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Is it Allowed to Coerce One’s Spouse For Intimacy?
Channel: Yasir Qadhi
Series: Yasir Qadhi - Ask Shaykh YQ
File Size: 28.51MB
Ask Shaykh YQ – EP 269
Episode Transcript ©
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Just to trigger warning that we're dealing with the topic of non consensual sex. So, if this is a topic that makes you uncomfortable, feel free to not watch this video. The second question again, a non anonymous sister emails that she has read a fatwa on a particular website that claims that a Muslim wife's consent is not required for intimacy, and that a husband may force himself on her. And she says this, this fatwa has disturbed her immensely. And she goes on and on and she says that this fatwah she quoted to me that the footwork defines marriage in a way that again, she finds it difficult to understand this to be the Islamic marriage. And she says that is this what the religion
of Islam says that the man has the right to force himself on his wife and to take advantage of her even without her consent. One
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Now, obviously, this is a very, very sensitive topic. And it is a multi layer topic. We're talking about marriage, we're talking about ethics, we're talking about consent, we're talking about love. We're talking about laws in various countries. And this topic really does require a lot more than what a short answer will, we'll do justice to. Nonetheless, I'll try my best to provide a bird's eye view, while being honest to our tradition and understanding the realities of our world. Let me begin by stating that no marriage can flourish, if we just base it on the books of law, it is a mistake to assume that the books are what you turn to to find the recipe of a successful marriage. Legal
textbooks are not talking about the adab of marriage, legal textbooks are talking about law. And therefore, one of the mistakes sometimes even preachers and teachers fall into is that they fail to differentiate when the questioner comes to them. Are they asking a question about Islamic law? Or are they asking a question about Islamic etiquettes Islamic norms, Islamic manners, the two are not the same. And books of law have a function and purpose and books of norms. And Atticus and adab have another function and purpose. So when you asked about the definition of a marriage, right, obviously, there's a legal definition that is found in the books of fic that is needed for books of
fear, to extrapolate from this and to read in depth and to read in, you know, the reality of marriage based on a legal definition, that's not going to work. So in our religion, our focal hub, our scholars of fic have defined Nikka the marriage to be a contract that allows intimacy and requires maintenance right? Now, this is technical and legal jargon. I've simplified it for the q&a. But you get my point here. This is technical and legal jargon, it's what lawyers speak amongst themselves, they have to ask themselves and the gag contract, what does it make permissible that was impermissible before? And what does it make obligatory, which was not obligatory before. And so when
you look at it from the lens of rights and prerogatives, then obviously, the thing that comes to mind is that well, romance and conjugal rights and intimacy becomes permissible after the Nikka contract, until it makes it Halon. And the maintenance, you know, the husband has to maintain the wife, financially provide for the wife give the wife, you know, food and maintenance again, in pre modern era, when you know, women were taken care of by either their fathers or their brothers or their husbands, when a lady gets married, then the obligation to finance for take care of her is removed from the father or brother and it is transferred to the husband. Now the husband has to
provide a house or you know, an apartment, and the husband has to provide food and clothing, etc, etc. So, when you look at these definitions, do your sister understand this is technical jargon and it needs to exist in the end of the day, Islamic lawyers for kaha are looking at marriage from their lens. So there's nothing wrong with that definition. But obviously, you know, there's more to marriage than the technical legal jargon. And let's not forget what Allah himself says in the Quran. Treat your spouses with utmost kindness, why shouldn't Hoonah build my roof? This is the adab this is the the reality of marriage as it exists beyond the technical jargon. Now the question arises,
what happens when I
either of the two parties does not provide what is, you know what the two what has been mentioned in this in this technical jargon, which is, again, from the technical side, if you look at it from the bare minimum, and again, I've said this multiple times, no marriage will flourish. If you go to the books of law and ask what is the bare minimum, no marriage is going to flourish. If you're looking at the law textbooks and trying to see what's the minimum I can do to make this marriage work. That's not how marriage works. And that's not why we turn to the books of filler. Nonetheless, the books of filth, serve a purpose and function. And if we use them within their function, they're
perfect and ideal when we extrapolate outside their function. Well, that's not what they're meant for in the first place. Nonetheless, the question arises, what happens when either of the parties does not fulfill its part of this bargain? And this is where our sister has come across quotations from some of the scholars of the past who had views in which they claimed that, you know, if the spouse if the female spouse did not allow or did not, you know, offer herself to her husband, there are opinions that say that the husband may force himself on her there are opinions like this, like I said, that's you will find it in the past. I myself will disagree, and I'll explain why that is the
case. By the way, the opposite is also found in our books. And that's also a predominant opinion. What if the husband doesn't provide maintenance for a woman? What if the husband is stingy? What if the husband does not give enough money for groceries? What if the husband is a complete miser and is not giving the money that is required to take care of the children in accordance with his income? Because again, there's a standard that is expected when a husband is earning X amount of money. Generally speaking, the maintenance of the household is commensurate proportional to that amount, the more that is the amount, the more that the children will be raised in that type of environment.
What if he's extra stingy? By and large, the vast majority of fuqaha have said that a wife may take money from her husband without his consent. And a wife may take money, for her groceries for the children's groceries for the children to the clothing, as long as it is done in accordance with the culture of that time that she's not using it to go above and beyond and spend on luxury items, rather, you know, for the that which is considered to be normal for people of their income. If the husband is being extra stingy, the wife may take from that money without his knowledge and without his consent. And by the way, nobody problematizes that side of things. There's no consent required
over there pretty much you know, by our culture, and the base of the basis of this is the famous Hadith of the Prophet sallallahu alayhi wa sallam that hindered been to Aruba came to the Prophet sallallahu alayhi wa sallam and said O Messenger of Allah. Abu Sufian is a stingy man, and he doesn't give me enough to take care of me or my children. May I take from his money without his knowledge? And the prophets or some said, Who the Maya KI KI Well, what a decade Bill Maher roof, take whatever you need for yourself and your children in accordance with what is normal? Take whatever you need for yourself and what for your children in accordance with what is normal, what is
the norm accepted, in your level, whatever should be the case, you may take it without his knowledge. She literally said, I have to take it without his knowledge. And the problem said yes, that is okay. Now, again, this is a deep question, a deep issue. Hardly anybody finds that problematic. And yet, obviously, the opposite is found very problematic and legitimately. So I'm not saying it shouldn't be. I'm simply saying we should be cognizant of how culture and how societal norms affect what we perceive to be normal and affect our sensibilities. And this is a very, very sensitive topic. So from my site, I had been very clear on this point. The opinions of our earlier
fuqaha and scholars are not necessarily binding on us if they are not based on explicit Quran and Sunnah. And we do have the right to rethink through earlier fatwas and earlier opinions that are based upon each Jihad and not based upon what we call Ultra yet what we call that which is beyond any doubt that which is incontrovertible that which is clear cut from the Quran and Sunnah we do not question it, but that which is based upon culture that which is based upon each jihad, we do have the right to question it. So our sister has a long list of quotations from this football website. Because famous Roma are quoted I don't need to quote them here. Famous Roma are quoted from a number
of prominent SUNY schools, in which it is clear that they allow coercion, they allow the husband to not have to have consent of the wife to do this. Now.
Me personally, these quotations are there I am, I am under no obligation to defend and frankly nor
I have the responsibility to criticize, because these scholars lived at a different time and have a different set of values. And no matter how difficult or awkward it is, for us to realize this, I need to make a simple point. And that is different cultures had different norms, different societies had different notions of sensibilities, and just for your information, there was no concept of what is now called marital rape, in almost all of human history, even in this country in North America, the concept of marital rape was unheard of, and unknown up until the late 1970s. In fact, the norm of a husband having access to his wife was legally established in many European countries, and here
in the United States, such as such an extent that there was no penalty from the government, from the state from the authorities for this issue, and again, I'm just being factual, please do not read into what I'm saying. I'm simply teaching you history over here, whether you are I like it or not agree or not, I'm telling you a fact here, that historically, many cultures had this notion of conjugal rights that the husband has access to the wife with or without her consent, her consent was assumed to be her marriage contract. That was the assumption again, please Don't misquote me, I'm telling you the past how it was. And in fact, English common law, which was enforced in North
America, and the British Commonwealth was this was actually put into a common law, where the concept of marital rape was simply seen as an impossibility.
And this is demonstrated
in the treaties, written by Sir Matthew Hill in 17, sorry, in 1676, in which he has a treatise called the history of the pleas of the crown, in which he wrote as a lawyer, and this is for the state he's codifying the law. And then I'm quoting from British common law, the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife has given up herself in this kind, meaning in this relationship on to her husband, which she cannot retract, end quote. Now, again, for the record, I'm simply telling you how it was. So for a sister of ours to find a quote from a floppy back in soon in medieval Islam, with
you know, I'm not defending, I'm simply saying, we'll find your quotations from across the globe. That was the case, it was only very recently, in my own lifetime in 1984. I was a child in that time time in 1984, in the New York Court of Appeals, and a very famous case, The People vs. Liberty, where a judge ruled that a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body, as does an unmarried woman and quote here, and this was in 1984, this was when the law begins to change. Within the next 10 years, all states had adopted this law and had withdrawn this issue of
what is called marital rape exemption, ie before this point in time, there was no notion of a husband forcing himself on a wife as being a crime this was dealt to be a family matter, it should be held, dealt with amongst family amongst extended family and friends, the the court, the government, the police should not get involved, that was the norm in the Western world. And it's not surprising, it might have been the norm in other places, as well. So in a very recent development, the last literally 3040 years, the world has changed. And we now have this notion of marital rape, we have this notion of consent of the wife for every individual instance. Whereas before this point
in time, the consent was deemed to be the marriage contract, just like the man does not need to consent to have his money taken, and the wife may take his money to take care of herself. The notion for some was, again, this is I'm just saying the way that it was because I have to be very careful, I'm not endorsing. But to be honest, I'm simply telling you as it was, and neither am I criticizing how scholars of the past viewed the marriage contract. Now, no question. Times have changed. And the second wave of feminism has
reinvigorated a very serious debate about the reality of consent about intimacy and the rights of intimacy. And so yes, there is now this notion of marital rape in many, many countries. So now our sister is saying what do we do about Islamic law in this regard? Well, for us, and I've been very clear about this. And this is another case study. It's always the case that when developments happen in broader society, which seem to come
predict with our FIP, we have a standard spectrum of, of reactions that occur. On the one hand, let's call it the far left,
progressive movement, if you like, certain people adopt the language, the methodology, the sentiments of whatever the modern culture might be. The same outrage that exists, the same sense of injustice that exists outside is then transferred to our tradition, and the same angst and anger is then shown to our tradition, as well. And so the notion becomes that, oh, Islam is this and that, and this is this and that, and we should change and call for reform and everything of this nature. And so you have that sentiment. On the flip side, and I would say as a direct reaction to this, we have the far right, the hardline fundamentalists who cannot bear any change, and who wish to dig
down and accuse anybody who dares to react by changing any photo or changing any flippy you know, doctrine or whatnot, that would want to react and say this is selling out this is liberalization this guy's wanting to reform Islam and whatnot. And I've been accused of this many times myself by the ultra fundamentalist critics as well, you want to destroy the entire tradition. And they Ravel in digging down and in, in quoting such scholars of the past and openly equating the opinions of these scholars with the *ty out of ALLAH SubhanA wa Tada, you have these two extremes? My methodology has always been that let us be frank and honest. And let us be very clear in this
regard. If a law or if the messenger sallallahu alayhi wa sallam has said something that is sacrosanct, that is clear for us. And we have to be, we don't care what the rest of mankind says. However, if our earlier scholars extracted an interpretation based upon their culture and time, well, then we have the right to extract an interpretation based upon our culture and time without demonizing them without throwing them under the bus without criticizing them. Simply saying, well, they had the right to extract and so do we, as well. By we, I don't mean me. I mean, other scholars of our times, I always make the disclaimer, I consider myself a minor student of knowledge, and I
always look up to fuqaha, far more knowledgeable than meat. So the question arises, does the Quran or sunnah give this right unequivocally to the husband? And the response, overwhelming resounding we can say Not at all, those scholars that are sister quoted and those quotations exist, I did not quote them simply because I don't see the point to those scholars that are sisters quoted, are extrapolating this from the generic principles and I give them their right to do so. But I'm not bound by their interpretations. And I have been very clear here that we differentiate between what Allah and His Messenger have said, versus the interpretations of later men. And this issue of a
husband forcing himself on his wife is an interpretation of later for Allah. It is not explicit in the Quran and the Sunnah. In fact, one can quite easily construct a counter argument from the Quran and Sunnah based upon the sentiments and the cultures that we feel in our times, and there's nothing wrong with this. You see, we have to be very careful to not just be going with the flow, which is what let's say the far left or the liberals or the progressives do, but also to not just be counter reactionary, which is what frankly, many, many of our
mean, what's the nice word to say here? Maybe their intentions are good, but they don't know Phil. And there's just this visceral gut reaction to any type of change being selling out on Islam is being destroyed. No, my dear brother and sister, Islam is meant to be vibrant, and Islam is meant to encompass all cultures, and also that fit under the realities of fit, allow for us to fine tune within our cultures and societies. And this is the classic example. This is a real life example of what I mean when I say that we need to reform aspects of it, which again, you know, so my critics went really,
they misunderstood completely what I was saying, and my examples clarify this. This is an example of what I mean, when I say we need to reform some aspects of filth. Yes, it is true that many of our previous scholars allowed marital rape. But does this mean we must stick by that position? Not at all. In fact, we can clearly find evidence from the Quran and Sunnah to say that given our sentiments and in our culture and society, and given the way that we now treat our men and women that this type of action is harmful, and it goes against the goals of the Sharia without criminalizing those that might have allowed it 1000 years ago. That's their culture. That's their
norms. We have a different
cultural norms that we have the right to look at the goals of the Sharia in light of our culture and say what does the Sharia require us to do? Allah says in the Quran surah Nisa, verse 19 Are you who believe it is not allowed for you to inherit women against their will, and don't be harsh unto them so that you extract from them some of their wealth, that unless they do a crime against you, and treat them with the utmost kindness, for it is possible you might not like them, and yet Allah subhanaw taala has placed much good in them, treat them with utmost kindness don't inherit them against their inherit the meaning once upon a time, women were treated like chattel, like like
property, they will be inherited and Allah saying don't do this against their will. So there is a notion that they don't like this, even though the context is about inheriting them still the notion of they are free women, you can treat them like property, we find this sentiment also our Prophet sallallahu either he was so sorry, the Quran says what 100 Mithila the Allah hinda Bill Malou they have the rights for them just like to have certain rights for you with my roof with equivalency. And yes, men have a degree of responsibility over them, no question about that. But Allah is saying they have rights that are due to them, just like you have rights due to you the both are somewhat equal
in this regard. And the Prophet salallahu idea he was setting them said, la Bharara while there are there shall be no harm, nor shall there be any causing of harm, there shall be no harm, nor shall there be any causing of harm. This is a principle of filth. So what is harmful? Listen to me carefully, is subjective. And what is harmful might vary from culture to time to place. So in one society, for example, physically disciplining your children would have been considered normal and legit. And so no problem in another society, physically discipline your children is considered harmful. And that's the norm of that society. In both of those societies, one can extrapolate and
say law borrow, while other are and that society, it's not better in this society, it is not or similarly, when it comes to this issue of intimacy. One can also say that in some societies that might be this and other societies it is harmful, and it is something that will cause the marriage to break up, it is something that will demean the status of a person, and therefore there will be emotional harm, there will be physical abuse, and therefore, in light of the goals of the Shetty, we can say this is not allowed, where it's going to be harmful. And there is no question in this society, we are born and raised into that this is an emotional harm. And this is going to
essentially break a marriage, there is no way such a marriage is going to flourish. Now, before I finish up, I also want to point out here that when intimacy doesn't exist in a marriage, typically this is the sign of other problems, a lot of times we jump to the issue of intimacy, we forget that intimacy is a very, very beautiful coming together with the husband and wife. It's an act of love. When it is absent, it's typically indicative of a fault from either or from both of the two partners. So well, Allah knows best. But if there is this case of a woman, you know, not giving intimacy to her husband, perhaps there are factors beyond just you know, there's issues that need to
be resolved in the marriage. And so the husband should ask himself as well. Is there something that I'm not doing that is bringing this about? No, no question. The default I'm not gonna mince my words here. Is that a Muslim who believes in Allah azza wa jal, who loves her Lord, who respects the Sharia, that if her husband approaches her, and she does not have any excuse, that she should allow her husband, to initiate her allow her husband to be intimate with her, there is no question about this. That's a part of the obligation of being a dutiful wife. Obviously, if she has an excuse, obviously, if she is not able to, then that is fine. And even if she's not in the mood, she has the
right to negotiate and placate no problem and just be playful and say shallow tomorrow, let's do it or what not and, you know, offer some time frame or whatnot. The point is, though, that if she has no excuse, and she refuses that access, well, then according to our Shediac, she has committed an infraction that is between her and her Lord. And this is something very clear. But the question is, does her husband have the right to force himself and we say that right does not exist explicitly in the Sharia. In fact, the Hadith that indicates that she should reply to her husband also has an indication that he does not have the right to force himself on her house. So the famous Hadith all
of you know it, that anytime a man calls his wife for the conjugal act, and she refuses him, and he is angry at her, notice he is angry at her and that's a key point because she refuses without a reason. And she doesn't play he doesn't, you know, be be loving and say we'll do something another
Time. In other words, she is in a manner weaponizing this intimacy and saying, I'm not going to have it with you. So for no reason, the angels will curse her. That's what the Hadith says the angels will curse her for the night. Now, this is a sin, no question about that, if she's surprised without a reason. But at the same time, the Hadith does not say, the man has the right to do something. On the contrary, that is a sin between her and her Lord, and the husband is going to be angry, well, then she has to bear you know, the curse of the angels for no reason. That's something that that is between her and her Lord, her husband does not have the right to force her. And also, this is not an
act that can be forced anyway, this is an act of love. It's an act that is the highest form of intimacy and to force one partner on the other. This is really a recipe for disaster, especially in a marriage that is supposed to be built upon the foundations of our religion. So bottom line, brothers and sisters, that it is completely in line of the goals of the Sharia, and of the general text of the Quran and Sunnah, that we say that it is not of the etiquettes of our faith, it is not of the manners of our faith, to force this delicate and romantic and beautiful deed, from one spouse upon the other. And whoever does so, and causes emotional, much less physical harm and distress has
disobeyed the Islamic commandments of treating one spouse was my roof and has therefore incurred sin by doing this. So we can say and this is something that I say that this is not something that the Shetty mandates, even if some of the scholars of the past allowed it, that is their opinion, we are not obliged to follow that opinion. And the text of the Quran and Sunnah allow for us to say that emotional and physical distress is not allowed, it is haram, it is sinful. And anytime emotional and physical distress is caused without any justice, then this is a sin, it should not be done. Before I conclude, if this issue of lacking intimacy and depriving intimacy persists and continues, my advice
is that the husband and wife should have a frank conversation amongst themselves why this is taking place. If that doesn't solve it, then they should reach out to family and friends and bring in I know, it's awkward. I know, it's embarrassing, but it's better than a divorce, reach out to family and friends and have like the Quran says bring an arbitration together. Also, dear husbands in particular, please understand, a lot of times there might be factors that are beyond your understanding, you will only know them when you open up when you find out what is going on. I will tell you of a case that happened with me by the way that a couple came to me. And it turns out the
similar issue. And it turns out Hala very, very sad, very tragic. But you know, he got married, and she was not able to consume it and kept on you know, getting anxious, anxious panic attacks and whatnot. Turns out that the sister was actually molested at a younger age. And when the husband, you know, and she did not get married until this until her husband married her. And so when her husband approached her, it will trigger memories of her childhood stuff, but a lot of stuff for the law. And the husband didn't know this. So now can you imagine a stuff that if the husband is forcing himself, can you imagine how much it's going to harm? So dear brother, I understand there might be factors
way more complicated than a simplistic yes or no. And therefore, don't force yourself at all. It's against the goals of the Sharia. It's against treating your wife with dignity and maruf get some help get some therapy, find out what's going on. There might be other issues. And in this particular case of how to love when this sister went to a therapist, and it she treated her for the the stress of what happened in the childhood. It actually helped her and she's now living a normal life of Hamdulillah. Because, you know, that had been, you know, stuck in her memory until the therapist basically, you know, resolved that issue. So dear brother, that's not the way forward also, dear
sister don't weaponize this very intimate and sensitive issue. If there's a problem in the marriage, it needs to be solved in a different way, don't weaponize intimacy and deprive it of your husband simply because there are other factors in the marriage to deal with them in a different way. Bottom line, indeed, it is permissible to say this thing is not allowed in our Sharia and whoever causes harm and distress without any cause will incur the sin of Allah and Allah subhanho wa Taala knows best until next time, just like Santa Monica rahmatullahi wa barakaatuh.
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