Criminal Law II

MARITAL RAPE
IS allowed in islam or not?

Submitted to:
Mam Khadija

Submitted by:
Bushra Rehman

Sobia Shaheen

Mahnoor Paracha

Zoya Asif

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Rape
Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual
penetration carried out against a person without that person's consent. The act may be carried out
by physical force, coercion, abuse of authority, or against a person who is incapable of giving
valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is
below the legal age of consent. (en.wikipedia.org)

The World Health Organization (WHO) defines rape as a form of sexual assault

While the Centers for Disease Control and Prevention (CDC) includes rape in their definition of
sexual assault; they term rape a form of sexual violence.

What Does Islamic Law Say About Rape?

Rape is completely forbidden in Islamic law and is a crime punishable by death.

In Islam, capital punishment is reserved for the most extreme crimes: those that harm individual
victims or destabilize society. Rape falls into both categories. Islam takes very seriously the
honor and protection of women, and the Quran repeatedly reminds men to treat women with
kindness and fairness.

Some people confuse Islamic law by equating rape with sex outside of marriage, which is instead
adultery or fornication. However, throughout Islamic history, some scholars have classified rape
as a form of terrorism or a crime of violence (hiraba).

Evidence Required
Obviously, it would be a horrible injustice for an innocent man to be falsely accused of a capital
crime such as rape. To safeguard the rights of the accused, the crime must be proven with
evidence in court. Various historical interpretations of Islamic law have existed over time, but
the most common legal practice is that the crime of rape may be proven by:

 Witness testimony: The testimony of four witnesses to the act itself is traditionally the
requirement to prove adultery under Islamic law. Most Islamic scholars, however,
recognize that adultery is voluntary while rape is coerced. Thus, they have moved beyond
requiring this evidence alone to prove sexual assault.
 Confession: The full and complete confession of the perpetrator is accepted as evidence
under Islamic law.
 Physical evidence: Even in early Islamic history, many Islamic jurists accepted physical
evidence to prove a woman's lack of consent.

Rape under Pakistan Penal Code, 1860

Section 375:

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 A man is said to commit rape who has sexual intercourse with a woman under
circumstances falling under any of the five following descriptions,
(i) Against her will.

(ii) without her consent

(iii) with her consent, when the consent has been obtained by putting her in fear of death or
of hurt,

(iv) with her consent, when the man knows that he is not married to her and that the
consent is given because she believes that the man is another person to whom she is or
believes herself to be married; or

(v) With or without her consent when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the

offence of rape.

376. Punishment for rape

(1) Whoever commits rape shall be punished with death or imprisonment of either
description for a term which shall not be less than ten rears or more, than twenty-five
years and shall also be liable to fine.

(2) When rape is committed by two or more persons in furtherance of common intention of
all, each of such persons shall be punished with death or imprisonment for life."

Ingredients:
This section consists of the following main ingredients

First:- Against woman’s will.

Secondly:- Without woman’s consent.

Marital Rape:

Insertion of Marital Rape in PPC,1860:

Under the section 375 of Pakistan Penal Code, 1860, the word woman does not specifies either
the woman is any woman who is not married to the man who rapes her or the woman to whom

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he is married i.e, his own wife. The law makes people confused and hence section 375 does not
give any exception to the husband towards his wife.

The section describes that if a man does sexual intercourse without the consent of his wife as the
lack of consent is the main element in doing rape, then it would be considered as rape (marital
rape) and the husband is liable to the punishment.

Confusion under Pakistan Penal Code:

Rape laws in Pakistan carried an exemption for marriage where a husband could not be
prosecuted for raping his wife only up till 2006. With the passage of Women’s Protection Act in
December 2006, marital rape could legally be tried as a crime and was brought within the ambit
of the law.

To clarify this confusion further, argument would be, that the law previously stated: “A
man is said to commit rape who has sexual intercourse with a woman, who is not his
wife” The removal of the words “who is not his wife” in 2006 clearly shows that there
was a concerted move to include marital rape within the law.

Status of marital rape under Islam:

Islamic scholars describe that marital rape occurs when the man asks his wife to have sexual
intercourse during her menstrual period or in an abnormal sexual position or during fasting hours
in Ramadan.

God gave the woman the right to refrain from her husband in this regard as God says,

“And they ask you about menstruation. Say, "It is harm, so keep away from wives during
menstruation. And do not approach them until they are pure. And when they have purified
themselves, then come to them from where Allah has ordained for you. Indeed, Allah loves
those who are constantly repentant and loves those who purify themselves." 2:222 (eng.dar-
alifta.org)

The woman has also the right to refuse to engage in sexual relationship with her husband in only
one condition

 If he has a contagious disease or use violence which hurts her body during the sexual
intercourse.

God says in the Quran,

“Your wives are a place of sowing of seed for you, so come to your place of cultivation
however you wish and make an introduction for yourselves. And fear Allah and know that you
will meet Him. And give good tidings to the believers. 2:223

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Independent Muslim preacher Wan Ji Wan Hussin said that rape is defined in Islam as an act
between two unmarried individuals.

“That term (marital rape) is not accurate in the practice of Islam because rape in Islam is
defined as forced sexual intercourse outside of marriage.”

Wife’s obligation to fulfill husband’s reqirement:

Rape is defined as sex with a person without that person’s consent. Rape simply means forcing
them to have sex without their consent. Now what about when a wife refuses her husband if he
demands from her? If a husband does sexual intercourse with his wife without her consent, what
does islam says about it?

Islam puts a lot of pressure on the wife being sexually available to the man. The wife cannot
under any circumstance deny the husband sex or she will be sinful. The reason we were given
for this is that men’s marital rights must be fulfilled so they don’t go out and cheat.

Islam does not allow the wife to deny intercourse to the husband. Sexual satisfaction is one of
the rights of the husband in Islam. Infact, the actual marriage contract is made in that way. The
husband has to mainly provide financially and the wife has to provide obedience and sex.

Infact the Quran states that once you have intercourse with the wife, you cannot take back your
dower (maherin arabic) because you have gone into her. This is another example that
underscores that in Islam, you are making a contract for sexual exclusivity with a woman in
exchange for taking care of her financially. Of course there is more to the contract than that, but
MAINLY its financial for the man, and sexual for the woman. (en.dailypakistan.com.pk)

WITHOUT WIFE’S CONSENT:

The subject of marital rape leaves many people uncertain; can the act really be termed marital
‘rape’?

Perak Mufti Tan Sri Harussani Zakaria said that men can always have sexual intercourse with
their spouses even if the latter do not agree, saying that a Muslim woman has “no right” to reject
her husband’s demand. (www.malaymail.com)

When it comes to marital rape, women are often confused whether they have been raped or not.
There are some individuals who believe that there is no such thing as rape within a marriage
whereas some claim that there is nothing wrong with a man forcing himself on his wife.

Sheikh Maulana Abu Sayeed, the president of the Islamic Sharia Council of Britain said:

“Clearly there cannot be any rape within the marriage. Maybe aggression, maybeindecent
activity…because when they got married, the understanding was that sexual intercourse was part
of the marriage, so there cannot be anything against sex in marriage”.

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In Islamic sharia, rape is adultery by force. So long as the woman is his wife, it cannot be termed
as rape. It is reprehensible, but we do not call it rape. (blogs.tribune.com.pk)

Sahih Bukhari, the most authoritative Islamic text after the Holy Quran, quotes the Prophet
Muhammad (pbuh) as saying,

“If a husband calls his wife to his bed (ie to have sexual relation) and she refuses and causes
him to sleep in anger, the angels will curse her till morning.” (Bukhari v.4, b.54, no.460).

WITH A FORCE:
It is a must for the wife to sexually satisfy her husband and she can't refuse sex no matter what
as Spousal rape in Islam is when the man asks his wife to have sexual intercourse during her
menstruation period or in an “abnormal” sexual position like anal or oral sex or during the
fasting hours in Ramadan.

So basically, spousal rape doesn't exist in Islam if we are talking about the western definition of
it. So if the definition of spousal rape is “when the man forces his wife to have sexual
intercourse” then it's perfectly fine in Islam. The husband is even allowed to beat his wife if she
doesn't obey him.

“A woman came to Muhammad and begged her to stop her husband from beating her. Her
skin was bruised so badly that it is described as being "greener" than the green veil she was
wearing. Muhammad did not admonish her husband, but instead ordered her to return to him
and submit to his sexual desires.” Sahi bukhari(72:715)

Even the Prophet says,

“ even when they’re riding on the back of the camel, when the husband asks her, she must
give”.

Is it permissible for a man to ask his wife to full fill his sex desires without
wife’s will?
It is not permissible for a woman to drive herself to fulfill her husband's needs, but whenever he
calls her, she should say, but whenever she is suffering from any obligatory work if there is a
reason, then she can stay.

And if she does not give this right to her husband without any sharp excuse, then she is
considered to be disobedient and disqualified, due to which the wife’s alimony will become void.

It is necessary for the husband to fear his wife with Allah’s punishment, and separate her from
his bed, and it is also permissible for him to beat her lightly.

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The Prophet (peace and blessings of Allah be upon him) said:

Al-Ansa (34)

As for those women whose defiance you have cause to fear, admonish them and keep them
apart from your beds and beat them.59 Then, if they submit to you, do not look for excuses to
punish them: note it well that there is Allah above you, Who is Supreme and Great.

When asked about Shaykh-ul-Islam Ibn Taymiyyah, that when the woman stops her husband to
approach her to fulfill his desire, and if she does not pay the right of her husband to him, then
what should he do?

The answer was:

Husband's disobedience is not lawful for a wife, or she can refuse her husband, but if she does
not go to her husband, and insists herself not to go to her husband, then husband can beat his
wife slightly. And his wife shall not be entitled to alimony.(32/279).

And it was also asked:

If a man's wife disobeys him and does not pay him his right, then will the duty of the husband to
fulfill the needs of his wife breakdown, and what is obligatory on him?

Tashaikh-ul-Islam replied:

When he does not offer herself to her husband, and does not pay the husband his right, then the
and it is permissible for him to punish him if he is in Egypt, if he is not intense, This is not lawful
for the wife, when her husband calls him for the bed, then he refuses to accept it.

In this case, he will be counted as disobedient to Allah and His Messenger.

When the person calls his wife on his bed, she refuses to do so, and the husband spent his night
in, Allah and his angels curse that woman all night. Narrated by al-Hadeeth (1736)

So the it is the duty of the husband to make her good advice for her benefit and create a fera of
God in her heart and tell her that if she disobeys her husband she will be cursed by Allah
Almighty and his angels till morning., and if still she did not agree separate her from your bed
and still if she disobeys him , he may beat her slightly as her punishment, and if it does not prove
to be beneficial, turn her aside from alimony, and it is permissible to divorce her, so that he may
take his goods back from her. Similarly, It is not permissible for a slave to deny his master's
consent, and she does not fulfill his desire for any excuse, and if she does so, then she is also
disobedient, for the owner, it is permissible for him to teach her obedience for which the law has
given permission, which should be adopted as appropriate. (islam Question & Answer, n.d.)

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Conclusion: A comparison between marital rape in islam and PPC:
Marital rape is in only considered when it is done by the husband forcefully in a condition of
periods or when the husband is suffering from a hilarious disease. Otherwise Islam does not
allow woman to refuse her husband from having sexual intercourse. In a condition defined in
section 375 of PPC the consent matters not husband’s force. While not having consent the
husband can have intercourse with his wife then it will not amount to rape as there is no
existence or rape concept in marriage in Islam. Even if wife denies husband can beat her and
even then she refuses she will be a sinner.

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BIBLIOGRAPHY:
blogs.tribune.com.pk. (n.d.). Retrieved from blogs.tribune.com.pk:
https://blogs.tribune.com.pk/story/9664/how-is-marital-rape-not-rape/

en.dailypakistan.com.pk. (n.d.). Retrieved from en.dailypakistan.com.pk:

https://en.dailypakistan.com.pk/opinion/blog/marital-rape-is-it-criminalized-in-pakistan/

en.wikipedia.org. (n.d.). Retrieved from en.wikipedia.org: https://en.wikipedia.org/wiki/Rape

eng.dar-alifta.org. (n.d.). Retrieved from eng.dar-alifta.org: http://eng.dar-

alifta.org/foreign/ViewFatwa.aspx?ID=6033

islam Question & Answer. (n.d.). Retrieved from islamic questions : https://islamqa.info

www.malaymail.com. (n.d.). Retrieved from www.malaymail.com:

https://www.malaymail.com/news/malaysia/2015/04/27/women-must-give-husbands-sex-even-on-
camels-islamic-scholar-says/885759