Is it permissible to enter a clause within a nikāḥ/marriage contract that stipulates that intercourse is only allowed with mutual consent?

Marriage is considered a sacred and important institution in Islam and is considered one of the cornerstones of society. In the Islamic context, the term nikāḥ refers to a legal contract between a man and a woman that formalises their marriage. One of the essential outcomes of nikāḥ is that it legitimises sexual intimacy between spouses. The relationship between marital contract (nikāḥ) and sexual intercourse in Islam has been a topic of discussion and debate among scholars for centuries. While the Islamic tradition emphasises the importance of mutual respect and consent in the marital relationship, there have been differing opinions on the nature and scope of sexual rights and obligations between spouses. Some conservative interpretations of Islamic law argue that a husband has an unrestricted right to demand sexual intercourse from his wife at any time (defined as tamkīn), even against her will.¹ Unfortunately, this understanding has been used to justify instances of marital rape in some Muslim-majority countries or societies. The problem of marital rape in such countries or societies has become a topic of increasing concern in recent years, as women's rights activists and scholars have called for greater recognition of the issue and reform of existing laws. In international law, marital rape is defined as a form of violence against women, and it is recognised as a violation of a woman's human rights.² In the present-day context, marital rape is recognised as a crime under international human rights law, and many countries have criminalised it as a form of sexual assault or rape.³

Despite the repugnancy of marital rape, there is no consensus amongst Muslim jurists that condemns marital rape. In fact, some scholars even argue that the concept of marital rape does not exist in Islamic law, as the wife has by default consents to sexual relations by entering into the nikāḥ contract. Therefore, a pertinent question that needs to be addressed is whether Islam, as per the Sharia, regards sexual intercourse as an essential component of the nikāḥ contract, and if so, whether engaging in sexual activity without coincidental mutual consent is permissible?

ICCI Opinion 

In Islam, the nikāḥ contract legitimises sexual activity between spouses, such activity must only occur with coincident mutual consent. It is advisable to include a clause of coincident mutual consent in the nikāḥ contract from the beginning to ensure that both parties agree to engage in sexual activity throughout the marriage.

Justifications 

1. The Quran uses the term nikāḥ to speak about marriage.⁴ Moreover, the apparent indication of Quran 2:223 illustrates that a man has the right to access his wife without the need for mutual consent. For instance,

However, this verse needs to be read in conjunction with other Quranic verses that clarify the notion of marriage and must be interpreted with the context they were revealed in.

The subsequent Quranic verses provides a general outlook on what a marriage should entail such as the attainment of loftier goals like tranquillity between spouses and ultimately attaining the pleasure of God. They also explain that marriage is essentially a source of comfort that is layered in human emotion, and is a union woven together through love, companionship, compassion, and support. Importantly, the Quran implores spouses to treat one another kindly and with dignity. This is clear from the following verses:

Indeed, if there is no coincidental mutual consent then this disrupts the love, companionship, compassion, and support that marriage should offer. Therefore, in order to resolve the seemingly conflicting Quranic views on marriage, it is important to understand the context in which verse 2:223 was revealed.

It is essential to make a distinction between the Arabian⁷ conception of marriage and the Islamic ideal of marriage. Although, the same word “nikāḥ” has been used to refer to the marriage contract by the pre-Islamic Arabs as well as the Quran, this does not imply that the Islamic conception of marriage is the same. The Arabian culture of marriage is restricted to its own context, whereas the Quranic verses emphasising love and companionship between spouses can be universally applied across different times and contexts.

Historically, it seems as though the societal norm (ʿurf) of the Arabs viewed the marriage contract as giving the husband the absolute right to sexual intercourse (tamkīn) and so, it was deemed an essential component of the contract. Additionally, when the Quran uses the same word (nikāḥ) to refer to marriage, it does not necessarily mean that it endorses the Arabian conception of marriage during the time of revelation, whereby tamkīn was an essential component.

In support of this, there is a reported tradition of Imam al-Ṣādiq stating that the Prophet said:

Meaning that there are different conceptions of marriage in accordance with different societies and contexts. Therefore, the Arabian conception of marriage at the time of revelation is context-bound to a culture wherein sexual intercourse (and pleasure) was the determining factor of any marriage, and perhaps the major motive for it.

Nevertheless, in the present-day, the Arabian conception of marriage – whereby intercourse is an exclusive and unrestricted right of the husband – is viewed as endorsing marital rape. The repugnant nature of marital rape contravenes Quranic guidelines of marriage which emphasise facilitating love, peace, mutual care, support, and tranquillity between spouses. Owing to the perceived contradiction between the Arabian conception of marriage and the general Quranic ethos, it can be said that Arabian conception of marriage is no longer suitable for the current context and cannot be deemed as being divinely endorsed.

2. The reported traditions of the Prophet and Imams indicate that intercourse is not an essential component of marriage. For instance:

Isḥāq b. ʿAmmār said that I told Imam Jaʿfar al-Ṣādiq: a man who married a young single girl on the condition that he would not have sexual intercourse with her, then [later] she granted him permission to. The Imam said: “If she gives him permission [for intercourse later on] then there is no problem.”¹⁰

These reports indicate that a clause of coincidental mutual consent can be agreed within a marriage/nikāḥ contract and that the contract remains valid without intercourse.

3. It is important to note that the aforementioned reports are interpreted by Shīʿī scholars in two different manners:

a. The first group of Shīʿī scholars including Shaykh al-Ṭūṣī (d. 1077), Fakhr al-Muḥaqqiqīn (d. 1370), Fāḍil Miqdād (d. 1423) interpret these reports to be specific to temporary marriage (mutʿa) and cannot be extended to permanent marriage.¹¹ According to them, sexual intercourse is an essential component of a permanent marriage contract, as the sole purpose of marriage is reproduction. This implies that spouses cannot stipulate a clause of no sexual intercourse within a permanent marriage contract. Hence, no marital contract is valid/correct (ṣaḥīḥ) if either party includes a clause of no sexual intercourse.

b. In contrast, the second group of scholars, including Shahīd al-Thānī (d. 1557) and Sāḥib al-Jawāhir (d. 1850), believe that intercourse is only one of the functions of marriage. They do not differentiate between permanent and temporary marriage in this regard.¹² Therefore, they are of the opinion that a condition of non-sexual intercourse can be stipulated in the marital contract. It seems for such scholars, producing offspring is not an essential component of marriage.

In support of this view, an argument can be made that even if it assumed that producing offspring is an essential feature of marriage; in modern society offspring can be produced through other means such as IVF and surrogacy. Thereby, inserting a non-sexual intercourse clause does not invalidate the marital contract, even if we agree that the essential purpose of marriage is reproduction.

This opinion is further supported as the Sharia allows those who cannot have intercourse (or are unable to engage in sexual pleasure) or may not have any capacity to engage in intercourse – such as elderly people – to get married. This shows that according to the Sharia, neither satisfying sexual need nor reproduction is the unique and irreplaceable purpose of marriage.

References

^{1. Islamic jurists have argued for the legitimacy of tamkīn, for instance: Imam Mālik bin Anas, who is considered one of the founders of the Mālikī school of thought, held the view that the husband has the right to have sexual intercourse with his wife without her consent, as long as she does not have a valid reason to refuse him. Al-Muwatta of Imam Malik, Book 28, Hadith 12. Additionally, Shīʿī scholars like Sayyid Khūmaynī have defined tamkīn in the context of marriage as follows: "The right of the husband to enjoy the sexual pleasure of his wife during the course of their marriage." He believed that the husband has an unrestricted right to have sexual intercourse with his wife, as long as she is physically able and consents to it. He argued that this right is a fundamental aspect of the marital relationship and that any attempt to limit or challenge it is contrary to Islamic law. According to Khūmaynī, the wife's duty is to satisfy her husband's sexual needs and to submit to his sexual desires whenever he wishes. He emphasized that the wife's consent is necessary for sexual intercourse to be lawful, but that the husband has the final say in determining whether or not she has given her consent. (Khomeini, Tahrir al-Wasilah, ch. 2 Marriage). Sayyid al-Sistānī defines tamkīn as the right of the husband to engage in sexual intercourse with his wife whenever he desires, as long as she is willing and able. Sayyid Ali al-Husaini as-Seestāni, Islamic Laws, (Ansariyan Publications: Qom, 2007), 446.}

^{2. United Nations. "In-depth Study on All Forms of Violence against Women: Report of the Secretary-General." 2006.}

^{3. United Nations Office on Drugs and Crime. "Global Status Report on Violence Prevention." 2014. https://www.who.int/violence_injury_prevention/violence/status_report/2014/en/. For further and more in-depth analysis of this issue, refer to the following: Ziba Mir-Hosseini, Marital Rape and Islamic Law: An Overview. In Engaging Cultural Differences: The Multicultural Challenge in Liberal Democracies, edited by Richard A. Shweder, Martha Minow, and Hazel R. Markus, 321-337, (Russell Sage Foundation, 2013); Rupsa Mukherjee, "Marital Rape: A Problem that Continues to Persist." Journal of Legal Studies and Research 5, no. 1 (2019): 129-134; Musaret Khan, and Deborah A. Brownridge. "Marital Rape in Pakistan: Prevalence, Beliefs, and Interventions." Journal of Aggression, Maltreatment & Trauma 22, no. 7 (2013): 752-770.}

^{4. For instance, see Quran 24:32 and 28:27.}

^{5. Quran 30:21}

^{6. Quran 2:187}

^{7. The culture that was prevalent at that time.}

^{8. Muḥammad bin Ḥasan al-Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿa, (Beirut: Muʾassasat Āl al-Bayt, 2008), 21:200 hadith no. 26892}

^{9. Wasāʾil al-Shīʿa, 21:295, hadith no. 27117.}

^{10. Ibid., hadith no. 27118.}

^{11. Reputable scholars the likes of Sayyid Ḥasan al-Bujnurdī (d. 1975), Sayyid ʿAbd al-Karīm al-Ardabīlī (d. 2016) and Makarem al-Shirāzī distinguished between the absence of sexual intercourse in particular and the absence of any type of sexual pleasure. They believe that a man cannot accept the condition of the absence of any type of sexual pleasure in the marriage contract as this nullifies the contract. Sayyid Ḥasan Mūsawī al-Bujnurdī, al-Qawāʿid al-fiqhiyya, (Qom: Nashr al-Hādī, 1377), 4:306; and ʿAbd al-Karīm Mūsawī al-Ardabīlī, Fiqh al-sharika ʿalā nahj al-fiqh wa al-qanūn, (Qom: Dār al-ʿIlm al-Mufīd), 84; Nāṣir Makārem al-Shirāzī, Kitāb al-nikāḥ, (Qom: Madrassat al-Imām ʿAlī ibn Abī Ṭālib, 1424), 3:106.}

^{12. Zayd al-Dīn Shahīd al-Thānī, Maslik al-ifhām ilā tanqīḥ sharāʾiʿ al-Islām, (Qom: Muʾassasat Tanẓīm wa Nashr Āthār Imām Khumaynī, 1413), 8:248}.