Sexual Ethics in Islam by Kecia Ali Read Free Book Online Page B

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. 39 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. 40 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.” 41 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. 42
    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.” 43 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. 44 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