Definition of rape - is marital rape a criminal offense in sharia

Question

Marital rape consists of raping your spouse, i.e. having intercourse with your spouse despite a lack of consent. In modern law, marital rape is on par with extramarital rape in terms of legal consequences: the rapist will be punished, whether the victim was his spouse or not.

This is not clear to me in sharia if the husband rapes the wife. One of her major duties according to the marital contract is sexual availability, and refusing to oblige is not only considered a major sin, it has the legal implication of losing her right to maintenance by her husband (the linked answer talks about leaving the house without permission, but on a fortiori grounds, this also holds about her refusing intercourse; this result is also explicitly mentioned in the section of which excerpts are cited in the linked answer).

I can't find a definition of rape in fiqh sources, and the only mention of a punishment for rape in Reliance of the Traveler I can find is in o7.3 in the context of how far self-defense can go (not in the context of legal punishments):

As for when an aggressor is raping someone whom it is unlawful for him to have sexual intercourse with, it is permissible to kill him forthwith.

Clearly this says nothing about marital rape since it is lawful for the husband to have sex with his wife. The Hidayah only mentions marital rape in a footnote to a paragraph about maintenance of the wife; it says nothing about any consequences for the husband. This answer to a related question also says nothing about a legal punishment for the husband, or even any negative legal effects like owing her money.

Thus my questions:

• Which definitions of rape exist in fiqh? In particular, what is the relevance of consent?
• Are there any criminal law consequences for a husband raping his wife that don't also exist for a husband causing bodily harm to his wife? (To explain the difference: is a husband who rapes his wife by beating her with an iron rod punished differently from a husband who beats his wife with an iron rod without also raping her?)

Answer 1

Forced intercourse with a spouse is not considered a criminal offense in shariah, as long as the wife does not have a valid excuse for her refusal, and as long as it is not combined with some separate haram act.

Refer to the following fatwas:

وإذا امتنعت الزوجة من الفراش دون عذر، فهي عاصية وناشز، ويجوز للزوج جبرها على الجماع حينئذ

If the wife refuses sexual intimacy without an excuse, then she is sinful and rebellious, and the husband may force her to have intercourse

^{— islamweb}

Islamweb has cited Ibn Abidin's statement in Radd al-Muhtar, the standard manual of Hanafi fiqh.

فإن امتنعت من غير عذر كانت عاصية ناشزا ، تسقط نفقتها وكسوتها .

وعلى الزوج أن يعظها ويخوفها من عقاب الله ، ويهجرها في المضجع ، وله أن يضربها ضرباً غير مُبَرِّح، قال الله تعالى : ( وَاللاتِي تَخَافُونَ نُشُوزَهُنَّ فَعِظُوهُنَّ وَاهْجُرُوهُنَّ فِي الْمَضَاجِعِ وَاضْرِبُوهُنَّ فَإِنْ أَطَعْنَكُمْ فَلا تَبْغُوا عَلَيْهِنَّ سَبِيلًا إِنَّ اللَّهَ كَانَ عَلِيًّا كَبِيرًا ) النساء/34

If a wife does not allow her husband to have intimacy with her, without a valid excuse, then she is a sinner and rebellious based on which provision of her maintenance and clothing can be forfeited

And the husband should warn her of Allah's punishment, and forsake her bed, and it is also permissible for him to hit her as long as it is not too severe

Allah has said: 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 - Quran 4:34

^{— islamqa.info}

Islamqa cites the fatwa of Ibn Taymiyyah which suggests beating the wife on persistent refusal of intimacy.

Additionally the classical scholars have noted refusal of intimacy as a form of Nashooz (disobedience\rebellion) - refer to the writings of the Malikis, Shafi'is, Hanbalis, and Hanafis.

On Nashooz the rulings of verse 4:34 apply, which involves changing the wife's behavior by:

• advise (which includes starting by saying it softly or convincing by showing some favors, and then scolding and threatening with physical punishment)
• forsaking her in bed (i.e. giving her turn to any other wives, refraining from speaking with her etc.)
• eventually hitting her
• and withholding of maintenance expenses (food and clothing).

Use of beating or even verbal intimidation to achieve compliance is a way of forcing her.

Meaning of Nashooz:

Nashooz of a woman means disobedience as is apparent from the context of the verse:

الرجال قوامون على النساء بما فضل الله بعضهم على بعض وبما أنفقوا من أموالهم فالصالحات قانتات حافظات للغيب بما حفظ الله واللاتي تخافون نشوزهن فعظوهن واهجروهن في المضاجع واضربوهن فإن أطعنكم فلا تبغوا عليهن سبيلا إن الله كان عليا كبيرا

Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband's] absence what Allah would have them guard. 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.

^{— Quran 4:34}

Refusal to have intimacy is literally a type of disobedience, as the husband is asking the wife to do something and the wife is refusing. If the Quran does not list all the acts which constitute disobedience then a sincere and principled person will assume that all acts of disobedience are meant - they will not picking and exclude some acts based on their whims.

One can also see the tafsirs such as Qurtubi, Razi etc. And I have already mentioned that the jurists of the four Sunni schools (Hanafis, Malikis, Shafi'is and Hanbalis) consider it to be a type of Nashooz.

If someone argues that this is not a type of Nashooz then they are making a claim against the apparent meaning of the verse and against what the jurists say. Their claim can not be accepted without explicit evidence (from acceptable sources of jurisprudence) which excludes this act from Nashooz.

Consent:

The wife has already given her consent as part the offer and acceptance of the Nikah contract, as its primary purpose is to have sexual intimacy, and to trade mahr for it. It is understood by both that this consent is perpetual, until divorce. If the wife refuses intimacy afterwards then she is violating this contract and contravening the right of the husband.

Right to intimacy:

Scholars have noted that a husband has a right to sexual intimacy, and that it is obligatory on the wife to provide it whenever the husband asks for it. The evidence for it includes:

إذا دعا الرجل امرأته إلى فراشه فأبت أن تجيء لعنتها الملائكة حتى تصبح

If a man Invites his wife to sleep with him and she refuses to come to him, then the angels send their curses on her till morning

^{— Bukhari}

This hadith strongly condemns a wife who refuses intimacy with her husband. Condemnation is proof that the act is haram, and hence is proof that providing intimacy is obligatory on the wife.

لا تصوم المرأة وبعلها شاهد إلا بإذنه

A woman should not fast (optional fasts) except with her husband's permission if he is at home (staying with her)

^{— Bukhari}

This hadith prevents a wife from fasting without the husband's permission. The reason for this is that intimacy is forbidden during fasting, and so the lesson is that a woman should not make an obstacle to intimacy without the husband's permission. This also proves that providing intimacy when the husband asks is obligatory on the wife.

And when something is obligatory on a person it is understood that their consent or personal desire does not play a part.

Excuses:

There are valid excused because of which a wife can refuse intimacy. These include:

• not having received the bride price (Mahr Mu'ajal)
• disease or weakness which prevents her from intimacy, or one which will cause her physical harm on having intimacy
• menstruation
• (obligatory) fasting
• ihram
• zihar
• any situation which makes it physically impossible for her to have intimacy
• or any other situation which makes it religiously forbidden for her to have intimacy with her husband

Being preoccupied or not being in the mood are not valid excuses, as another hadith elaborates:

‏ إذا الرجل دعا زوجته لحاجته فلتأته وإن كانت على التنور

When a man calls his wife to fulfill his need, then let her come, even if she is at the oven

^{— Jami at-Tirmidhi}

However since it is the right of the husband, she can ask the husband to waive it and excuse her, and she would be blameless if he agrees or forgives it.

Use of force to extract one's rights:

It is a basic principle in shariah law that if a person fails to fulfill their obligations, or commits some sin, or witholds someone's rights - then their behavior is to be corrected via advice, rebuke, threat, and even force if necessary. This is the very basis of Ta'zir punishments and of Enjoining Right and Forbidding Wrong:

من رأى منكم منكرا فليغيره بيده

Whoever among you sees an evil action, let him change it with his hand

^{— Muslim}

In the above sections we have already established that intimacy is a right of the husband. And that refusing it without a valid excuse is haram for the wife. Hence it is logical that a wife who does this should be corrected. This corrective action is prescribed for the husband.

Let us also examine the flip side of the rights of marriage. Lets assume that there is a woman who fulfills all her responsibilities but has a husband who wrongs her. For example he beats and mistreats her without reason. Or he does not pay her financial maintenance. What would happen to such a husband? And what recourse does such a wife have?

The answer to this which scholars would give is that the wife can herself take money from the husband's property without his permission. This is based on the hadith:

أن هند بنت عتبة، قالت: يا رسول الله إن أبا سفيان رجل شحيح وليس يعطيني ما يكفيني وولدي، إلا ما أخذت منه وهو لا يعلم، فقال: خذي ما يكفيك وولدك، بالمعروف

Hind bint `Utba said, "O Allah's Messenger (ﷺ)! Abu Sufyan is a miser and he does not give me what is sufficient for me and my children. Can I take of his property without his knowledge?" The Prophet (ﷺ) said, "Take what is sufficient for you and your children, and the amount should be just and reasonable.

^{— Bukhari}

Or in other cases they say that the wife can complain to a Judge who will then force the husband (via commands and using punishments if necessary) to fulfill the wife's rights.

So it is established that force can be used to correct the behavior of the husband. So then can force not be used to correct the behavior of the wife?

Legal Punishment on the husband?

There is no legal punishment if the husband forces the wife to have intimacy with him.

There is no Hadd since it is not fornication, theft, highway robbery, drinking of wine, false accusation or apostasy. Nor is a punishment prescribed for it in the Quran or Ahadith.

There is also no Qisas or Blood Money as long as no party is physically injured.

There should be no Ta'zir as a Ta'zir is only given on an act which is haram. Forcing someone to do something which is obligatory on them - or forcing them to discharge other people's rights - is not haram.

التعزير هو مشروع في كل معصية ليس فيها حد ولا كفارة

Ta'zir is prescribed for every sin for which there is no Hadd or Kaffarah

^{— Nawawi - Rawdat al-Talibeen}

And if someone argues that there is a Ta'zeer for it then they are being inconsistent: That is because the woman too has done a haram deed by refusing the husband, and hence she too should receive a Ta'zir punishment for her sin. And this is use of force to coerce her - which voids their entire argument.

And if the wife does not get a legal punishment for her sin - then the husband should also not get a punishment for his (supposed) sin of forcing the wife. And hence there is no Ta'zeer.

Answer 2

Islam on Marital-Rape

There is no exact unanimous definition of Marital Rape within Fiqh. The most common category that Marital Rape falls in within Islamic Legal Theory and fiqh is a type of major abuse and harm towards the wife. It also must be mentioned that there is no explicit right for the husband to commit a marital-rape and all the existing evidences make it haram.

Short Answer: It is absolutely haram (impermissible) to coerce your spouse for intimacy/sex.

Inflicting physical, emotional, behavioral, and any other type of harm or distress against a person, without valid justification, is haram, and especially more so against one's own spouse. If one individual tried to commit a marital-rape, it is impossible that no harm is associated with it, thus it is haram.

Historical view of Marital-Rape and coercing Intimacy

It must be understood that marital-rape is a relatively new concept historically speaking and became global in the late 20th century. Most countries criminalized marital rape from the late 20th century onward; very few legal systems allowed for the prosecution of rape within marriage before the 1970s.

So if you look back throughout history, the mindsets were much different from today so we cannot look through our modern lenses to understand them. Modern view is that any sexual engagement requires consent even within a marriage, while the thinking back then was that the marriage itself was the consent and that's how it was generally globally understood (in common law, civil law, other religions, ideologies, etc).

So you'll find opinions of some past Islamic Scholars and Scholars of other religions and ideologies around the world where marital rape was partially or fully allowed since it wasn't even a concept (as defined today) in their time. Though when this topic of treatment towards the wife was discussed and written about, many classical Islamic scholars condemned any form of abuse and harm towards the wife for example:

It is a vice in a man to assault his unprepared wife, seeking to satisfy his own lust and leaving her before she could achieve her own fulfillment…

^{Imam al-Ghazali in his Ihya’ (vol. 2: 49-50)}

Al-Qurtubi writes: Their husbands must not harm them, in the same way that they have rights over their wives

^{Al-Jāmiʻ li-aḥkām al-Qurʼān 2:228}

Az-Zamakhshari writes: Neither spouse should be violent against his or her companion.

^{Al-Kashshāf ʻan ḥaqāʼiq 2:228}

Al-Baydawi writes: Among her rights is the dowry, to be free from harm, and so on.

^{Anwār al-tanzīl 2:228}

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.

^{Mafātīḥ al-ghayb 2:228}

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 honorably. If he does not distract her from those duties or harm her, then he may enjoy her.

^{Kashshāf al-qināʻ 5/188}

As-Sayyid Sabiq writes: Imam Malik 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.

^{Fiqh al-Sunnah 2/289}

Modern Times

In modern times, based on these legal precedents and opinions regarding the forbidding of harm and abuse towards the wife, Muslim jurists 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 including the Grand Mufti of Egypt, states the following:

لا يجوز مهما بلغت درجة الخلاف بين الزوجين اللجوء إلى استعمال الضرب تجاوزًا للضوابط الشرعية المقررة ومن يخالف هذا المنع يكون مسئولاً مدنيًا وجنائيًا

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.

^{Mīthāq al-usrah fī al-Islām 65.3}

Addressing Misunderstandings

Hadith

Here, I'm going to address a hadith that many people, unfortunately, misunderstand to take as a justification to commit marital rape.

Narrated Abu Huraira: Allah's Messenger (ﷺ) said, "If a husband calls his wife to his bed (i.e. to have sexual relation) and she refuses and causes him to sleep in anger, the angels will curse her till morning."

^{Sahih Bukhari 3237}

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 warns such women of the negative moral consequences of this inexplicable behavior, 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.

Quran 4:34, Addressing Nushūz

Another misunderstanding worth mentioning is how some use Quran 4:34 to classify refusing intimacy as nushūz thus it is a justification to physically coerce your spouse for intimacy assuming that the previous steps have taken place. First of all, there's absolutely no mention of marital rape or forcing intimacy in this verse. The verse itself puts limits on what steps a husband could take to rectify the behavior of a wife who's committing nushūz, and according to the verse, the last resort, which is allowed to be skipped ^[1], is to lightly hit with a siwak ^[2] and/or it should not cause pain ^[3]. So where would the idea that the extremely violent act of marital rape is even allowed in Islam?

Another issue that arises here is that the word nushūz which is often translated to disloyalty or rebelliousness, has a meaning closer to "mutiny" according to al-Rāzī. it is when a person acts as if they are superior to a figure of authority (as in a soldier acting in disregard of an officer’s rank). ^[4]

Those from whom you fear discord and animosity refers to those who have demonstrated these things through their actions. To fear here means to “know” (Q, Ṭ, Ṭs); in other words, it refers to demonstrated hostility, not merely the suspicion thereof. Discord and animosity collectively translates nushūz, which comes from a root meaning “to rise up” or “to be elevated” (cf. 58:11). It thus connotes an attitude of high-handedness, haughtiness, or arrogance.

^{The Study Quran p.510-511}

The word nushūz is vague and does not clearly define what situations deserve a strong response and which ones do not. There is no exact ayah or hadith that classifies acts that fall under nushūz. It would be best to leave it to each family, culture and society to decide it for itself on what acts qualify as nushūz. All wives probably know what their husbands’ “deal-breakers” are, things that he would consider a severe insult and a betrayal, and these things can be different for different people in different societies and different times.

So if some past scholars considered refusing intimacy as an act of nushūz, they're judging it based off of their own thinking and mindset which is influenced by the society and culture they live in at the time. We are NOT bound to the interpretations of certain past scholars that allowed coercing intimacy forcefully, especially in an area where there's many different valid scholarly and Islamic views on what qualifies as nushūz , especially in the modern times that we live in. And again, even if it was an act of nushūz, the specified steps don't even remotely mention in anyway a despicable action such as marital rape as a response to the nushūz.

You can check out this link here for more insight regarding Quran 4:34

Criminal Consequences

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.

There is no specified Hudud punishment within Islam for marital rape but since most societies condemn abuse and harm towards the wife, there are still ta'zeer punishments for marital rape. Ta'zeer refers to punishment for offenses at the discretion of the judge or ruler of the state.

So this can be in the form of jail time, exile, flogging, retribution in any way such as financially for the wife, favorability for the wife during a divorce, etc. It all depends on the country, society, and court that issues judgement.

Sources

• Marital rape and domestic violence in Islamic law

• Is it Allowed to Coerce One's Spouse For Intimacy? | Ask Shaykh YQ - EP 269 | Shaykh Yasir Qadhi

• Does marital rape exist in Islam?

• A new approach to the Quran’s “Wife-Beating Verse” (al-Nisa 4:34)

Answer 3

In Sharia'a there is no such thing as the Marital-rape, for it is the duty of the wife to satisfy the sexual needs of the husband unless constrained by some genuine reasons.

All the western terminologies used in the above question or the answers tantamount to innovation as for as the sharia'a is concerned.

Western laws and sharia'a have their own applications in their own realm and proximity. For those who need more on the topic, there are several ahadith available to shed light on the topic. May Allah guide us all on the right path.