Child Marriages and the Right to Education: The Legal and Social Perspectives

Abstract

Recently, Malaysians were alarmed with the shocking news of a marriage between an 11-year-old Thai girl and a 41-year-old Kelantanese man that took place in Thailand. Though the marriage was valid as it fulfilled all the requirements under Islamic Law, it could not be registered in Malaysia without the consent of a Syariah Court as the bride was below the minimum age permitted by Malaysian Law. The man was prosecuted and received a penalty, but the girl remains as a wife. Being a wife, she would shoulder a lot of responsibilities and must also be able to sacrifice a lot of things. It was reported that the man allowed the girl to continue religious schooling, but it was declined by the latter. Without sufficient knowledge and experience, the girl’s future would solely depend on her husband and the parent. Thus, this research paper aims to study the issue of child marriages in Malaysia and how it would affect children legally and physiologically. This paper also intends to examine on the right to education with special reference to married children. This research paper adopts qualitative methodology by examining relevant statutory provisions, decided cases, international treaties, and articles from selected journals. It is therefore suggested that special care should be placed on the married children, particularly on their right to education and their right to be able to hold the future at their own hands.

Causes and negative effects of child marriage in Malaysia: A case study

“…According to the Islamic Family Law Enactment which applies in all states, the minimum legal age for marriage is 18 years for a male and 16 years for a female. Those under the legal minimum age will only be permitted for marriage if they obtain consent from the Syariah court as well as from their parents" (Makhtar & Ab Kadir, 2019). The following is a statement from Section 8 of the Islamic Family Law (Federal Territories) Act 1984 on the minimum age for marriage:…”

“…Both laws do not specify the exact criteria under which minors can be married. This is because the civil law uses the phrase "at his discretion" while the Islamic Family law says, "in certain circumstances" and leaves this decision to the Syariah judge" (Makhtar & Ab Kadir, 2019). Although this may seem unclear, it allows decision makers to assess the reasons for the marriage, as well as current societal and cultural concerns, before approving or denying it:…”

“…Even the power to allow or disallow child marriage falls under the Syariah Court, it is crucial that the judges to look ahead on the child's welfare, health conditions and rights due to the child marriage as stated by the Fatwa. "On the civil side, certain laws have been introduced that can be seen as progressively taking the interests of the child into consideration, such as the Sexual Offences Against Children Act 2017 which protects children against the recent concern of sexual predators and child grooming" (Makhtar & Ab Kadir, 2019). "Currently, five states -Penang, Sabah, Johor, Malacca and Perak, and Federal Territories -are open to amending the legal minimum age like Selangor, but the implementation process is slow-going.…”

“…The article of "Child Marriages and The Right to Education : The Legal and Social Perspectives" by Makhtar and Ab Kadir (2019) shows that Malaysians were recently horrified by the stunning news of a marriage in Thailand between an 11-year-old Thai girl and a 41-year-old Kelantanese man. Though the marriage was legitimate since it met all of the requirements of Islamic Law, it could not be recorded in Malaysia without the assent of a Syariah Court because the bride was under the minimum age allowed by Malaysian law.…”