A Contemporary Jurisprudential Study on the Wife’s Right to Intimate Relations

The journal al-Basaʾir al-Dirasatiyya published, in its issue number 47, a research paper by Sayed Mahmoud Al-Mosawi under the title (How Do We Understand the Wife’s Right to Intimate Relations? A Contemporary Approach in Islamic Legislation).

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How Do We Understand the Wife’s Right to Intimate Relations?

A Contemporary Approach in Islamic Legislation

Sayed Mahmoud Al-Mosawi

The ruling has come in Islamic legislation that among the duties of the wife is to fulfill her husband’s desire for intimate relations whenever he wishes; otherwise she is considered recalcitrant (nashiz) and remiss in her husband’s right. The fatwas of the jurists have expressed this as an obligation. By contrast, the wife’s right to intimate relations with her husband has not had this clarity in Islamic legislation; rather, the jurists have stated that what is forbidden for the husband with regard to intimate relations is that he refrain from them for a period of four months, at which point he is sinful; accordingly, it is obligatory upon the husband to come to his wife once every four months.

So how do we understand this difference and this disparity in marital rights, which some may see as not being equivalent and as not meeting the wife’s need in bed?

Before answering the question, in this research, we would like to point out a set of important facts concerning rights in the Islamic approach, since we are dealing with a matter of rights. They are by way of preliminaries that should be taken into consideration when dealing with any subject of rights, so that the view is comprehensive and fair. They are:

First: The Equivalence of Rights between the Two Sexes

Marital rights are equivalent between the husband and the wife, for Allah the Exalted, by His justice and His knowledge of the sex of each of them, has given each of the husband and the wife rights that suit their created nature, because the Creator knows His creatures better than they know themselves. The Exalted said: “The wives have rights similar to the obligations upon them, in accordance with honourable norms” (Qurʾan 2:228)[1]. So the wife has rights like those that are upon her toward the husband, but not in the sense of complete equality and identity; rather, in the sense that the rights that the woman needs as a female, who has her own created and physiological particularities and her conventional standing in the family, are all guaranteed to her without diminution; and likewise the rights that the man needs in view of his constitution and in view of his conventional position are all guaranteed to him undiminished. So justice is provided in view of the sex-specific particularities of the nature of both parties.

And because “Allah is not tyrannical to His servants” (Qurʾan 3:182)[2], justice requires that every holder of a right take his right in a manner that suits his own situation and his own needs, not the needs of the other sex. The demand for equality is contrary to justice; justice requires equivalence and the fulfillment of each one’s needs.

It is just as when we demand, for example, the rights of workers to justice in pay — salaries —: we see that justice requires that each take his due in a manner that suits his qualifications and his needs; for it is not just that all people be equal in pay, so that the doctor takes a wage equal to what the hospital guard takes?!

This is an approximate example of the question of justice between equivalence and equality.

So the similarity in the saying of Allah the Exalted: “The wives have rights similar to the obligations upon them, in accordance with honourable norms; and men have a degree above them” (Qurʾan 2:228)[3], is the rights that suit each with respect to the other, in terms of his position, his circumstances, his created needs and other things. That is why “and men have a degree above them” (Qurʾan 2:228) came, that is, in what pertains to his administrative standing, (and that is because he is her manager, and the manager must have a distinction so that by his distinction he is able to manage what is under his management)[4].

Second: Rights and the Otherworldly Dimension

The system of rights in Islamic legislation does not look only at the worldly effects; rather, it is connected with the otherworldly effects as well, so that balance is achieved in the outlook. For any right that a person is obliged to fulfill has, in return, its reward in the Hereafter, many times greater than the benefit it has in this world. So if we mention any right of the husband or of the wife, we should keep in mind the otherworldly effects of that duty and right, because it will thereby be one of the gates of Paradise and a mercy that Allah the Exalted has placed for His servants so that through it they may obtain reward, in addition to its achieving justice and its regard for worldly considerations.

In the hadith: (This world is the bridge to the Hereafter); and in the saying of Allah the Exalted: “while the Hereafter is better and more lasting” (Qurʾan 87:17)[5].

An example of the otherworldly effect, and of the great reward that the wife obtains when she fulfills the rights due from her, has been narrated from Abu ʿAbd Allah (a), who said: When a woman prays her five, fasts her month, makes the pilgrimage to the House of her Lord, obeys her husband and recognizes the right of ʿAli, let her enter by whichever of the gates of the Gardens she wishes)[6].

Another example, from Abu ʿAbd Allah (a), who said: A man of the Ansar, in the time of the Messenger of Allah (s), went out on some of his business and made his wife pledge that she would not go out of her house until he returned. He said: And her father fell ill, so the woman sent to the Prophet (s) and said: My husband has gone out and made me pledge not to go out of my house until he returns, and my father has fallen ill; do you order me to visit him? The Messenger of Allah (s) said: No, sit in your house and obey your husband. He said: Then he grew gravely ill, and she sent to him a second time about that, saying: Do you order me to visit him? He said: Sit in your house and obey your husband. He said: Then her father died, and she sent to him: My father has died; do you order me to pray over him? He said: No, sit in your house and obey your husband. He said: Then the man was buried, and the Messenger of Allah (s) sent to her: Allah has forgiven you and your father because of your obedience to your husband)[7].

In the face of these duties and commitments, Allah does not let the reward go to waste. It is necessary for us to take this aspect into account, for the fulfillment of those duties is among the gates of the mercy of Allah the Exalted, just as they are factors in building society and its integration.

Third: Taking Special Cases into Account in Rights

Rights look at the general condition in order to achieve the general order. It is the general features of people that are taken into consideration in rights, for the sake of their well-being in general and for the sake of meeting their prevailing needs. Therefore the general wording in rulings has particularizations; it has another regard for cases with special needs, and it has exceptions that meet the requirements of human diversity—but only in what does not harm the basis of the legislation, such that it does not divert the system of rights from its justice.

That is under numerous rules, among them “Allah does not task any soul beyond its capacity” (Qurʾan 2:286)[8], and “Allah does not desire to put you to hardship” (Qurʾan 5:6)[9], and (There is no harm and no harming)[10] and others.

So when we deal with the right of the two spouses to intercourse and the duty of each to fulfill the other’s needs in sexual practice, we should look at those aspects and take them into consideration, and then deal with the subject, so that our view is complete.

The Husband’s Right to Intimate Relations

The sharia rulings concerning the husband’s right to lie with the wife and have intercourse with her have come to the effect that she should not deny him herself when he needs that and when he asks it of her, in various circumstances and situations, on the basis of the numerous narrations, among them: from Abu Jaʿfar (a), who said: A woman came to the Prophet (s) and said: O Messenger of Allah, what is the right of the husband over the woman? He said to her: That she obey him and not disobey him, that she not give charity from his house except with his permission, that she not fast voluntarily except with his permission, and that she not deny him herself even if she is on the back of a qatab..).[11]

Indeed, the narrations have guided the wife not to make even her prayer and her worship an obstacle to fulfilling the husband’s right to intercourse, for the Messenger of Allah (s) said: (Do not prolong your prayers so as to deny your husbands)[12].

From those narrations and others, it is established that the husband has a right over his wife, which is responding to fulfill his sexual desire and satisfy it whenever he needs and wishes, and the holy sharia has considered her refusal of that to be recalcitrance (nushuz) on her part.

However, that response from the wife—in its being obligatory—is not unconditional. There are cases in which this ruling does not apply, for it depends on ability and on the absence of a legal or rational impediment that prevents the woman from fulfilling this right of the husband, such as her being in the days of her menstruation, or her fasting an obligatory fast, or being in obligatory iʿtikaf, or her being ill, and the like; or that it be a significant harm to her. Here the rule negating harm and hardship comes to exclude those cases, so that responding to the husband is not obligatory upon her; indeed, in some of them it turns into prohibition, as in the obligatory fast.

And when responding is not obligatory upon her in those various circumstances, it is obligatory for the husband to take these particular circumstances into account.

The Wife’s Right to Intimate Relations

The wife has important rights in married life, among them the satisfaction of her desire for intimate relations, which varies from one woman to another, so that this does not become a harm to her and does not lead to depriving her of her natural instinctive need, as has come from Imam Zayn al-ʿAbidin (a) in the Treatise of Rights (Risalat al-Huquq), in some of its texts about the right of the wife: (For she has the right of mercy and companionship; and the place of repose in her is the satisfying of the pleasure that must be satisfied, and that is great)[13].

And as is the general proof in the saying of the Exalted: “Consort with them in an honourable manner” (Qurʾan 4:19)[14], the husband must adhere to consorting in an honorable manner, which does not result in harm to the wife in any respect whatsoever, including sexual rights. Hence the jurists have issued the fatwa that (it is not permissible to abandon intercourse with the wife (the young one and others) if the abandonment causes harm to her or violates consorting with her in an honorable manner).

Sayed al-Modarresi said: (It is permissible to abandon intimacy in the following cases:

a- When she consents.

b- When he has stipulated it upon her at the time of the contract.

c – Inability to have intercourse for one reason or another.

d – Fear of harm to him or to her.

f – Her recalcitrance.)[15].

So just as it is permissible for the woman not to fulfill her husband’s desire in special cases that we mentioned earlier, such as illness, fasting and other things, likewise it is permissible for the husband to abandon sexual intimacy with his wife if that is with her consent, or because of a condition in the contract, or inability, or fear of harm, or her absence by her own choice, or her recalcitrance.

The ruling on the necessity of fulfilling the wife’s desire for intimate relations is reinforced when there is fear of falling into the forbidden; at that point it is obligatory for the husband to fulfill his wife’s desire for that, so that she does not fall into the forbidden.

It has come from Imam ʿAli (a): (When one of you wishes to come to his wife, let him not hurry her, for women have needs)[16].

In this narration there is an indication of the necessity of satisfying the wife’s desire.

Even though the jurists have not ruled that immediate fulfillment by the husband of his wife’s need is obligatory, their statements concerning the fear of harm are decisive on the subject; indeed, we can say that the general proof for the obligation of consorting in an honorable manner is eloquent in support of what we are seeking.

Abstaining for Four Months Is a Sin

It has come in a narration from Safwan ibn Yahya, from Abu al-Hasan al-Rida (a), that he asked him about a man who has a young wife and abstains from her for months and a year, not approaching her, not wanting to harm her; they have a calamity. Is he sinful in that?

He said: (If he leaves her for four months, he is sinful after that)[17]. (In one narration it adds — unless it is with her permission).

Here we observe in this narration a set of facts:

First: that the question about abandoning intimacy with the wife is not because he wants to harm her; and here there is an intimation that harm may occur, but here it is not definitively realized; that is, the questioner may be indicating the absence of harm in this situation.

Second: that his abandonment of intimacy is because of the calamity; that is, the psychological state and mental distraction that overcome the family as a result of the calamity that befalls them undoubtedly affect the sexual desire of both spouses.

Third: that despite the absence of an intention to harm on the husband’s part, and because the family is in an atmosphere of calamity and grief, it is a sin for a person to reach the point of abandoning intimacy with his wife for four months.

Fourth: that the sin is realized after four months if there is no harm or any other contingency. As for when there is harm, the narration is unrelated to addressing it, because it is a narration answering a specific question; so the ruling on that is taken from the generality of the proofs or from other narrations on the same subject.

The Four Months and the Ilaʾ

Allah the Exalted said: “For those who forswear their wives shall be a waiting [period] of four months. And if they recant, Allah is indeed all-forgiving, all-merciful. But if they resolve on divorce, Allah is indeed all-hearing, all-knowing” (Qurʾan 2:226–227)[18].

For it has come in the chapter on the ilaʾ—which is that the husband swears that he will not be intimate with his wife—that the wife waits four months, and she has the right to raise her case to the religious judge (al-hakim al-sharʿi), so that he gives the husband the choice between retracting his oath and being intimate with his wife, or divorce, so that harm does not befall her.

How Do We Understand Abstaining for Up to Four Months?

It follows in summary from what we have mentioned that:

1/ Refraining for four months from intercourse with the wife is considered a sin.

2/ Upon swearing not to approach, after the four months he is compelled to be intimate, or he divorces.

4/ It is forbidden to harm the wife with respect to intimate relations, and it is obligatory that he realize consorting in an honorable manner, among whose instances is fulfilling her basic needs in sexual desire (and we will come to explaining it).

In order for us to comprehend the period that was set for the husband in the permissibility of his abstaining from approaching his wife, namely four months, we must know that any legislative ruling has only come in harmony with the other sharia rulings, so that harmony is achieved among the rulings of Allah, and harmony is achieved in a person’s reality when he complies with them. Likewise, it is necessary, for complete harmony among the rulings at the stage of compliance, that a person take the rulings of Allah the Exalted in their entirety and try to apply them to himself and his family, so that he does not fall into the error of fragmentation—taking one ruling and not another—for he may not obtain the desired benefit from that ruling for that reason. This is why condemnation came of one who fragments the religion, in the saying of the Exalted: “What! Do you believe in part of the Book and deny another part?” (Qurʾan 2:85)[19].

How can one who deliberately backbites people, or steals from them and wrongs them, obtain the delight of prayer and intimate supplication, for example? And how can one whose limbs do not fast obtain the benefit of fasting in achieving God-wariness? That is why Imam ʿAli (a) says in Nahj al-Balagha: How many a fasting person has nothing from his fasting but thirst and hunger, and how many a one who stands in prayer has nothing from his standing but sleeplessness and toil)[20].

On the subject of the woman’s patience for four months in the exceptional cases in which the husband has sworn, or decided, to hurt his wife by not approaching her, we emphasize that this ruling must be understood in the context of the other teachings of the religion that concern the chaste woman: the obligation of her covering, her not mixing in forbidden ways, lowering the gaze, staying in the home, not using obscene speech, and the like, which preserve the woman and protect her from any stimulation that would arouse her desire.

We point to what specialists in psychology and in marital relations, as well as doctors, say about the woman’s desire, her feeling and her need for intimate relations. They say that the woman mostly needs a stimulus at the beginning of her feeling of sexual desire, unlike the man[21], who does not need external factors to arouse that feeling of desire in him. And experts affirm that “the number of wives who equal the man in sexual appetite ranges between ten and twenty percent — only —”[22]. Perhaps this explains the extent of the woman’s patience without sexual practice as long as she is not exposed to stimuli.

So the respite set at four months looks at the wife’s condition without the interference of any influence or stimulus in the matter. We can grasp this through our knowledge of the religion’s guidance in organizing the affairs of the Islamic home and the Muslim family. The better situation is that the husband has the duty of providing support, and he is the one who works and toils to earn his livelihood, so by the nature of this task he mixes with people of all kinds; that is, he is exposed to stimulation in various forms. As for the woman, the better situation is that she devote herself to managing the home, raising the children and helping the man from within the home. Even though the sharia has permitted her to work, the better situation is undoubtedly to do without that and to attend to managing the home; consequently she is not exposed to the stimulation that the man is exposed to as a result of the sights and the mixing that the man encounters.

The holy sharia regards the condition of the human being and the social environment with full attention, and so it bases on it many rulings that take the surrounding circumstances into account. This makes us confident that the narrations that came to specify that the man is sinful by abandoning intimacy with his wife after four months were taking into account the basic system of marriage, as in the saying of Allah the Exalted: “Stay in your houses and do not flaunt your finery like the former [days of pagan] ignorance. Maintain the prayer and pay the zakat, and obey Allah and His Apostle” (Qurʾan 33:33)[23], and the division of roles between the husband and his wife, and the nature of the woman’s life in covering and in not being exposed to stimuli. But if the surrounding circumstances differ, the needs differ accordingly.

The Necessity of the Woman’s Return to a Life of Chastity

This does not mean demanding a change in the ruling of Allah the Exalted; rather, it must call us to return to adherence to the Islamic system of conduct, so that the woman returns with her cohesive, chaste character that is capable of harmonizing with the sharia rulings.

For in the normal situation, in harmony with a life of chastity, comes this ruling, which we emphasize does not mean that the husband may abandon intimate relations with his wife for this period; rather, it is forbidden for him to abandon her to the extent of this period, within the circumstances mentioned of the oath and of causing hurt. For the woman can be patient for that period should she fall into the problem of her husband swearing not to have intercourse with her. The narrations from the Ahl al-Bayt (a) have given as the reason for this period that Allah the Exalted knows that the utmost of a woman’s patience without men is this period, as in this narration:

From Muhammad ibn Sulayman, from Abu Jaʿfar the Second (a), who said: I said to him: May I be made your ransom, how is it that the waiting period (ʿidda) of the divorced woman became three menstrual periods or three months, while the waiting period of the woman whose husband has died became four months and ten? He said: As for the waiting period of the divorced woman being three periods (quruʾ), it is to ascertain that the womb is free of a child. As for the waiting period of the woman whose husband has died, Allah the Exalted stipulated a condition in favor of women and stipulated a condition upon them; so He did not show them favoritism in what He stipulated in their favor, nor was He unjust in what He stipulated upon them. As for what He stipulated in their favor in the ilaʾ, it is four months, as Allah, Almighty, says: “For those who forswear their wives shall be a waiting [period] of four months” (Qurʾan 2:226); so He did not permit anyone more than four months in the ilaʾ, because of His knowledge—blessed is His Name—that it is the utmost of a woman’s patience without a man. And as for what He stipulated upon them, He commanded her to observe a waiting period of four months and ten if her husband dies; so He took from her for him at his death what He had taken for her from him during his life at the ilaʾ. Allah, Almighty, said: “they shall wait by themselves four months and ten days” (Qurʾan 2:234); and He did not mention the ten days in the waiting period except together with the four months, and He knew that the utmost of a woman is four months in the abandonment of intercourse; hence He made it obligatory upon her and for her)[24].

So the chaste wife who has adhered to the teachings of Islam in lowering the gaze, chastity of the private parts and not being exposed to stimuli is the one able to be patient up to this period. Even so, the sharia obliges the husband to take a decisive decision to end his abandonment: either he decides on divorce and separation from his wife, or he is intimate with her and fulfills her need.

From here we understand that there is no prohibition upon the man during the four months — as long as it does not turn into hurt or harm — as in the narration:

From Abu Jaʿfar and Abu ʿAbd Allah (a), that they both said: If a man swears an ilaʾ that he will not approach his wife, she has no say and no right during the four months, and there is no sin upon him in his refraining from her during the four months. If the four months pass before he touches her, and she remains silent and is content, then he is free and at liberty; but if she raises her case, it is said to him: Either you return and touch her, or you divorce)[25].

Consorting in an Honorable Manner and the Wife’s Right

What we mentioned earlier concerns the normal, general situation. But if the legal designation changes, and harm to the wife is realized by her husband’s abandoning intimate relations with her, and it becomes contrary to consorting in an honorable manner according to the wife’s circumstances, then the ruling differs, in accordance with the general proofs that have indicated the obligation of consorting in an honorable manner, have forbidden causing harm, and have emphasized the necessity of satisfying the wife’s desire. In this case it is obligatory for the husband to fulfill his wife’s desire for intimate relations, so that harm or hardship does not befall her.

So consorting in an honorable manner—that is, “in the view of reason and the sharia”[26]—among its most important instances is fulfilling the wife’s sexual need, because it has been established that it is a pressing desire, and ignoring it may lead to deviation. So if the woman feels that unbridled desire and feels the necessity of fulfilling it, the husband must respond, so that he does not fall into sin as a result of his violating consorting in an honorable manner.

Accordingly some jurists have ruled that “it is not permissible, according to the stronger view, to abandon intercourse with regard to the young permanent wife, and likewise with others, if the abandonment causes harm to her or violates consorting with her in an honorable manner”[27].

If we hold that consorting in an honorable manner is obligatory, this means that the existence of a customary need on the woman’s part suffices—something that contributes to a happy life and good companionship—without restricting it to reaching the point of harm.

Islamic Legislation and Instances of Taking the Wife’s Right into Account

As a continuation of the research, and as an affirmation that the basic feature of married life and of the exchange of rights in it is governed by the rule of consorting in an honorable manner, which takes into account the needs of both parties and does not inflict harm or hardship on them, we present some examples from Islamic legislation, in whose rulings we observe consideration for the wife’s rights in intimate relations and the giving of great importance to them.

1- Abandoning Intimate Relations and the Right to Separation

We see in another aspect of the ilaʾ—which is the husband’s swearing that he will not approach his wife—or in the husband’s deliberately abandoning intimate relations without an oath, that the sharia rules that it is obligatory for the husband to commit to giving his wife her right to intimate relations, or to decide on divorce, so that she is not hurt and so that her right is not taken away, as in the narration of Hasan Hafs from Abu ʿAbd Allah (a): “If a man is angry with his wife and does not approach her, without an oath, for four months, she may seek redress against him; then either he returns or he divorces. If it is without anger or an oath, then he is not one who has sworn an ilaʾ)[28].

2- The Wife’s Rights and the Man’s Defects

Among what the Holy Lawgiver has brought to preserve the wife’s rights in intimate relations is what came in the rulings on the husband’s defects in the marriage contract, such that the husband is unable to fulfill the wife’s needs in intimate relations, whether by his inability to have intercourse or by his being castrated. The jurists have mentioned four defects, which are:

a/ Insanity.

b/ Castration.

c/ Impotence (ʿanan), “which is an illness with which the power to erect the organ weakens, such that he is unable to penetrate”[29].

d/ Al-jabb, “which is the severing of the penis, on condition that nothing remains of it with which intercourse is possible”[30].

So if the wife discovers that her husband is impotent, for example, and cannot perform intimate relations: if he had this illness before the contract and she discovered it afterwards, she has the option of accepting him or annulling the contract; indeed, she has the right even if he was afflicted with the illness after the contract, because of the existence of harm to the wife. Sayed al-Modarresi said that, commenting on the exception of the right of annulment after the contract: “This is regarding annulment of the contract arising from the defect; as for separation arising from the woman’s being harmed because of the absence of sexual intimacy, or her falling into hardship, separation takes place even after many years of intercourse, and perhaps the sahih narration of al-Kinani indicates that”[31].

This supports what we have mentioned about the centrality of consorting in an honorable manner and its connection with harm and its absence. The sahih narration of al-Kinani to which Sayed al-Modarresi referred is:

From Abu al-Sabbah al-Kinani, who said: I asked Abu ʿAbd Allah (a) about a woman whose husband has been afflicted so that he is never able to have intercourse: may she separate from him? He said: Yes, if she wishes)[32].

3- The Wife’s Right and Harming through the Child

The husband may not abandon intimate relations with his wife on the pretext that she has a nursing newborn in her care, for fear that she will give birth again while nursing him, or the like, such that this is a harm to her; and likewise the reverse: the wife may not refuse for the same reason, because of the saying of Allah the Exalted: “neither the mother shall be made to suffer harm on her child’s account, nor the father on account of his child” (Qurʾan 2:233)[33]. Even though the verse came concerning harm in suckling with respect to the maintenance of the mother or of the child, this verse is a general rule that forbids harming the wife by exploiting the situation of childbirth, including sexual harm, as the narration of Abu al-Sabbah al-Kinani from Abu ʿAbd Allah (a) clarifies:

From Abu al-Sabbah al-Kinani, from Abu ʿAbd Allah (a), who said: I asked him about the saying of Allah, Almighty: “neither the mother shall be made to suffer harm on her child’s account, nor the father on account of his child” (Qurʾan 2:233), and he said: Among nursing mothers, one of them would push the man away when he wanted intercourse, saying: I will not let you; I fear that I will become pregnant and kill this child of mine whom I am nursing. And the man—the woman would call him, and he would say: I fear that if I have intercourse with you I will kill my child; so he would push her away and not have intercourse with her. So Allah, Almighty, forbade that: that the man should harm the woman and the woman the man)[34].

4- The Husband Bears the Sin of Falling Short in the Wife’s Right

Allah the Exalted has placed in both the man and the woman sexual need and desire, and has commanded them to satisfy it by legitimate ways, because satisfying it puts a person in a fortress against deviation caused by that overwhelming lust, which many people of evil exploit. That is why the husband must take this need into account, so that the negative effects arising from it do not occur; so he must fulfill his wife’s need in that. And if he has married more than one wife, he should observe this matter and take it into account. It has been narrated from Abu ʿAbd Allah (a), who said: Whoever gathers of women what he cannot have intercourse with, and one of them commits adultery, the sin is upon him)[35].

So the husband bears the sin of his falling short in not fulfilling his wife’s need if she turns to fulfilling her need through the forbidden, because he was the cause of her resorting to the forbidden.

By knowing these particularities and details, we grasp that the right is guaranteed to the wife and the husband alike in Islamic legislation, according to the requirements and needs of each of them for sexual practice.

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