Full Lecture Transcript (Cleaned)
Trigger Warning and the Question — 0:00
Just a 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.
An 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. She says this fatwa has disturbed her immensely. The fatwa defines marriage in a way that she finds difficult to understand as the Islamic marriage. She asks: 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?
Marriage Is More Than Legal Definitions — 1:56
Obviously this is a very sensitive topic and it is a multi-layered one — we're talking about marriage, ethics, consent, love, and laws in various countries. This topic really does require a lot more than what a short answer will 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 of fiqh are what you turn to for the recipe of a successful marriage. Legal textbooks are not talking about the adab (etiquette) of marriage — legal textbooks are talking about law. One of the mistakes sometimes even preachers and teachers fall into is that they fail to differentiate: is the questioner asking about Islamic law, or about Islamic etiquette, norms, and manners? The two are not the same.
The Legal Definition of Marriage — 2:45
Our scholars of fiqh have defined marriage as a contract that allows intimacy and requires maintenance. This is technical and legal jargon — it's what lawyers speak amongst themselves. They have to ask: a nikah contract — what does it make permissible that was impermissible before, and what does it make obligatory which was not obligatory before?
When you look at it from the lens of rights and prerogatives, romance, conjugal rights, and intimacy become permissible after the contract. And maintenance — the husband has to maintain the wife financially, provide food, clothing, and shelter. Dear sister, understand this is technical jargon and it needs to exist. But obviously there's more to marriage than legal jargon. Let's not forget what Allah Himself says in the Quran: "Treat your spouses with utmost kindness."
The Issue of a Wife's Maintenance Rights — 7:39
What happens when either party does not fulfill their part of this arrangement? This is where our sister has come across quotations from some scholars of the past who claimed that if the female spouse did not allow or offer herself to her husband, the husband may force himself on her. There are opinions like this in the past. I myself will disagree, and I'll explain why.
By the way, the opposite is also found in our books of fiqh. What if the husband doesn't provide maintenance? What if the husband is stingy and does not give enough money for groceries or the children? By and large, the vast majority of fuqaha have said that a wife may take money from her husband without his consent — for groceries, for the children's clothing — as long as it is done in accordance with the culture of that time and she's not spending on luxury items.
The basis of this is the famous hadith: Hind came to the Prophet (peace be upon him) and said, "O Messenger of Allah, Abu Sufyan 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?" The Prophet said, "Take whatever you need for yourself and your children in accordance with what is normal." Nobody finds that problematic, and yet the opposite is found very problematic — and legitimately so. I'm simply saying we should be cognizant of how culture and societal norms affect what we perceive to be normal.
Historical Context of Marital Consent — 10:31
From my side, I have 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. We do have the right to rethink through earlier fatwas and opinions that are based upon ijtihad and not upon that which is incontrovertible from the Quran and Sunnah.
Famous scholars are quoted from a number of prominent Sunni schools in which they allow the husband to not have to have the consent of the wife. These quotations are there. I am under no obligation to defend them, and frankly nor do I have the responsibility to criticize, because these scholars lived at a different time and had a different set of values.
For your information, there was no concept of what is now called "marital rape" in almost all of human history. Even in this country, North America, the concept of marital rape was unheard of and unknown up until the late 1970s. The norm of a husband having access to his wife was legally established in many European countries and in the United States. English common law, codified by Sir Matthew Hale in 1676, stated: "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 unto her husband, which she cannot retract."
It was only in 1984, in the New York Court of Appeals case The People v. Liberta, that a judge ruled: "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." Within the next 10 years, all states had adopted this law.
The Balanced Approach — 16:32
So in a very recent development — the last literally 30-40 years — the world has changed and we now have this notion of marital rape and consent of the wife for every individual instance.
Our sister is asking: what do we do about Islamic law in this regard? There is a standard spectrum of reactions. On one hand, the far-left progressive movement adopts the language and sentiments of modern culture and transfers the same outrage to our tradition. On the flip side, the far-right hardline fundamentalists cannot bear any change and accuse anybody who dares to adjust any fatwa of "selling out" or "wanting to reform Islam."
My methodology has always been: let us be frank and honest. If Allah or the Messenger (peace be upon him) has said something, that is sacrosanct — we don't care what the rest of mankind says. However, if our earlier scholars extracted an interpretation based upon their culture and time, then we have the right to extract an interpretation based upon our culture and time — without demonizing them, without throwing them under the bus, simply saying: they had the right to extract, and so do we.
Does the Quran or Sunnah Grant This Right? — 17:27
The question arises: does the Quran or Sunnah give this right unequivocally to the husband? The response: overwhelmingly, resoundingly — not at all. Those scholars that our sister quoted are extrapolating this from generic principles. I give them their right to do so, but I'm not bound by their interpretations.
I have been very clear: we differentiate between what Allah and His Messenger have said versus the interpretations of later men. This issue of a husband forcing himself on his wife is an interpretation of later scholars — it is not explicit in the Quran and in the Sunnah. In fact, one can quite easily construct a counter-argument from the Quran and Sunnah.
This is a real-life example of what I mean when I say we need to reform aspects of fiqh. 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. We can clearly find evidence from the Quran and Sunnah to say that given our sentiments, our culture and society, and the way we now treat men and women, this type of action is harmful and goes against the goals of the Sharia — without demonizing those who might have allowed it a thousand years ago.
Allah says in the Quran (4:19): "O you who believe, it is not allowed for you to inherit women against their will, and don't be harsh unto them... and treat them with the utmost kindness." The Quran says: "They have the rights for them just like they have certain rights for you." And the Prophet (peace be upon him) said: "There shall be no harm nor shall there be any causing of harm" (la darar wa la dirar).
What is harmful is subjective and may vary from culture to time to place. In our society, one can say that forcing intimacy is harmful, will cause the marriage to break up, will demean the status of a person, and therefore constitutes emotional and physical harm. In light of the goals of the Sharia, this is not allowed where it is going to be harmful.
The Hadith About a Wife's Refusal — 24:37
The famous hadith all of you know: "Any time 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 — because she refuses without reason and doesn't placate him or offer some time, in other words she is weaponizing intimacy and saying, "I'm not going to have it with you" for no reason — "the angels will curse her for the night."
This is a sin, no question — if she deprives without a reason. But at the same time, the hadith does not say the man has the right to do something. On the contrary, it is a sin between her and her Lord. The husband is going to be angry, and she has to bear the curse of the angels for no reason — that is between her and her Lord. Her husband does not have the right to force her.
This is not an act that can be forced anyway. This is an act of love — the highest form of intimacy. To force one partner upon the other is really a recipe for disaster, especially in a marriage that is supposed to be built upon the foundations of our religion.
Conclusion — 25:53
Bottom line, brothers and sisters: it is completely in line with the goals of the Sharia and of the general texts of the Quran and Sunnah that we say it is not of the etiquette 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. Whoever does so and causes emotional — much less physical — harm and distress has disobeyed the Islamic commandments of treating one's spouse with ma'ruf (kindness) and has therefore incurred sin by doing this.
This is not something that the Sharia mandates, even if some scholars of the past allowed it. That is their opinion — we are not obliged to follow it. The texts of the Quran and Sunnah allow for us to say that emotional and physical distress is not allowed — it is haram, it is sinful.
What to Do When Intimacy Is Lacking — 22:43
Before I finish, I also want to point out that when intimacy doesn't exist in a marriage, typically this is the sign of other problems. The husband should ask himself: is there something that I'm not doing that is bringing this about?
No question, the default is that a Muslim woman who believes in Allah, loves her Lord, and respects the Sharia — if her husband approaches her and she does not have any excuse, she should allow her husband to be intimate with her. That's a part of the obligation of being a dutiful wife. Obviously if she has an excuse or is not able to, that is fine. And even if she's not in the mood, she has the right to negotiate and say, "Insha'Allah tomorrow, let's do it another time."
If this issue of lacking intimacy persists, my advice is:
I will tell you of a case: a couple came to me with a similar issue. It turns out the sister was actually molested at a younger age. When her husband approached her, it would trigger memories of her childhood. Can you imagine if the husband forced himself — how much harm that would cause? In this case, the sister went to a therapist who helped her resolve the childhood trauma, and she's now living a normal life, alhamdulillah.
Final Advice — 29:09
Dear brother: don't force yourself — it's against the goals of the Sharia, it's against treating your wife with dignity. Get some help, get some therapy, find out what's going on.
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 deprive your husband simply because there are other factors in the marriage — deal with them in a different way.
Bottom line: 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 knows best.