What is the law regarding marriage age in Sudan?

It is important to note that under the law of Sudan which Shani and Ahangar claim is farmable to their conservative construc­tion of the Maliki law of ijbar the murdered child (no less than the nineteen year old virgin) could not have been validly married by her father. Article 8 of Judicial Circular No. 54 of I960 reads.

Where it is feared that a girl under the age of puberty who has completed the tenth year of her age may fall into immorality, she may be given in marriage with the consent of the quadi.

The qadi will give such permission on the conditions that the bridegroom is acceptable to the girl, that he is her “equal”, that she is given a suitable jihaz and that the dower fixed for the marriage is reasonable.

The murdered child was married well before she had “complet­ed the tenth year of her age”; there was no fear that she would “fall into immorality” (the only justification for a marriage below the age of puberty).

The bridegroom was obviously not acceptable to her; given the gross disparity in ages, he was arguably not her “equal”; and given the relationship between her father (debtor) and her husband (creditor), it is highly unlikely that a “reasonable” mahr was fixed.

As she was below the age of eleven at the time of her marriage, she could not have been married even with the qadi’s permission; had she been eleven years of age, the qadi would have refused to grant permission for one or more of the reasons suggest­ed above.

Had she reached puberty, her consent would have been required for any marriage arranged by her father.

Even were Nigeria to adopt legislation similar to section 2(vii) of the Dissolution of Muslim Marriages Act, it would offer very limited protection to a girl in the position of the murdered child bride.

She was only twelve years old when she was forced to take up residence with her husband; her right to avoid the marriage would not arise under a provision comparable to the option clause of the Dissolution of Muslim Marriages Act as presently applicable in South Asia until she reached the age of fifteen (India) or sixteen (Pakistan and Bangladesh). She was murdered when she was not yet even thirteen.

A minimal age for the marriage of girls, set at no lower (and preferably higher) than sixteen years and enforced by penal sanc­tions, is imperative.

Such a statute would have at least provided the Nigerian child’s father with a reply when his creditor demanded his daughter in marriage.

However, the statutory definition of a minimal age of marriage raises immediately the question of the status of a marriage solemni­zed in violation of the statutory rule.

In South Asia such marriages are valid; through the girl has a right to repudiate the marriage in some circumstances.

In Muslim countries which have laid down a statutory minimal age of marriage, a marriage solemnized in violation of the legal age is either clearly (e.g., Tunisia) or probably (e.g., Syria) fasid.

A fasid (irregular) marriage, even though not fully valid, does protect any children boen to the union (they arelegitimate issue and legal heirs to their father) and guarantees the wife at least some mahr if the marriage is consummated. But she remains less than a properly married woman and is not an heir to her husband’s estate.

On the other hand, a fasid marriage can be renounced by either spouse without the need of judicial intervention; does not entitle a husband to the custody of his wife’s person; and provides a com­plete answer to a suit for restitution of conjugal rights.

Against this background, the Jordanian approach to the problem of underage marriages is particularly intriguing.

If a girl is married below the age of seventeen years without the permission of the Court, the marriage is clearly initially fasid. However, article 30 of the Jordanian Law of Family Rights 1951, provided:

An allegation as to irregularity of a marriage based on the age of any party thereto cannot be heard by the qadi where the wife has already delivered a child or pre­gnancy has become apparent, or if the conditions relating to age laid down in article 4 have been complied with [i.e., the girl has reached seventeen, or, possibly, the court has retrospectively given permission for the marriage], at the time the action is brought.

This would protect, e.g., a widow from assaults on the validity of her marriage by greedy relatives of her decreased husband.

But at the same time, the marriage could be renounced by the girl at any time before she either conceived or reached the age of seven­teen.

Perhaps it might be better to keep the option open until a year after the girl reached the age of full legal competence to marry.

There would appear to be no minimal age that the girl must attain before she can renounce the fasid marriage under the Jordanian statute, as opposed to the ages of fifteen and sixteen found in the South Asian legislation.

Cohabitation rarely commen­ces before puberty, but physical puberty can occur well below the age of fifteen.

There are many instructive and helpful precedents on which Nigeria can draw when it turns as it surely must serious atten­tion to the problems of adult brides married without their consent and child brides exposed to the hazards of premature marriage and pregnancy.