MARITAL RAPE?

It is imperative we look at the definition of the term “rape” in Sharīáh and see whether this can be applied in the context of a marriage.

When we look to the books of Fiqh, we see that “rape” is defined as “istikrāh álā al-zinā”, i.e. zinā by coercion. https://twitter.com/umm_yusxairah/status/1292938205592014856

Abū Bakr Aĥmad ibn Álī al-Jaşşāş al-Rāzī al-Ĥanafī [305-370 AH / 917-981 CE] writes in Mukhtaşar Ikhtilāf al-Úlamā’a, regarding a man who rapes a free woman:

“If he coerces a woman and commits zinā with her.”

Imām Abu’l Ĥusayn Aĥmad al-Qudūrī al-Ĥanafī [362-428 AH / 973-1037 CE] states in Tajrīd in the section, “The man’s coercion of a woman to zinā”:

“Our companions have said that if the man coerces a woman to zinā, then upon him is the Ĥ￲add, and there is no Mahr upon him.”

Qāđī Khān Ĥasan ibn Manşūr al-Uzjandī al-Ĥanafī [d. 592 AH / 1196 CE] writes in his Fatāwā:

“If the woman is coerced to commit zinā, there is no Ĥadd upon her, according to all.”

Shams al-A’immah Abū Bakr Muĥammad ibn Aĥmad al-Sarakhsī al-Ĥanafī [d. 483 AH / 1090 CE] states in al-Mabsūţ:

“We say that his act with a coerced woman is zinā, and the obligatory for zinā is the Ĥadd, and no addition to that on the grounds of opinion is permitted.”

He also states:

“If a woman is raped [and called a zāniyah], that person shall not receive the Ĥadd punishment for qadhf. This is because the copulation was without ownership and by coercion. Though she is not sinful, the act is not excluded from being zinā.”

Therefore, rape is not considered a crime distinct from zinā, but rather a coercive form of zinā. A victim of rape is a woman or girl who has technically participated in zinā,

but from whom liability has been lifted due to the factor of coercion or another form of defective capacity such as minority or insanity.

From this it is clear that a sexual act within marriage or slave ownership cannot be considered rape as it is not zinā.

Zinā is defined by all Sunni Fuqahā’a as any act of genital intercourse between an adult male and an adult or minor female that lies clearly outside the bonds of sexual ownership [milk], whether that ownership be established through slave ownership [riqq] or marriage [nikāĥ].

Imām Álāuddīn Muĥammad al-Samarqandī al-Ĥanafī [d. 450 AH / 1145 CE] writes in Tuĥfatu’l Fuqahā’a:

“As for zinā, it is sex that is Ĥarām outside of: certain ownership, or certain marriage, or of uncertain ownership or uncertain marriage and also of uncertain liability.”

It is thus established that sexual coercion within clearly permissible contexts such as marriage or slavery cannot be considered rape and so “marital rape” is a term that is nonsensical and incorrect, rather it should be called coercive sex.

As for the ruling on a man engaging in coercive intercourse with his wife, then we must take a look at whether this has been prohibited or not in the books of Fiqh.

Malik al-Úlamā Álāuddīn Abū Bakr ibn Masúūd al-Kāsānī al-Ĥanafī [d. 587 AH / 1191 CE] writes in Badāyiý al-Şanāyiý, regarding the abandonment of the wife in order to discipline her:

“There is disagreement about the nature of abandonment.

It is said, ‘He abandons her by not having intercourse with her, and by not sleeping with her in the marital bed.’ And it is said, ‘He abandons her by not speaking to her when sleeping with her in the bed, and not that he abandons sex and sleeping with her.’

This is so because this [sexual intimacy] is a shared right between them, and so in this [abandoning of sex and the bed] there is some harm upon him as there is upon her. He is not to discipline her by what harms himself and nullifies his own right.

And it is said, ‘He abandons her by separating from her in bed, and instead bedding another [i.e. wife or slave woman] on her rightful night.’ Because her rights upon him in division [of nights] is only in a state of agreement and protecting the boundaries of Allāh táālā,

and not in a state where she forfeits her rights, and there is fear of nushūz and strife. And it is said, ‘He should abandon her by leaving her bed and having sex with her when he is overcome with desire for her, and not at the time that she needs him.’

This is so because this is for discipline and rectification, and it is appropriate that he discipline her and not his own self by preventing him from having intercourse when he needs her.”

We observe that the final statement here mentions him having sex with her when he wishes to do so rather than when she does, this would include the case where the reason for discipline is her sexual refusal to begin with.

When it comes to the topic of the maintenance [nafaqah] of the wife in Ĥanafī Fiqh, a wife’s sexual refusal is irrelevant if not accompanied by her departure from the marital home, because her husband is permitted to have sex with her against her will.

Imām Zaynuddīn ibn Ibrāhīm ibn Nujaym al-Ĥanafī al-Mişrī [926-970 AH / 1520-1563 CE] wrote in Baĥr ar-Rāyiq:

“Even if it were seen that she was sexually disobedient to her husband, [his claim that she is a nāshizah and that he does not have to maintain her] is not accepted;

because it is possible she is in his house whilst she is disobedient to him. Thus, the maintenance does not fall away because the husband can prevail upon her.”

What this means is that as long as a wife remains in her husband’s house, she is owed maintenance,

even if she is disobedient and withholds sex. This is because as long as she remains in his house, a husband can dominate her, coercing her to have sex with him.

Imām Abū Bakr Aĥmad al-Khaşşāf al-Shaybānī al-Ĥanafī [d. 261 AH / 875 CE] writes in Kitāb al-Nafaqāt:

“Is it permissible for the husband to have sex with her against her will if she refuses for other than seeking the Mahr? It is permissible for him, because she is an oppressor.”

Thus, it can be concluded that a term such as “marital rape” is incorrect and nonsensical due to rape being coercive zinā. As for coercive sex in marriage or slave ownership, then this is permitted, though it is not ideal and it is superior for a man to refrain.

Imām Aĥmad ibn Ĥanbal al-Shaybānī [164-261 AH / 780-855 CE] permitted consummation of marriage with a minor wife when she reached the age of nine lunar years, even against her consent. https://twitter.com/IbneKhan01/status/1317702632560074752

Imām Burhānuddīn Abu’l Ĥasan Álī ibn Abū Bakr al-Marghīnānī al-Farghānī al-Ĥanafī [d. 593 AH / 1197 CE] writes in Al-Hidāyah:

“If she commits Nushūz [leaves his house without his consent], there is no Nafaqah [maintenance] for her until she returns to his house.

Because the loss of confinement [to his house] is due to her, and if she returns then the confinement [also] comes and thus Nafaqah becomes obligatory, as opposed to when she refuses to have sexual intercourse whilst remaining in the house of her husband, as confinement persists,

and the husband is able to coerce her to have intercourse.”

Sayyid Muĥammad Ibn Áābidīn al-Ĥanafī al-Shāmī [1198-1252 AH / 1784-1836 CE] writes in Radd al-Muĥtār:

❝The apparent is that it means she does not have the right to coerce him for that [i.e. intercourse], not with the meaning that he is not permissible for her when he refuses

her from himself, because it is from the rulings of nikāĥ that gratification is permissible for both from the other.

Yes, he has the right to intercourse with her coercively when she refuses without a hindrance in the sharīáh [such as menstruation], and she does not have the

right to coerce him upon intercourse, after he has had intercourse with her once, even though it is necessary upon him from a religious aspect to do so occasionally, as shall be mentioned.❞

Abū Bakr Aĥmad al-Khaşşāf, quoted earlier, mentioned that it is permissible for a man to coerce his wife if her refusal is not for the purpose of seeking mahr from him.

As for the case of when her refusal is in order to seek mahr from him, then there is difference of opinion.

He writes:

❝If it [i.e. the refusal] is in order to seek the mahr, then according to Abū Ĥanīfah رضي اللہ عنه it is not permissible [for him to coerce her] and he sins [by doing so], and according to the two [i.e. Abū Yūsuf and Muĥammad] it is permissible and he does not sin.❞

Thus we see that though there is no disagreement regarding the first case, however, when it comes to the case of her refusing in order to seek the mahr, then there is difference of opinion between Imām Abū Ĥanīfah and his two students.

The correct opinion is that of the Imām.

Ibn Nujaym, who is also quoted earlier, mentions prior to the quote presented above:

❝It is restricted to her going out, because if she were residing with him in his house, and she did not allow him to have intercourse, then she is not a nāshizah, because the apparent is that

the husband is capable of obtaining what is desired [i.e. intercourse] from her by the proof that the virgin woman is not had intercourse with except by coercion.❞