5 Reasons Why Some People Still Get Away With Child Marriage In Malaysia
"I told myself, 'One day I will take this girl as my wife', and I did so four years later," Che Abdul Karim Che Abdul Hamid was quoted as saying by Berita Harian, who had taught Al-Quran to the girl since she was little.
Furthermore, Che Abdul Karim is one step closer to cementing the legal status of his relationship with the girl in Malaysia after submitting marriage documents to the religious office in Gua Musang, Kelantan last week.
The controversial marriage is just the latest addition to a legalised epidemic in Malaysia
Marriages of non-Muslims are subjected to the Law Reform (Marriage and Divorce) Act 1976, while Muslim marriages are regulated under the Islamic family laws of each state. Hence, there is a difference in uniformity between the civil and Syariah laws for marriages in Malaysia.
According to a report by Sisters In Islam (SIS), 152,835 teenagers between 15 and 19 years old were recorded to be in a marriage in the 2010 Population and Housing Census. It was also revealed that the Malay Muslims are the most afflicted by the practice.
On top of the difference in uniformity of laws regulating marriages, SIS reported the National Fatwa Council as failing to label child marriage as "haram" (prohibited) back in 2014 despite discouraging the practice.
Moreover, although the calls for law reform on child marriages in Malaysia are not new, it remains hindered due to a combination of religious and moral stigmatisation of sexual activity outside marriage.
Therefore, Malaysia's legal framework has not been able to effectively criminalise child marriage. Here's why:
1. Minimal punishment
Che Abdul Karim was slapped with a mere RM1,800 fine for the charges of marrying a minor without consent from a Syariah Court, and for engaging in polygamy without permission of his spouse.
According to Kelantan's Islamic Family Law, Che Abdul Karim's offences only carry a maximum of six months' imprisonment each, or a fine of up to RM1,000, or both.
Punishments could even be avoided completely as having sexual intercourse with when one is married to a minor is not considered as statutory rape in Malaysia, according to SIS.
Although having sexual relations with a girl under 16 years old is prosecutable under Section 375 of the Penal Code for statutory rape, the provision exempts sexual intercourse between a man with his wife.
2. No minimum age
It is stipulated in Islamic family laws that marriages involving individuals under the age of 18 and 16 may be approved at the discretion of a Syariah Court judge. This loophole basically means that there is no minimum age of marriage for Muslims.
For instance, the Islamic family law for Selangor states that a Syariah judge may grant his or her permission to underage marriage "in certain circumstances". This, combined with the loose enforcement of the Penal Code on statutory rape, means that Muslim children are highly vulnerable to being married off at a tender age.
3. Parents are allowed to apply for marriage on behalf of their children
The marriage application can be "easily" made by either the couple or their parents at any state religious department, according to Malay Mail.
SIS also reported that parents' testimonies before the Syariah Court are often accepted as sufficient in the application for underage marriages. The child involved might not even get asked to appear in Court.
4. No guidelines for Syariah judges in assessing underage marriage applications
Although Syariah Court judges are empowered to allow underage marriages under "certain circumstances", the grounds on which approvals are given to such couples have never been made clear.
Free Malaysia Today reported former Syariah High Court judge Datuk Ismail Yahya as justifying the lack of clarity by citing the privacy of children in underaged marriages.
However, SIS revealed that getting that approval of the Syariah Court is not hard at all. According to the Malaysian Shariah Judiciary Department (JKSM), the approval rate for child marriages was at 81% in 2015.
5. Difference in Islamic understanding of puberty
Last year, Tasek Gelugor Member of Parliament (MP) Datuk Shabudin Yahaya said that some girls "reach puberty" at as young as nine years old.
His statement reflects a conventional interpretation of the Syariah law by claiming that Aishah was only nine years old when she married the Prophet Muhammad.
This is also widely used as a justification by supporters of child marriage, where reaching puberty is considered a criterion for getting married in Islam, regardless of the child's age.
However, SIS reported Ismail as listing a few signs of puberty under Surah al-Nisa' and a hadith in Al-Fiqh Al-Islamiwa-adillatuh:
- ability to care for their own properties,
- wet dreams,
- pubic hair growth,
- menstruation and the ability to get pregnant.
On the issue of minimum age, Ismail also noted that various hadiths have different age requirements, ranging between 15 and 18 years old.
Lawyer and activist Siti Kasim also said that it is "impossible" to know how old Aishah was when she married the Prophet Muhammad.
"Taking all known accounts and records of Aishah's age at marriage, estimates of her age range from nine to 19," she added.
Hence, the justification of child marriage with the sole reason of hitting puberty remains a non-conclusive issue.
Nonetheless, not all hope is lost after Putrajaya announced earlier today, 18 July, that it will be standardising the guidelines for Syariah Court judges nationwide in assessing applications for underage marriage
Previously, the government had viewed the problem of child marriage as "complex" due to the dual legal system on marriages in Malaysia.
"We are developing an SOP (standard operating procedure) for Syariah judges in approving an underaged marriage with the utmost goal of protecting the child's wellbeing," Deputy Minister in the Prime Minister's Department Fuziah Salleh was quoted as saying by Free Malaysia Today.
The SOP will include health checks on physical, psychological, and emotional state of the child. Furthermore, it will also determine the reasons for an underaged marriage, and look into the financial status of the child's family.