Note: Hujjat al-Islam wal-Muslimin Dr. Mohammad Reza Salari-Far, in addition to his seminary education, has been involved in the field of psychology and family studies academically and practically for over three decades, and in addition to his university education in this field, he has also assumed the presidency of the Center for Research, Education, and Family Counseling. Simultaneous studies in the sciences of jurisprudence, psychology, and family studies make him one of the best individuals for discussion on the jurisprudential and psychological dimensions of spousal rape. Spousal rape is a term that has been coined in recent years for intercourse with a spouse without her consent. The faculty member of the Psychology Department at the Research Institute for Islamic Sciences and University, in an exclusive interview with Contemporary Fiqh, expressed various dimensions of this topic. He considers sexual intercourse with a spouse without her consent, although not to the extent of prohibition, but finds the statement of its dislike justified.
Contemporary jurisprudence: Considering the explicit texts such as “Women are your tilth; go then unto your tilth as you may desire,” can enjoyment without the wife’s consent be deemed prohibited and forbidden from the perspective of violence against the wife?
Salari-Far: One of the challenging issues in Islamic jurisprudence and law is the topic of forced relations in marriage. This discussion can be examined from various aspects such as jurisprudential, legal, ethical, and social. Initially, it must be seen under which of the general jurisprudential principles this topic falls. Perhaps the most important rule that can be raised in this regard is the rule of “no harm.” If marital relations occur in conditions that cause harm and injury to the woman, the general jurisprudential principles are specified, and as a result, such a relationship should not be established. The reason for this is the same harm and injury that leads to ruling the relationship as prohibited; however, the question raised here is what type of harm this is: physical, spiritual, or psychological? Which of these types of harm is the criterion for proving harm and, consequently, the prohibition of the relationship?
If no physical harm occurs but it causes a psychological feeling of inadequacy or humiliation for the woman, this psychological feeling alone cannot be sufficient reason for ruling it as prohibited. In this case, it may be said that such a relationship is disliked. The reason for this is the general principles in which the man is considered a kind of owner over his wife’s body. However, it must be noted that the psychological effects of such relationships may intensify or decrease over time; therefore, examining the psychological effects of this relationship requires deeper studies that must be examined from both jurisprudential and social psychology perspectives.
Contemporary jurisprudence: Advocates of the impermissibility of enjoyment without the wife’s consent consider the rational conduct or texts such as “Consort with them in kindness” as a qualifying contextual restriction on the absolute texts permitting enjoyment. In contrast, advocates of the permissibility of enjoyment even in the absence of the wife’s consent, in addition to relying on the absolute, regard it as a divine arrangement for keeping the family environment and marital relations perpetually warm, and consequently, for the wife’s better tranquility and life. In the conflict between these two arguments, what should be done?
Salari-Far: One of the important discussions in this regard is the rule of “Consort with them in kindness”; meaning behavior with the wife must be in accordance with what is approved in custom. Now the question is whether this type of relationship is considered undesirable in custom? If we say that such a relationship is an instance of “kindness,” despite the existing general principles and conflicts, the permissibility of enjoyment prevails. But if consorting in kindness is an obligatory matter, in that case, non-compliance with it can lead to prohibition. In this midst, it must be noted that the concept of “kindness” may differ in various customs and, depending on the cultural and social context, various interpretations of it may be presented.
Contemporary jurisprudence: Considering that the instantiation of “enjoyment without the wife’s consent” for the title of “injustice” is a novel and uncommon matter among rational people, can it be placed as a qualifying contextual restriction on the texts at the time of issuance when such conduct and understanding from rational people did not exist?
Salari-Far: In the past, forced relations in marriage were not considered an instance of injustice, but today such an interpretation has changed. In the past, polygamy also had no problem, but today in many societies, custom considers it injustice. Here, it must be examined whether the contemporary custom is compatible with the rational conduct and definitive reason or not. If the rational people of the world consider forced relations as injustice, in that case, the jurisprudential ruling may also change. But if no significant harm is caused to the woman, this relationship is not considered injustice. Of course, the criterion for measuring “significant harm” is also among the issues that must be examined precisely; because this criterion may differ in various individuals and conditions.
Contemporary jurisprudence: From the perspective of those who believe in “rape against the spouse,” is the wife’s lack of consent for enjoyment considered a valid novel matter, or can the woman prevent the continuation of the relationship even during enjoyment, and the man is obligated to comply?
Salari-Far: In our jurisprudence, the wife’s initial consent in the relationship is valid; but if she changes her mind during the relationship, it has no effect on changing the ruling. The marriage contract in Islamic jurisprudence differs from similar contracts in the West. In Islamic jurisprudence, marriage has implications that do not exist in Western law. Therefore, if there is no significant harm involved, forced relations may be disliked, but its prohibition is not established. In this regard, examining new legal approaches in marriage and the position of consent in them can be helpful; because this issue can be analyzed from various angles.
Contemporary jurisprudence: Considering that regular and frequent marital relations cause greater affection between spouses and warmth in the family environment, in a macro and general view, does the invention of titles such as “rape against the spouse” help the warmth of life and greater tranquility of the wife, or does it cause the cooling of lives and an increase in divorce rates?
Salari-Far: From a psychological dimension, the man has a managerial aspect in the family, and the woman generally has a receptive spirit. This structure helps in the formation of the family. Raising such questions in the Western world causes the woman to have a tool for controlling the man, which can weaken the man’s authority, disrupt the order of life, and even disturb sexual relations that cause warmth and tranquility in the family. As a result, this type of view can harm the family institution and ultimately harm the woman herself. However, on the other hand, some believe that the managerial role of the man and the woman’s acceptance should not be considered an unchangeable principle, but rather there should be more flexibility in it to take various conditions into account.
Contemporary jurisprudence: Can rulings such as “absolute permissibility of enjoyment from the wife” be attributed to the nature of marriage at the time of the legislator, which consists of “purchasing the private parts in exchange for dowry”? Therefore, with the change in the nature of marriage in the present time, should a ruling be made to change such rulings?
Salari-Far: In the discussion of the nature of marriage at the time of the legislator, some claim that by determining the dowry, the man becomes the owner of the woman’s body; but this claim is incorrect. If ownership were the main criterion, the dowry should be determined based on beauty or sexual desire, whereas such a thing is not seen in the narrations; rather, marriage in Islam is based on love, affection, partnership in life, and procreation, not merely sexual enjoyment. In addition, it can be said that the goal of marriage is to provide the material and spiritual needs of the woman and man alongside each other, not to create one-sided dominance.
Conclusion
The discussion on forced relations in marriage from jurisprudential and social perspectives is a complex topic dependent on customary changes and rational conduct. Although in the past such a relationship was not considered injustice, today with changes in attitudes, some consider it an instance of injustice. On the other hand, a distinction must be made between physical and psychological harm. In Islamic jurisprudence, marriage is a contract with its specific implications that is formed based on affection and mercy and should not be reduced merely to ownership or sexual enjoyment. Ultimately, it can be said that if a relationship has no significant harm, it may be disliked, but its prohibition requires a stronger reason. However, this topic still has room for discussion and examination, as various interpretations of the concepts of “harm,” “injustice,” and “kindness” can lead to different results. Therefore, it is necessary that this issue be examined more precisely from various angles, including jurisprudential, social, legal, and psychological.