scholarly journals Exceptional Circumstances of Lowering the Minimum Age of Marriage: Types, the Criterion of Respect, and Problems of Regulation

2021 ◽  
Vol 16 (2) ◽  
pp. 47-54
Author(s):  
Е. Е. Lekanova
Keyword(s):  
Criminal Code ◽  
Child Marriage ◽  
Marriage Age ◽  
Minimum Age ◽  
Minor Children ◽  
The Russian Federation ◽  
Life Circumstances ◽  
A Minor ◽  
Age Of Marriage ◽  
Legal Consequences

The paper is devoted to the study of law rules, doctrinal positions and jurisprudence dealing with exceptional circumstances that serve as a basis for minor marriage. The relevance of the study is primarily predetermined by the taken and planned actions of the state authorities undertaken to develop draft laws aimed at improving the content of Art. 13 of the Criminal Code of the Russian Federation regulating the age of marriage. The author draws the following conclusions. Conditions for reducing the overall minimum age of marriage for persons under 16 years of age, as well as for older minors, should be governed at the federal level. The list of exceptional (reasonable) circumstances should be exhaustive, since the current open list of life circumstances applied to reduce the overall minimum marriage age leads to excessive freedom of enforcement discretion. Both the Russian and international legislator consider “child” marriage as a negative social phenomenon. In this regard, the issuance of permission to marry as a minor should be dictated by even more unfavorable social circumstances that have arisen in the life of the minor. Marriage should contribute to overcoming or leveling (smoothing) these adverse factors. Only the circumstances in which the marriage is proportionate to the legal consequences it causes (the acquisition of full civil legal capacity by minors, termination of the parents’ obligations to financially support their minor children who have entered into marriage, providing them with housing, etc.) can be considered as good reasons for reducing the minimum marriage age. These circumstances also include pregnancy and the birth of a child.

scholarly journals THE AGE OF MARRIAGE AND AGE OF CONSENT: CROSS-BRUNCH LEGAL CONFLICTS

2018 ◽  
Vol 22 (4) ◽  
pp. 506-526
Author(s):  
Kseniya A Barysheva ◽  
Maria V Matveeva
Keyword(s):  
Criminal Code ◽  
Sexual Relations ◽  
Criminal Cases ◽  
Marriage Age ◽  
Special Obligation ◽  
Age Of Consent ◽  
Minimum Age ◽  
The Right ◽  
A Minor ◽  
Age Of Marriage

Currently, all over the world, including in Muslim countries, there is a tendency to increase the age of marriage. In Russia, the law does not directly set the minimum age of marriage. The reduction of the age of marriage is possible up to 16 years if there are valid reasons for it. The family laws of the subjects of the Russian Federation may establish the conditions and procedure for marriage of persons under this age. A literal interpretation of laws indicates the absence of lower age limit at marriage. The article deals with the correlation of the concepts of "marriage age" and "age of consent". Analysis of the Art. 134 of the Criminal Code allows to conclude that the provision on marriage to the victim, as a basis for exemption from punishment, contradicts the basic conditions of marriage. In fact, when making a decision, the courts cannot reliably determine for what purpose the marriage was concluded, whether there are grounds to consider the marriage fictitious, concluded for the avoidance of criminal punishment or for another selfish purpose. In criminal cases, it should be mandatory to ensure the participation of the staff of the guardianship authority in the criminal process, giving them the right to conduct inspections and to give conclusions about the real desire of the couple to create a family. It seems controversial to apply the rule of exemption from punishment due to change of the situation to the perpetrator who committed the crime under Art. 134 of the Criminal Code. The act itself does not cease to be socially dangerous: sexual relations with a person under the age of consent are still ongoing, and marriage does not entail a legal right to sexual relations with a minor under the age of 16, at least not expressly provided for by law. It is proposed to define a special obligation for the release of the guilty from punishment: if a marriage concluded with a person under the age of 16 years is terminated at the initiative of a probationer earlier than four years after his imprisonment, the court may decide to abolish the conditional sentence and the execution of the sentence imposed by the court.

scholarly journals Legal Regulation of the Minimum Marriage Age: The Past and the Present

2020 ◽  
Vol 15 (8) ◽  
pp. 84-95
Author(s):  
E. E. Lekanova
Keyword(s):  
Detailed Comparison ◽  
Legal Regulation ◽  
Marriage And Family ◽  
Marriage Age ◽  
Unsuccessful Attempt ◽  
Domestic Legislation ◽  
Minimum Age ◽  
The Russian Empire ◽  
A Minor ◽  
Age Of Marriage

The legal regulation of the features of marriage in a minor age has a millennium history. The analysis of legal regulation of the marriage age in Russia, the Russian Empire and the RSFSR shows that the models of the legal regulation of the minimum marriage age are divided into simplified and differentiated ones (gender differentiated, nationally differentiated and socially differentiated models). The author concludes that in domestic legislation the minimum age of marriage always depended on various circumstances. Until 1926, there was a gender-differentiated model of the legal regulation of the minimum age of marriage. A nation-differentiated model existed in the prerevolutionary and Soviet era in relation to the inhabitants of Transcaucasia. Since 1926, in the territory of the RSFSR, a socio-differentiated model of the legal regulation of the minimum age of marriage was consolidated in law. According to this model the minimum age of marriage was reduced due to special social circumstances. Family laws of the Russian Federation made an unsuccessful attempt to implement the nation-differentiated model of the legal regulation of the minimum age of marriage. The modern Russian model of legal regulation of the minimum age of marriage is socio-differentiated. The paper also carries out a detailed comparison of the three socio-differentiated models of the legal regulation of the minimum age of marriage (the model under the Soviet Code of Marriage, Family and Custody of the RSFSR (1926—1968), the model under the Code of Marriage and Family of the RSFSR (1969—1995), the contemporary model); analyzes the differences and shortcomings of these models; suggests ways to eliminate them.

Types of Criminal Acts

2021 ◽  
pp. 255-260
Author(s):  
Alexander V. Shesler ◽  
◽  
Keyword(s):  
Russian Federation ◽  
Essential Feature ◽  
Criminal Liability ◽  
Criminal Code ◽  
Forced Labor ◽  
Drug Addicts ◽  
Federal Republic Of Germany ◽  
Judicial Practice ◽  
The Russian Federation ◽  
A Minor

The article examines criminal acts, with which the law associates certain criminal legal consequences. The aim of the article is to substantiate the identification of various criminal acts and show their specificity in comparison with crimes. The research is based on the domestic criminal legislation, materials of judicial practice and the legislation of the Federal Republic of Germany. The research methods are: the method of comparative law, which allowed comparing the provisions about criminal offenses in the 1960 Criminal Code of the RSFSR and in the 1996 Criminal Code of the Russian Federation, in the Criminal Code of the Russian Federation and the Criminal Code of Germany; the method of document analysis, which made it possible to analyze the judicial practice and proposals of the Supreme Court of the Russian Federation on the introduction of provisions on criminal offences in the Criminal Code of the Russian Federation; the formal-logical method that made it possible to analyze the content of the norms of the Criminal Code about criminal acts. The article concludes that, in addition to crimes, criminal acts should include: a criminal offence, which entails criminal liability in the form of replacing punishment with a more severe one (fine, compulsory labor, correctional labor, restriction of freedom as the main type of punishment, forced labor) or criminal liability in the form of the cancellation of any type of probation (suspended sentence, parole, deferred sentence, deferred sentence for drug addicts); a minor act; socially dangerous behavior of persons who are not subjects of a crime due to their minor age or insanity; innocent infliction of harm. The article shows the specificity of a misdemeanour, consisting in the fact that this act is not socially dangerous, does not contain signs of a crime, violates the liability of the convicted person to be subject to limitations arising from the court-appointed punishment or type of probation (suspended sentence, parole, deferred sentence, deferred sentence for drug addicts). It is substantiated that a minor act should be referred to circumstances that exclude the criminality of an act due to the absence of public danger, an essential feature of a crime. It is argued that acts, provided for by the Special Part of the Criminal Code of the Russian Federation, committed in a state of insanity and entailing compulsory medical measures, should not be subject to criminal law. The article criticizes the judicial practice of a broad interpretation of the commission of a crime by a group of persons, according to which it is not only a co-execution, but also any execution of the objective side of the crime by several persons, of which only one can be the perpetrator. It is argued that causing harm due to the non-compliance of the psychophysiological qualities of a person with the requirements of an extreme situation does not apply to innocent infliction of harm.

scholarly journals Mistake of fact and endangering actions as circumstances which can affect differentiation of criminal responsibility for unfinished crime

2020 ◽  
pp. 286-290
Author(s):  
Natalia Antoniuk
Keyword(s):  
Social Relations ◽  
Criminal Responsibility ◽  
Human Life ◽  
Subjective Evaluation ◽  
Criminal Code ◽  
Special Part ◽  
The Subject ◽  
Severe Punishment ◽  
A Minor ◽  
Legal Consequences

 Most of the aspects of differentiation of criminal responsibility for unfinished crime though being discussional, are duly researched in the criminal scientific studies. However, the sphere of unresearched institutes exists enabling us to speak about its influence on differentiation of criminal responsibility. This institutes are the mistake of fact and so called “delicts of endangering” The purpose of this research is to analyze the differentiated influence on criminal responsibility of crimes committed with the feature of mistake of fact and of delicts of endangering. It is planned to illustrate, basing on certain examples, the importance of these institutes for differentiation of criminal responsibility. By the way, the task of this article is to reveal the shortcomings of criminal law in force and to make propositions on their removing. Up to date, taking into consideration the provisions of part 3, 4 of Article 68 of the Criminal Code of Ukraine, the court can`t impose punishment on person, guilty of committing a crime under effect of mistake of fact, qualified as attempt, higher than 2/3 of the maximal severe punishment (envisaged in article of special part of the Criminal Code). The court, as well, can`t (in most cases) impose life imprisonment even when the damage totally equals the damage caused by finished crime. For instance, planning to kill with mercenary motives a minor, the guilty person kills an adult. This action can’t be qualified as finished crime, as the mistake of victim occurs. Nevertheless, object of human life is objectively damaged. So, the crucial necessity to make equal between each other finished crime and crime, committed under influence of mistake of fact, is evident. Differentiating criminal responsibility in situations when damage is desired by the guilty person, the legislator in fact hasn’t bothered to duly differentiate criminal-legal consequences in case of endangering without the desire of such damage. That`s why it is of great importance to regulate by norms criminal actions which are endangering social relations with social dangerous damages, but don’t have the features of criminal aim, motive and desire of guilty person. This step can provide differentiated approach towards socially dangerous behavior, delimiting the estimation of act and consequence. It can concentrate the attention on subjective evaluation of potential consequences by guilty person, notwithstanding the factors, which often exist besides mental estimation of the subject.

Kedewasaan Usia Perkawinan Perspektif Hadis Nabi Muhammad dengan Pendekatan Interkoneksitas Maslahah

2021 ◽  
Vol 15 (1) ◽  
pp. 83-98
Author(s):  
Abdul Gaffar ◽  
M Ali Rusdi ◽  
Akbar Akbar
Keyword(s):  
Married Couple ◽  
Marital Problems ◽  
Marriage Age ◽  
Social Maturity ◽  
Minimum Age ◽  
Primary Reference ◽  
The Government ◽  
Marital Success ◽  
Age Of Marriage ◽  
The Ideal

Indonesian Muslims have not maximally applied maturity of marriage age as an important aspect in obtaining marital success. Apart from the concept of maturity of diverse marriage age, divorces and many marital problems based on the immaturity of a married couple still rife in Indonesia. The government has even issued regulations related to the age of marriage through Law number 1 of 1974 that was revised by Law number 16 of 2019, which stipulates that marriage is limited to a minimum age of 19 years for the two brides. This article aims to find the concept of quality-oriented marriage age to complement the quantity-oriented idea as applied by the Indonesian government and as understood differently by Muslims based on the opinions of the scholars (‘ulamā). This article abstracts the concept of the ideal age of marriage from the instructions of the Prophet Muhammad PBUH as the primary reference of Islamic teachings by discussing the hadīth using the ma‘ānī al-ḥadīṡ analysis with three interpretation techniques namely textual, intertextual, and contextual interpretation to obtain comprehensive meaning. The results of the examination show that the hadīth requires the criteria for the maturity of the marriage age in the form of religious, physical, financial, and social maturity. These qualitative criteria fulfill the element of maqāṣid al-syarī‘ah and are interconnected so that they should be actualized as a new basis in the formulation of policies related to the maturity of marriage age in Muslim societies.

scholarly journals SYARIAH COMPATIBILITY AND HUMAN RIGHTS IN DETERMINING THE AGE OF MARRIAGE

1970 ◽  
Vol 21 (2) ◽  
pp. 263-274
Author(s):  
Rumi Suwardiyati ◽  
Siti Rohmah ◽  
Andi Muhammad Galib ◽  
Abdul Halim
Keyword(s):  
Human Rights ◽  
Secondary Data ◽  
Strategic Decision ◽  
Constitutional Court ◽  
Religious Leaders ◽  
Marriage Age ◽  
Minimum Age ◽  
Age Limit ◽  
Age Of Marriage ◽  
Religious Understanding

The purpose of this research is to examine the interpretation of constitutional judges regarding the age limit for marriage which is considered to contain compatibility and efforts to harmonize sharia and human rights principles in their decisions. This is motivated by child marriage tends to ignore the rights of children and women. Unfortunately, this practice is often affirmed by religious understanding and even state law. The research method used is normative juridical using secondary data. As for this research will analyze the decision of the Constitutional Court Number 22/PUU-XV/2017.  This research will show the conflict between the interpretation of sharia - which has been the authoritative area of ​​religious leaders - and the principles of Human Rights (HAM). Meanwhile, the interpretation of the judges of the Constitutional Court seems to contain a discourse on the compatibility and harmony of sharia and human rights. This research per reflects the approach of the Constitutional Court and the strategy of the petitioners in an effort to review the constitutionality of the minimum age for marriage as stated in the Marriage Law. The various approaches and arguments put forward show that the applicant made a strategic decision by trying to break a patriarchal culture and injustice before the Constitutional Court.  Keywords: Marriage Age Limit, Syariah, Human Rights, Constitutional Court 

scholarly journals PERKAWINAN ANAK: Pandangan Ulama dan Tokoh Masyarakat Pamekasan

2019 ◽  
Vol 15 (2) ◽  
pp. 96-105
Author(s):  
Umi Supraptiningsih ◽  
Erie Hariyanto
Keyword(s):  
Child Protection ◽  
Educational Background ◽  
Community Leaders ◽  
Community Leader ◽  
Child Marriage ◽  
Minimum Age ◽  
Happy Family ◽  
Age Of Marriage ◽  
Clear Statement

Abstract. Child marriages as well as the prosession are happen due to the role of both ulama (the Islamic leaders) and the community leaders. This paper aimed at exploring the perception of ulama and the community leaders in line with the factors of child marriage as well as the minimum age of marriage. The descriptive qualitative were implemented in this study. Meanwhile, the data were gathered by conducting observation, interview, and documentation. The first finding of the study is in line with the factors of child marriages. The educational background of the parents and the children, economic factors, cultural factors, and the uncontrolled relationship among teens were regarded to influence the child marriage in Pamekasan. Second, the ulama and the community leader argued that the child marriage should be avoided because it determine the life of the spouse after marriage. It must be considered that marriage is a time to realize the happy family (sakinah). Therefore, maturation is important in attempt to mentally and economically prepare for the marriage. Also, the limitation of marriage is not merely about the minimum age, but also the preoparation and the in-depth understanding of the spouse. Third, there is no clear statement in Alquran regard to the minimum age of marriage. Alquran stated akil baligh as the requirement. Meanwhile, the marriage law stated that minimum age for man is 19 years old and 16 years old for woman. In child protection laws, the minimum age for both man and woman are 18 years old. Abstrak. Perkawinan Anak dapat terjadi karena peran serta dari para ulama atau tokoh masyarakat, begitu pula prosesi perkawinan dengan restu keduanya. Artikel ini bertujuan untuk mengetahui peranan ulama dan tokoh masyarakat Kabupaten Pamekasan dalam terwujudnya perkawinan anak serta pendapat tentang batasan usia perkawinan. Metode penelitian mengunakan pendekatan kualitatif (qualitative approach) dan metode deskriptif, sedangkan teknik pengumpulan data melalui observasi, wawancara, dan dokumentasi. Ada beberapa temuan dalam penelitian ini yaitu pertama Perkawinan anak masih saja terjadi diwilayah Kabupaten Pamekasan, hal ini dilatar belakangi beberapa faktor, yaitu faktor rendahnya pendidikan baik dari orang tua maupun anak, tidak adanya aktifitas atau kegiatan karena selepas dari pesantren atau MA mereka menganggur, faktor ekonomi, faktor budaya atau tradisi, dan faktor pergaulan bebas; kedua Para ulama dan tokoh masyarakat berpendapat bahwa perkawinan anak harus dihindarikarena berdampak pada kelangsungan rumah tangga yang tentunya pasca perkawinan adalah waktu yang panjang untuk mewujudkan rumah tangga yang sakinah. Pendewasaan perkawinan penting karena untuk mempersiapkan mental dan ekonomi dalam sebuah perkawinan. Batasan perkawinan tidak hanya sekedar usia namun persiapan dan pemahaman hak dan kewajiban bagi pasangan yang harus matang. Ketiga Batasan usia pernikahan dalam Al Qur’an dan hadis tidak secara jelas disebutkan hanya menjelaskan akil baliq, sedangkan dalam Undang- Undang Perkawinan usia 19 tahun bagi laki-laki dan 16 tahun bagi perempuan. Dalam UU Perlindungan ana laki-laki dan perempuan sama yaitu 18 tahun ke atas.

The Analysis Of Minimum Marriage Age Determination In Indonesia And Other Islamic Countries

2018 ◽  
Vol 16 (2) ◽  
pp. 148
Author(s):  
Nur Azizah
Keyword(s):  
Research Method ◽  
Age Determination ◽  
Marriage Age ◽  
Islamic Country ◽  
Muslim Countries ◽  
The World ◽  
Islamic Countries ◽  
Minimum Age ◽  
Age Of Marriage

The age of marriage is always a polemic in the household. This is based on the view that the age of marriage that is not mature mentally, physically, psychologically, and education is susceptible to unstable attitudes in taking policies or decisions. So that it is feared that they have not been able to respond to problems in the marriage. Indonesia is a country with Muslims as a major population regulating the minimum age of marriage, as well as Muslim countries in the world. The research method used is the juridicalnormative approach. There are someconclusions obtained. First, the Shari'a does not explicitly set a minimum age for marriage, but legal age and understanding are elements that must be fulfilled for prospective brides, and especially for husbands who are positioned as heads of families. Second, every Islamic country, including Indonesia, has different rules regarding the minimum age of marriage, but the purpose of the restriction remains the same, which is to form a partner who is physically and resourcefully ready to build a sakinah household.Keywords: Rules; Age; Marriage

Defining Girlhood in India

2019 ◽  
Author(s):  
Ashwini Tambe
Keyword(s):  
Legal History ◽  
Population Control ◽  
Well Being ◽  
Early Marriage ◽  
Child Marriage ◽  
Marriage Age ◽  
The World ◽  
National Reputation ◽  
Sexual Choices ◽  
Age Of Marriage

At what age do girls gain the maturity to make sexual choices? This question provokes especially vexed debates in India, where early marriage is a widespread practice. India has served as a focal problem site in NGO campaigns and intergovernmental conferences setting age standards for sexual maturity. Over the last century, the country shifted the legal age of marriage from twelve, among the lowest in the world, to eighteen, at the high end of the global spectrum. Ashwini Tambe illuminates the ideas that shaped such shifts: how the concept of adolescence as a sheltered phase led to delaying both marriage and legal adulthood; how the imperative of population control influenced laws on marriage age; and how imperial moral hierarchies between nations provoked defensive postures within India. Tambe's transnational feminist approach to legal history shows how intergovernmental debates influenced Indian laws and how expert discourses in India changed UN terminology about girls. Ultimately, the well-meaning focus on child marriage became tethered less to the well-being of girls themselves and more to parents' interests, population control targets, and the preservation of national reputation.

scholarly journals Counter-Mobilization against Child Marriage Reform in Africa

2017 ◽  
Vol 66 (4) ◽  
pp. 851-868 ◽  
Author(s):  
Ragnhild Louise Muriaas ◽  
Liv Tønnessen ◽  
Vibeke Wang
Keyword(s):  
Theoretical Background ◽  
Child Marriage ◽  
Legal Power ◽  
Gender Status ◽  
Minimum Age ◽  
Traditional Institutions ◽  
Age Of Marriage ◽  
Marriage Reform ◽  
Religious Actors ◽  
Political Battle

Legislating a minimum age of marriage at 18 has stirred counter-mobilization in some, but not all, countries where religious or traditional institutions enjoy constitutional authority. To explore differences between states regarding likelihood of counter-mobilization, we investigate two cases in Africa. In Sudan, a government-led child marriage reform initiative has sparked counter-mobilization by conservative religious actors, while a similar initiative in Zambia has not caused visible counter-mobilization among traditional groups and has gained the support of many chiefs. With the literature on doctrinal gender status issues as theoretical background, we argue that the nature of law—codified versus living—is a factor in these distinct trajectories. We further identify variations in two mechanisms, legal power structure (centralized vs decentralized) and type of political battle (interpretation vs administration), that link nature of law to variation in the likelihood of counter-mobilization.

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