Is Iraq legalizing child marriage?

This report was prepared in cooperation/collaboration with Musawah.

A few weeks ago, I came across a suggested proposal to amend Iraq’s Personal Status Law. I felt hopeful. I thought to myself, ‘This is great news! Things will start getting better for women,’ but then I was stunned.

In every country, it’s natural for legislative frameworks to evolve and adapt to our realities on the ground. But in Iraq, it seems we insist on regressing rather than progressing. This raises the obvious question: Why do we drag the law backward?

The proposed amendment to Iraqi Personal Status Law No. 188 of 1959 has sparked widespread controversy both within Iraq and internationally. The discussion has centered around changes proposed by parliamentarians regarding the legal age of marriage, the registration of marriages in courts, the legal and religious framework for interfaith marriages, child custody, and the rights of divorced women.

This proposal, submitted by MP Raed Al-Maliki, focuses on amending three main articles: introducing a clause that allows citizens to choose Sunni or Shia jurisprudence in personal status cases, abolishing the article that criminalizes marriage contracts outside the court system, and granting courts the authority to validate marriage contracts for adults upon the authorization of Sunni or Shia endowments.

The draft contradicts the core objectives of Islamic law, which emphasize the preservation of five essentials: the preservation of self, reason, faith, lineage, and wealth. Furthermore, it undermines the principle of legal equality and threatens the rule of law by shifting authority in personal status cases to religious clerics instead of enforcing civil law.

Hadeel, who requested anonymity, is a program officer at an NGO in Iraq. She explains that child marriage leads to higher rates of violence and divorce. This often results in girls returning to their families with children they cannot support, exposing them to the risk of a second marriage, and repeating the same failed cycle. Such experiences may drive many of these girls to suicide.

"I believe the prevalence of marriages conducted by an Imam or Sayyid—who have no legal authority—exacerbates the issue of child marriage. In such cases, marriages are registered only with religious courts,” she told Raseef22. “While the draft law does require the subsequent registration of these marriages within a specified timeframe, this process can take long enough for a girl to be married and divorced before the marriage is officially recorded. As a result, she loses all her rights—assuming that she even negotiated any rights in the religious marriage contract."

How do Shia scholars view child marriage?

The Qur’an describes marriage as a solemn covenant, a contract freely entered between two parties. Thus, no one can enter into such a contract without reaching the age of maturity.

In a response to a BBC inquiry, the office of Grand Ayatollah Sistani stated that the practice of marrying minors was once widespread in many societies. Consequently, some rulings related to child marriage were removed from recent editions of his jurisprudential texts. However, as the practice has diminished, these provisions have been omitted in more recent editions. The office clarified that guardians may not marry a girl unless it serves her best interest—which cannot be ensured before she is mentally and physically prepared. Moreover, such a marriage cannot contravene the law, as it would inherently fail to protect her interests.

The proposed amendments to Iraq’s Personal Status Law sparked significant debate surrounding the legal age of marriage, the registration of marriages in courts, the legal and religious framework for interfaith marriages, child custody, and the rights of divorced women.

In the book Justice and Beauty in Muslim Marriage: Towards Egalitarian Ethics and Laws, Mohsen Kadivar, a professor of Islamic Studies at Duke University, explains that for any religious ruling to remain valid, it must satisfy four essential criteria: justice, morality, rationality, and effectiveness according to the standards of the times. Applying these criteria to child marriage clearly underscores the necessity of its prohibition.

“There are some exceptions to the widely accepted stance on the guardianship of fathers or grandfathers and their authority to arrange child marriages. For example, the Iranian jurist Makarem Shirazi stated in his book The Rulings of Women that ‘the guardianship of the father or paternal grandfather depends on the interests of the minor,” Dr. Ali Reza Bhojani, a Teaching Fellow in Islamic Ethics at the University of Birmingham, told Raseef22. “In this era, the welfare or benefit of the minor is not achieved through marriage. Therefore, fathers are prohibited from arranging marriages for their minor sons or daughters, except in exceptional cases.”

Although individuals who follow Islamic jurisprudence–as opposed to being independent jurists–are generally obligated to adhere to the rulings of a specific Shia authority, Bhojani argues that if they encounter a glaring moral objection to any of their rulings, they may choose not to act upon it. Every individual is ultimately accountable to Allah, and the role of religious scholars is merely to serve as a means to understand divine law, not as absolute arbiters.

This proposal focuses on amending three main articles: introducing a clause that allows citizens to choose Sunni or Shia jurisprudence in personal status cases, abolishing the article that criminalizes marriage contracts outside the court system, and granting courts the authority to validate marriage contracts for adults upon the authorization of Sunni or Shia endowments.

The Qur’an and prophetic hadith and traditions

Sheikh Hussein al-Khechin, a professor of advanced studies in the subjects of jurisprudence and principles at the ‘Hawza’ seminary in Lebanon, raises critical questions: is it reasonable to address the issue of child marriage relying solely on hadiths whose authenticity remains uncertain? And, even if their authenticity were established, should the sayings of the Prophet be binding upon us if they no longer align with the realities of our time? Moreover, should the text alone be our sole reference on a matter so heavily influenced by changing circumstances?

The Holy Qur’an contains only two specific references to determining the age of maturity, according to Sheikh al-Khechin. One of these is the phrase “bulugh al-nikah” (‘attaining the age of marriage’) in verse six of Surah An-Nisa, which indicates both physical and psychological readiness; this may differ from reaching the age of puberty.

The other term used in the Qur’an is "bulugh al-hulm," which signifies reaching puberty and achieving a certain level of mental maturity and discernment, after which they must ask for permission to enter homes and rooms (Surah An-Nur, verse 58).

According to these two verses, it therefore becomes evident that maturity is defined by both physical/sexual puberty and mental discernment and maturity.

Sheikh Hussein al-Khechin rejects the narration of the Prophet marrying Aisha at the age of nine. He argues that it is impossible to ignore scientific facts about reproductive health. Consequently, religious scholars must prohibit sexual relations with a girl who is not physically ready for them, even if there are textual references to the contrary. If such relations are harmful to their bodies, they would be akin to rape—a practice that requires no additional evidence to be proven forbidden. It is sufficient to rely on the general principle of forbidding harm to others.

As for the Sunnah—the sayings, practices, and teachings of Prophet Muhammad—Sheikh Hussein al-Khechin rejects the narration of the Prophet marrying Aisha at the age of nine. He argues that it is impossible to ignore scientific facts about reproductive health. Consequently, religious scholars must prohibit sexual relations with a girl who is not physically ready for them, even if there are textual references to the contrary. If such relations are harmful to their bodies, they would be akin to rape—a practice that requires no additional evidence to be proven forbidden. It is sufficient to rely on the general principle of forbidding harm to others.

What about Sunnis?

As for the Sunni sect of Islam, many contemporary fatwas and scholarly interpretations prohibit child marriage. The most significant example is a fatwa from Al-Azhar al-Sharif, which asserts that a girl must be a mature adult and not merely at the age of puberty. This interpretation is based on Surah An-Nisa, verse six, which reads:

“{Test ˹the competence of˺ the orphans until they reach a marriageable age. Then if you feel they are capable of sound judgment, then release their wealth to them}.”

It is also supported by the prophetic hadith which states that a “previously married woman must not be given in marriage without her consent and until she is consulted, and a virgin must not be given in marriage without her permission.”

Is it reasonable to address the issue of child marriage relying solely on hadiths whose authenticity remains uncertain? And, even if their authenticity were established, should the sayings of the Prophet be binding upon us if they no longer align with the realities of our time? Moreover, should the text alone be our sole reference on a matter so heavily influenced by changing circumstances?

Likewise, the former head of the International Union of Muslim Scholars, Yusuf al-Qaradawi, previously reiterated that “a specific minimum age must be set to deter those who disregard the best interests of girls. This is an issue that concerns the general public, not isolated cases.”

The harsh reality we turn a blind eye to

Iraqi courts approved over 37,000 marriages that took place outside the courts between January and October 2023, according to Human Rights Watch. These cases typically involve girls below the legal age of marriage, with their families seeking official validation only after the girls reach the legal age.

Former Iraqi Minister of Women, Bushra Al-Zuwaini, emphasized that child marriage imposes an economic burden in addition to its health and social consequences on girls. She noted that young girls are naturally ill-equipped to adapt to their husband’s family or handle the responsibilities of marital life at such an early age.

Hadeel argues that while amendments may be an urgent necessity, they must be based on scientific, legal, and jurisprudential foundations that recognize current realities and challenges. Reform cannot be driven by outdated perspectives that see women merely as sexual beings or second-class citizens or creatures. What truly protects women is the authority of the state, a robust legislative system, and the enforcement of Iraq’s existing Law No. 188.

I recall now a prophetic hadith I studied as a child, about a man who suffered a severe head injury. He was advised by some family members to perform ablution despite his wound, and the man died. The Prophet here did not praise their rigid adherence to the literal text, but instead rebuked them, exclaiming: “You have killed your companion!”

The lesson here is that such rigid adherence, without considering logical reasoning or any consequences in exceptional cases, can be dangerous. Individuals cannot escape accountability or responsibility in their actions. Both the cleric and the legislator will remain accountable for their rulings and their consequences. Should we not aspire for reasoned judgment and interpretations to rise above blind adherence, and instead work together to end the war on girlhood?