READ DISCLAIMER BEFORE PROCEEDING
2. SEX AS A RIGHT OF BOTH SPOUSES
ISLAM
PROTECTS THE sexual rights of both the husband and wife, and to satisfy the
sexual appetite of one's spouse is a legitimate objective of sexual relations
and even of marriage itself.
The
right to sexual fulfilment belongs to both husband and wife, and it is a
mistake to assume that only the husband has this privilege. The wife has as much
right to expect her sexual needs to be fulfilled as the husband. As such,
sexual relations are a right of both spouses.
The
renowned Hanafi jurist Imam Ibn 'Abidin (may Allah have mercy on him) states:
"Among the consequences of marriage is the permissibility of each spouse
deriving sexual pleasure from the other." ( Radd al-Muhtir 'ala 'l-Durr
al-Mukhtar 3:4)
Imam
'Ala al-Din al-Kasani (may Allah have mercy on him), a prominent classical Hanafi
jurist, states: "And both spouses share this ruling of deriving sexual
pleasure, for just as the wife is lawful for the husband [in terms of deriving
sexual pleasure from her]; her husband is lawful for her ... It is the right of the husband to demand sex from her
whenever he so desires unless there is an impediment, such as menstruation (hayd), postnatal bleeding (nifas),
zihar [the husband swearing an oath to abstain from sex with his wife],
being in the state of ihram and other impediments. And it is [also]
the right of the wife to request sex from him, since deriving sexual pleasure
from him is her right, as it is his right to derive sexual pleasure from her. When
she requests sex from him, he will be obligated to agree and compelled through
the courts once [meaning once throughout the marital relationship], and after
that he will be religiously [and not legally] obliged to have sex with her in
the context of living together in excellence and fostering the marital
relationship ... " (Bada'i al-Sana'i 2:331)
Despite
the fact that each spouse is religiously obliged to fulfil the sexual needs of
the other, there is a slight legal difference between the husband's and the
wife's right to demand sex. The husband can demand sex through a court of law
and is generally expected to take the initiative, and the wife must consent to
his demand unless there is a genuine physical excuse or Shari'a-countenanced
impediment. However, in the case of the wife, even though it is religiously
obligatory for the husband to fulfil her sexual needs, she cannot demand this through
a court of law after he has had sex with her at least once since being married.
This
distinction comes about because of various considerations, including the
difference in the nature of male and female sexual desire, the husband being
the head (amir) of the family, and the consideration of how each party's
"demanding" would affect marital relations. In other words, a woman
does not have an explicit legal right to demand sex in the same fashion as a
man; but this distinction exists merely because of the inherent temperamental,
physical, and emotional differences between the sexes. (See: Radd al-Muhtar 3:4)
All
of the above is at the level of law. The spirit of marriage is different. Seeking
one's rights through demands, force and argumentation contradicts the spirit of
marriage, and never solves anything. Rights should always be understood in
light of the following Prophetic guidance:
"The
most perfect of believers are those most perfect of character; and the best of
you are the best of you to your spouses."
(Sunan al-Tirmidhi 1162)
To Be Continued....
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