Note: Professor Seyyed Mohammad-Ali Ayazi is renowned for deep reflection in the Quran and innovative thinking in jurisprudence. His concern regarding women’s jurisprudence and elucidating woman’s Quranic and jurisprudential status in Islam dates back decades. We conversed with him regarding the jurisprudential analysis of marital rape/spousal sexual assault, and whether this feminist expression regarding marital relations fundamentally possesses concrete application or represents merely a subjective and abstract matter. He believes that prior to examining this issue, agreement must be reached on preliminary matters regarding the principle of human free will and the nature of marriage. In the belief of this professor and researcher in the Islamic Seminary of Qom, the concept of marriage underwent transformation over time, and with custom’s (‘urf) current interpretation of it, non-consensual marital enjoyment (istimta’) cannot be accepted. The detailed exclusive interview of Contemporary Jurisprudence with this professor and author in the Islamic Seminary of Qom is presented below:

Contemporary Jurisprudence: Given explicit texts such as “Your wives are a place of sowing of seed for you, so come to your place of sowing however you wish” (Surah Al-Baqarah, Verse 223), can non-consensual marital enjoyment (istimta’) by the husband be deemed unlawful and prohibited under the category of violence against the wife?

Ayazi: The issue of marital enjoyment (istimta’) from the wife possesses two preliminary principles: One preliminary issue is the right to volition (haqq al-iradah), that every human being possesses the right to volition and choice. When the right to volition and choice exists, any type of ruling or duty that disrupts this volition will be invalid. The existence of the right to volition and choice for human beings, both jurisprudentially and philosophically, is an established matter among the Adliyyah (Justice-oriented scholars/Shia).

The second issue that must be discussed as a matter preliminary to this debate is our understanding of the issue of marriage (izdiwaj) and matrimony (zawjiyyah). If marriage and matrimony are a Sharia matter, naturally to understand them one must consult Sharia and receive their meaning from Sharia texts in verses and narrations. However, if marriage is a customary (‘urfi) matter, one must ask custom for its meaning. It appears marriage is a customary matter rather than a Sharia matter; hence in the Holy Quran its definition is never stated; rather, it merely suffices with stating its rulings. On the other hand, customary subjects are not necessarily fixed matters; rather, certain customary subjects undergo transformation over time. Marriage is one of these concepts that underwent change over time. The late Imam Khomeini also pointed to this fact that certain concepts undergo conceptual shift over time. Regarding marriage as well, over time this occurred and its concept changed. At present, marriage signifies a bilateral covenant (mithaq tarafayni) that entails reciprocal right to marital enjoyment, and naturally follows the volition of both parties. With this definition of marriage, it is clear that fundamentally one-sided marital enjoyment by the husband without the wife’s consent holds no meaning.

Contemporary Jurisprudence: Proponents of the impermissibility of non-consensual marital enjoyment (istimta’) regard rational practice (sirah al-‘uqala’) or texts such as “And live with them in kindness” (wa ‘ashiruhunna bi-l-ma’ruf) as an implicit rational restriction (muqayying labbi) to the absolute scope (itlaq) of texts permitting marital enjoyment. Conversely, advocates of the absolute permissibility of marital enjoyment even in case of the wife’s non-consent, besides clinging to absolute scope, describe it as a divine measure for permanently maintaining warmth in the family environment and marital relations, and consequently the tranquility and better life of the wife. What should be done in the conflict between these two arguments?

Ayazi: That texts expressing the permissibility of the husband’s marital enjoyment from the wife possess absolute scope (itlaq) is fundamentally an incorrect assertion; because these texts possess no absolute scope at all. The absolute scope of a text is contingent upon fulfilling the Premises of Wisdom (Muqaddamat al-Hikmah), one of which is that the speaker is in a position of complete articulation (fi maqam al-bayan); whereas the Sacred Lawgiver in these texts is fundamentally not in a position of articulating absolute scope regarding marital enjoyment. Usually in these matters, implicit mindsets (irtikazat) exist between the parties according to which one must act, rather than the absolute scope of texts. Almighty God states in the noble verse: “O you who have believed, it is not lawful for you to inherit women by compulsion. And do not make difficulties for them in order to take

part of what you gave them unless they commit a clear immorality. And live with them in kindness. For if you dislike them – perhaps you dislike a thing and Allah makes therein much good” (Surah An-Nisa, Verse 19). This noble verse demonstrates that one must act according to the parties’ customary implicit mindsets representing the instance of “living with them in kindness” (‘ashiruhunna bi-l-ma’ruf).

Contemporary Jurisprudence: Given that the instance of “non-consensual marital enjoyment” representing the title of “oppression” (zulm) is a newly emerging matter and uncommon among rational people, can it serve as an implicit rational restriction (muqayyid labbi) to texts at the time of issuance when no such practice and understanding existed among rational people?

Ayazi: The instance of “non-consensual marital enjoyment” representing the title of oppression is not a newly emerging matter and existed since ancient times. The claimed absolute scope for permissibility of marital enjoyment is a Prophetic narration regarding which most jurists stated that it pertained to specific conditions and is not generalizable to all periods.

Contemporary Jurisprudence: From the perspective of those advocating “spousal sexual assault/marital rape,” is the woman’s non-consent for marital enjoyment valid only as an initial matter (huduthi), or can the woman even during marital enjoyment prevent the continuation of the relationship and the man is forced to comply?

Ayazi: These follow the logic governing the parties’ relations. In these matters, one must pay attention to rational interest (maslahah ‘aqliyyah). The primary rule is that permissibility of marital enjoyment follows the volition of both parties, and if volition is lacking from one side, marital enjoyment is not correct, whether volition is lacking in origination (huduth) or in continuation (baqa’). It is very difficult to consider one-sided marital enjoyment permissible; rather, at the very least, one must advocate its discouragement (karahah).

Contemporary Jurisprudence: Given that regular and frequent marital relations create greater affection between spouses and warmth in the family environment, in a macro and general view, does coining titles like “spousal sexual assault/marital rape” assist the warmth of life and greater tranquility of the wife, or does it cause lives to cool and divorce rates to rise?

Ayazi: The category of marital enjoyment in matrimony, rather than being a legal category, is a moral matter. If a life is warm, marital enjoyment usually occurs naturally; and if a life is not warm, at times it turns into leverage from the opposing side saying “if you perform such a task for me I am ready for marital enjoyment, otherwise I will not.” In our view, in family matters, one must make morality the principle—which creates vitality and warmth in the family environment—rather than legal matters.

Contemporary Jurisprudence: Can rulings such as “the absolute permissibility of marital enjoyment from the wife” be considered as arising from the nature of marriage during the Lawgiver’s era—which consisted of “purchasing sexual rights (bud’) in exchange for dower (mahr)”; and thus, with the change in marriage’s nature at present, rule that such rulings have changed?

Ayazi: Interpreting marriage as offering sexual rights (bud’) in exchange for dower (mahr) is an incorrect assertion and causes the degradation of woman’s status; rather, it even diminishes humanity. In the past, such matters existed; for instance, referring to a woman as a “dependant” (muta’alliqah) as if she were a branch of the man and among the man’s furniture and possessions. From Islam’s perspective, man and woman both occupy one status, and for man to be the first sex and woman the second sex holds no fundamental meaning. Wherever the Holy Quran speaks of man and woman, it expresses them as one gender. In Quranic culture, dignity belongs to humanity, and man and woman do not differ in it. The image that God created Adam and woman was created from his left rib is a Torah-based image (Tawrati); otherwise in the Quran, dignity is designated for human kind, and breathing the divine spirit is considered belonging to the human soul, not man. Today, with the elucidation provided regarding the status of women, family, and the principle of human dignity, these matters have been resolved.