Lesson 1: Orphaned Girls; Violation of Their Rights and Its Prevention
During jahiliyyah guardians holding orphaned girls under their charge used to pick up the good looking or those who owned properties of value and marry them or arranged to have them married to their sons. They would fix the dower of their choice, usually the lowest, and maintained them in whatever manner they elected for they were the very guardians and caretakers for them. Their fathers were not there to take care of their rights and marry them to a suitable person.
There is a narration in Saheeh al-Bukhari from Aishah radhiAllahu anha which reports that an incident of this nature came to pass during the blessed time of the Prophet sallallahu aalyhi wa sallam. A man had an orphaned girl under his guardianship. He had a fruit farm in which this girl held a share. This man married the orphaned girl and instead of giving her dowry and other things from his pocket, he took her farm share in his possession. Thereupon, the following ayah was revealed:
وَإِنْ خِفْتُمْ أَلاَّ تُقْسِطُواْ فِى الْيَتَـمَى فَانكِحُواْ مَا طَابَ لَكُمْ مِّنَ النِّسَآءِ
“And if you fear that you will not do justice to the orphans, then marry the women you like…”
It means that if you apprehend that after marrying a girl under your guardianship, you cannot do justice to her, then, instead of marrying her, you should marry other women of your choice.
Lesson 2: The Marriage of Minors:
The word, “yatama” in this ayah means orphaned girls. In the terminology of the Shariah, a yateem is a boy or girl who has not yet attained the age of puberty. So, this ayah proves that the guardian of an orphaned girl does have the right to give her in marriage while she is a minor and has not attained the age of puberty, but on condition that this decision is based on wisdom and the future welfare of the girl. This is to avoid unfair practices common in some communities where a grown up girl is married to a child without any regard for the difference in their ages or without any investigation into the living conditions or character of the boy.
The orphaned girls who have attained the age of puberty are, no doubt, entitled to choose their husbands freely on the basis of their majority. Nevertheless, girls (in traditional Islamic societies) tend to be modest and shy and usually would not come strong or freely express their opinions in matters relating to their marriage inspite of being major and having the right to choose. As a result, they are likely to accept what their guardians do for them in good faith. If so, it is the duty of guardians that they too should stay clear from taking any step that may violate the rights of orphaned girls.
In short, the ayah lays down the injunction that total vigilance should be observed to make sure that the marital rights of orphaned girls are not violated in any manner whatsoever. However, the responsibility of enforcing this injunction has not been directly placed on the shoulders of the governments as is usual with laws promulgated by governments. Instead of that, people themselves have been commanded to fear Allah and do what is right. That is, should they apprehend injustice in marrying orphaned girls, they must let go of the idea and marry elsewhere from a wide range of choices available.
Added to this Divine motivation to abide by prescribed law is the responsibility placed on its enforcing agencies in the government. It is their duty to oversee that there occurs no such violation of rights in the society. If it does, they must use the force of law to ensure that these rights are fulfilled as due.