Determination of the Legal Age of Marriage and Marriage of Minors: A Maqasid-Oriented Analytical Study in Afghan Law

Abstract

This study undertakes a critical Maqāṣid-based evaluation of minor marriage under Afghan law. It examines the extent to which Article 70 of the Afghan Civil Code—which sets the marriageable age at sixteen for females and eighteen for males—and Article 28 of the Afghan Law on the Prevention of Violence Against Women, which criminalises the marriage of any girl below the legal age, conform with the higher objectives (Maqāṣid) of Islamic Sharīʿah and the rulings of Islamic jurisprudence. The central problem addressed is that the Afghan legislator, in regulating minor marriage, has effectively imported international legal standards that conflict with classical juristic principles, thereby stripping the guardian of his wilāyah and imposing a flat criminal sanction on the marriage of any minor female. The study adopts the descriptive-analytical method together with the inductive method for tracing the jurists' opinions and their arguments, and the comparative method for contrasting the Afghan legislative position with selected Muslim family laws. The findings indicate that Islamic Sharīʿah has not fixed a specific numerical age for marriage, but has tied its permissibility to the realisation of legal capacity (ahlīyah), genuine public interest (maṣlaḥah), and physical and psychological capability; that the Muslim ruler is competent, under defined Maqāṣid-grounded conditions, to restrict the permissible; and that guardianship in marriage has been ordained to serve the minor's interest, not to override her will. The study further shows that the Afghan legislator has deviated from the Maqāṣid in several respects and that the Syrian Personal Status Law offers a workable middle-ground model. The study recommends revising Article 70 of the Afghan Civil Code, distinguishing between the marriage contract (ʿaqd) and consummation (dukhūl), drawing on the experience of Muslim family legislations, and resisting the wholesale importation of Western standards that contravene the objectives of Sharīʿah.