Truth Behind Child Marriage in Malaysia

BY LIRA JAMALUDDIN

OCTOBER 17, 2017

Marie Claire interviewed Shareena Sheriff  a programme manager with women’s group Sisters in Islam about the issues related to child marriage in Malaysia and her quest to change the legal age of marriage. For non-Muslims the minimum age of marriage is 18 for boys and girls, however, an exception is allowed for girls between 16-18 years to marry with the approval of the Chief Minister of the State.  For Muslims, the minimum age of marriage for boys is 18 years and for girls it is 16 years, however, the Shariah Court may approve a marriage of a child of any age.  Effectively, for Muslims, there is no minimum age legislated.

Shareena Sheriff and Honey Tan (Source: https://www.bfm.my/honey-tan-shareena-sheriff-cedaw.html )

Is religion a sore point when it comes to discussing child marriage? Does it, in fact, get in the way of having a forthright and balanced discussion on the issue?

First and foremost, it must be said that child marriage is a global issue.  In Malaysia, it occurs in all cultures, ethnicities and religions.  It was a common practice during the days of our grandparents and great grandparents.  But just look around – much has changed since then.  As our country grows in prosperity and as our children are given opportunities and access in education, health and a chance as a meaningful economic contributor in our society, it is our duty and responsibility to tackle the harmful cultural practices and traditions which remove these opportunities from a child.

Child marriage, according to international standards, is any form of union or marriage involving a party or parties below the age of 18. This practice, which is an affront to basic human rights for children and women alike, enjoys a status of legality in Malaysia with registration of marriages involving those below 18 sanctioned explicitly for Muslims and non-Muslims.  For non-Muslims the minimum age of marriage is 18 for boys and girls, however, an exception is allowed for girls between 16-18 years to marry with the approval of the Chief Minister of the State.  For Muslims, the minimum age of marriage for boys is 18 years and for girls it is 16 years, however, the Shariah Court may approve a marriage of a child of any age.  Effectively, for Muslims, there is no minimum age legislated.

In advocating for reform of age of marriage laws, the conservative Muslim voice is the largest force of resistance. This resistance has been growing in size and strength, necessitating Sisters in Islam to focus stronger advocacy on this issue.

When questioned on the legitimacy of child marriage in Islamic law, long accepted practices and interpretations with regards to the age of Aisyah at the time of marriage to Prophet Muhammad (pbuh) and medieval notions of puberty are used as proofs of its legality and adherence to Hukum Syarak. Despite evidence putting doubt on the credibility of hadiths on Aisyah’s tender age and modern interpretations of the Holy Quran on the concept of puberty and meaningful consent to a marriage, the archaic approach is still preferred.

Islam and its followers have progressed since the days of the Prophet (pbuh).  Slavery, infanticide and violence against wives was an accepted culture then.  They are now considered as crimes, both against the person and under the religion. Child marriage should receive the same consideration.  However, in this instance, religious dogma has proven to be a significant barrier to reforming the law.

It is argued that in Islam, a girl is allowed to marry once she reaches puberty, thus no law that sets a minimum age of marriage can apply to Muslims. The Islamic Family Laws sets this at 16 years for girls and 18 for boys. But exceptions are allowed with the permission of the Shariah Court.  We have had girls marry as young as 10 years old.  This cannot be happening in Malaysia you say?  These are the facts and we are complicit if we stand by and allow this to continue.

The conservative Islamic approach refuses to consider the hundreds of research studies available out there detailing the harmful impact of child marriage.  It negates the lived realities of these children and the injustices they face as a result of the situation they are placed in.

The harmful effects of child marriage on a child is no longer doubted.  In most cases, the children have to stop school, particularly if the girl bride becomes pregnant.  This makes them reliable on their parents or on menial jobs.  The financial strain becomes a huge burden when they start a family. The children also feel ostracised as their friends and peers go to college and start a career.

Child marriage is particularly harmful to the health of a girl bride whose physical development has not reached sufficient maturity to conceive and deliver a baby.  Lack of contraception and not knowing about family planning leads to early pregnancies.  Where the age gap is large, the girl child is unable to negotiate sexual relationship making them extremely vulnerable to emotional and physical abuse.  Indeed, children who marry early are prone to violence in marriage. There may be complications or even death at delivery.

Given this knowledge, it is time for us to rethink our laws and policies.  It is the role of the State and the society to protect our children and ensure that our legal, administrative and religious systems support the well being of each and every child in the country.

What would you say are the reasons behind the sustained demand for child marriages here? And what, in your view, are the best tools for confronting the perception that child marriages are acceptable?

The International Centre for Research on Women attributes four main causes to the practice of child marriage across the globe: i.e. poverty, lack of education and job opportunities, insecurity in the face of war and conflict, and the force of custom and tradition. Globally,  child marriage is much more common in poorer countries and regions, and within those countries, it tends to be concentrated among the poorest households. Little or no schooling strongly correlates with being married at a young age. In unsafe regions, parents may genuinely believe that marrying their daughters is the best way to protect them from dangers such as rape, abduction or being recruited by armed groups

Malaysia is perhaps not so straightforward in its motivations for child marriage. It is a country that has achieved significant economic progress and is categorized as an upper-middle income country by the World Bank. Literacy rates, in particular female literacy rates in Malaysia is high. Thus, this debunks the notion that girls are often married off due to parents’ unwillingness or inability (driven by poverty) to provide education. In fact, according to the UNESCO Institute for Statistics, in 2015, the gross enrolment ratio in tertiary education shows that there were more female who were enrolled in a tertiary educational institution compared to males.

The commissioned study by the United Nations Children’s Fund (UNICEF), United Nations Development Programme (UNDP) in Malaysia and the Centre of Research for Women and Gender (KANITA, University Sains Malaysia) in 2011 showed that respondents to the qualitative study were mostly of lower economic status but they did not give poverty as a reason for entering into marriage. Most marry due to pregnancy or having had sexual relations. Poverty may be the circumstances surrounding the respondents but may not be the primary reason for entering into marriage.

The moral integrity of a girl is interlinked with the integrity of the family, the community and the society as a whole.  This issue of shame and ‘saving face’ drives many parents to marry off their daughters once they become ‘associated’ with a boy. Rape victims are seen as damaged goods and so marrying her off, even to the person who committed the rape on her, is seen as a better option and ‘for the benefit of the girl child’. A short term solution is preferred to resolve the shame of the moment.  The long term impact is an unstable union of children too young to understand the gravity of the responsibilities of marriage and family.  Divorce and all the unnecessary complications often follow.

We are a changed society.  Our way of life is different, our children are exposed to temptations and so many other cultures and ways of life than we or our parents were.  Curiosity sometimes gets the better of them.  Misconduct happens.  Mistakes are inevitable.  Do we punish a mistake with a lifetime of deprivation and suffering? Or do we instead try to accept the realities of this world our children are living in?  Give them knowledge and education.  Teach them to manage peer pressure, and care for their bodily space.  Have compassion and understanding where their choices don’t match with societal and religious expectations.  Provide them with support and options when they are in trouble.  Build their lives again. One ‘mistake’ should not define their lives.

How do you view the rights of the child within the legal framework of the Malaysian judicial system? Do you think the current system offers sufficient protection to children who have, say, been sexually assaulted and then forced to marry their rapists as a ‘solution’ to the issue?

The recent Child Sexual Offences Act 2017 is a step in the right direction.  Under the law, serious punishment is accorded to sexual crimes against children such as grooming (touching and befriending children as a prelude to sexual abuse), making and possessing child pornography and child sexual abuse or if a person is found withholding information on sexual crimes against children. A special court will also be set up under the new law to deal with child sexual abuse cases more quickly.  Regretfully, child marriage was not included in this legislation nor was it included when the Child Act was amended last year.

The legal system needs to consider what is in the interest of the child at all levels.  Abuse of children happens in different ways – neglect by caregivers, physical abuse, sexual abuse, abandonment and so on.  The police, the hospitals, social services, parents, relatives, community, teachers and schools need to be taught to identify child abuse and ways to deal with it.  Children often lack the capacity to make a report of abuse or to remove themselves from the situation of abuse, thus it is our collective responsibility to ensure their safety and well being.

What changes in existing legislation would you like to see, in order to help prevent child marriage – especially in post-rape cases?

There have been several instances where rape charges were withdrawn or not pursued as the victim ‘agreed’ to marry the perpetrator.  We suspect that there are many cases such as this that are unreported and dealt with through marriage to ‘settle’ the issue.

Recently, a 28 year old man’s marriage application to a 15 year old girl was approved by the Shariah Court.  The former was accused of raping the latter, who was then only 14. Pursuant to the presentation of the said marriage certificate in court, the alleged rapist was discharged not amounting to acquittal, of statutory rape charges with the presiding judge saying that, “there is no necessity to proceed further with this case”.  Following the outcry of human rights and women’s rights groups, a retrial was ordered later in the year.  The man was found guilty and is currently serving a jail term.  The girl remains his wife.

Marriage is only a defence to rape where the man and woman are married at the time of rape.  (This is an issue of marital rape which Sisters In Islam is also seeking to criminalise).  Marriage after the rape is not a defence, and does not in any way act as a reason to stop prosecution of the perpetrator.  In the case above, it was an arbitrary decision of the public prosecutor.  His decision was overturned as a result of the public outcry that followed.  The marriage itself can only occur with the sanction of the Shariah Court.  What is required is for the Shariah Court to take into account the incident of rape when considering the petition of marriage.  In the case above, the Shariah judge should have considered the interest of the child and rejected the application for marriage knowing that the man had violated the girl child.

Sisters In Islam together with the Joint Action Group for Gender Equality calls for the minimum age of marriage to be set at 18.   This should be applied across the board for Muslims and non-Muslims.  It is recognised however, that legislation itself is not sufficient in changing mindsets and attitudes.  It is essential to have a pragmatic approach in order to achieve real and substantive outcomes.  We do not wish to see child marriages go ‘underground’.  This would be even more detrimental to the children.  We need to reach a common ground with all communities within Malaysia and change the Malaysian society’s views and beliefs on child marriage.  This requires long term efforts and may require a national level campaign to educate the public and create social consciousness on the issues. Going hand in hand with this effort must be education, awareness and empowerment of the children, their parents, community leaders and the society at large.  Gender-sensitisation and education focusing on raising awareness of the harmful impact of child marriage, and removing patriarchal beliefs among parents, religious leaders, community leaders, policymakers and young girls and boys is absolutely critical. There is also an urgent need for a more comprehensive sexual education in order to combat the issue of teenage pregnancy.

Videos from the recent forum on child marriages organised by Sisters in Islam.. For more information follow their Facebook page here 

Photo: https://qz.com/783681/child-marriage-is-allowed-in-more-than-100-countries-including-the-united-states/Artoi

Article source :  Marie Claire Malaysia

 

 

 

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