Sexual Ethics in Islam (7 page)

marriage, money, and sex 11

When a woman spends the night away from the bed of her husband, the angels curse her until morning.
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By Him in Whose Hand is my life, when a man calls his wife to his bed, and she does not respond, the One Who is in the heaven is displeased with her until he (her husband) is pleased with her.

When a man invites his wife to his bed and she does not come, and he (the husband) spends the night being angry with her, the angels curse her until morning.
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Bukhari’s two traditions attribute similar words to the Prophet:

If a man invites his wife to sleep with him and she refuses to come to him, then the angels send their curses on her till morning.

If a woman spends the night deserting her husband’s bed (does not sleep with him), then the angels send their curses on her till she comes back (to her husband).
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Details in these Prophetic hadith vary. In three of the five, the husband invites his wife to bed; the other two do not mention an invitation, only that she remains away. In all but one version, the angels curse the woman till morning or until she returns to her husband’s bed; in the last, God is directly “displeased until [her husband] is pleased with her.” These vari- ations do not affect the central point, which is that women’s sexual duties to their husbands are a matter of divine concern and divine approval is contingent on a husband’s approval.

Aside from the abstract, if horrific, prospect of being cursed by angels or subject to divine displeasure, a wife’s sexual refusal had practical consequences in the legal tradition. Most jurists viewed the husband’s support of his wife as an exchange for her sexual availability to him, and agreed that her sexual refusal constituted grounds for suspension of her support.
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The dominant Hanafi view differed in a crucial way; a man had to continue to support his wife even if she refused him, so long as

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she remained in the marital home.
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As an Indian author argues in 1987, in euphemistic language, in case of the wife’s refusal of sex, “It is taken that she shall be in his power and [he] can be intimate with her by applying some pressure.”
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The early jurists would have considered marital rape an oxymoron; rape (
ightisab
, “usurpation”) was a property crime that by definition could not be committed by the husband, who obtained a legit- imate (but non-transferable) proprietary interest over his wife’s sexual capacity through the marriage contract, incurring the obligation to pay dower in exchange. The Hanafi view that hus- bands were entitled to have sex forcibly with their wives when the latter did not have a legitimate reason to refuse sex was not widely shared outside that school. Even the majority of Hanafi thinkers who accepted this doctrine recognized a distinction between forced intercourse and more usual sexual relations between spouses; although both were equally licit, sex by force might be unethical.
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Unlike the clear penalties that a wife could face if she did not fulfill her husband’s demand for sexual access, a sexually dis- satisfied wife had few avenues for redress, despite a man’s obliga- tion to keep his wife satisfied. Those sources that do exist, beyond those cited above as encouraging foreplay, do not receive nearly as much attention as the Abu Huraira hadiths cursing recalcitrant wives. In one case, Muhammad is reported to have told a man who boasted of fasting every day and praying at night that he should follow the Prophet’s own example, and moderate his devotions so that he could partake of normal human activ- ities: food, sleep, and sex. Interestingly, the terms used liken the wife in that case to almost an extension of her husband’s body: “Your body has a right over you, your eyes have a right over you and your wife has a right over you.”
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This hadith is important because it moves beyond the question of women’s satisfaction in a particular act, discussed by al-Ghazali and others, to the larger question of wives’ rights to sex itself.

What was the extent of the wife’s sexual claim on her husband? With the exception of the literalist Zahiris, all legal schools adopted the view that a marriage could be dissolved for impotence – that is, the husband’s failure to consummate the

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marriage. In the absence of any passage from the Qur’an or statement from the Prophet on the topic, the jurists based them- selves on a ruling from the second caliph ‘Umar. The choice by some (such as Abu Hanifa and his disciple Muhammad al-Shaybani) to follow this ruling while ignoring ‘Umar’s prece- dent in other cases demonstrates an exercise of jurisprudential discretion.
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The near unanimity on the point suggests that there is, indeed, a strong strand of thought believing that sex is a vital element of marriage. Nonetheless, despite the wife’s right to press a claim of impotence in an unconsummated marriage, the vast majority of jurists went on to declare that she has no such right once the marriage has been consummated. One opin- ion quoted in the late Hanafi text
Radd al-Muhtar
presents this sentiment particularly bluntly: “After the first time, intercourse is his right, not her right.” At best, as in Ibn Jibreen’s fatwa, she might be able to insist on intercourse once every four months, assuming her husband was capable of it.
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Sex is, by and large, a male right and female duty, accord- ing to
fiqh
texts, whatever the ethical importance of a husband’s satisfying his wife and thus enabling her to keep chaste. The repeated, though ultimately unenforceable, assertions of some scholars as to a wife’s sexual rights – or, more particularly, the husband’s obligations – demonstrate an unresolvable tension. The modern attempt to render the spouses’ sexual rights parallel without departing from the overall framework of gender- differentiated rights and duties set forth by classical jurists is destined for failure; the model cannot accommodate piecemeal modifications. The legal tradition fundamentally views mar- riage as an exchange of lawful sexual access for dower, and continued sexual availability for support. To the extent that these doctrines still inform Muslim discourses, mutuality in sexual rights cannot be a requirement, merely an ideal.

Intermarriage

As with regulations surrounding dower and sex, the issue of mar- riage of Muslims to “people of the Book” –
ahl al-kitab
, generally

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understood as Christians and Jews – demonstrates both the mutability and the limitations of existing jurisprudential approaches to intimate relationships. The Qur’an explicitly grants permission in Surah 5, verse 5 for Muslim men to marry virtuous women (
muhsanat
)
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from among those who have received scriptures in the past. Surah 2, verse 221 prohibits marriage between Muslim men and women to those who associ- ate partners with God (
mushrikun/mushrikat
). Surah 60, verse 10 prohibits sending female converts who have come to the Muslims back to their unbelieving husbands, who are declared to be inap- propriate spouses for them. The vast majority of Muslim scholars have understood these verses, taken collectively, to forbid the marriage of Muslim women to non-Muslim men, whether“of the Book” or not, and to require the dissolution of any marriage to a non-Muslim husband when a wife converts to Islam.
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Their interpretations presupposed two kinds of hierar- chies: Muslims were to be dominant over non-Muslims and husbands over wives. As wives were to be subordinate to their husbands, the marriage of a non-Muslim man to a Muslim woman would challenge this authority structure: “A marriage of a Muslim woman to a non-Muslim man would result in an unacceptable incongruity between the superiority which the wife should enjoy by virtue of being Muslim, and her unavoid- able wifely subjection to her infidel husband.”
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The same rationale governed, although to a lesser extent, other legal discussions about socio-economic parity between spouses, particularly important in the Hanafi understanding of
kafa’a
, measuring the suitability of the groom according to whether he was the bride’s equal or better in lineage, wealth, and religious status.
49
The reverse was not true: twelfth-century Hanafi scholar al-Marghinani’s statement that “[I]t is not necessary that the wife be the equal of the husband, since men are not degraded by cohabitation with women who are their inferiors” was meant to apply with regard to suitability but applied equally to intermar- riage.
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Though some prominent early Muslims did object to intermarriage with Christians in particular on theological grounds, the notion of a Muslim husband’s authority over a non-Muslim wife posed no conceptual problems.

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As exegetes and jurists grappled with the issue of inter- marriage, they took for granted the absolute necessity of both Muslim political authority and male familial authority. Classical exegetes explicitly grappled with the Qur’anic verses mentioning intermarriage, and tried to sort out the relevant categories (Muslims, believers, people of the Book, Jews, Christians, non- believers,
mushrikun
). Jurists, more pragmatically inclined, attended to issues of permissibility and conditions for interreli- gious marriages. For the most part, scholars simply assumed that Muslim women couldn’t marry non-Muslim men and did not consider it necessary to elaborate on their evidence and ration- ales. Ibn Rushd does not discuss Muslim women marrying non-Muslims in his
Distinguished Jurist’s Primer
which, because it treats matters on which jurists disagree, is often a repository for minority opinions.
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More tellingly, neither Ahmad b. Naqib al-Misri nor his nineteenth-century commentator ‘Umar Barakat deemed it necessary to state that Muslim women could not marry non-Muslim men in the classic Shafi‘i manual
Reliance of the Traveller
; however, a late twentieth-century trans- mitter of the text adds it as a clarification for the English transla- tion; literally, what once went without saying no longer does.
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The scholar quoted in the
Reliance
states the prohibition without presenting a justification for it, but numerous others have addressed the point. The increasing frequency with which (civil) marriages between Muslim women and non-Muslim men are occurring, or where women who convert to Islam independ- ently remain married to non-Muslim husbands, has led to impassioned, but deeply flawed, arguments by Muslim thinkers intent on upholding the standard prohibition of such marriages, though in quite different terms from those provided by early and medieval thinkers, when they addressed the matter at all.
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The rationales presented, however, are often nonsensical, as well as simplistic in their discussions of intermarriage by Muslim men. The premodern tradition demonstrates a level of complexity in discussions of intermarriage that does not carry over into con- temporary discussions, suggesting the relevance of context as a factor in determining the (im)permissibility of particular types of marriages. At the same time, a reconsideration of the relevant

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Qur’anic passages in isolation from their traditional interpret- ation suggests that the text is less categorical than generally assumed;
sunnah
may also provide a model of flexibility.

Even leaving aside the dominant Shi‘i view that men may not contract
nikah
with non-Muslims of any type, early Sunni discussions of intermarriage between Muslim men and Jewish or Christian women are more complex than the view, often expressed today, that while women are forbidden from intermarrying, Muslim men may marry Christian or Jewish women. Marriage of Muslim men to non-Muslim women was not as straightforward as simple permissibility. First, authorities debated who should be included in the definition of “people of the Book.” Ibn ‘Umar’s blanket disapproval of marriage to a Christian (for who is more an idolator who says that God is one of three?) is a well-known minority view, but Christian and Jewish women were agreed by Sunni scholars to be acceptable, if not ideal, as marriage partners. Instead, the debate tended to center around the categories of the Sabeans (Abu Hanifa per- mitted marriage to Sabean women, though his disciples did not) and Zoroastrians (not lawful, according to the Hanafis, but the inclusion of this disclaimer makes clear that some
did
hold it permissible).
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More importantly, quite a number of thinkers held that circumstances mattered in assessing the permissibility of marriage between Muslim men and
kitabi
women. It was one thing to marry a
kitabiyya
within the safe haven of Muslim- ruled Dar al-Islam, but quite another to do it in Dar al-Harb when the possibility of the children being brought up as non- Muslims was more of a threat (assuming the husband divorced the woman and returned to his native land, which some scholars considered a strong probability). According to the view pre- sented in the Hanafi text
Fatawa-I-Kazee Khan
, such a marriage was “valid” but “abominable” (
makruh
).
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The early jurists also devoted substantial discussion to the conversion of one spouse to Islam.
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When a Christian or Jewish husband converted, he was allowed to remain married to his wife of the same faith; his conversion resulted in a permis- sible marriage between a Muslim man and a
kitabiyya
. On the other hand, if the wife converted while her husband retained

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their original religion, there was general (although not univer- sal) agreement that their marriage could not continue, a position that has been generally upheld by scholars until the present day. However, two recent opinions by Western Muslim authorities have declared that a woman who converts to Islam is not necessarily required to divorce her
kitabi
husband. Although the positions taken in these fatwas suggests a serious challenge to the dominant view of intermarriage, an exploration of their reasoning shows that neither upsets conventional wisdom as much as might be expected.