Question:-
A person has been married for a few months now. After 3 months of marriage, the wife accused the husband of raping her. Consequently, they have separated now for a month already. The Husband now says that due to this allegation, which he denies, that he wishes to end this marriage as it would impact his relationship for the rest of his life. Is this valid grounds for divorce?
Answer:-
Nikah between a male and a female takes place with a proposal from one side and an acceptance from the other side, in the presence of two male witnesses, or one male and two female witnesses.
Nikah has the meaning of a transaction in the sense that the Mahr (dowry) is paid in lieu of the female’s private part. This can be clearly understood from the following texts of the jurists:
وَأَمَّا مَعْنَى الْمُعَامَلَةِ فَلِمَا فِيهِ مِنْ الْمَالِ الَّذِي هُوَ عِوَضُ الْبُضْعِ (مجمع الانهر ص315 ج1)
بخلاف المهر لأنه عوض البضع (البحر الرائق ص203 ج4)
When this is the case, then how is it possible for a man to rape his wife? Is there such a thing as rape in marriage? The claim of the wife that her husband has raped her is totally baseless and incorrect. Rape is defined as follows:
unlawful sexual intercourse or any other sexual penetration ——without the consent of the victim.
Once the Nikah has been performed, the husband enjoys the privilege of having relations with his wife as and when he wishes, except during her monthly menses hence, the question of unlawful sex doesn’t exist.
In one Hadith Rasulullah Salallahu Alaihi Wasallam is reported to have said,
عن قيس بن طلق، عن أبيه طلق بن علي قال: قال رسول الله صلى الله عليه وسلم: إذا الرجل دعا زوجته لحاجته فلتأته، وإن كانت على التنور
“When a man calls his wife to fulfil his need (referring to his need of intimacy) then she should come to him even though she may be at the oven (preparing meals).
In another Hadith he states,
لو كنت آمراً أحداً أن يسجد لأحد لأمرت المرأة أن تسجد لزوجها، من عظم حقه عليها (ترمذي)
“If I were to command anyone to make Sajdah to anyone, then I would have commanded the woman to make Sajdah to her husband, due to his great right upon her.”
Yet another narration states,
عن أبي هريرة رضي الله عنه عن النبي صلى الله عليه وسلم قال: “إذا دعا الرجل امرأته إلى فراشه، فأبت أن تجيء فبات غضبان لعنتها الملائكة حتى تصبح (متفق عليه)
Abu Hurairah Radiallahu Anhu narrates from Rasulullah Salallahu Alaihi Wasallam who said, “When a man calls his wife to his bed but she refuses to come and he spends the night angry with her, then the angels curse her until the morning.”
عَن أبي هُرَيْرَة رَضي الله عَنهُ ان رَسُول الله صلى الله عَلَيْهِ وَسلم قَالَ وَالَّذِي نَفسِي بِيَدِهِ مَا من رجل يَدْعُو امْرَأَته إِلَى فرَاشه فتأبى عَلَيْهِ إِلَّا كَانَ الَّذِي فِي السَّمَاء ساخطا عَلَيْهَا حَتَّى يرضى عَنْهَا زَوجهَا (أخرجه البُخَارِيّ وَمُسلم)
Abu Hurairah Radiallahu Anhu narrates that verily Rasulullah Salallahu Alaihi Wasallam said, “By that being in whose hand is my life, any man that invites his wife towards his bed and she refuses, then that Being that is in the heavens (Allah Ta’ala) will be angry upon her, until her husband is pleased with her.”
Some knowledgeable and experienced person in this field, should counsel the couple and resolve the issue. It seems from the query that there isn’t any real issue except the misunderstanding of the wife that has caused these issues. Now that the rape issue has been clarified in our Fatwa above, the husband should feel free to reconcile and continue with his marriage, as the allegations against him hold no weight whatsoever.
ALLAH TA’ALA KNOWS BEST!
ANSWERED BY:
Mufti Mohammed Desai
Date: 04 Dhul Hijjah 1443 / 04 July 2022
