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Mainstream, VOL LI, No 15, March 30, 2013

Concept of Marital Rape in Islam

Sunday 7 April 2013

by Asghar Ali Engineer

Until yesterday a woman was considered a man’s property after marriage and sexual gratification with her was considered his absolute right. She could not deny her husband this right whether she wanted or not. In the early eighties of the last century Sisters in Islam, a women’s organisation in Malaysia, sent me a query whether there is anything like the concept of ‘marital rape’ in Islam.

I went through all available traditional Islamic literature and found nothing of the kind and reluctantly replied that such a concept does not exist. I also studied the literature on women’s movements in various countries and found that no such concept exists in Western laws too. But then I came across a judgment of a British court which came out with this concept and pronounced the husband of a woman guilty for forcing himself on an unwilling wife.

This set me thinking and urged me to study the Qur’an from this angle. As we all know, most of the Qur’anic verses, revealed over a period of 23 years, were in response to some or the other problem which arose in the Prophet’s (PBUH) life. It seems no such problem arose as women in those days also considered it their duty to surrender quietly to their husbands’ sexual demands. If not the husband, who else could make such demand? For the same reason the Hadith literature was also silent on this question.

But mere silence does not mean approval. The Qur’an is also silent about punishment for drinking. Does it mean drinking could be allowed? Not at all. The punishment for drinking was prescribed through analogical reasoning. Also, the Prophet (PBUH) was strongly in favour of ijtihad based on Qur’anic values and the values of sunnah. It is further important to note that it would amount to injuring the basic spirit of the Qur’an to assign fixed meanings to its verses.

If the Qur’an is a book of eternal guidance, specially in new situations arising from time to time, one must have the freedom to rethink the meaning of its verses in these novel situations. Also, what is more important to note is that the Qur’an was not meant for guidance of one or two generations of Arabs but was meant to guide the entire humanity for all time to come. It is true that the Qur’an addressed some specific problems of immediate relevance to the Arabs of the time.

But the Qur’an is much more than that. It gives certain eternal moral and ethical values and a transcendental vision going much beyond the time it appeared. Only persons of great future vision could capture this spirit of the Qur’an. Again it was for this reason that its verses, ever dynamic and pregnant with meaning, were interpreted in different ways. Also, if we confine the Qur’an to the Arab culture, customs and traditions, it will lose much of its relevance for the coming ages.

What the Qur’an prescribed by way of women’s rights was revolutionary enough. It gave to women what no woman could have imagined at the time. Yet because of severe constraints of time and extremely low consciousness of women themselves, its revolutionary character was greatly diluted. Now times are changing fast and women’s consciousness is not what it was when the Ulama of the time were formulating the Shari’ah laws. The whole approach to the divine text has to change in keeping with the transcendental vision of our own times.

This requires not only a study of the Qur’an in great depth but more than that its real vision. In the past the Ulama, in keeping with spirit of their own times, considered the woman, above anything else, a reproductive agent and also a means for gratification of men’s sexual desires and sadly even interpreted verses on polygamy and possession of slave girls in this light; and the contemporary Ulama too talk of polygamy as necessary as women go through menstrual cycles and pregnancy, and hence men need more women than one to gratify their sexual desire. Nothing could be more absurd than this.

Even a cursory study of the Qur’an makes it clear that a woman is as much a spiritual entity with a dignity of her own and in no case lesser in dignity than that of a man. The Qur’an repeatedly advises men to treat women in all matters, including marriage, divorce and even weaning of children, with utmost sensitivity, compassion and mercy. The Prophet gave her the greatest respect both as a mother and a wife.

It was for this reason that when women asked the Prophet (PBUH) about their status, the verse 33:35 was revealed and gave women the most exalted spiritual status. How then can be they treated as mere objects of sexual desire as most of our Ulama reduce them to? Sexual desire is not the end but means of perpetuating human species and women have a more exalted status in this respect as they fulfil the reproductive function; and but for them, human species would be extinct. Men thus cannot treat women as an object of sexual desire but the most noble means of perpetuating the human race.

Thus any attempt to force women to merely fulfil men’s lust would be un-Qur’anic in spirit and against her dignity, and that would amount to marital rape. What is rape, after all? To force oneself on her, injuring her human dignity be it within or outside the marital framework. Love and tenderness are most fundamental for going near women. It is these feelings, according to the Qur’an, which create a strong marital bond. If there is no love and tenderness, such a marriage is nothing more than a legal fiction for rape.

Dr Asghar Ali Engineer, who runs the Centre for the Study of Society and Secularism (CSSS), Mumbai, is the patron of the All India Secular Forum set up in 2002 when the Gujarat pogrom in particular and the communal forces in general were threatening the secular fabric of society; the Forum had rejected the Communal Violence Bill drafted by the Ministry of Home Affairs as it gave the police draconian powers to handle communal disturbances without any accountability, and organised a campaign for an alternative legislation. He won along with Swami Agnivesh the Right to Livelihood Award in 2004 in recognition of his steadfast commitment to promote the values of coexistence and tolerance.

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