Note: Perhaps until a few decades ago, if someone spoke of “spousal rape,” they would face mockery and astonishment from audiences, alongside the question: Is “rape” of a legitimate and legal spouse even conceivable? The feminist movement, however, has made this conceivable as well. In the belief of feminists, if sexual enjoyment (istimta’) from a spouse occurs without her consent, it is considered a form of rape against her and is impermissible. But from the perspective of Shia jurisprudence, can “spousal rape” be conceived as well? Hujjat al-Islam wal-Muslimeen Ebrahim Nikdel, professor of advanced levels in the Islamic Seminary of Mashhad, while not regarding the exercise of force and violence against a spouse to compel her toward sexual submission permissible, simultaneously does not accept the instance of “spousal rape” for the title of oppression (zulm). In his belief, where the Lawgiver has not considered a matter an instance of oppression, one cannot by clinging to custom (‘urf) prove its instance for oppression. The detailed exclusive interview of Contemporary Jurisprudence with this faculty member at the Daneshvaran Research Institute of Mashhad 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?

Nikdel: In response to this question, it must first be said that the wife’s obedience to the husband in marital affairs is a right that Almighty God established for the husband, and it is obligatory upon the woman to obey her husband in these affairs.

However, if the wife fails to render this right, the husband, considering verse 34 of Surah An-Nisa—”And those [wives] from whom you fear rebellion – [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand”—possesses the right to utilize various ways to compel the wife to submit (tamkin); but if the wife under this condition still does not submit, using coercive force (quwwat-e qahriyyah) to compel her to submission is not correct. In any case, causing distress beyond this is impermissible. The noble verse maintains generality only regarding time, expressing solely the principle of possessing the right, and carries no implicational force beyond that.

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?

Nikdel: Regarding the noble verse “And live with them in kindness” (wa ‘ashiruhunna bi-l-ma’ruf), it must be said: Although this verse possesses absolute scope (itlaq), it does not restrict the right. Of course, considering that the right to compel does not exist beyond the degree raised in the first response, and this noble verse has commanded honorable association with wives, exercising violence for sexual marital enjoyment (istimta’) is impermissible from this aspect as well.

However, regarding the second argument, its validity is not clear; because exercising violence is unlikely to cause warmth in life.

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?

Nikdel: Given that in this matter, the Lawgiver has specified the boundaries, applying the title of oppression (zulm) from the Lawgiver’s side holds importance, and applying customary oppression without applying Sharia oppression carries no effect. Of course, if in a case the Lawgiver had not specified boundaries, this question would be appropriate.

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?

Nikdel: If continuing sexual marital enjoyment depends on exercising violence against the woman, it is impermissible; however, if it is merely non-consent, the man’s right is not restricted.

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?

Nikdel: This question must be asked of experts in the field, and I do not possess the qualification to answer this question.

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?

Nikdel: Although these expressions were used in narrations, this matter was not endorsed as the nature of marriage. Perhaps such expressions were meant to accommodate the audience’s belief and bring them along.

Evidence of this claim is that whether the woman has received her dower (mahr) or gifted it makes no difference, and in both cases, obedience to the husband in marital affairs is obligatory and the man holds the right to marital enjoyment (istimta’).