Islam and Today · Legal

Marital Rape

Only a noble man treats women in an honourable manner and only an ignoble man of low character treats women disgracefully.
  -Prophet Muhammad

          Marital rape, also known as spousal rape, is defined as a sexual attack by a husband or ex-husband. It is also a non-consensual sex in which the perpetrator is the victim’s spouse. It is a form of spousal rape, of domestic abuse and of sexual abuse. Marital rape is likely to be part of an abusive relationship; hence it is rarely a onetime event.
           From the early 19th century, women rights activists challenged the presumed right of men to engage in forced sex with their wives. They singled out a woman’s right to control marital intercourse as the core component of equality. British liberal feminists, J.S Mills and Harriet Taylor attacked marital rape as a ‘gross double standard in law’ and as ‘central to the subordination of women’.
          In December 1993, the United Nations High Commissioner for Human Right published the Declaration on the Elimination of Violence against Women which established marital rape as a violation of Human Rights.
       In Nigeria, marital rape has not yet been criminalised. It is a topic many people would rather not talk about but its effect is inherently ravaging not only the female folk and family ties, but societal values.
        Customary law enjoins a woman to be submissive to her husband. Many Nigerians also share this view. It is generally believed that a man cannot be said to have raped his wife because he paid her bride price. The Sharia Penal Code (in operation in some parts of the north) emphatically states that “sexual intercourse by a man with his own wife is not rape”.
       Section 6 of the Criminal Code defines unlawful carnal knowledge as carnal connection which takes place otherwise than between husband and wife. This implies that a man cannot rape his wife because intercourse between a husband and wife cannot be unlawful and consent is deemed to be implied from the marriagev contract.
          Apart from the chauvinistic view of the society that women are the property of men, the fear of reproach by other women and family prevents victims of marital from coming out to report cases of abuse. 
     The Islamic position on marital rape is not clear cut. However, some scholars have argued that a man cannot force his wife to have sexual intercourse up to the point of inflicting injuries on her.
     According to the Shariah, a woman has to be respected and protected under all circumstances, whether or not she is a Muslim.
          The Qur’an is very clear that the basis of marital relationship is love and affection between the spouses, not power and control.
Q. 2:187
“…they are clothing for you and you are clothing for them…”

Q.30:21
“And of His signs is the He created for you from among yourselves mates that you may find tranquillity in them; and He placed before you, affection and mercy.”
         It is the position of some scholars that marital rape can be inferred in the context of the law of Jirah (wounds). Thus, where physical harm through forceful sexual intercourse is caused to a spouse, there may be a claim for Jirah compensation.The law of Jirah provides for compensation for the physical harm caused between spouses and supports Islamic legislation against domestic abuse.
          Though some Islamic jurists consider consent of the victimized spouse to be presumed by virtue of the marital relationship, others maintain that where harm occurs, it is an assault regardless of the consent and therefore compensation is due. Their reason is that  although the contract of marriage grants a husband the right to intimacy with his wife and vice versa, it does not imply that he can seek to obtain this right forcefully. Just as in any situation in which one has been deprived of his rights, he must go through the proper channel to resolve the matter in a just and honourable way. It is not permissible for a person to take it upon himself to harm the other party in an attempt to take his ‘rights’. Renowned scholar, Taqi al – Din al – subki, in his commentary on some verses of the Qur’an related to marriage said:
“At the time when it becomes obligatory for a husband to provide financial support, clothing (and such other 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 (hakim), and in doing so, spend from her own expenditure… 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 doing so, spend from his own expenditure.”
          From the above statement, it is clear that a husband’s or wife’s proper recourse when confronted with marital issues they are unable to resolve is to turn to the appropriate authority for guidance. Violence or force of any kind is not an option. Rather, Islam recognises the importance of sexual fulfillment where both sexes are concerned and supports the concept of foreplay as a prerequisite to guarantee satisfaction on both sides. Imām Ibn Qudama [ra] the Hanbali
Jurist narrates a hadith that the Messenger of Allāh said, “Do not begin intercourse until she has experienced desire, like the desire
you experience, lest you fulfill your desires before she does.” (AlMughni 8:136)
          Some Muslims defend marital rape by citing a hadith that discourages women from refusing their husbands if they approach them for intimacy:  Abu Hurairah reported the Prophet (saw) as saying “When a man calls his wife to come to his bed and she refuses and does not come to him and he spends the night angry, the angels curse her till the morning.” While this hadith underscores the importance of a wife fulfilling her spouse’s sexual needs, it cannot be used to justify force. The hadith goes further to say that if the husband goes to bed angry with the wife; the angels will curse her till the next morning. This shows that a husband cannot force his wife to have sex and her punishment for refusal lies with Allah.
          Another reason people cite in justifying marital rape is the verses in the Qur’an that outline a disciplinary method of dealing with one’s wife who is a Nashiiz (rebellion, ill – conduct, arrogance that in a way jeopardizes the wellbeing of the marriage). . “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” Q. 4:34 – 35.
          These verses are usually misunderstood and it has been said by scholars that darb, which is to “strike lightly or tap” has been strictly defined and is subject to many restrictions. Among these restrictions is that it should not be done in a manner which would cause humiliation or harm to the person.
          In the words of Dr Jamal Badawi, “any excesses, cruelty, family violence or abuse committed by a Muslim can never be traced, honestly to any revelatory text (Qur’an or Sunnah). Such excesses and violations are to be blamed on the person himself as it shows that they are paying lip service to Islamic teachings and instructions and failing to follow the true Sunnah of the Prophet.”
          Though there is no specific punishment for marital rape in Quran and Sunnah, some scholars while condemning such an assault as sinful and despicable deem it inappropriate to be labelled as rape, this is because of the fact that intercourse is one of the legal incidence of a marital contract, such statement however are not intended to condone such behaviour. As a result, scholars would not base punishment on the forceful sexual act but on the harms and injuries that occur as a result of the forced sexual act.
          It is submitted that if a man finds his wife unresponsive to his advances, he should be attentive affectionate and kind to her. Narrated by Anas that the Messenger of Allāh said  “Not one of you should fall upon his wife like an animal; but let there first be a
messenger between you.” “And what is that messenger?” they asked, and he replied:
“Kisses and words.” (Musnad Al Firdaus- imām Daylami) If she is still uncooperative, it is not his duty to punish her rather he should seek redress with a judge or better still leave her punishment to Allah.
 
This article was sent in by Faridah Abdullahi. She is a striving Muslimah and a closet writer. This is one of her few published pieces…masha Allah! She studies law at the  University of Lagos.

Maasalam!
HSMx

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