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A CONTROVERSY has ensued after the Afghan President Hamid Karzai signed a supposedly Sharia bill that says a woman can be forced into physical intimacy by her husband against her will. Rights organisations and many western governments were outraged, and he reportedly agreed to review the bill.

This, however, raises the question does Islam allow what is now called `marital rape` i.e. can a woman be forced by her husband into physical intimacy? Many Muslim jurists in all probability will say `yes`. After paying the compulsory dowry money (mehr), according to traditional Islamic jurists, the husband acquires the right over his wife, and she cannot refuse him intimacy.

However, if we look at the Quranic pronouncements, it is not so. Mehr is certainly a necessary part of Islamic marriage and without paying the mehr a husband cannot go near his wife. But it is not true that as soon as he pays the dowry money, it becomes his unconditional right to have physical intimacy with her. Nikah and mehr do not make him the `owner` of his wife`s body. No one except she herself owns her body.

Let us look at some of the Quranic pronouncements in this respect. It is well-known that marriage is a contract in Islam and the Quran calls it astrong covenant (421). However, any contract is subject to certain conditions, especially when it comes to a marital contract between two individuals. That is why the Quran, while describing marriage as a covenant, goes much beyond just that and terms this relationship between man and wife as tender and sensitive.

The Quran describes man and his wife as libas (apparel, garment) for each other (2187), thereby implying that marriage or the desire for intimacy is much more than just fulfilling a natural instinct like hunger or thirst. It has a higher end, and a marital contract is a means of protection for each other, comfort and embellishment for each other; that is what an apparel or garment is meant for. Thus describing husband and wife as each other`s libas, the Quran has beautifully described this relationship.

Also, the Quran describes this relationship as mawaddah and rahmah (3021) i.e. love and compassion, and also seeking solace in each other (li taskunu). This is a very sensitive description of a marital relationship. Force and compulsion have no place in it. It will destroy this relationship. Mawaddah and rahmah are the very basis of this relationship. A marriage cannot persist without love and sacrifice for each other. It is not a piece of land that one can acquire the right over after paying for it.

Nowhere does the Quran say that a husband acquires the right over his wife`s body after he pays mehr to her. This is a very crude concept of marriage that defies Quranic logic and values. The Holy Book is so sensitive to a wife`s rights that it allows her even to refuse to suckle her child, if she so decides. Just consider the following important verse (656) “Lodge them where you live according to your means and injure them not to discipline them. And if they are pregnant, spend on them until they lay down their burden. Then if they suckle for you, give them their recompense, and consult one another in a fair manner, and if you both disagree (that mother should suckle the child), another woman should suckle (the child) for her.”

Thus, the verse makes it clear that a man cannot even force his wife to suckle their child, and if she does so, he should pay her for it. Thus, it can be forcefully argued that the Quran gives a woman undisputed right over her body, and not her husband. It is for her to decide whether to suckle her child or not.

Unfortunately, traditional jurisprudence has ignored many Quranic pronouncements. It tends to read the Quran while under the influence of patriarchal values of yore, the time at which this jurisprudence or Sharia (an interpretation of the Quran and Sunnah) took shape. It is equally important to remember that the existing jurisprudence is as manmade as a review of it would be in our time and age.

It is the right of the present generation of Muslims to re-read and re-understand the Quran in the light of the prevailing social values created by a new awareness of woman`s rights and sensibilities, in particular. We must construct jurisprudence in the light of the Quran to give Muslim women and other obviously wronged and disadvantaged sections of society their due. Traditional jurisprudence has been deeply influenced by its medieval, patriarchal and tribal values, and women lost many of their rights which the Quran had given them.

If we go by Allah`s word and its logical understanding, a man certainly cannot force his wife to fulfill his lust just because he has paid her the dowry money. It is a tribal, and certainly not a Quranic, value. The Quran is highly sensitive to a woman`s individuality and her rights. Thus, forced sex in marriage will constitute what modern jurisprudence calls `marital rape`, under a Quranic value system. It must be prohibited, not sanctioned.

The writer is an Islamic scholar, who also heads The Centre for Study of Society & Secularism, Mumbai.