RECENTLY I read a news item datelined Riyadh that said that Saudi Arabia was contemplating banning the marriage of girls under 18. This became necessary because a case of a girl aged eight years came to light.

She was married off to a man over 40 years her senior. Many Saudi jurists and ulema, however, uphold such marriages. Grand Mufti Sheikh Abdul Aziz al-Sheikh endorses the practice of marrying underage girls, arguing that in doing so they avoid spinsterhood or the temptation engaging in relationships outside wedlock. According to other reports many young girls in Arab countries that observe tribal traditions are married to older husbands but not before puberty. Such marriages are also driven by poverty in countries like Yemen, one of the poorest countries outside Africa.

But in countries like Saudi Arabia it is more of a tribal tradition which is practised in the name of Islam. Here the main question is does Islam permit child marriage? If you ask any traditional jurist he would say 'yes'. But it was more of a pre-Islamic tradition which became part of Islam and our jurists and theologians generally justify it on the basis of the Prophet (PBUH) having married Hazrat Aisha when she was seven. It is doubtful if the Prophet of Islam would marry such a young child.

Modern researchers have established that the hadith regarding Hazrat Aisha's marriage appeared some 300 years after the death of the Holy Prophet. It cannot be relied upon. Moreover, the Quran describes marriage as mithaqan ghaliza (strong covenant) and if marriage is a contract, how can one enter into one with a child who is hardly conscious of the implications of the contract?

It was for this reason that Hanafi jurisprudence has made provisions for what is called khiyar al-bulugh (i.e. option of puberty). According to this provision, if a child is married at a young age (below puberty) she has the option of accepting or repudiating the marriage on achieving puberty. The contractual nature of marriage cannot be altered.

In our traditional culture various pressures work on a girl's mind and once she is married off it is very difficult for her to repudiate that marriage. Thus the Quranic principle is very sound and must not be sidelined in order to uphold traditional practices. Most Muslim communities give priority to their own respective traditions than Islamic principles and jurists, also coming from the same traditional cultures, and find ways to justify such practices. And then these acquire the halo of Sharia law.

Since many jurists insist on following such traditions, the faith becomes a laughing stock for the world media. The minor girl who was married to a man of 50 years of age in Saudi Arabia was finally divorced by her husband only after coming under pressure from the media. And only because of such pressure Saudi authorities are now considering banning the marriage of girls below 18 years of age. If put into effect, the measure will be quite in keeping with Islamic principles.

The need is to understand that what we call Sharia today includes a number of pre-Islamic Arab traditions and customary practices known as aadat (literally practices). Since the Quran was revealed among the Arabs and they were the first to embrace Islam their practices were accepted as part of Sharia law and Islamic principles had to be applied to the body of these aadat. But when Islam spread to other areas local customary laws also continued to be practised.Islamic principles as contained in the Quran are universal and surprisingly modern. It is unfortunate that our jurists and ulema are not ready to rethink our present laws which are a mixture of Islamic principles and aadat. For them Sharia law once formulated becomes eternal, though no student of classical Islamic jurisprudence will agree with such an approach.Whatever was formulated in the past must be reviewed in the light of Quranic pronouncements and child marriage must be banned. If the Saudi authorities have realised the need for banning child marriage, it should be welcomed. If they take this initiative, others can follow. But legislation, though quite necessary, is not enough. Many laws continue to be violated in practice.

Thus, there is an urgent need to spread awareness in Muslim societies. Awareness has to be created among women as, more often than not, they are the victims of many traditions and customs which have nothing to do with Islam. Also, a greater problem lies in areas where women are less literate or illiterate. They need to be made more aware of their Islamic rights to prevent more instances of child marriage and other abuses.

The writer is an Islamic scholar who also heads the Centre for Study of Society and Secularism, Mumbai.