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Author Topic: Question Regarding Marital Rape  (Read 1980 times)
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se7en
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« on: Nov 30, 2010 07:01 PM »


as salaamu alaykum,

Check out this article I wrote for Imam Suhaib Webb's blog, in response to a question on this sensitive and often misunderstood topic.  This was actually one of the most challenging articles I’ve written so far, in terms of research and actual composition, so  I hope it is of benefit.  Feel free to share your thoughts and comments here or at the original site.

salaam,
7

---

Question Regarding Marital Rape

(Originally posted at: http://www.suhaibwebb.com/relationships/marriage-family/spouse/question-regarding-marital-rape/)



Question: Is marital rape allowed in Islam?

Answer: As salaamu alaykum,

Thank you for asking this important question which has come to the fore in recent times, and which has been the cause of confusion for many people. Here are some important points to take into consideration when learning about this issue:

-- It is absolutely haram (unlawful) for a man to harm his wife.  The Prophet saw prohibited harming others in general1, and intensified that prohibition for harming other believers2.  If one is taught to hold ordinary people – with whom one shares no special relationship – in such sanctity, then what of the person one is linked to in the “weighty, serious bond” of marriage (Quran, 4:21); who is one’s “garment” (2:187), and who lives under one’s ri’aaya, care and shepherdship, as mentioned in a prophetic tradition3?  Allah has described marriage as a relationship of kindness, mercy and love (30:21), and commands men to deal with their wives in an honorable way (4:19).  Rape, abuse, ill treatment, and inflicting harm – be it physical, verbal or psychological – are completely unacceptable in such a relationship.

-- It is true that the contract of marriage grants a husband the right to intimacy with his wife, and vice versa, however, this does not imply that one can seek to obtain this right violently or forcefully.  Just as in any situation in which one has been deprived of one’s due rights, one must go through the proper channels to resolve the matter in a just and honorable way.  At no time does it become permissible for someone to take it upon themselves to harm the other party in a misguided attempt to ‘take their right’.  This would amount to a type of vigilantism or seeking of personal vengeance that has no place in Islamic tradition, in which we are taught to defer such disputes to those with religious and legal authority.  This is clearly indicated in the words of the great scholar Taqi al-Din al-Subki, in his commentary on some verses of the Quran related to marriage:

“At the time when it becomes obligatory for a husband to provide financial support, clothing, (and other such provisions) for his wife, he should exert himself in doing so, and not be negligent in this duty such that his wife would have to file a complaint of his negligence with the judge [haakim], and in so doing spend from her own expenditures. …Similarly, a wife should be responsive to her husband’s request for intimacy, such that he would not need to bring a complaint (against her) to the judge, and in so doing spend from his own expenditures.”4

From these statements we see that a husband’s or wife’s proper recourse, when confronted with a marital issue they are unable to resolve, is to turn to the appropriate authority for guidance and direction.  Violence or force of any kind is not an option.

-- People often defend such behavior by citing prophetic traditions that strongly discourage women from refusing their husbands if they approach them for intimacy.  While these texts underscore the importance of a wife fulfilling her spouse’s sexual needs (a reminder the Prophet saw gave to men in a number of statements as well5), they cannot be used to justify force.  One such text goes on to describe the husband as one who, after being refused, “goes to bed angry.”6 If it were truly acceptable for a man to force himself on his wife, why wasn’t such an act mentioned here as a viable alternative to his wife’s refusal?

-- Some people also seek to confuse this issue by citing the verses in the Quran that outline a disciplinary method of dealing with a wife who is nashiz7.8 These verses are probably among the most misunderstood, misused and misapplied of the Quran in our times, and must be understood in their proper exegetical context.  Since an in-depth explanation of these verses is beyond the scope of this article, it will be sufficient to state that darb - which is often translated as ‘to strike lightly or tap’ – has been strictly defined by our scholars and has numerous restrictions and conditions.9 From among them is that it is done in a manner that would not cause humiliation or harm to the person, and that it is only done when it is a means of helping reconcile between the spouses, and is not a cause of resentment, enmity or hatred between them.10 It is impossible for such verses – whether looked at lexically, exegetically, or otherwise – to be used to excuse violent or forced sexual relations with one’s wife.  Dr. Jamal Badawi succinctly rejects these types of false claims by stating,

“Any excess, cruelty, family violence, or abuse committed by any Muslim can never be traced, honestly, to any revelatory text (Quran or hadith). Such excesses and violations are to be blamed on the person(s) himself, as it shows that they are paying lip service to Islamic teachings and injunctions and failing to follow the true Sunnah of the Prophet.”11

--Though marital rape would not warrant a hadd punishment12 in accordance to Shari`ah, this in no way means that such an act is acceptable or that it would go unpunished by an Islamic court.  Some people mistakenly believe that the hadd punishments are the only ones that exist in Islamic law, but that is not the case.  Even if an act does not fall into one of the specified categories for hadd punishment, a qadi [judge] still has the right to punish the person with imprisonment, corporal punishment (lashing), or anything else he deems suitable for the situation, the crime committed and the guilty individual (which is called zajr or ta’zeer).13 Some scholars even state that a wife who has been assaulted in such a manner by her spouse has the right to jirah, or civil redress, for her injuries.14

-- Some scholars condemn such an assault as sinful and despicable while at the same time deeming it inappropriate to be labeled as ‘rape’.  This is because of the presumption of consent implicit in the legal contract of marriage.  It is important to note that such statements are not intended to condone the behavior, but are simply an expression of legal exactness.  When taking such a case into consideration, scholars would not base a punishment on the sexual act itself, but on the harms, both psychological and physical, that stem from it.  Such an assault – however it is labeled – is still considered by scholars to be unacceptable, sinful, and susceptible to punishment.

-- If a man finds his wife unreceptive to his overtures of intimacy, he should put in some effort to be attentive, affectionate and kind to his wife, and to fulfill the numerous recommendations the Prophet saw made in regards to intimacy.  Such problems may also be symptomatic of deeper issues in the relationship that need to be resolved.  One should always take an introspective, constructive, and proactive approach to dealing with problems, focusing first on how one can change one’s own behavior to improve the situation, instead of simply blaming the other party or seeking to ‘punish’.  It may also be necessary to seek counseling and advice from others who have expertise in these matters.

-- An individual who engages in assault and abuse of any kind, especially towards family members, shows signs of underlying psychological problems that need to be treated.  There is no level of frustration, anger, or overwhelming grievances – no matter how legitimate they may seem – that pardons such dehumanizing and callous behavior.

I hope these points have shed some light on this issue, and have made it clear that marital rape is not allowed or condoned by our deen, and is in fact a sinful act that a person can be held accountable for in this life, before the hereafter.  In the very first verse in the chapter of the Qur’an entitled “Women”, Allah Most High warns us to be fearful of Him in demanding our rights upon each other. He in fact warns us to be fearful of Him twice in this verse, a sign of the seriousness with which we should take such matters:

“O mankind, fear your Lord, who created you from a single soul and created from it its mate, and dispersed from both of them countless men and women. And fear Allah, through whom you demand your mutual rights, and (reverence) the wombs that bore you: Indeed Allah is ever, over you, an Observer.” (Quran, 4:1)

In conclusion, the Prophet saw taught, “Only a noble man treats women in an honorable manner and only an ignoble man of low character treats women disgracefully.”15 May Allah make us people of noble character, who fear God in our dealings with others and who weigh our deeds and words well before they are weighed for us on the Day of Judgment.

Allah knows best.

Wasalaamu alaykum.


______________

1 “”There should be neither harming nor reciprocating harm.” This hadith can be found in An-Nawawi’s Forty Hadith.

2 “The whole of a Muslim for another Muslim is inviolable: his blood, his property, and his honor.” In Sahih Muslim, narrated by Abu Hurayra.  It can also be found in An-Nawawi’s Forty Hadith.

3 “A man is a shepherd in his family and is responsible for those in his care.” Part of a longer hadith in Sahih al-Bukhari, 2419.

4 Al Majmu’ Sharh al-Muhadhab, Vol. 16, pp. 414-415, Dar al-Fikr Publishers.

5 For example, when Abdullah ibn ‘Amr ibn al-Aas desired to stand in prayer for the entire night, the Prophet (salAllahu alayhi wa salam) reminded him, “Your body has a right over you and your wife has a right over you.” (Sahih al-Bukhari)  He (salAllahu alayhi wa salam) also encouraged certain etiquettes and manners in intimacy that would bring satisfaction to the woman in a number of texts.

6 Sahih al-Bukhari and Sahih Muslim.

7Nushuz is commonly translated as rebellion, ill conduct, or arrogance in a way that jeopardizes the well-being of the marriage.  Men can also be guilty of nushuz (See Qur’an, 4:128).

8 See Quran,4:34-35.

9 These conditions are detailed in many books of tafsir. For example, see Tafsir al-Qurtubi, Vol. 5, pp.172-173, Dar al-Kutub al-Masriyya, 2nd Edition.

10 Reliance of the Traveler, p.542.

11 http://www.jannah.org/sisters/end.html

12 Specified punishments outlined in the Qur’an for certain criminal acts.

13 See the chapter on Hudud in any book of fiqh for more information on the concept of zajr and ta’zeer.

14 From an excellent article entitled, “Rape & Incest: An Islamic Perspective”, found here.

15 Sunan at-Tirmidhi
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« Reply #1 on: Dec 03, 2010 12:27 PM »

excellent article! your ammount of reaserch is simple admirable.....i also write small (400 word) articles on light casual topics for web and do not do too much reasearch also but even that burns me out. I can understand how much effort this one must have taken. But u have come out with a wonderful piece of work. The article has brought out the message very claerly and aptly.
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« Reply #2 on: Dec 03, 2010 03:38 PM »

I am curious about the options that exist before one actually has to take things to the judge (in my opinion, by the time you've taken the matter to a judge, the stances have become very hardened, and things may be beyond repair).

The translation of darb in particular is very contentious. Some people describe it as 'strike lightly (but not enough to leave a mark or hurt)' others as 'remind'.

Obviously the best thing to do is to approach the whole issue with an attitude of respect, love, mercy and affection for your partner. However, there are some instances where there are difference in opinion (and the impact on sexual relations is usually a by-product of people's comfort level with themselves and their context, at least according to Michael Bader's theories (who has extensively studied the male side of sexuality)).
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« Reply #3 on: Dec 03, 2010 09:46 PM »

Quote
Is marital rape allowed in Islam?

Very strange Question, me thinks!

"Do not treat people with contempt, nor walk insolently on the earth. Allah does not love the arrogant or the self-conceited boaster. Be modest in your bearing and subdue your voice, for the most unpleasant of voices is the braying of the ass." [The Holy Qur'an, Surah Luqman - 31:18-19]
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« Reply #4 on: Dec 05, 2010 06:02 AM »

MashAllah Se7en you did a wonderful job with this article!!!!!  I pray that Allah SWT rewards your efforts in dealing with such a difficult and personal topic!

Lack of intimacy effect many MANY marriages, I am not sure if this a recent epidemic or if it’s just finally getting addressed, thoughts?
 
se7en
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« Reply #5 on: Dec 08, 2010 01:24 PM »

as salaamu alaykum,

Jazakum Allahu khayran for the comments and feedback Smiley

I am curious about the options that exist before one actually has to take things to the judge (in my opinion, by the time you've taken the matter to a judge, the stances have become very hardened, and things may be beyond repair).

The translation of darb in particular is very contentious. Some people describe it as 'strike lightly (but not enough to leave a mark or hurt)' others as 'remind'.

Obviously the best thing to do is to approach the whole issue with an attitude of respect, love, mercy and affection for your partner. However, there are some instances where there are difference in opinion (and the impact on sexual relations is usually a by-product of people's comfort level with themselves and their context, at least according to Michael Bader's theories (who has extensively studied the male side of sexuality)).

That is a great question and topic for research and inquiry.  A friend of mine was doing some research in court records from Cairo a few hundred years back, when the qadi system was in effect, and she told me that it was very interesting to see what types of issues were brought before the qadi and how the whole system worked.  It seems that the qadi of a locality was actually very approachable, and had set aside times where anyone and everyone could come to him with their issues/complaints to be adjudicated, without needing a legal representative or having to pay legal fees.  It's definitely something that would be interesting to find out more about, but the general idea I've gotten is that the qadi also acted in some ways as a mediator and was referred to for even seemingly 'petty' issues, w'Allahu a'lam.

As for the translation of darb, I've heard about how some more recent translations of the Quran have translated it as 'to remind or warn', but I am not sure how accurate that would be from a linguistic and even exegetical perspective.  If you look at basically all the tafaseer, the term is explained as an actual 'hit or strike', but always conditioned as ghayr mubarrih (that does not cause actual injury or harm), as this is a phrase that the Prophet saw used in relation to this issue in a hadith.  Some commentators explain that this means a very 'light' strike, with many conditions, like for example with a miswak (a very tiny 'toothstick', about the same measurements of a toothbrush) or with a folded napkin.

From these cursory readings, it seems to me that what is intended here is either a) a symbolic gesture, meant as a way of showing the seriousness of the person's actions (which is Dr. Jamal Badawi's opinion and the one I am most inclined to), or b) a 'snap out of it', 'slap on the wrist' type of thing at most, w'Allahu a'lam.

The last point you mentioned, about approaching things with an attitude of mutual love and respect, as opposed to punishment or vengeance, is definitely what is key here.

salaam,
7
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