Childhood (sighar: its stages, the rights and duties of the minor, guardianship, the minor in worship and contracts, marriage, testimony and penalties)

In language sighar is smallness of size or age; as a term it is the state that attaches to a person from birth until puberty. It has two stages: before discernment, and discernment, which has no fixed age but is shown by signs of maturity and ends at puberty. ^{1 2} A child's capacity is of two kinds: capacity to have rights and duties, which belongs to the child and the adult alike by being human; and capacity to act, which depends on discernment. ²

It is recommended to call the adhan in the newborn's right ear and the iqama in the left, to rub the palate with chewed dates (tahnik), and to name him a good name. The 'aqiqa is recommended by Malik, al-Shafi'i, Ahmad and Ishaq, and the Hanafis hold it was abrogated by the sacrifice. Circumcision is a sunna for the Hanafis and Malikis and obligatory for the Shafi'is and Hanbalis in the stated view. The child also has rights of descent, support, teaching and discipline. ^{3 4}

Damages the child causes, the support due from him, the tithe, land tax, zakat on property, the zakat al-fitr and the sacrifice attach to his estate, and his guardian or executor is required to meet them from it. ⁴

Guardianship is a legal authority over the child's person and property, running from birth to sound judgment, and required for the interest of every minor. Guardianship of the person covers discipline, teaching, treatment and the child's marriage; guardianship of property covers spending, contracts, safekeeping and investment. ⁴ The guardian must discipline children in proper conduct, such as commanding them to pray. He may authorise a doctor to treat and circumcise the child; a guardian of property may do so only in pressing necessity, when the guardian of the person is absent. ^{4 5} A guardian must deal with the child's property for his good and without harm. All agree that a rich guardian may not eat from an orphan's property, and that a poor one may eat by custom and without extravagance. ⁵

When a child has eaten food and reached two years, his urine is impure like an adult's, and the cloth must be washed. Before that the Hanafis and Malikis treat it like other impurities, while the Malikis excuse what a nursing mother's clothes take from the child if she takes care to avoid it. The Shafi'is and Hanbalis distinguish: a boy's urine is sprinkled with water, a girl's must be washed. What is said of urine applies to vomit. ⁶

The adhan of a child who cannot discern is not valid by agreement; the majority hold a discerning child's adhan valid, and the Malikis require that he rely on an adult for knowing the time. ⁷ Prayer is not obligatory on the child until he reaches puberty, but he is ordered to pray at seven and beaten for it at ten. ⁷ The limit of nakedness varies: the Hanafis have no nakedness for a child under four and then extend it to ten; the Malikis distinguish boys and girls; the Shafi'is treat a child's nakedness like a man's even if he cannot discern; the Hanbalis have none under seven, then the two private parts to ten. ^{7 8} A congregation may be formed behind a child leader for the Hanafis, Shafi'is and in one view of Ahmad; the Malikis and in the other view of Ahmad do not allow a child to lead an obligatory prayer. ^{8 9}

Fasting and pilgrimage are not obligatory on a child; his fast is valid if he keeps it, and he is ordered to fast at seven and beaten at ten if he can bear it. A child's pilgrimage counts as voluntary and does not replace the pilgrimage of Islam. A child's oath and vow do not bind. Zakat is due on a child's property according to the Malikis, Shafi'is and Hanbalis; the Hanafis require it only on crops and fruit. ⁹

The majority order a discerning child to ask leave before entering in the three times when the body is usually uncovered: before the dawn prayer, at midday when clothes are put off, and after the night prayer. Abu Qilaba held it a recommendation. ¹⁰

A child's property is not handed to him until he reaches puberty and sound judgment. If he reaches puberty without sound judgment he is restrained for prodigality by agreement; Abu Hanifa held the restraint lasts to twenty-five and then the property is handed over. ^{10 11} A discerning child is tested by being given the transactions that people of his kind conduct. The Hanafis, Malikis and, in the preferred view, Hanbalis allow the guardian to license a child in trade when he shows aptitude; permission may be express or shown by silence, and the Hanbalis and Zufar do not accept permission by silence. The Shafi'is do not allow licence; the property is handed over and he is tested. ^{11 12}

The Hanafis and, in their preferred view, the Shafi'is require puberty for a valid bequest; the Hanafis allow a discerning child's bequest for his own burial, and the Malikis and Hanbalis allow it for a discerning child of about ten or less who understands the act of devotion. A bequest to a child who cannot discern is accepted by his guardian. ¹² A child is married by his or her guardian: a boy's guardian marries him at the usual dower, and a girl's guardian marries her to a good man who protects her. A child's divorce is not valid, though the Hanbalis allow divorce by a discerning child who understands it. A minor girl who is divorced observes three months; a widow observes four months and ten days; she has support and lodging from the former husband. ^{12 13}

A child may not hold judgeship. Testimony by a child who is not yet of age is not accepted; Malik allowed children to testify against one another in wounds and killing, against the majority. ¹⁴ A child who cannot discern bears no bodily penalty; a discerning child bears no fixed penalty or retaliation but is disciplined, and he pays for what he destroys from his own property, and the blood-money for an accidental killing is paid from his property. ¹⁴ If the heir to retaliation is a single child, the Hanafis have two views, to wait for him or for the judge to act for him; the Malikis let his guardian weigh the interest; the Shafi'is and Hanbalis wait for him to come of age. If children share the right with adults, the adults may exact it according to Abu Hanifa and Malik. ¹⁵