How courts decide if a child can marry

Ismail-Yahya-married-lawPETALING JAYA: The child’s welfare is the foremost consideration when a shariah court weighs the pros and cons of a proposed marriage involving an underage bride, according to a retired judge.

“For example, the court needs to take into consideration whether the future husband is able to make his wife happy and whether she will be well taken care of,” former Terengganu chief syarie judge Ismail Yahya told FMT.

“The court will also ask the would-be bride and groom whether they are aware of their responsibilities when they enter into a love union.”

Ismail said the court would not give the green light if the youngsters appeared confused when questioned on the responsibilities of marriage.

He said he once told a 15-year-old girl to wait until she turned 16 to get married.

Under state syariah enactments, the age of consent for Muslim women is 16.

Ismail said written judgments for marriage applications were not published in law journals such as the Malaysian Current Law Journals and the Malayan Law Journal.

“These applications involve children and we do not announce the decisions to the public,” he said, adding that the applications were heard in chambers instead of open court.

Sisters in Islam legal officer Andi Suraidah told FMT her organisation had found it difficult to obtain information on how judges make rulings on the marriage applications.

“We have written to the Shariah Justice Department to get the statistics on the number of marriages approved,” she said. “But we have not got any response. So it is difficult for us to identify problems in child marriages.”

Andi said there were claims that children were not present before the judges to have their opinions heard.

“The children should have their right to be heard and their parents should not be the ones giving their testimonies,” she said.

The issue of child marriages is in the news again following Tasek Gelugor MP Shabudin Yahaya’s controversial remarks about the occasional desirability of marrying off rape victims to the culprits.

“If a girl was raped and got married, she will not live through a bleak life,” he was quoted as saying in the Hansard during the Dewan Rakyat debate on the Sexual Offences Against Children Bill.

He also said marriage would not be a problem for young girls if their bodies were as developed as those who had reached 18.

He has since said his speech had been taken out of context.