Female child marriage in The Muslim Personal Law Act of Sudan, 1991

This article is prepared to assist lawyers defending the rights of the children who are married before reaching the age of eighteen years of age according to the Personal Status of Muslims Law of 1991 based on the provisions of Islamic jurisprudence, or according to the customs of some areas in Sudan based on the same jurisprudence. In particular, the article aims to clarify the necessary procedures that lawyers can follow in the event of the marriage of a female child under the age of eighteen and to inform them of the child’s rights provided for under the constitutional document and the regional and international conventions that prohibit this marriage.

Introduction

The phenomenon of female child marriage is one of the most widespread phenomena in Sudanese societies. This phenomenon finds support in the four Islamic Sunni schools (Al-Maliki, Al-Shafi’i, Al-Hanafi and Al-Hanbali), which approve marriage for a child under the age of eighteen.

These schools of thought found their way to the Sudanese legal system, as the Personal Status Law for Muslims of 1991 approve the marriage of a minor child from the age of ten, when the court authorized this marriage because of a preponderant interest (Article 40).

Article 2 of the 1991 Penal Code stipulates that consent of an immature person shall not be taken into account. An adult, as defined by the Criminal Code, is a person who has been proven to have attained the manhood by definitive natural signs and who has completed fifteen years of age. However, the Child Law of 2010 sets the age of puberty at the age of eighteen. Therefore, anyone under the age of eighteen is considered a child.

According to Article 6 of the Law of Interpretation of Laws of 1974, the provisions of the subsequent law shall prevail over the previous law to the extent that it eliminates the conflict between them, and the provisions of the law subject to the general rule, in the event of conflict. Accordingly, since the Child Law is a private law, while the criminal law is a general law, the Child Law is the applicable law.

Guided by this, the marriage of child girls covered by the text of Article 45 of the Child Law is classified as rape.

Although the Child Act of 2010 states that any sexual intercourse with a person under the age of eighteen is considered rape or sexual harassment, however this sexual practice is not considered a crime according to the Personal Status Law for Muslims and this is a clear contradiction between the two laws.

This practice has a religious basis, based on the fact that the prophet Muhammad, was married to Alsayeda Aisha when she was six years old, as mentioned in some Hadiths of the Prophet. This is the main reason why societies should marry girls of this age, following the approach of the Prophet. It is also the reason why the legislator authorized the marriage of young girls in the law.

Step 1. Interviewing the victim and collecting primary data

Under age marriage of girls has legal complications that make it difficult to get rid of this practice through legal procedures alone, without paying attention to the educational role that all those concerned with children’s rights must scramble towards. As we mentioned above, sexual intercourse with a child under the age of eighteen is considered a crime, whether it is rape or sexual harassment, both of which are crimes related to the public right and which may be reported by any person in accordance with Article 34/1 of the Criminal Procedure Code law, except that the notification will not hold, because the marriage procedures were carried out properly in accordance with the Personal Status Law for Muslims, which are derived from Islamic Sharia, and therefore the complaint will be disqualified. As for the marriage annulment, the lawsuit will be filed only by the girl’s family and those who have a relationship with her (the guardian or the litigation guardian appointed by the court). Therefore, the girl’s family is the one who has to seek to annul the marriage of the minor, and this is rare.

In the case of reporting the occurrence of the marriage of a girl under the age of eighteen, it is necessary to start by meeting one of her relatives who does not support the marriage of the young girl at all, and take the data related to the full name of the child and the name of her mother and the rest of her guardians if her father is deceased or absent, and the age of the child through the birth certificate or through the testimony of witnesses if she did not obtain a certificate for her Birth, and in this case she must be presented to the doctor after filing the case before the Personal Status Court, as we will explain later. Then the lawyer must investigate whether the guardian of the child has taken permission from the court to marry her or not, and if the guardian has obtained a permission from the court, who are the people with whom the judge investigated in order to obtain permission and investigate the reasons upon which the judge relied on granting permission. The information related to the husband must be taken as his name, profession, address and age.

But if it becomes clear from the interview that the child is under the age of ten, it is necessary to investigate about the person who concluded the marriage on behalf of her, and the notary public, in addition to the information mentioned above.

Step 2. Facts and legal analysis

We have mentioned in the foregoing that the personal status law for Muslims based on the doctrines of Islamic jurisprudence permits in Article 40 of it the marriage of the child from ten years of age, with two conditions:

The first: The existence of a favourable interest expected from the conclusion of the marriage contract.

The second: obtaining permission from the court to conclude the marriage contract.

Thus, when it appears from the facts mentioned in the interview shown in the first step that the child has reached the age of ten, it must be verified immediately whether the court granted her guardian permission to marry her or not. But if the child is less than ten years old, there is no need to ask for the court’s permission then, and a lawsuit to annul a marriage should be filed as we will explain in the third step.

It is worth clarifying that in all cases, the lawyer must combat child marriage when the child is under 18 years of age. We intended to differentiate between the situation in which the court's permission was obtained from the situation in which the permission is not taken, to differentiate between the procedures that must be followed according to each case, since the procedure is different in every case and the error in taking the appropriate action results in the loss of the lawsuit and perhaps the loss of the right. Below, we will explain the procedure and the obligation to follow in each case when initiating a lawsuit to annul (Ibtal) or dissolve (Faskh) a marriage.

Step 3: Procedures of filing the case.

The Personal Status of Muslims Act 1991, in terms of procedures, is subject to the general rules of the Civil Procedure Code of 1983, and in particular to the rules listed in the third table attached to the Civil Procedure Code. In this step we will describe four types of procedures related to filing a lawsuit to annul (Ibtal) or (Faskh) dissolve marriage, namely: the place of filing the lawsuit, the type of lawsuit, who is entitled to file the lawsuit, whoever filed the lawsuit against him.

  1. The place of filing the lawsuit

In personal status cases, the lawsuit is filed in the wife's place of residence, whether she is a plaintiff or a defendant, according to the provisions of the Civil Procedures Act 1983. In the case of marrying a child who is under eighteen years of age, The child is represented by a guardian of the litigation appointed by the court in accordance with the text of Article 116 of the Civil Procedures Law of 1983, and the guardian appointed by a competent court is considered the guardian of the litigation unless the court orders otherwise in accordance with the text of Article 117 of the same law, and the legislator did so well that the marriage would not have taken place without his Blessing, in most cases, and then the case must be brought before the competent court in the area in which they reside.

  1. The type of lawsuit

If it becomes evident through the documents and statements of witnesses during the interview that the married girl has completed the age of ten and has not reached the age of eighteen at the time of the conclusion of the marriage contract, then a marriage dissolution case must be filed, and it is settled if the marriage contract is concluded with permission issued by Court or without court permission. However, if it appears from the documents or witnesses ’statements that the child who was married did not complete the age of ten, a lawsuit to nullify a marriage must be instituted, given that the law does not permit this marriage at all.

  1. Who is entitled to file a lawsuit?

The lawsuit shall be filed, whether in regards to the dissolution of a marriage or annulment of a marriage, by the child’s guardian as a plaintiff, provided that the lawyer clarifies in the petition (guardian of the case) of the child in accordance with provision the Civil Procedures Act of 1983. The guardian of the dispute shall be one of her guardians or relatives, provided that he is not the same person who entered into the marriage contract. However, if the lawyer does not find a person who wishes to be the guardian of the dispute for the child, the lawyer may submit an application to the court to appoint a guardian of the dispute without her relatives, in order to preserve the child’s interest in the event that her personal interest conflicts with the interests of her parents or relatives.

Step 4. Appealing decisions affecting the interests of the child

If the court’s decision is not in the female child’s interest, the lawyer must appeal the decision to the Court of Appeal within (15) days from the date of the decision. If the Court of Appeal upholds the decision of the trial court, its decision must be appealed to the Supreme Court, and then to the Supreme Court Review Chamber. After exhausting the available grievances, the lawyer must submit a constitutional case to the Constitutional Court requesting the declaration of the unconstitutionality of Article (40) of the Personal Status Law for Muslims.