LEGAL STATUS OF CHILDREN IN ISLAMIC LAW (A COMPARATIVE STUDY)

Abstract

Children are human beings under the age of puberty. They are different from adults due to their legal capacity. According to Islamic Law Legal Capacity (ahliyyat) is the ability or fitness to acquire rights and exercise them. It has two aspects; the first is based on the acceptance or acquisition of rights (ahliyyat al-wujb) and the other on the performance of duties, (Ahliyyat al-ada). The first aspect of legal capacity exists in children but the second is missing and their legal capacity is categorized as deficient or defective. The defective legal capacity does not affect capacity for acquisition or ahliyyat al waujub. All rights and obligations are acquired, as their establishment requires for the capacity of  acquisition. However the capacity of performing (duties) remains suspended until the age of puberty. Almost the same in case  in the western legal thought. Ahliyyat al waujub protect all the rights of child in Islamic Law and legally entitled them for their all benefits.

 Children are human beings but at the same time, are different from adults. A child, because of his physical and mental immaturity, need special safeguards and care, including appropriate legal appropriate legal protection, before as well as after birth children have a right to enjoy the p;easures of childhood, to be free to play and enjoy recreational activities. Participation in cultural pursuits and sports, and other activities that exercise their body as well as mind and imagination and aid in their physical, mental and emotional are also included in their rights. There is a long history of struggle for children’s rights. The parents are always advocates of children’s rights. The religious leaders and spiritual movement were also trying to teach about the rights of children. The states were individually trying to do legislation but there was no internationally recognized rule for the protection of children until the adaptation of international convention by the United Nation general assembly on November 20, 1989. ¹The studies of Children Rights in west, with reference to different cultures and religions, usually assumed that children have no legal capacity in Islamic Law, based in effect on the Islamic principle of akl  (Reason). Thus without  akl (Reason) acts of children carry no legal consequence and they have been provided limited rights in general and to girls in particular.²

This study is aimed is to analyze the legal status of children in Islamic Law and check the validity of above perception in the light of arguments based mainly on original sources while comparing it with other legal systems and International Law.

This study will proceed from a brief description of children in Islamic and International law. The legal personality of children in Islamic law has been discussed in second part of this study. Following this, Legal personality of children in western legal thoughts has been elaborated. The comparison of status of children in Islamic and western laws has been presented in the conclusion.