MARITAL RAPE BASED ON ISLAMIC LAW AND HUMAN RIGHT PERSPECTIVE.

GROUP 18 : SOPHIA UJAU CHRISTINENA MAMUJAYA STEFFANEY HENNERY SHEILA LEONG

What is MARRIAGE?

 Marriage in Islam is recommended on religious, moral, social, psychological and psysiological grounds. - the Koran, which Muslims believe to be the word of God, reads ; and marry those among you who are singleIf they are needy, God will make them free from want out of His grace.

one of His sign is this ; that He has created mates for you from themselves that you might find quiet of mind in them, and He put between you love and compassion. Surely there are signs in this for a people who reflect

 Main objective of marriage is procreation-to deliver into the world pious Muslims, obedient to Allah. Bring happiness into ones heart and thus a person will be more steadfast and more diligent in fulfilling Allahs obligations.

Marriage In Human Right

The Census Bureau defines a family as a group of two or more persons related by birth, marriage, or adoption and residing together in a household. (U.S Census Bureau 2001) There are 3 forms of marriage ;

 a marriage is a legally recognized union between two people, generally a man and a woman, in which they are united sexually, co-operate economically, and may give birth to, adopt, or rear children. The union is assume to be permanent although it may dissolved by separation or divorce between them.

Duties as a husband and wife.

Husband Duty.
Husband is responsible for the protection, happiness and maintenance of his wife.
A husband have to be kind, understanding and forgiving.

 He must treat his wife in a tender and loving manner. He not only should avoid hurting her but should not bear with her if she ever does something disagreeable.

 and the Prophet, peace and blessings be upon him, says ;

[Fear] God, [fear] God in the matter of women. They are weak partners, a trust from God with you; and they are made by the divine word permissible for you.

 He also says ; whoever of you whose wife behaves in a disagreeable manner and he responds by kindness and patience, God will give him rewards as much as Job will be given for his patience.

Wife Duty.
A wife have to create a home with relaxing atmosphere in which she and her husband can live together smoothly, happily, and enjoyable. A wife must be faithful and devoted to her husband.

 her loyalty is due to him first, even before her kin.

She should avoid associating with undesirable or suspicious elements and should not entertain alone any male friends.

 during the period of her menstrual discharge, during her pregnancy and during the postnatal confinement, she is not to be unduly burdened with work. In this respect the Koran reads men are in charge of women, because of the degree men are granted over women, and because of their financial responsibility.

What is Marital Rape?

 One of the most serious, widespread, and overlooked forms of intimate violence, marital rape is a form of battering inflicted by husband on wives, often as parts of a pattern of intimate terrorism. Legal definition of rape include, unwanted sexual penetration, perpetrated by force, threat of harm, or when the victim is intoxicated.(Koss and Cook 1993)

 Marital rape also known as spousal rape, is non-consensual sex in which the perpetrator is the victims spouse. In many countries, spousal rape either remains legal or is illegal but widely tolerated and accepted as a husbands prerogative. Several countries in Eastern Europe made spousal rape illegal before 1970, but others countries outlawed it in the 1990s to 2000s.

 Historically, marriage has been regarded as giving husbands unlimited sexual access to their wives. Beginning in the late 1970s, most states enacted legislation to make at least some forms of marital rape illegal. On July 5, 1993, marital rape became a crime in all 50 state.

Islamic View
It is proper that no such offence as marital rape in Islam. This is because, if husband is prosecuted because of having sex with his wife, men would defeat the purpose of marriage, that is to legalize sex.

 wife has the right to refuse to have jima, (sexual intercourse between husband and wife) with her husband such as : During her menstruation. If she is in an advanced stage of pregnancy. Husband has contracted sexually transmitted disease(herpes@AIDS) Daytime in the Month of Ramadhan.

 The wife cannot withhold her consent in having sex with her husband if she is perfectly healthy and is capable of sex with her husband. It is important that her husband should perform jima with adab. Allah will frown on those who perform jima in a rough way, thus making the wife lose respect to her husband.

 the Sunnah of the Prophet (s.a.w) abhors those who does act cruelly towards his wife. If the wife politely refuse to have sex with her husband and she has valid reasons for the refusal, the husband should be understanding enough to refrain himself for a while and approach her later.

 thus, the present provision in the Malaysian Penal Code that, if a man has sexual intercourse with the wife without her consent @against her will is not rape, unless if both of them are divorced (section 375 of the Penal Code)

 on July 5, 1993, marital rape become a crime in all 50 states, under at least one section of the sexual offense codes. As a May, 2005, in 20 states, the District of Columbia, and on federal lands, there are no exemptions from rape prosecution granted to husbands.

Common Law
Under the definition of rape generally used by the courts, rape is a crime if it is an act of sexual intercourse by a male with a woman other than his wife.
So, it is not legally possible for a husband to rape his own wife.

 The marital rape exemption is thought to originate from the following statement by an English Judge, Sir Matthew Hale in 1786 ;
the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.

Position of Marital Rape in Malaysia The Law in Malaysia in this aspect is similar to English Law, a husband retains immunity from prosecution from the moment the wife say, I DO until the ink dries on a divorce decree.

 Under our present laws, if a man has sexual intercourse with the wife without her consent it is not rape, unless the man and his wife are divorced or judicially separated.

Since Malaysian traditionally uphold family values which put the man as the head of the family, the wife is expected to follow the opinions and the man needs.

 Even if the husband has the right to have unlimited sex with his wife this does not mean that that he can beat her up or assault her to obtain the self-gratification.
The Malaysian Penal Code contains provisions where it is an offence if a person to assault, use criminal force or to cause hurt and grievous hurt.

Conclusion.
The duty of the wife towards her husband to fulfill her husband needs cannot be denied, but in certain condition the husband need to understand his wife whenever the wife refuse to having sex with him. With understanding each other, surely this situation can avoided in one marriage.