‘Marital Rape’ – Where Does It Stand In The Islamic Legal System?

‘Marital Rape’ – Where Does It Stand In The Islamic Legal System?

What is marital rape? What does Islam say about this? These are important questions which have been the cause of confusion for many people, but Islam is not silent on the matter and these very questions have been answered by Islam itself.

Marital rape is non-consensual intercourse within marriage, which falls under the category of ‘harming the wife’ and such acts are construed as prohibited acts under Islamic law.

Islam is a religion that pays attention to women’s rights categorically and upholds the fundamental right of a wife to be free from ‘harm’. If a husband forces his wife into sexual intercourse, he can only do so by harming her and since this is prohibited in Islam, the act is clearly ‘unlawful’ and, therefore, an offence.

Marital rape is more appropriately classified as an issue of ‘domestic violence’ and shall be dealt within that ambit. There have been many precedents from the time of Prophet Muhammad (peace be upon him) regarding ‘forced sexual intercourse with wife’ and such incidences had been dealt with right away by punishing the wrongdoer.

Unfortunately, many Muslims are under the impression that forced sexual intercourse with wives is religiously allowed. This is clearly wrong. Some important points must be taken into consideration while learning about this issue.

It is absolutely haram (unlawful) for a man to harm his wife. The Prophet (pbuh) not only prohibited harming others in general, but also those who were like one’s ‘garment’ (implying spouse) and those who lived under one’s ri’aaya (governance), care or shepherdship (as mentioned in prophetic traditions), and commanded men to deal with their wives in an honorable way. Rape, abuse, ill-treatment and the infliction of harm, be it physical, verbal or psychological, is, therefore, completely unacceptable in such a relationship.

There is no doubt that a marital tie grants both partners the right to intimacy, but this does not imply or allow the practice of the right forcibly or violently. If a situation arises where one partner feels to have been deprived of his or her conjugal rights, then one must try to communicate through an appropriate channel to resolve the matter, as that would most certainly be the honorable way to do so.

Under no circumstances is it allowed for someone to harm another to exercise so-called rights. That is strictly prohibited in Islam which instructs us to refer such disputes to those with religious and legal authority (as shall be explained later in this article).

This is clearly indicated by the words of the great scholar Taqi al-Din al-Subki in his commentary on some verses of the Quran related to marriage:

“At the time when it becomes obligatory for a husband to provide financial support, clothing (and other such provisions), for his wife, he should exert himself in doing so, and not be negligent in this duty such that his wife would have to file a complaint of his negligence with the judge [haakim], and in so doing spend from her own expenditures. Similarly, a wife should be responsive to her husband’s request for intimacy, such that he would not need to bring a complaint (against her) to the judge, and in so doing spend from his own expenditures.”

From this we may infer that when a couple is unable to resolve a marital issue, they are to consult the proper authority for guidance and direction. Violence or force is certainly not an option.

Many people defend such acts by quoting prophetic traditions about discouraging women from refusing their husband intimacy when he desires it. According to one such tradition, a husband, after being refused, has been described as ‘going to bed angry’. If non-consensual intercourse was permissible, then why was such an act not mentioned as an alternative to accepting the refusal? The text that these people refer to, highlights that a wife should give importance to her husband’s sexual needs. However, it still does not justify or encourage the use of force.

Many people cherry-pick verses from the Quran pertaining to domestic violence and cause further confusion. The most quoted and cited verse is the one that outlines the disciplinary method of dealing with a wife who is ‘nashiz’. These have probably been the most misused, misunderstood and misapplied verses to date. Since a detailed explanation of these verses is outside the scope of this article, I will explain the use of ‘darb’ instead, which is translated as ‘to strike lightly or tap’, subject to many restrictions and conditions. If scrutinized closely, it is clear that it does not justify or refer to ‘marital rape’. Disloyalty is very distinct from refusing intimacy, so much so that the two can never be mistaken for being similar. This renders it impossible for the said verses to be used to condone violent or forced sexual relations with one’s wife.

I quote Dr. Jamal Badawi who succinctly rejects these types of false claims by stating the following:

“Any excess, cruelty, family violence, or abuse committed by any Muslim can never be traced, honestly, to any revelatory text (Quran or Hadith). Such excesses and violations are to be blamed on the person(s) himself, as it shows that they are paying lip service to Islamic teachings and injunctions and failing to follow the true Sunnah of the Prophet.”

Marital Rape and Hadd Punishment

Even though ‘marital rape’ is not specifically covered under hudood offences and, therefore, may not amount to a hadd (punishment) under law, it does not mean that such an offence is acceptable in Islam or shall go unpunished.

People are under the impression that ‘hadd’ is only ordered under Islamic law or the Hudood Ordinance of Zina. However that is not the case. Even if the offence does not fall under any of the above, the judges still have discretion to punish the accused with imprisonment or lashing, according to what they conclude to be just and reasonable.

Many scholars have also stated that a wife has the right to jirah (civil redress) for her injuries under Sharia law if she is assaulted by her spouse.

There is a dire need for this kind of discussion in order to shed light on the true Islamic stance on marital rape. It is important that we are able to differentiate between what is permissible and what is not. Marital rape is un-Islamic and unlawful. It is a heinous violation of human dignity and Islam recognizes that while reinforcing this point with the concept of accountability, by way of explaining the existence of Aakhira (the afterlife):

“O mankind, fear your Lord, who created you from a single soul and created from its mate, and dispersed from both of them, countless men and women. And fear Allah, through whom you demand your mutual rights, and (reverence) the wombs that bore you: Indeed Allah is ever, over you, an Observer.”

(Quran, 4:1)

In conclusion, here is a reminder of what the Prophet (pbuh) has also taught us:

“Only a noble man treats women in an honorable manner and only an ignoble man of low character treats women disgracefully.”

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.