It has been long established in states where Islam is constitutionally recognised as the governing legal system, that the husband can coerce his wife into sexual intercourse. It is widely accepted in Islam that a wife who refuses to offer her husband sexual gratification has sinned. However, there are situations where the wife’s refusal is followed by violence and compulsion to have sexual intercourse. In Muslim states in general, but in Arab states in particular, reported incidents of forced domestic sexual violence are on the increase, which is occasionally followed by reports of the complainant’s deteriorating mental health that has occasionally led to suicide. The husband is likely to receive punishment for his act of violence, but not forced sexual intercourse. This has led to fierce debates questioning the traditional position of Islam on (marital) rape and the consistency of its regulation among Muslim/Arab states. This involves the factors preventing its extension to the marital home. The absence of specific reference to rape in the primary sources of Islam (the Quran and Hadith) led to its conceptual formulation after the passing of Prophet Muhammed PBUH. The author argues that the main issue is the early formulation, where rape was (and still) conceptually viewed as a type of fornication (zina), which is inherently non-consensual. This has led to two arguments: firstly, that marriage is consensual and with such consent comes an automatic right to sexual intercourse; and secondly, the fact that rape falls within the remit of fornication (zina) means that it can only occur extra-maritally. Despite attempts to develop this area in some Muslim/Arab countries, the conclusive view rejects treating rape as distinct from fornication (zina), thus, preventing its extension to the marital home. This article critically examines the traditional position of Islam on (marital) rape to furnish a critical investigation of the possibility of separating rape from fornication (zina) as a viable solution to further protect Muslim wives in the Muslim marital home. This is based on the inherent Islamic principle of the right to volition (haqq al-iradah), which is an essential foundation of every Islamic marriage. This will involve an examination of the contemporary definition and regulation of rape in Muslim/Arab states, Egypt for the purpose of this article, with some recommendations based on the English definition and regulation of rape.
|Jus Corpus virtual conference ‘Women Rights in developing countries: Issues & Challenges’, in collaboration with Symbiosis Law School Nagpur & Maharashtra National Law University, Aurangabad
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- Muslim women protection
- Marital rape