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 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 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.
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
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)
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.
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
- (obligatory) fasting
- 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
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.
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.