Wife's Tamkin and Marital Rape

Question

It is not my question, But some one asked me about this issue.What are the differences of wife's submission/deference (Tamkin Khas) in Islamic law and marital rape in western law? In western law there is an idea which the husband can not force his wife to have sex (sexual intercourse), but in Islam we see some orders which show that Tamkin is the only duty of wife in her marriage.

Answer 1

The actual status

I'm quoting here sunni references!

You will still find a lot of Fatwas where some scholars say that a woman who rejects to have intercourse with her husband is "nashiz ناشز" and can be punished and that she should obey if her husband wants to have intercourse. For example here (in Arabic) an extreme fatwa where the scholar seems to allow rape and refer to other fatwas on how to punish the wife etc.!
Quoting the hanafi book Hashiyat ibn 'Abideen also known as Radd-al-Muhtaar:
^{Here and in the following I'll be translating from Arabic language, as these translation are mostly of my own take them carefully!}

لأن من أحكام النكاح حل استمتاع كل منهما بالآخر، نعم له وطؤها جبرا إذا امتنعت بلا مانع شرعي وليس لها إجباره على الوطء بعدما وطئها مرة (Source)
Because one of the rules of marriage is the permissibility of each of them enjoying the other. Yes, he may have intercourse with her forcibly if she refuses without a legal impediment, and she does not have the right to force him to have intercourse after he has had intercourse with her once.

The author of the fatwa introduced this saying:

وإذا امتنعت الزوجة من الفراش دون عذر، فهي عاصية وناشز، ويجوز للزوج جبرها على الجماع حينئذ.
If the wife refuses to have intercourse without excuse, then she is disobedient and disobedient, and the husband may force her to have intercourse at that time.

According to this article (in Arabic) scholars from al-Azhar consider this as a rape, which is a milestone for women!

An other scholar says that the hadith

Abu Huraira (Allah he pleased with him) reported Allah's Messenger (may, peace be upon him) as saying: When a man invites his wife to his bed and she does not come, and he (the husband) spends the sight being angry with her, the angels curse her until morning.

[Sahih al-Bukhari & Muslim, Sunan abi Dawod]

only quotes a wife who don't have an excuse like illness, sorrow, or has to catch up some days of fast and have only few days left before Ramadan, or has a husband who doesn't pray or drinks alcohol etc.. The husband shouldn't try to force them to have intercourse because of the well known Hadith "There is no injury nor return of injury." and as Allah says in Surat at-Talaq (65:6) "...and do not harm them in order to oppress them..." and in Suarat an-Nisa' (4:19) "...And live with them in kindness..." or in the Translation of Shakir "...and treat them kindly..." and to force them to intercourse isn't kindly treating. If the wife doesn't obey her husband if he wants to have intercourse with her because she doesn't want or just to make him angry he qualified it again as nushuz نشوز but added that the punishment is an option for her husband but not a must and most scholars say that the husband should not punish! (The longer answer could be fined here in Arabic)

So we see that among the scholars there are different points of view. The question is does the Quran and the sunna support one of these opinions?

What does the Quran and the Sunna say about the matter?

• Let's begin with the Hadith (narrated by abu Huraira) mentioned above: It doesn't say or allow the husband to take his "rights" by harming his wife! It only indicates that the wife would be a sinner if she rejected her husband without an excuse!
• The Quran Verses mentioned above (4:19) and (65:6) and the Hadith (a golden rule) "There is no injury nor return of injury." (Muwatta' Malik and sunan ibn Majah 1, 2 and Riyad as-Saliheen with more sources) show that harming in a husband-wife relationship is far away from how islam wants us to live together!

We can also find the following Hadith:

• Narrated 'Abdullah bin Zam'a: The Prophet (ﷺ) said, "None of you should flog his wife as he flogs a slave and then have sexual intercourse with her in the last part of the day."

  [Sahih al-Bukhari]

But as an opposite we find an other golden rule about gentleness, which should also be applied in a husband-wife relationship!

• Al-Miqdam ibn Shurayh, quoting his father, said:
  I asked Aisha about living in the desert. She said: The Messenger of Allah (ﷺ) used to go to the desert to these rivulets. Once he intended to go to the desert and he sent to me a she-camel from the camel of sadaqah which had not been used for riding so far. He said to me: Aisha! show gentleness, for if gentleness is found in anything, it beautifies it and when it is taken out from anything it damages it.
  Ibn al-Sabbah said in his version: Muharramah means a mount which has not been used for riding. [Sunan abi Dawod]

• And in Hajjat al wada' the Messenger of Allah (peace be upon him) said: "...So act kindly towards women" as narrated by abi Huraira (in Sahih al-Bukhari & Muslim and Jami' at-Tirmidhi)

• And about forcing some one to do something we find the following Verse:

But let them who find not [the means for] marriage abstain [from sexual relations] until Allah enriches them from His bounty. And those who seek a contract [for eventual emancipation] from among whom your right hands possess - then make a contract with them if you know there is within them goodness and give them from the wealth of Allah which He has given you. And do not compel your slave girls to prostitution, if they desire chastity, to seek [thereby] the temporary interests of worldly life(Translation of Yusuf Ali: But force not your maids to prostitution when they desire chastity, in order that ye may make a gain in the goods of this life.). And if someone should compel them, then indeed, Allah is [to them], after their compulsion, Forgiving and Merciful.**

[Surat an-Nur (24:33)]

Some mufassireen said that the forcing here is seen in relation to the desire of chastity. As in case of a chaste woman/wife forcing isn't possible or at least valid. Thus the majority of scholars considers a marriage where the woman has been forced to marry a man as invalid قال ابن بطال : ذهب الجمهور إلى بطلان نكاح المكره!

Therefore if forcing someone to do haram is haram, then forcing someone to do something (even if it is halal) should be haram, because someone who has been forced to do something will always reject and hate it! So you would make someone hate to do something halal and might guide him to haram! So forcing should be replaced by gentleness. And harming and forcing is against the asked kindness towards women in the Hadith mentioned above. See also here

Finally a practice which is clearly contrary to shari'a

Many husbands in a supposed case of nushuz نشوز or to oblige their wives to obey them beat them while the quran says:

... But those [wives] from whom you fear arrogance - [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand. (4:34)

So the verse clearly shows that violence or beating (even softly as stated by scholars) is the last choice after taking former steps! So a husband can't come and beat his wife unless she went ahead with her nushuz after the two former steps:

1. advise them

this needs a conversation between the spouses without any violence, but maybe by a good remainder of some verses of the Qur'an, some good words of the Prophet () etc.

2. forsake them in bed

So the husbands in practice wants to beat his wife because she refused intercourse, or because she doesn't obey him now -in fact-he is asked to "punish her" by not having intercourse with her for a while (days not a second, minute or hour, as else it would be meaningless) before even thinking of beating her softly!

3. strike them.

All this can't be done in the same day, but needs days or even weeks of rejection (or disobedience) of the wife to follow the orders of Allah.

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A bit off-topic, but showing another perspective

There's an old Moroccan custom which many orthodox people would describe as "going against shari'a":
When husband and wife had a dispute which lead the wife to flee upset from the husbands house to her parents house. A good husband needs to buy gifts (two of a kind like for the traditional marriage) and dhabiha to please her and have his wife back.

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Conclusion:

It seems to me that there's no support for rape nor direct violence in conjugal relationship or for forcing the wife to have intercourse and the total submission (tamkin) matter which seems to me in total opposite to what our Messenger (peace be upon him) use to do!