the guidance of the sharia on the issues relative to child marriage primitively obsolete as to give way for the ascendancy of the morally corrupt and deficient modern western civilization in family affairs? Or, are Muslims especially in Nigeria possessive of the right to conduct their affairs as per the teachings of their religion including on the possibility of child marriage without the least encroachment by secular authorities?10 Mathur, S., Greene, M. & Malhotra, A. (2003). Too Young to Wed: The Lives, Rights and Health of Young Married Girls. Washington, D.C: International Center for Research on Women (ICRW); UNICEF. (2005). Early Marriage: A Harmful Traditional Practice: A Statistical Exploration. New York, NY: UNICEF; Save the Children. (2004) State of the World‟s Mothers 2004. Westport, CT: Save the Children. 11 UNICEF. (2007). Progress for Children: A World Fit for Children Statistical Review. 6, 45. New York: UNICEF. Furthermore, is the concept of ijbar per se a mischievous practice that hinders the plights of minors? Or, is its misapplication giving rise to its present criticisms? At whose interests is the practice of Ijbar, to the minor or his/her parents or both? How harmful is the practice of early or child marriage in our contemporary society? To the Muslims, is it a religious or traditional practice? In this era of human rights, would its compulsory abolition as a matter of law not amount to human rights violation, such as the right to culture and freedom of thought, conscience and religion?
This research would, therefore, look into these legal issues and problems with a view of articulating a practicable and sustainable way out that would bridge the gap between the advocates of its abolition and those for its practice particularly in the Muslim community of Northern Nigeria.
1.3 AIMS AND OBJECTIVES OF THE RESEARCH
The principal aim of the research work is to critically analyze the impacts of the concept of ijbar on the practice of child marriage under Islamic law. The research focuses upon the following specific objectives:

  1. To examine the spirit and wisdom behind the power of ijbar and whether it is protective of the rights of the child within the framework of the sharia.
  2. To examine and analyze whether in the contemporary setting, the concept and practice of ijbar by and among Muslims is in its totality a mischievous practice; or, whether it is of particular advantage to the rights of the girl-child having regards to the child‟s best interests in life.To examine and analyze the contemporary concern of feminists in objecting to child or early marriage particularly among Muslims in Northern Nigeria with a view to reasserting its continued practice or abolition among Muslims in Nigeria.
    1.4 SCOPE OF THE RESEARCH
    The scope of this research will be restricted only to the reflection on the rationale of the law and/or practice of child marriage under Islamic law vis-à-vis the concept of Ijbar. A particular emphasis would be given to an analysis on its practice by Muslims in Northern Nigeria. The legal regime will focus primarily on Islamic Law and where necessary, to comparatively consider the Nigerian laws on the subject.
    1.5 RESEARCH METHODOLOGY
    Doctrinal method of legal research was primarily employed. Recourse has been made to published legal materials on the subject, i.e., books, journals, conference and seminar papers, statutes, case law, etc.
    1.6 LITERATURE REVIEW
    The question of child marriage vis-à-vis the concept of ijbar has been a topical issue of concern before the international community, more particularly the feminists and child rights advocates; and as such, a lot has been written on the subject ranging from books, articles to seminar and research papers.
    The famous Muslim scholar on the subject of Islamic family law, Hammuda Abd al-Ati12 has, in one of his books, eloquently presented the arguments surrounding essential nature of child marriage in Islamic law. He argued that child marriage is more of a
    12 Abd al-Ati, H. Family Structure in Islam, American Trust Publication (1977) pp. 72-73 betrothal that implies deferring consummation to a later date; that preliminary arrangement may have been made at an early age, but consummation usually take place when the parties were fit for marital congress which depends, among other things, on their physical conditions. He succeeded in identifying two interrelated issues on child marriage in Islamic law, the legitimacy of child marriage and compulsion in marriage (ijbar). He further elaborated that Islam sets no age limit on marriage and that consummation is subject to the attainment puberty.13Similarly, the well-known Muslim scholar, Prof. M. A. Abdur-Rahim in his famous book, The Principles of Muhammadan Jurisprudence,14 has in his chapter on family law, discussed capacity to enter into marriage contract as well as guardianship for the purposes of marriage. He dwelt on the rationale behind marriage guardianship, stating that it is allowed because of necessity for securing proper and suitable match and that when a minor is given in marriage by a guardian other than the father, he/she can exercise option of puberty (khiyar-ul-Bulugh) and thus refuse to be bound by the marriage.15
    However, it may be noted that, as regards both Hammuda Abd al-Ati and Prof. M. A. Abdur-Rahim, these Islamic writers had exposited enormously on the topic as at the time when feminism jurisprudence has not grown wild as it does in these days. Consequently, their discussion could not be said to have adequately captured current feminist‟s criticisms against the Islamic child marriage. Therefore, our attempt to further delve into this aspect of Islamic law would deal with it contextually under the general argument
    13 Ibid. at p. 76 14 Abdur-Rahim, M. A. The Principles of Muhammadan Jurisprudence According to the Hanafi, Maliki, Shafii and Hanbali Schools, All Pakistan Law Publishers, pp. 226-339 15 Ibid, pp. 330-332s that, child marriage is a viable mechanism under the Shariah for the protection of the rights of girl-child contrary to what obtains or the way it has been conceived and applied by the West today. And, the feminists perspective of considering Islamic child marriage as hampering the future of the girl-child in terms of education, negation of reproductive rights and health implications, etc., are baseless criticisms that seeks to satisfy western imperial interests in the Muslim world.
    Khurram Murad, in his book titled, “Shariah: The Way of Justice”,16 has discussed woman‟s consent as an essential legal condition for marriage in Islam. He further explains that if such consent is not being obtained in Muslim societies today, the problem is a result of social circumstances, not of the legal provisions of the shari‟ah and that the situation must change once the shari‟ah is implemented.17 While agreeing with this author, it is intended to further the discussion in the sense that notwithstanding the presence of the Islamic concept of ijbar vis-à-vis the legality of the practice of child marriage, the consent of the girl-child is still reckoned with and the false allegation by western literatures of associating the Islamic child marriage as being “force marriage” is not only biased but untenable.
    Abul A’ala al-Maududi18 while discussing essentials of marriage contract, only talked about the discretionary role of women in the formation of marriage contract emphasizing that the consent of a woman is an indispensable condition of marriage in Islamic law.19 He altogether neglected or failed to envision the interrelationship of child marriage within
    16 Khurram Murad, (1981) Shariah: The Way of Justice, The Islamic Foundation, London 17 Ibid, pp. 13-14 18 Abul A‟ala al-Maududi, The Laws of marriage and Divorce in Islam, Islamic Book Publishers, Safat, Kuwait (1983, 1st ed.) pp. 69-70 19 Ibid, at p. 70 the context of consent to marriage within the framework of marriage guardianship. But, given the status of the author as pro-Islamic Muslim scholar, his omission to include discussion on Islamic child marriage and its modern criticisms would not be taken as a bye-passive approach to sideline its existence.
    Likewise, Prof. I. A. Doi in two of his books20 while discussing the concept of marriage has treated the requirement of free consent of parties to marriage alongside power of ijbar but he did not focus on the position of child marriage in Islamic law. In the recent edition of the book,21 the choice of partner and the power of compulsion (ijbar) have been discussed, stating that ijbar is a safety measure in the interest of the girl concerned whereby, if in view of immaturity or over-zealousness, a girl is proposing to marry a man possessing a bad character or a man lacking proper means of livelihood, her guardian may stop her from marrying that man and instead, finds a suitable person to whom to give her in marriage.22 While only the substantive Islamic principles are discussed, what in our view, is left un-discussed in this book, is the modern challenges posed by the feminists and women‟s rights activists
    Abdulmalik Bappa Mahmud in his book titled “Marriage under Islamic Law”,23 has discussed issues relating to Islamic child marriage but his choice of words or style in his treatment of ijbar and the attendant role of wali mujbir under the heading “compulsory marriage” is misrepresentative of the Islamic concept of ijbar as being synonymous to 20 Doi, I. A. Shariah: The Islamic Law, Ta-Ha Publishers, London (1990) p. 123; Doi, I. A. Women in Shariah (Islamic Law), (1983) p. 70 21 Doi, I. A and Clarke, (2008) A. Shari‟ah: Islamic Law, Ta-Ha Publishers, London, pp. 206-208 22 Ibid, p. 207 23 Mahmud, A. B. (1981) Marriage Under Islamic Law, Gaskiya Corporation Ltd., Zaria, Nigeria, pp. 41-42 “compulsory marriage”. This is because; if ijbar is synonymous to compulsory marriage as the author tend to mistakenly give such an impression, what then is the value of Islamic requirement of free consent in marriage. Thus, he mistakes ijbar with compulsory marriage when nothing of the sort exists under Islamic law. In fact, any practice that would otherwise constitute compulsory marriage is out rightly un-Islamic. But, that apart, notwithstanding his treatment of marriage guardianship under the title “compulsory marriage”, his exposition on the subject has adequately depict the rationale of the sharia behind guardianship in marriage as being protective of the welfare and interest of the minor concerned.Prof. I. A. Aliyu24 in his book on the protection of the rights of women has discussed women‟s right to choose a partner for marriage, accept or reject marriage proposal; their consent being a prerequisite to the validity of a marriage contract in Islamic law.25 That it is obligatory upon guardian of a woman to seek her consent to marriage and that this is the reason why the Shari‟ah objects to marrying a woman forcefully to a man she doesn‟t like rendering such a marriage void or at least voidable.26 This author, while being expert on Muslim family law and existing as at the time when feminism jurisprudence is corrosively encroaching upon the tenets of Islamic law, has however shy away from considering the vitality of discussing contemporary debate surrounding child marriage and its practice in Islamic law vis-à-vis consent to marriage and the role of legal guardian thereto.
    24 Aliyu, I. A. Protection of Women‟s Rights under the Shariah, Dakwah Corner Bookstore, Jeddah, Saudi Arabia (2010, 1st ed.) pp. 36-40 25 Ibid, at p. 36 26 Ibid Muhammad Khalid Masud, in an article titled, “The Sources of the Maliki Doctrine of Ijbar”,27 had discussed extensively the doctrine of ijbar, but as it is evident from the title, he mistook it as available only within the framework of the Maliki School to the disregard of its existence in other schools of Islamic jurisprudence. Likewise, motivated by western orientalism, he seeks to trace its origin to Arab custom to the neglect of its juridical basis from the Qur‟an, Sunnah and the consensus of Muslim jurists. His treatment of its origin in terms of what he termed “formal and material sources” left his discussion on the subject somewhat confusing without any articulate stance, for his concluding remarks on the subject, are quite strange and opposed to the spirits of Islamic law.In his perplexing view, M. K. Masud considers that: “(1) the element of compulsion in ijbar … has been over stressed by its proponents as well as the proponents; (2) an analysis of the formal sources cited and rational justification given in favour and against the doctrine shows that the origin of the doctrine cannot be traced to any explicit formal source; (3) the origin of the doctrine can be more satisfactorily traced to custom, as its material source; (4) its close association with local custom explains more satisfactorily the conflicting opinions of scholars, their continued criticism and the varying judicial interpretations; (5) the customary basis of the doctrine also explains the persistence or disappearance of the doctrine in actual practice.28 These incredible explanations of M. K. Masud, are indicative of modern secular prejudice against the impacts of the exercise of ijbar by parents and guardians in influencing child marriage in Islamic law. 27 Masud, M. K. (1985) The Sources of the Maliki Doctrine of Ijbar, Islamic Studies [A Journal of the Islamic Research Institute, Islamic University, Islamabad, Pakistan], Vol. 24, No. 2, pp. 215-253 28 Ibid, pp. 246-247
    Muhammad Lawal Dabo, in his article titled, “Towards a More Appropriate Application of the Concept of Coercive Guardianship [Ijbar in Islamic Family Law]”,29 have discussed generally the rudiments of marriage guardianship and that of the concept of ijbar, but his approach and treatment of the subject follows closely that of M. K. Masud who, in one way or the other, is apologetically motivated by Western orientalism in his critique on the subject. But unlike M. K. Masud who follows the footsteps of J. Schacht to submit that the origin of ijbar is traceable to Arab custom, M. L. Dabo has reinforced juristic consensus with regard to the legality of wilayat al-Jabr although he still partially entertained feminist‟s critique on the subject.3The Nigerian academics Olufem, Abdurrazaq and Olayemi31 in their paper have reviewed the legal issues surrounding the law on marriageable age in Nigeria and have concluded with a recommendation on the abolition of the practice of child marriage in Nigeria. However, they have to some extent, treated fairly what obtains under the general law in Nigeria as well as under customary law and Islamic law vis-à-vis the recent position under the Child Rights Act. These authors first opened their discussion with the general statement that there is no acceptable and universal marriageable age. But the authors remain contradictory when somewhere else in their discussion, they alluded to the assertion that the Child Rights Act is in conformity with universally accepted age of
    29 Dabo, M. L. (2006) Towards a More Appropriate Application of the Concept of Coercive Guardianship [Ijbar in Islamic Family Law], Journal of Islamic and Comparative Law, Vol. 26, pp. 101-120 30 Ibid, pp. 111-112
    31 Olufem Abifarin, Abdurrazaq F. F. and Olayemi Sola Reflections on Marriageable Age, Child Rights Acts and the Health of the Child in Nigeria, A Paper available online at http://unilorin.edu.ng/publications/abdulrazaqff/Reflections%20on%20Marriageable%20Age,%20Child%20Rights%20Act.pd marriage.32 Pertinently, they misconceived the philosophy of child rights under Islamic law as synonymous to that of the Child Rights Act of Nigeria while trying to lay foundation for its acceptance by Muslims. Furthermore, these contribution of the writers perpetuates the Western conceptions and traditions manifest in the secular principles of international law as the ideal standard to be emulated by Muslims in Nigeria, i.e., that child marriage is but a child abuse, that early marriage thrusts upon girls marital and reproductive responsibilities for which they are neither physically nor mentally mature to carry out.33
    Tonja Khabir,34 in his paper opined that “to fully comprehend the practice of childhood marriage particularly in Nigeria, it is pertinent to understand Islamic religious tradition and its significance in the country. So, where many are instituting sessions and granting funds for sexual education, the task would be to get at the heart of the tradition in order to change the situation. This means simultaneously working for reform of traditions in order to keep children safe. It is a hard job to do, but it is most certainly being done.”35 He further stated that the idea of child marriage can be reformed through religion citing Egypt as an example. That in Egypt, child marriages saw heavy reform in the 1920‟s through Islamic law. The Indian Child Marriage Restraint Act of 1929 prohibited the underage marriages. While the author calls for reform through religion, he has however failed to let us know his own understanding of child marriage in Islamic law, i.e., the nature of child marriage in Islamic Family Law vis-à-vis its practice in Nigeria let alone
    32 Ibid, at p. 177
    33 Ibid, at p. 173 34 Tonja Khabir, The Role of Islam in Childhood Marriage Case Study: Nigeria, A Paper Presented at the 17th Annual Convention of the Global Awareness Society International, May 2008, San Francisco, CA, USA 35 Ibi the methodology to be employed in such a reform using the Shariah, but he only kept on speculating about reform. Further still, is he calling for the application of Judeo-Christian methodology of reforming religious law to meet secular ends as was the case in Christendom following protestant reformation?
    Prof. M. T. Ladan36 in one of his papers has highlighted child marriage and child betrothal as parts of the discriminatory, harmful and exploitative practices within the rudiments of the Child Rights Act.37 He has also identified some of the challenges to non-passage of the Child Rights Act by some Northern States in Nigeria. He identifies non reflection of local peculiarities that are cultural, customary or religious in character in the drafting processes of the Bill, citing child and forced marriages as an example.38 In another publication edited by Prof M. T. Ladan,39 the right to consent to marriage and to exercise option of puberty has been identified by the feminist as parts of women‟s right in Islamic law.40 Yet, they inconsistently went further to brand “early child/forced marriages” as parts of the feminists so-called “harmful practices” affecting the rights of women and girl-children in Northern Nigeria.41 It is wondered, by what standard are such practices rendered harmful to the well-being of women and the girl-child in particular?
    The Prof. M. T. Ladan has however, shun away from tying the feminist‟s legal questions surrounding child marriage in his discussion to the problems and challenges thereto
    36 Ladan, M. T. The Child Rights Act, 2003 And The Challenges of Its Adoption By State Governments In The 19 Northern States, A Paper Presented on 23rd July, 2007 at a One-day Interactive Forum for Sokoto State House of Assembly Legislators Organized by the Sokoto State Ministry of Women Affairs and UNICEF, held at Sokoto State House of Assembly, Sokoto. 37 Ibid, at p. 5 38 Ibid, at p. 11 39 Ladan, M. T. (2005) A Handbook on Sharia Implementation in Northern Nigeria: Women and Children‟s Rights Focus, League of Democratic Women (LEADS- NIGERIA) 40 Ibid, pp. 71-72 41 ibid, pp. 78-8 prevalent in Nigeria, especially the perspective under Islamic law and whether the issue of child marriage is among the obstacles to the non-acceptance of the Child Rights Act by Shariah practicing States in Northern Nigeria. Therefore, the author‟s call42 for reflecting positive socio-cultural and religious factors that seek to promote the best interest and welfare of the child is of no avail or rather remain a moot call as, as far as Islamic law is concerned, no dichotomy exists as to positive or negative socio-cultural and religious features in any elements of the law, i.e., so far as the Act initially seeks to outlaw child marriage, the standard remain the same – that Islamic law is opposed to the Child Rights Act in Nigeria. Akin to the approach of Prof. M. T. Ladan but with profound Islamic motivation, Dr. Bala Babaji, in his paper titled “Harmonizing the Child Rights Act 2003 With Cultural and Religious Values in Nigeria: A Muslim Perspective”,43 had offered an articulated critique on the Nigerian Child Rights Act 2003 particularly in terms of: (a) its conflict with the socio-religious background of Muslims in Nigeria; (b) its unconstitutionality as regards the breach of the requisite procedure to be employed in its enactment, i.e., breach of the principles established under section 12(3) of the 1999 Constitution; (c) its encroachment on the jurisdiction of the Sharia Court of Appeal through the introduction of Family Courts, etc. While he remained opposed to the onward prohibition of child marriage under the provisions of the CRA as being contra-Islamic and unacceptable by Muslims, he nevertheless failed to further assess the Western conspiracy behind the move for the abolition of child marriage especially among Muslims in Northern Nigeria. Quite
    42 Ibid, at p. 17 43 Babaji, B. (2005) Harmonizing the Child Rights Act 2003 With Cultural and Religious Values in Nigeria: A Muslim Perspective, Journal of Islamic and Comparative Law, Vol. 24, pp. 14- still, he entertains the unfeasible view that the provisions of the CRA are harmonizable with that of Islamic law, when he alludes to the fundamental disparity inherent in the two systems of laws.
    Additionally, certain pro-western minded Muslims in Nigeria like D.O.S. Noibi, in his book titled “Islamic Perspectives (A Comprehensive Message)”,44 he dedicates a chapter on “early marriage, education and social responsibilities – the Islamic Point of View”; whereby without adequate empirical data, he orientally condemned the practice of Islamic child marriages especially in Northern Nigeria on the pretext of embracing modern secular education. He endeavored to employ sources of the Sharia to justify undertaking western secular education to the disregard of the rationale and moral justification of child marriage in Islamic law.
    Furthermore, some pro-western feminist advocates in Nigeria like Maryam Uwais,45 while writing on the compatibility of the Child Rights Act [CRA] with Islamic legal principles, she has touched on child marriage whereby an analysis on her remarks indicates that she is opposed to the practice of Islamic child marriage in Nigeria and consequently supportive of its abolition under the pretext of education and health while actively seeking to justify the pegging of minimum marriageable age using the standard of the sharia. To the disregard of the sharia-based criticisms leveled against the provisions of the CRA by Muslim scholars which are quite real, tangible and derogatory
    44 Noibi, D.O.S. (1988) Islamic Perspectives (A Comprehensive Message), Shebiotimo Publications, Ijebu-Ode, Lagos –Nigeria
    45 Maryam Uwais, Compatibility of the Child Rights Act with Islamic Legal Principles, An Online Article Available at http://telegraphng.com/2013/07/compatibility-of-the-child-rights-act-with-islamic-legal-principles/ accessed on the 4th September, 2013 to the socio-religious pursuit of Muslims in Nigeria, she turned a blind eye over the blemish content of the CRA while pressing for its acceptance and/or enforcement among Muslim population in Nigeria.
    Equally, another Nigerian feminist advocate, Ayesha Imam, in an online publication titled “Women, Muslim Laws and Human Rights in Nigeria”46 has discussed issues related to child marriage under Islamic law in Nigeria. In her open hostility against the reintroduction of sharia in Northern Nigeria, she adumbrated thus:
    While the passing of the first Sharia Act in Zamfara State in November 1999, was clearly political opportunism, it sanctioned and encouraged both the growth and the expression of extremely conservative Islamism in much of northern Nigeria, often claiming to implement „Sharia’ by extra-legal means. In addition, there are a host of practices, with no legal basis at all, which are being imposed on society in the name of ‘sharianization’. These include the widespread imposition of dress codes on women, attempts to force women to sit at the back of public vehicles, and a midnight curfew in Gusau. Many of these are enforced by extra-legal groups of young men vigilantes – sometimes openly supported by the state government as in Zamfara, but sometimes with attempts to control and stop them from taking the law into their own hands, as in Kano state.47
    As it has been discussed elsewhere in this research work, these groups of the so-called women‟s rights activists are being sponsored by the West to cause social disruption particularly in Northern Nigeria and the above remarks of Ayesha Imam, no doubt, lend credence to this assertion. Above all, her aggressive comments on the practice of Islamic child marriage vis-à-vis the exercise of the power of ijbar, is perhaps, highly reprehensible and further reinforces our considered view in chapter four of this work, that
    46 Ayesha Imam, Women, Muslim Laws and Human Rights in Nigeria, An online article under the auspices of the Africa Program of an NGO “Independent Research, Open Dialogue & Actionable Ideas”, available at: http://www.wilsoncenter.org/publication/women-muslim-laws-and-human-rights-nigeria-0# accessed on the 4th September, 2013 47 Ibid the feminists never cater for the interests and welfare of the girl-child nor her positive future as they advocate, but to dilute her Islamic moral upbringing and get her plunge into the dexterities of sexual immoralities as is common in the west today whereby sexual freelance is the social norm provided contraceptives is employed. Moreover, Ayesha Imam herself is sternly concerned with the resentment of sex education by Muslims in Northern Nigeria and this correlates our view that the feminist are opposed to the idea of Islamic child marriage vis-à-vis the exercise of the power of ijbar simply because it defy the satisfaction of Western strategic interest of population control in the Muslim world especially in Northern Nigeria. Ayesha Imam‟s words are an expose on this conspiracy of the feminists:
    This is having serious consequences for women’s reproductive rights. For instance, sex education is being removed from school curricula. Attempts have been made to prevent non-governmental organizations from running sexuality education workshops (on family planning and reproductive health care, for example). The father’s right to control the marriage of a never-married daughter (ijbar) is being re-asserted, and child marriage is being advocated again.48
    1.7 JUSTIFICATION/SIGNIFICANCE OF THE RESEARCH
    The writer is of the view that the intended research is justifiable and of significance for it would be beneficial to all stakeholders to the social welfare of children in the society. Thus, the research would be very helpful, relevant and beneficial to Government in the formulation of law and policy on child rights in Nigeria; to Shariah/Area Courts’ Judges in their application of Islamic Law in the resolution of issues of marriage guardianship (ijbar); to Lawyers in handling briefs on matrimonial causes relating to Islamic chi 48 Ibi marriages; to parents and guardians in fostering and attaining happy and successful marriages of their children; families in maintaining filial ties; to the society in the reduction of rates of sexual immorality among young and teenage girls; etc.
  3. 1.8 ORGANIZATIONAL LAYOUT
  4. This research work is structured into five chapters as follows:
  5. Chapter One: primarily deals with the General Introduction identifying the Statement of the Research Problem(s), Aims and Objectives of the Research, Scope of the Research, Literature Review, Justification/Significance of the Research and Organizational Layout.
  6. Chapter Two: provides overview on the concept of marriage under Islamic Law; its meaning, nature, scope, legality, objectives, classifications, essential requirements, matrimonial rights and obligations of spouses, etc.
  7. Chapter Three: deals with the concept of marriage guardianship under Islamic law; and the chapter focuses on the requirement and role of matrimonial guardians (wali) and the issue of consent to marriage under Islamic (family) law.
  8. Chapter Four: discusses and analyzed the concept of ijbar and its impact on child marriage in Islamic law. The chapter focuses on the peculiarities of the concept of ijbar, its cessation and limitations as well as the remedies and safeguard against improper exercise of the power of ijbar by parents and guardians. The chapter further examined and analysed Islamic position on marriageable age and its impact on the practice of child marriage; the impact of ijbar on minor‟s consent in marriage; an analysis on contemporary arguments for and against ijbar vis-à-vis the practice of child marriage; an
  9. a cross analysis on the proponent‟s and opponent‟s views on child marriagevis-à-vis the concept of ijbar.
  10. Chapter Five is the final chapter and it contains the summary of all the preceding chapters. It contains observations and recommendations and the concluding remarks on the work.

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