By Imam Murtada Gusau
In the name of Allah, the Most Gracious, the Most Merciful
Alhamdulillah. Indeed, all praise is due to Allah. We praise Him and seek His help and forgiveness. We seek refuge with Allah from the evil within ourselves and from our wrongdoings. He whom Allah guides, no one can misguide; and he whom He misguides, no one can guide.
I bear witness that there is no (true) god except Allah – alone without a partner, and I bear witness that Muhammad (SAW) is His ‘abd (servant) and Messenger.
“O you who have believe! Revere Allah the right reverence, and do not die except as Muslims.”(Al-Imraan, 3:102)
“O people! Revere you Lord who has created you from a single soul, created from it its mate, and dispersed from both of them many men and women. Revere Allah through whom you demand things from one another; and (cherish the ties of) the wombs, indeed, Allah is ever Watchful over you.” (An-Nisaa’, 4:1)
“O you who have believe! Revere Allah and say fair words. He will then rectify your deeds and forgive your sins. He who obeys Allah and His Messenger have certainly achieved a great victory.”(Al-Ahzaab, 33:70-71)
Indeed, the best speech is Allah’s (SWT) Book and the best guidance is Muhammad’s (SAW) guidance. The worst affairs (of religion) are those innovated (by people), for every such innovation is an act of misguidance leading to the Fire.
Dear Servants of Allah!
Today’s Sermon is a response to the question asked by some brothers and sisters pertaining to my previous Sermon that does marital rape exist in Islam?
I said seeking help from Allah. Yes, Islamic scholars describe that marital rape occurs when the man asks his wife to have sexual intercourse during her menstrual period or in an abnormal sexual position or during fasting hours in Ramadan. Allah gave the woman the right to refrain from her husband as He says:
“And they ask you about menstruation. Say, “It is harm, so keep away from wives during menstruation. And do not approach them until they are pure. And when they have purified themselves, then come to them from where Allah has ordained for you. Indeed, Allah loves those who are constantly repentant and loves those who purify themselves.” (Surah al-Baqarah, 2:222)
If the husband used violence to force his wife to sleep with him, he is legally a sinner and she has the right to go to court and file a complaint against him to get punished. The woman also has the right to refuse to engage in sexual relationship with her husband if he has a contagious disease or use violence which hurts her body during the sexual intercourse.
The Islamic Shari’ah advised that the sexual intercourse between man and wife should be conducted with intimacy and love and made such amicable conduct as a sign of piety. Allah says in the Noble Quran:
“Yours wives are a place of sowing of seed for you, so come to your place of cultivation however you wish and make an introduction for yourselves. And fear Allah and know that you will meet him. And give good tidings to the believers. (Surah al-Baqarah, 2:223)
The Introduction mentioned in the above verse was explained by the Prophet (SAW) when he said:
“Three things fall under unkindness and one of them is when the man engages in sexual act with his wife without sending a messenger; humor and kisses. No one should directly fall on his wife like one buffalo does to another.”
This hadith was narrated by Anas ibn Maalik and though its chain of narration is weak, it can be used as reference points in virtues and ethics.
If the wife hated her husband, the Islamic Shari’ah advises her not to be hasty in deciding to leave her husband and encourages her instead to have some patients in order not to destroy the family. Allah says in the Noble Quran:
“For if you dislike them – perhaps you dislike a thing and Allah makes therein good”. (Surah an-Nisaa’, 4: 19)
But if the wife couldn’t bear to live with her husband anymore, the Islamic Shari’ah advises her to seek separation from her husband to avoid animosity, fighting and discord which lead to harm. In this case seeking divorce would be committing the lesser of two damages.
My respected people!
Also know that, the concept of rape in marriage is a new problem confronting Muslims in modern times. The term “rape” in the classical legal literature was applied only to forced sexual relations outside of the marriage contract. Rape in this sense has always been unlawful and prosecuted in the legal category of adultery based upon the Prophet’s practice and a firm legal consensus.
The original term linguistically means to take something forcefully without having a right to it in the first place. Since a man has the right to have sexual relations with this wife as granted by the marriage contract, he is not taking something for which he inherently has no right. Consent was a moral requirement, but had no legal ramifications. Hence, the ruling of adultery does not apply to the husband in this case.
However, the meaning of “rape” has changed with the times, as it now means any forced sexual intercourse even within marriage. The reason for this change is that western legal traditions shifted the basis of lawful sexual relations from contract to consent. The marriage contract alone originally made sexual relations lawful, but now it is consent that legalizes sexual relations. This gave rise to the concept of marital rape and has influenced the legal discourse in Muslim countries and communities.
The concept of marital rape as legal category did not appear in any law tradition until the year 1949, which makes it difficult to locate a precedent in pre-modern law. Islamic law developed through the practice of issuing a fatwa (legal judgment) as applied to a particular case. If such a case never arose, there would be no point in issuing a judgment about it. In this way, Islamic law was mostly a practical and not theoretical exercise. This means Muslim jurists have not discussed marital rape as such until the modern period.
Nevertheless, forced sexual intercourse within marriage falls under another prohibited legal category in Islamic law; harming the wife. The classical scholars upheld the fundamental right of a wife to be free from harm. If a man forces his wife into sexual intercourse against her will, he can only do so by harming her and this makes his action unlawful. Marital rape, then, is more properly understood as an issue of domestic violence, an issue that was well-known to Muslim jurists since the time of the Prophet Muhammad (SAW) until today and for which we have ample precedent.
The principle of removing harm is an essential legal axiom (al-qawaa’id al -fiqhiyyah) in the orthodox schools of Islamic law, as it forms the basis and rationale of so many rules in Islam.
Ubaada ibn As-Saamit reported: the Messenger of Allah, peace and blessings be upon him, issued a decree:
“Do not cause harm or return harm.” (See Sunan ibn Majah, 2340)
And the juristic principle is stated as follows:
“Harm should be removed.” (See Al-ashbaah wal-nazaa’ir, 7)
The classical scholars often stated this as an explicit right of the wife when discussing the rights and duties of marriage in general.
Al-Qurtubi writes:
“Their husbands must not harm them, in the same way that they have rights over their wives.” (See Al-Jaami’ li-ahkaam al-Quran, 2/228)
And Az-Zamakhshari writes:
“Neither spouse should be violent against his or her companion.” (See Al-Kashshaaf an haqaa’iq, 2/228)
And Al-Baydawi writes:
“Among her rights is the dowry, to be free from harm, and so on.” (See Anwaar al-tanzil, 2/228)
And Ar-Razi writes:
“No harm should come to her. It has been clarified that each one of the spouses has a right over the other.” (See Mafaatih al-ghayb, 2/228)
We can use such general principles in Islam to develop new rulings for new issues we encounter such as marital rape. This is the method by which Islamic law develops and adapts to local needs if no precedent can be found.
Even so, we are not without specific guidance from the Prophet (SAW). In an authentic tradition, the Prophet discusses the case of a wife who refuses to have sexual relations with her husband and from which we can derive some insight:
Abu Hurairah (RA) reported: The Messenger of Allah, peace and blessing be upon him, said:
“If a man calls his wife to bed and she refuses for no reason and he spends the night angry with her, then the angels will curse her until the morning.” (See Sahih Bukhari, 3065)
Brothers and Sisters!
Some people have cited this tradition in an attempt to prove that Islam condones marital rape, but careful consideration will demonstrate that it is actually a proof against marital rape.
In this very specific situation, the wife refuses to answer her husband’s request to join him in bed. She does not have a valid excuse to refuse him such as being preoccupied or ill or tired. Rather, she refuses him out of a mean-spirited attitude only. This is a violation of the terms of the marriage contract and therefore a sin and it might also tempt the husband to satisfy his natural impulse in an unlawful manner. If the husband spends the entire night in his house angry with her, it causes the angels to curse her until the morning.
The Prophet (SAW) warns such women of the negative moral consequences of this inexplicable behaviour, but he gives no concession to the husband to take his right by force. If forced sexual compliance was an acceptable option, we could reasonably infer that the Prophet would have mentioned it here but he did not. Hence, the tradition is an implicit proof against marital rape and, by analogy, against the rape of concubines as well.
The classical scholars determined that a man does not have the right to have sexual relations with his wife if he harms her, as this is a violation of her rights and the Islamic values of mercy and honourable behaviour. If he does not fulfill her rights, then she does not need to fulfill his rights.
Al-Bahuti writes:
“It is the right of a husband to enjoy his wife at any time no matter her condition…as long as he does not distract her from her obligations or harm her. In that case, he may not enjoy her since that is not living with her honourably. If he does not distract her from those duties or harm her, then he may enjoy her.” (See Kashshaaf al-qinaa’ 5/188)
Moreover, the wife has the right to seek a divorce if the husband harms her in an intolerable manner. The Prophet once dissolved the marriage of a couple because the wife could no longer tolerate the husband’s abusive behaviour.
Yahya ibn Sa’id reported:
“Habibah bint Sahl was the wife to Thaabit ibn Qais and it was mentioned to the Messenger of Allah, peace and blessings be upon him, that they were married and she was his neighbour. Thaabit had struck her, so she appeared at the door of the Prophet and she said, “Thaabit and I can no longer be married.”The Prophet said to Thaabit: “Take what she owes to you and let her go her way.” (See Sunan al-Daarimi, 2200)
Based on such traditions, the scholars provided abused wives with legal protection and the right to seek a divorce in such cases.
As-Sayyid Sabiq writes:
“Imam Maalik adhered to the opinion that the wife has a right to seek separation by decree of the judge if she claims that the husband has greatly harmed her such that it is not possible for them to continue in marital association. For example, he hits her, abuses her, or harms her in an intolerable way, or he forces her to commit evil in word or deed.” (See Fiqh al-Sunnah, 2/289)
In modern times, these legal precedents have formed the foundation from which jurists in Muslim communities have sought to reform Islamic family law and to remove any loopholes through which men might justify violence against women. The Islamic Charter on Family, which has been endorsed by numerous Muslim authorities, states the following:
“It is not permissible, no matter the degree of conflict between spouses, to resort to violence in transgression of the established regulations of the law. Whoever violates this prohibition will be held civilly and criminally responsible.”(See Mithaaq al-Usrah fi al-Islam, 65.3)
We should also not neglect the importance of values-based reasoning as it pertains to law and reform. The values and objective of Islamic law (maqaasid al-Shari’ah) precede the letter of the law and breathe life and purpose into it. In numerous verses and ahaadith (traditions), Islam teaches men to behave in the best manner towards women.
Allah the Most High said:
“Live with women honourably.” (Surah An-Nisaa’, 4:19)
And Abu Hurairah reported: The Messenger of Allah, peace blessings be upon him, said:
“The most complete of the believers in faith are those with the best character, and the best of you are the best in behaviour to their women.” (See Sunan At-Tirmidhi, 1162)
In another narration, the Prophet (SAW) said:
“I enjoin upon you good conduct toward women.” (See Sahih Bukhari, 3153)
Expressing these values as the core of our way of life will resonate the strongest with Muslims and others. Common people untrained in Islamic law principles may not be able to articulate or understand a solid legal case against marital rape, but they instinctively know it is wrong because it is not merciful, gentle, kind, or fair. This line of thinking has a much greater potential to reach the masses than the detailed arguments of jurists and academics.
To conclude, marital rape is a new issue that requires careful consideration by contemporary Muslim jurists. The principle of avoiding harm can serve as the basis for developing the law in such a way that vulnerable women will be protected from domestic abuse. We owe it to our sisters in Islam, and women in general, to close any loopholes in current legislation that might allow a husband to hurt his wife.
O Allah! Make us among those who earn your forgiveness and acquire safety from the Hell fire, Ameen.
All praise is due to Allah, the Lord of the Worlds. Prayers, Peace and Mercy are upon our beloved Master, Muhammad (SAW), his family and Companions.
And success comes from Allah, and Allah knows best.
This Khutbah (Friday Sermon) was prepared for delivery today, Friday, Raby’ al-Thaany 4, 1437 AH (15 January, 2016), by Imam Murtadha Muhammad Gusau, the Chief Imam of Nagazi-uvete Jumu’at Mosque and Alhaji Abdurrahman Okene’s Mosque, Okene Kogi State Nigeria. He can be reached via: +2348038289761.