Islamic sexual jurisprudence
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Islamic sexual jurisprudence concerns the Islamic laws of sexuality in Islam, as largely predicated on the Qur'an, the sayings of Muhammad (hadith) and the rulings of religious leaders' (fatwa) which confine sexual activity to heterosexual marital sexual relations between one Muslim male and no more than one wife at a time from up to four concurrent lawful wives (Muslim or otherwise), or heterosexual marital sexual relations between one Muslim female and her one sole lawful Muslim husband, or heterosexual concubinage sexual relations between one Muslim male slave-owner and no more than one female slave at a time from any number of concurrently wholly owned female slaves (Muslim or otherwise).
Sexual activity itself is not to be considered a taboo subject in Islam, although there are strong prohibitions against both male and female Muslims engaging in sex outside of marriage and, for male Muslims, sex with a female non-spouse that is not a wholly owned female slave (i.e. shared-ownership).
Permissible sexual relationships are described in Quran and Hadith as great wells of love and closeness. Even within marriage and concubinage, there are limitations: a man should not have intercourse during his wife's or female slave's menstruation and afterbirth periods. He is also considered to be sinning when penetrating anally. Actions and behaviours such as abortion (other than for medical risk to the pregnant woman) and homosexuality are also strictly forbidden; contraceptive use is permitted for birth control.
- 1 Puberty
- 2 Circumcision
- 3 Modesty
- 4 Marriage
- 5 Sex within marriage
- 6 Muslim male's sex with female slaves
- 7 Fornication and adultery
- 8 Pornography
- 9 Prostitution
- 10 Homosexuality
- 11 Concubines
- 12 Rape
- 13 Restrictions on sexual intercourse
- 14 Sodomy
- 15 Oral sex
- 16 Purification and hygiene
- 17 Fasting and Ramadan
- 18 Menstruation
- 19 Nocturnal emission
- 20 Masturbation
- 21 Contraception
- 22 Abortion
- 23 See also
- 24 Notes
- 25 References
- 26 External links
For example, in issues pertaining to marriage, baligh is related to the Arabic legal expression, hatta tutiqa'l-rijal, which means that a wedding may not take place until the girl is physically fit to engage in sexual intercourse. In comparison, baligh or balaghat concerns the reaching of sexual maturity which becomes manifest by the menses. The age related to these two concepts can, but need not necessarily, coincide. Only after a separate condition called rushd, or intellectual maturity to handle one's own property, is reached can a girl receive her bridewealth.
A boy may reach maturity from the age of 10 lunar years (nine years, eight months and twenty days) and will be considered mature at the age of 15 lunar years (14 years, 6 months and 22 days) if no signs of maturity are found. Signs of maturity for a boy include: wet dreams, ejaculation, and impregnating a woman. A girl may reach maturity from the age of 9 lunar years (approximately eight years and eight months) and will be considered mature at the age of 15 lunar years (14 years, 6 months and 22 days) if no signs of maturity are found. Signs of maturity for a girl: menstruation, wet dream or pregnancy.
Khitan or Khatna (Arabic: ختان, Arabic: ختنة) is the term for male circumcision carried out as a cultural rite by Muslims and is considered a sign of belonging to the wider Islamic community. Whether or not it should be carried out after converting to Islam is debated among Islamic scholars.
The Qur'an itself does not mention circumcision explicitly in any verse. Some hadith mentions circumcision in a list of practices known as fitra (acts considered to be of a refined person). Abu Hurayra, a companion of Muhammad, was quoted saying,
"Five things are fitra: circumcision, shaving pubic hair with a razor, trimming the mustache, paring one's nails and plucking the hair from one's armpits"
So, despite its absence from the Qur'an, it has been a religious custom from the beginning of Islam. However, there are other hadiths which do not name circumcision as part of the characteristics of fitra and yet another hadith which names ten characteristics, again without naming circumcision; in Sahih Muslim, Aisha is quoted,
"The Messenger of Allah (may peace be upon him) said: Ten are the acts according to fitra: clipping the mustache, letting the beard grow, using toothpicks, snuffing water in the nose, cutting the nails, washing the finger joints, plucking the hair under the armpits, shaving pubic hair and cleaning one's private parts with water. The narrator said: I have forgotten the tenth, but it may have been rinsing the mouth."
Hence, the different hadiths do not correspond on whether circumcision is part of fitra or not. According to some traditions Muhammad was born without a foreskin (aposthetic), while others maintain that his grandfather Abdul-Muttalib circumcised him when he was seven days old. Many of his early disciples were circumcised to symbolize their inclusion within the emerging Islamic community. Amongst Ulema (Muslim legal scholars), there are differing opinions about the compulsion of circumcision in Sharia (Islamic law). Imams Abū Ḥanīfa, founder of the Hanafi school of Fiqh (Islamic jurisprudence), and Malik ibn Anas, maintain that circumcision is a Sunnah Mu'akkadah—not obligatory but highly recommended. The Shafi`i and Hanbali schools see it as binding on all Muslims. Islamic sources do not fix a particular time for circumcision. It depends on family, region and country. A majority of Ulema however take the view that parents should get their child circumcised before the age of ten. The preferred age is usually seven although some Muslims are circumcised as early as on the seventh day after birth and as late as at the commencement of puberty.
Islam has strongly emphasized the concept of decency and modesty; besides the lawful sexuality, priority is given to modesty and chastity both inside and outside the marital relationships. In the hadith literature, modesty has been described as "a part of faith.". Modesty is verily required in the interaction between members of the opposite sex and in some case between the members of same sex also. Dress-code is part of that overall teaching. In Quran, the subjects deal with modesty has been mostly described in An-Nur. For example, it has been mentioned,
"Say to the believing men that they lower their gaze and restrain their sexual passions. That is purer for them. Surely Allah is Aware of what they do. And say to the believing women that they lower their gaze and restrain their sexual passions and do not display their adornment except what appears thereof. -- And let them wear their head-coverings over their bosoms. And they should not display their adornment except to their husbands or their fathers, or the fathers of their husbands, or their sons, or the sons of their husbands, or their brothers, or their brothers' sons, or their sisters' sons, or their women, or those whom their -- right hands possess, or guileless male servants, or the children who know not women's nakedness. And let them not strike their feet so that the adornment that they hide may be known. And turn to Allah all, O believers, so that you may be successful. And marry those among you who are single, and those who are fit among your male slaves and your female slaves. If they are needy, Allah will make them free from want out of His grace. And Allah is Ample-giving, Knowing. And let those who cannot find a match keep chaste, until Allah makes them free from want out of His grace."— An-Nur 24:30-33
"O you who believe, let those whom your right hands possess and those of you who have not attained to puberty ask permission of you three times: Before the morning prayer, and when you put off your clothes for the heat of noon, and after the prayer of night. These are three times of privacy for you; besides these it is no sin for you nor for them -- some of you go round about (waiting) upon others. Thus does Allah make clear to you the messages. And Allah is Knowing, Wise. And when the children among you attain to puberty, let them seek permission as those before them sought permission. Thus does Allah make clear to you His messages. And Allah is Knowing, Wise. And (as for) women past childbearing, who hope not for marriage, it is no sin for them if they put off their clothes without displaying their adornment. And if they are modest, it is better for them. And Allah is Hearing, Knowing. There is no blame on the blind man, nor any blame on the lame, nor blame on the sick, nor on yourselves that you eat in your own houses, or your fathers' houses, or your mothers' houses, or your brothers' houses, or your sisters' houses; or your paternal uncles' houses, or your paternal aunts' houses, or your maternal uncles' houses, or your maternal aunts' houses, or (houses) whereof you possess the keys, or your friends' (houses). It is no sin in you that you eat together or separately. So when you enter houses, greet your people with a salutation from Allah, blessed (and) goodly. Thus does Allah make clear to you the messages that you may understand."— An-Nur 24:58-61
In another verse, it has also been mentioned that,
So the good women are obedient, guarding the unseen as Allah has guarded.— An-Nisa 4:34
Hadith also describes the laws of modesty. Along with Quran it has also emphasized marriage as a requirement for modesty and chastity. For example,
Narrated by Abdullah ibn Masud, the prophet said, "O young men, whoever among you can afford to get married, let him do so, as it lower the eyesight and guard his modesty and whoever cannot afford it, let him fast, for that will be a shield for him."
It has been mentioned in Sunan Abu Dawood that,
Narrated by Muawiah ibn Haydah, " I said : Apostle of Allah, from whom should we conceal our private parts and to whom can we show? He replied : conceal your private parts except from your wife and from whom your right hand possesses (slave girls, concubines). I then asked: Apostle of Allah, (what should we do), if the people are assembled together? He replied: If it is within your power then no one will look at it, then you should try that no one can look it. I then asked: Apostle of Allah, if one of us is alone? He replied: Allah is more entitled than people that bashfulness should be shown to him (feel shy more to Allah than to people)."
It is said in a hadith that,
Allah's Messenger said: The most wicked among the people in the eye of Allah on the Day of judgment is the men who goes to his wife and she comes to him, and then he divulges her secret (to others).
In another hadith, it is said that,
The prophet said, "No man alone with an (unknown) woman but the Shaytan (evil) is the third one present."
In another hadith, it is said that,
Narreted by Abu Said Khudri: The prophet said, "A man should not look at the private part of another man, and a woman should not look at the private parts of another woman. A man should not lie with another man without wearing lower garment under one cover; and a woman should not lie with another women without wearing lower garment under one cover."
In another hadith it has been mentioned,
The Messenger of Allah said: "Instruct your children to pray when they are seven years old, and smack them if they do not do it when they are ten years old, and separate them in their beds."— Narrated by Abu Dawood (495)
There is also prescription of modesty in case of unlawful sexual acts. It is mentioned in the hadith below from Muwatta Imam Malik:
Malik related to me from Zayd ibn Aslam that a man confessed to fornication in the time of the Messenger of Allah, may Allah bless him and grant him peace. The Messenger of Allah, may Allah bless him and grant him peace, called for a whip, and he was brought a broken whip. He said, "Above this," and he was brought a new whip whose knots had not been cut yet. He said, "Below this," and he was brought a whip which had been used and made flexible. The Messenger of Allah, may Allah bless him and grant him peace, gave the order and he was flogged. Then he said, "People! The time has come for you to observe the limits of Allah. Whoever has had any of these ugly things befall him should cover them up with the veil of Allah. Whoever reveals to us his wrong action, we perform what is in the Book of Allah against him."
In another hadith, it has been mentioned that,
"The Messenger of Allah said: ‘ ... There are five things with which you will be tested, and I seek refuge with Allah lest you live to see them: Promiscuity (sexual immorality) never appears among a people to such an extent that they commit it openly, but plagues and diseases that were never known among the predecessors will spread among them. ..."
See also Marriage in Islam
Marriage (Nikah) is a contract between Muslim men and his wife.
Sex within marriage
In Islamic law, marriage legalizes sexual intercourse between the husband and wife. Marriage is not restricted to a platonic relationship nor is it only for procreation. Marriage is greatly encouraged in Islam, partially because it provides a lawful institution in which to fulfill one's sexual urges. Islam does provide extensive rules regarding sex; however, within the conditional institution of marriage, there are sources in both the Qur'an and hadith, which promote the well being of humans and their natural sexual instincts. In the Surah Baqarah, sex in married life is openly recommended:
"When they [i.e. wives] have cleansed themselves [after menstruation], you go into them as Allah has commanded."— (2:222)
[Ahlul Bayt Digital Islamic Library Project 1] It has been also said:
"Those who guard their chastity (ie. private parts, from illegal sexual acts) except from their wives or (the captives and slaves) that their right hands possess, - for them, they are free from blame."— [al-Mu’minoon 23:5-6]
Additionally, sources of hadith illustrate similar promotion of fulfilling sexual urges in lawful ways within a marriage. The Wasaelush Shia quotes Muhammad as encouraging his followers to marry, saying:
"O, you young men! I recommend marriage to you."— The Wasaelush Shia (vol. 14, p. 25)
One of the areas of Islamic sexual jurisprudence in which there are not many restrictions is the discussion of sexual techniques. Almost all of what is practiced under Islamic law concerning sexual techniques and the act of sexual intercourse come from hadith, which are not restrictive in nature. The main tendency within these hadith are saying for Muslims to follow in the bedroom, saying which "clearly show that the husband and the wife should feel completely free when they are engaged in mutual stimulation which is known as foreplay. These sayings recommend foreplay and put no real restrictions on the type of techniques used during foreplay or during intercourse.
Conversely, one area of sexual techniques that is generally prohibited is anal intercourse.
Allah says in the Qur'an:
Your wives are a tilth for you, so go to your tilth (have sexual relations with your wives in any manner as long as it is in the vagina and not in the anus), when or how you will, and send (good deeds, or ask Allah to bestow upon you pious offspring) for your own selves beforehand. And fear Allah, and know that you are to meet Him (in the Hereafter), and give good tidings to the believers (O Muhammad).
In the foregoing verse the word harth (tilth) indicates that only vaginal sex is permissible in Islam, because it is from this place children are produced. The semen lodged in the womb from which offspring comes is likened to the seeds that are planted in the ground, bringing vegetation. Both of them are substances from which something else is produced.
All Muslim jurists agree that anal sex is haram (prohibited), based on the hadith of Muhammad:
Do not have anal sex with women.— Reported by Ahmad, At-Tirmidhi, An-Nasa'i, and Ibn Majah
Muhammad also said, "Cursed he. ..who has sex with a woman through her back passage."— Ahmad
Khuzaymah Ibn Thabit also reported that the Messenger of Allah said: "Allah is not too shy to tell you the truth: Do not have sex with your wives in the anus."— Reported by Ahmad, 5/213
Ibn Abbas narrated: "The Messenger of Allah said: "Allah will not look at a man who has anal sex with his wife."— Reported by Ibn Abi Shaybah, 3/529; At-Tirmidhi classified it as an authentic hadith, 1165
Further, it is reported that Muhammad referred to such an act as "minor sodomy". (Reported by Ahmad and An-Nasa'i)
It is reported that `Umar Ibn Al-Khattab came one day to Muhammad and said, "O Messenger of Allah, I am ruined!" "What has ruined you?" asked the Prophet. He replied, "Last night I turned my wife over," meaning that he had had vaginal intercourse with her from the back. The Prophet did not say anything to him until the verse cited above was revealed. Then he told him, "[Make love with your wife] from the front or the back, but avoid the anus and intercourse during menstruation." (Reported by Ahmad and At-Tirmidhi)
In Islam, the husband should have intercourse with his wife according to what satisfies her, so long as that does not harm him physically or keep him from earning a living. The husband is obliged to treat his wife in a kind and reasonable manner. Part of that kind and reasonable treatment is intercourse, which he has to do. The majority of scholars set the time limit beyond which it is not permissible for the husband to forego intercourse at four months, but according to some scholars, the view is that there is no time limit.
Most of the scholars have said that, It is obligatory on women alike not to refuse their husbands if they call them, so long as the woman who is called is not menstruating or sick in such a way that intercourse will be harmful to her, or observing an obligatory fast. If she refuses with no excuse, then she is cursed.
It was narrated from Abu Hurayrah that the Prophet said: "If a man calls his wife to his bed, and she refuses to come, the angels curse her until morning comes."— al-Bukhari, 3065; Muslim, 1436.
But it is not permissible for a husband to force his wife to do more than she is able to bear of intercourse. If she has an excuse such as being sick or unable to bear it, then she is not sinning if she refuses to have intercourse.
Muslim male's sex with female slaves
Surah Al-Muminun (23:6) and Surah Al-Maarij (70:30) both, in identical wording, draw a distinction between spouses and "those whom one's right hands possess" (female slaves), saying " أَزْوَاجِهِمْ أَوْ مَا مَلَكَتْ أَيْمَانُهُمْ" (literally, "their spouses or what their right hands possess"), while clarifying that sexual intercourse with either is permissible. The purchase of female slaves for sex was lawful from the perspective of Islamic law, and this was the most common motive for the purchase of slaves throughout Islamic history.
One rationale given for recognition of concubinage in Islam is that "it satisfied the sexual desire of the female slaves and thereby prevented the spread of immorality in the Muslim community." Most schools restrict concubinage to a relationship where the female slave is required to be monogamous to her master (though the master's monogamy to her is not required), but according to Sikainga, "in reality, however, female slaves in many Muslim societies were prey for [male] members of their owners' household, their [owner's male] neighbors, and their [owner's male] guests."
The history of slavery in Islamic states and of sexual relations with slaves, was the "responsibility of Muslims, and not of the Quran", according to Parwez,[who?] as quoted by Clarence-Smith. Amir Ali blamed the history of Islamic slavery in racist terms, states Clarence-Smith, stating that slave servitude and sexual abuse of captive slaves may have been because of degeneration of the Arabs from their admixing over time with "lower races such as Ethiopians".
Fornication and adultery
Just as Islamic law fosters sexual actions within a marriage or lawful concubinage with wholly owned female slaves, there is also judicial opinion concerning sexual relations outside of these institutions. These laws, however, observe much stricter restrictions. Additionally, these laws have textual confirmation from the Qur'an.
Fornicator and fornicatoress flog each one of them one hundred lashes; and do not took pity on them in the application of Gd's law if you believe in God and last day; and their punishment should be witnesses by a party of believers. Fornicator does not marry except a fornicatoress or polytheist women; and fornicatoress no one marry her except fornicator or polytheist man;and it is prohibited to believers. And those who accuse chaste women and then never bring four witness flog them eighty lashes; and do not accept their testimony for ever; they themselves are disobedient. And those who accuse their wives and do not have witness except themselves then witness of each of them are four witnesses by God that he is of truthfuls. And fifth that curse of God be on him if he is of lier. And it can save her from punishment that she witnesses by God four times that he is of liers. And fifth time that wrath of God be on her if he is of truthfuls. (al-Qur'an 24:2-9)
Verse 24:2-3 states that outside marriage and concubinage, Islamic law prohibits sexual relations as zina [fornication]. Verse 24:2-3 establishes that male and female fornicators are to be flogged one-hundred times. According to Hadith married male and female fornicators are to be stoned to death.
Furthermore, one practice outside marriage that does exist within Islamic law is legal sexual relations between a man and an unmarried female slave whom he owns. Malik ibn Anas cites a report in which "Umar b. al-Khattab says that when a female slave gives birth to a child by her master, then the slave becomes an umm walad (mother of a child, concubine)."
Illegal sex (fornication)
Similar to laws that prohibit extramarital sexual relations, the Qur'an also stipulates categories of women with whom men are prohibited from engaging in sexual intercourse. Verse 4:22-4 lists mothers, daughters, sisters, aunts, nieces, wet nurses, wet nurses' daughters, wives' mothers, daughters of wives from different fathers, wives of sons, and women already married.
Additionally, Verse 2:222 prohibits sexual relations with women during menstruation. Muhammad specifically restricts the injunction "to segregate the women" and "not go near them" in 2:222 to a prohibition against sexual relations with menstruating women.
Pornography is considered haram and a clear sin.
The Quran states: “Tell the faithful men to cast down their looks and to guard their private parts. That is more decent for them. Allah is indeed well aware of what they do. Tell the faithful women to cast down their looks and to guard their private parts, and not to display their charms…so that you may be felicitous.” (Quran, 24:30-31)
And compel not your slave-girls to prostitution when they desire to keep chaste, in order to seek the frail goods of this world's life. And whoever compels them, then surely after their compulsion Allah is Forgiving, Merciful..
Prostitution (trading sex for money) is haraam. If any Muslim does this, he or she is punishable by stoning until dead. It was practiced by some Muslims during the 6th century. In the 7th century, Muhammad declared that prostitution is forbidden on all grounds. In Islam, prostitution is considered a sin, and Abu Mas'ud Al-Ansari is attributed with the saying:
"Allah's Apostle forbade taking the price of a dog, money earned by prostitution and the earnings of a soothsayer".
However, sexual slavery as concubinage was not considered prostitution and was very common during the Arab slave trade throughout the Middle Ages and early modern period, when women and girls from the Caucasus, Africa, Central Asia and Europe were captured and served as concubines in the harems of the Arab World. Ibn Battuta tells us several times that he was given or purchased female slaves.
According to Shia Muslims, Muhammad sanctioned fixed-term marriage – muta'a in Iraq and sigheh in Iran — which has instead been used as a legitimizing cover for sex workers, in a culture where prostitution is otherwise forbidden.
The Qur'an strictly prohibits homosexuality through the story of Lot (see verses 7:80-84, 26:165-166, 11:69-83, 29:28-35 of the Qur'an; which is also rendered in the Biblical Book of Genesis), in Al-Nisa, Al-Araf and possibly verses in other surahs. For example, this was the verse addressed directly to Muhammad and his followers:
We also sent Lot: He said to his people: "Do ye commit lewdness such as no people in creation (ever) committed before you? For ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond bounds."
In another verse, it has been also pointed out,
Do you approach males among the worlds And leave what your Lord has created for you as mates? But you are a people transgressing.
If two (men) among you are guilty of lewdness, punish them both. If they repent and amend, Leave them alone; for Allah is Oft-returning, Most Merciful.
Narrated Abdullah ibn Abbas: The Prophet said: If you find anyone doing as Lot's people did, kill the one who does it, and the one to whom it is done.
Narrated Abdullah ibn Abbas: If a man who is not married is seized committing sodomy, he will be stoned to death.
Narrated Abu Said al-Khudri: A man should not look at the private parts of another man, and a woman should not look at the private parts of another woman. A man should not lie with another man without wearing lower garment under one cover; and a woman should not be lie with another woman without wearing lower garment under one cover.
All major Islamic schools disapprove of homosexuality, Islam views same-sex desires as an unnatural temptation; and, sexual relations are seen as a transgression of the natural role and aim of sexual activity. Islamic teachings (in the hadith tradition) presume same-sex attraction, extol abstention and (in the Qur'an) condemn consummation.
Most of the jurists believe there should be severe punishments according to the above Quranic and prophetic orders, such as death or floggings, while some others disagree. Early caliphs were known to have had both partners executed in various ways. Some other jurists believe that there is no punishment that will serve as an effective purgative for this act, and therefore its immorality precludes an earthly punishment. Some jurists are so morally offended by homosexuality that just the discussion around it is cause for excommunication and anathematizing.
Islamic law establishes two categories of legal, sexual relationships: between husband and wife and between a man and his concubine. All other sexual relationships, according to Islamic law and exegesis of the Qur'an, are considered zinā (fornication), including adultery and homosexuality.
Islam allows and promotes platonic love between siblings of the same sex. However, sexual activities between them are totally prohibited. Ibn Hazm, Ibn Daud, Al-Mutamid, Abu Nuwas and many others used this edict to write extensively and openly of brotherly love between men while proclaiming to be chaste.
The discourse on homosexuality in Islam is primarily concerned with activities between men. The fuqaha' are agreed that "there is no hadd punishment for lesbianism, because it is not zina. Rather a ta’zeer punishment must be imposed, because it is a sin..'". Although punishment for lesbianism is rarely mentioned in the histories, al-Tabari records an example of the casual execution of a pair of lesbian slavegirls in the harem of al-Hadi, in a collection of highly critical anecdotes pertaining to that Caliph's actions as ruler. Some jurists viewed sexual intercourse as possible only for an individual who possesses a phallus; hence those definitions of sexual intercourse that rely on the entry of as little of the corona of the phallus into a partner's orifice. Since women do not possess a phallus and cannot have intercourse with one another, they are, in this interpretation, physically incapable of committing zinā.
Concubinage was a relationship between a man and an unmarried female slave whom he owns; the term refers to the status of the female. If she gives birth to a child by her master, the slave becomes umm walad ("mother of child", "concubine"). The Hanbali jurist Ibn Qudama explains that the father is not allowed to sell or transfer ownership of his concubine, though he is entitled to have sexual relations with her, to employ her service, to hire her out and to marry her. Ibn al-Humam adds that the slave-owner must acknowledge the kinship of the child.
"Concubine" (surriyya) refers to the female slave (jāriya), whether Muslim or non-Muslim, with whom her master engages in sexual intercourse. The word "surriyya" is not mentioned in the Qur'an. However, the expression "Ma malakat aymanukum" (that which your right hands own), which occurs fifteen times in the sacred book, refers to slaves and therefore, though not necessarily, to concubines.[additional citation needed] Concubinage was a pre-Islamic custom that was allowed to be practiced under Islam with Jews and non-Muslim people to marry concubine after teaching her and instructing her well and then giving them freedom.[additional citation needed]
Islamic jurisprudence sets limits on the master's right to sexual intercourse with his female slave. A man's ownership of his unmarried slave-girl gave him an exclusive right to have sex with her that he could not sell to others. A man could own a limitless number of concubines, but could not have access to the slave-girls owned by his wife. Marriage between the master and his concubine was only possible if she was granted free status first. To avoid pregnancies, the master had the right to practice coitus interruptus. The birth of progeny would change the legal status of the concubine to that of umm al-walad ("mother of the child"); as such, the concubine could not then be sold. On the (lawful) death of her master, she would automatically acquire free status and her children would be considered free and legitimate.
Rape is forbidden under Islamic law. It is defined as having extramarital intercourse by force or fear, including any subsequent injury both to the victim's mental and physical health. According to Islamic law, it is classified as hirabah, i.e. a violent crime causing disorder in the land in the manner described in the Qur'an as fasad (destructive mischief). A similar crime, for example, would be highway robbery, as it puts fear in people going out or losing their property through violence. Some other branches of Islamic law consider it to be part of zina, as a crime called "forced fornication " (zina-bil-jabr). In Sharia, rape is punishable by stoning to death.
When a woman went out in the time of the Prophet for prayer, a man attacked her and overpowered (raped) her. She shouted and he went off, and when a man came by, she said: That (man) did such and such to me. And when a company of the emigrants came by, she said: That man did such and such to me. They went and seized the man whom they thought had had intercourse with her and brought him to her. She said: Yes, this is he. Then they brought him to the Messenger of Allah. When he (the Prophet) was about to pass sentence, the man who (actually) had assaulted her stood up and said: Messenger of Allah, I am the man who did it to her. He (the Prophet) said to her: Go away, for Allah has forgiven you. But he told the man some good words (AbuDawud said: meaning the man who was seized), and of the man who had had intercourse with her, he said: Stone him to death. He also said: He has repented to such an extent that if the people of Medina had repented similarly, it would have been accepted from them.
Under Islam, sexual intercourse is regarded as a loving act within marriage and should only be by mutual consent.[additional citation needed] There is, however, no explicit concept of rape within marriage in Sharia; a wife is deemed to have accepted conjugal relations as part of the marriage contract. She can only refuse on grounds which are specified as prohibited for sexual intercourse such as when she is fasting, menstruating, undergoing post-natal puerperal discharge, or whilst on Hajj or Umrah.
Classical Islamic law defined what today is commonly called "rape" as a coercive form of fornication or adultery (zināʾ). This basic definition of rape as "coercive zināʾ" meant that all the normal legal principles that pertained to zināʾ – its definition, punishment and establishment through evidence – were also applicable to rape; the prototypical act of zināʾ was defined as sexual intercourse between a man and a woman over whom the man has neither a conjugal nor an ownership right. Sane adult male and female convicted of zināʾ were to receive a fixed corporal punishment (ḥadd):
- One hundred lashes and exile for one year for unmarried free persons;
- Stoning to death for married or previously married free persons;
Zināʾ was established, according to classical law, through confession by one or both parties as well as proof. A second type of evidence – pregnancy in an unmarried/unowned woman – was contested between the schools. The stringent evidentiary and procedural standards for implementing the zināʾ punishment may have functioned to offset the severity of the punishment itself, an effect that seems to have been intended by legal authorities, who in the early period developed legal maxims encouraging averting the ḥadd punishments as much as possible, whether through claiming ambiguity (shubhah) or a lack of legal capacity (ahliyya).
What distinguished a prototypical act of zināʾ from an act of rape, for the jurists, was that in the prototypical case, both parties act out of their own volition, while in an act of rape, only one of the parties does so. Jurists admitted a wide array of situations as being "coercive" in nature, including the application of physical force, the presence of duress, or the threat of future harm either to oneself or those close to oneself; they also included in their definition of "coercion" the inability to give valid consent, as in the case of minors, or mentally ill or unconscious persons. Muslim jurists from the earliest period of Islamic law agreed that perpetrators of coercive zināʾ should receive the ḥadd punishment normally applicable to their personal status and sexual status, but that the ḥadd punishment should not be applied to victims of coercive or nonconsensual zināʾ due to their reduced capacity.
According to the Mālikī, Ḥanbalī, and Shāfiʾī schools of law, the rape of a free woman consisted of not one but two violations: a violation against a "right of God" (ḥaqq Allāh), provoking the ḥadd punishment; and a violation against a "human" (interpersonal) right (ḥaqq ādamī), requiring a monetary compensation.[additional citation needed] These jurists saw the free woman, in her proprietorship over her own sexuality (buḍʾ), as not unlike the slave-owner who owns the sexuality of his female slave. For them, in the same way that the slave owner was entitled to compensation for sexual misappropriation, the free woman was also entitled to compensation. The amount of this compensation, they reasoned, should be the amount that any man would normally pay for sexual access to the woman in question – that is, the amount of her dower (ṣadāq or mahr). As far as abortion in the context of rape, most jurist do not consider rape to be a valid reason: the sanctity of the new life takes precedence over the autonomy of the pregnant women.
Restrictions on sexual intercourse
Sexual intercourse is prohibited:
- during menstruation;
- for forty days after childbirth (puerperium);
- during the daylight hours of the month of Ramadan (i.e. while fasting);
- on pilgrimage; while in the sanctuary (in Ahram) at Mecca, pilgrims are not allowed to have intercourse. Marriages performed during the pilgrimage are invalid.
Do not marry idolateresses until they believe, a believing slave woman is better than idolateress even if she pleases you and let (your women) not be married with idolater, a believing slave man is better than idolater even if he pleases you; they call towards fire and God calls you toward paradise and forgiveness with his will; and he explains his verses so that you may understand. (Al-Qur'an 2:221)
Marriage with an idolatress or idolater is forbidden (2:221). As well as marriage to one's father's wives (4:22), one's mother, daughters, sisters, father's sisters, mother's sisters, brother's daughters, sister's daughters, foster-mothers, foster-sisters, mother-in-law, stepdaughters born of women with whom one has had conjugal relations, the wives of blood-sons, and two sisters from the same family (4:23), as well as all married women except who have become slaves as their previous marriage ends on becoming slave (3:24).
Yusuf al-Qaradawi, a contemporary Sunni Muslim scholar, states that sodomy is prohibited. As the act is forbidden in the Islamic marriage contract, a wife must abstain from it should her husband demand it and may seek divorce if her husband persists or tries to force it on her. The act in itself, however, does not nullify the marriage and the wife must seek divorce if she is to leave her husband.
Muslim scholars justify the prohibition on the basis of the Qur'anic verse 2:223, saying that it commands intercourse only in the vagina (i.e. potentially procreational intercourse). The vaginal intercourse may be in any manner the couple wishes, that is, from behind or from the front, sitting or with the wife lying on her back or on her side.
There are also several hadith which prohibit sodomy.
Islamic law establishes two categories of legal, sexual relationships: between husband and wife, and between a man and his concubine. All other sexual relationships are considered zināʾ (fornication), including adultery and homosexuality, according to Islamic law and exegesis of the Qur'an. From the story of Lot it is clear that the Qur'an regards sodomy as an egregious sin. The death by stoning for people of Sodom and Gomorrah is similar to the stoning punishment stipulated for illegal heterosexual sex. There is no punishment for a man who sodomizes a woman because it is not tied to procreation. However, other jurists insist that any act of lust in which the result is the injecting of semen into another person constitutes sexual intercourse.
Sodomy often falls under that same category as sex between and unmarried man and women engaging in sexual acts. Male-male intercourse is referred to as liwat (literally, "joining") while female-female intercourse is referred to as sihaq (literally, "rubbing"). Both are considered reprehensible acts but there is no consensus on punishment for either. Some jurists define zināʾ exclusively as the act of unlawful vaginal penetration, hence categorizing and punishing anal penetration in different ways. Other jurists included both vaginal and anal penetration within the definition of zināʾ and hence extended the punishment of the one to the other. Religious discourse has mostly focused on sexual acts, which are unambiguously condemned. The Qur'an refers explicitly to male-male sexual relations only in the context of the story of Lot, but labels the Sodomites's actions (universally understood in the later tradition as anal intercourse) an "abomination" (female-female relations are not addressed). Reported pronouncements by Muhammad (hadith) reinforce the interdiction on male-male sodomy, although there are no reports of his ever adjudicating an actual case of such an offense; he is also quoted as condemning cross-gender behavior for both sexes, but it is unclear to what extent this is to be understood as involving sexual relations. Several early caliphs, confronted with cases of sodomy between males, are said to have had both partners executed, by a variety of means. While taking such precedents into account, medieval jurists were unable to achieve a consensus on this issue; some legal schools prescribed capital punishment for sodomy, but others opted only for a relatively mild discretionary punishment. There was general agreement, however, that other homosexual acts (including any between females) were lesser offenses, subject only to discretionary punishment.
Currently, sodomy is punishable by death in a number of Muslim countries, including Saudi Arabia and Yemen, as well as in Nigeria's Sharia courts.
In Islam, oral sex between a husband and wife is considered "Makruh Tahrimi" or highly undesirable by some Islamic jurists when the act is defined as mouth and tongue coming in contact with the genitals. The reason behind considering this act as not recommended is manifold, the foremost being the issue of modesty, purification (Taharat) and cleanliness.
The most common argument states that the mouth and tongue are used for recitation of the Qur'an and for the remembrance of Allah (Dhikr). The status of genital secretions is debated among the four Sunni schools, some scholars viewing it as impure and others not.
Purification and hygiene
After partaking in sexual activity where penetration or ejaculation occurs, both men and women are required to complete a full-body ritual ablution known as ghusl in order to re-establish ritual purity before prayer. Ghusl requires clean, odorless water that has not been used for a previous ritual and begins with the declaration of the intention of purity and worship. A Muslim performing complete ablution then washes every part of his or her body.
Fasting and Ramadan
It is made lawful to you to go into your wives on the night of the fast; they are an apparel for you and you are an apparel for them; Allah knew that you acted unfaithfully to yourselves, so He has turned to you (mercifully) and removed from you (this burden); so now be in contact with them and seek what Allah has ordained for you, and eat and drink until the whiteness of the day becomes distinct from the blackness of the night at dawn, then complete the fast till night, and have not contact with them while you keep to the mosques; these are the limits of Allah, so do not go near them. Thus does Allah make clear His communications for men that they may guard (against evil).
According to Qura'nic verse 2:187, one may have sex during the month of Ramadan but not during the time of fasting. As such, sex during Ramadan is only permitted at night. Although this passage is explicitly addressed to men, the regulations on sex in regard to fasting are universally taken to apply equally to both male and female Muslims.
And they ask you about menstruation. Say: It is an illness; therefore keep aloof from the women during the menstrual discharge and do not go near them until they have become clean; then when they have cleansed themselves, go in to them as Allah has commanded you; surely Allah loves those who turn much (to Him), and He loves those who purify themselves.
Verse 2:222 in the Qur'an implies that sexual relations during menstruation are prohibited. However, unlike Jewish tradition, Islam does not forbid men from interacting with menstruating women entirely. Ibn Kathīr, a muhaddith, narrated a hadith that describes Muhammad's habits with his menstruating wives. This hadith demonstrates that Muhammad gave license to all forms of spousal intimacy during the period of menstruation with the exception of vaginal intercourse. Women are required to perform ritual cleansing (ghusl) before resuming religious duties or sexual relations upon completion of her menstruation.
Nocturnal emission is not a sin in Islam. Moreover, whereas a person fasting (in Ramadan or otherwise) would normally be considered to have broken their fast by ejaculating on purpose (during either masturbation or intercourse), nocturnal emission is not such a cause. They are still required to bathe prior to undergoing some rituals in the religion. Muslim scholars consider ejaculation something that makes one temporarily ritually impure, a condition known as junub; meaning that a Muslim who has had an orgasm or ejaculated must have a ghusl , before they can read the Qur'an or perform the formal prayer known as salat.
According to most jurists, masturbation is generally considered Haram or prohibited in Islam. But there are varying opinions on the permissibility of masturbation. The Qur'an has been cited as being ambiguous on the issue of masturbation. The hadith regarding masturbation are, too, not considered to take a definitive stance on the subject. As such, positions on masturbation vary widely. According to alDin Tarbiyyah, it is permissible if done out of necessity. He also permitted masturbation as a means whereby soldiers, far away from their wives on a tour of duty may remain chaste. The four Sunni schools of jurisprudence (known as Madhaahib - the Hanafi, Shafi'i, Maliki and Hanbali schools of Fiqh) have differing stances on the issue. Some see it forbidden in certain cases (i.e. if it leads a man/woman to ignore their spouse sexually) but recommended it when they see it as a lesser evil to illicit sex. It is generally prohibited according to the Hanafi and Hanbali Mazhabs, unless one fears adultery or fornication, or is under the desire pressure, in which case, it is permissible to seek a relief through masturbation. According to Ahmed ibn Hanbal, it is permissible for prisoners, travellers and for men and women who have difficulty in finding a lawful spouse. It is prohibited all the time according to the Maliki and Shafi`i Mazhabs. It is haram in Shi'ite jurisprudence. There has always been a view to permit masturbation as the lesser of two evils (so as to ward of falling into fornication). Thus it is categorically incorrect to state that all Islamic scholars of the early Islamic age have unanimously agreed upon its complete prohibition. Jurists distinguish between those who masturbate out of necessity and those who have these means yet still masturbate to gratify their lust.
The Qur'an does not contain explicit text regarding contraception. Muslims refer to the hadith on the question of contraception. The companions of Muhammad are cited when addressing this issue. For example, Jabir, one of Muhammad's companions, relates a hadith in which a man came to Muhammad and said
"I have a slave girl, and we need her as a servant and around the palm groves. I have had sex with her, but I am afraid of her becoming pregnant." The Prophet responded, ″Practice coitus interruptus with her if you so wish, for she will receive what has been predestined for her.″
As such, the withdrawal method of contraception is allowed according to the hadith. Muslim jurists concur with its permissibility and use analogical deduction to approve other forms of contraception (e.g. condom usage). Supporting Sunnah include:
A man said: "Apostle of Allah, I have a slave-girl and I withdraw from her (while having intercourse), and I dislike that she becomes pregnant. I intend (by intercourse) what the men intend by it. The Jews say that withdrawal method (Al-azl) is like burying the living girls on a small scale." He (the Prophet) said: "The Jews told a lie. If Allah intends to create it, you cannot turn it away."
"O Allah's Apostle! We get female captives as our share of booty, and we are interested in their prices, what is your opinion about coitus interruptus?" The Prophet said, "Do you really do that? It is better for you not to do it. No soul that which Allah has destined to exist, but will surely come into existence."
Islamic schools of law have differing opinions on abortion, though it is prohibited or discouraged by most. However, abortion is allowed under certain circumstances, such as if the mother's health is [seriously] threatened. If the abortion is necessary to save the woman's life, Muslims universally agree that her life takes precedence over the life of the fetus. Muslim jurists allow abortion in this context based on the principle that what is considered the greater evil – the woman's death – should be warded off by accepting the lesser evil of abortion. In these cases, the physician is considered a better judge than the scholar. Abortions of pregnancies that are merely unplanned or unwanted are generally haram (forbidden). The Qur'an forbids the abortion of a fetus for fear of poverty:
...kill not your children on a plea of want; We provide sustenance for you and for them
Kill not your children for fear of want: We shall provide sustenance for them as well as for you: verily the killing of them is a great sin.
Muslim views on abortion are also shaped by the Hadith as well as by the opinions of legal and religious scholars and commentators. In Islam, the fetus is believed to become a living soul after four months of gestation, and abortion after that point is generally viewed as impermissible. Many Islamic thinkers recognize exceptions to this rule for certain circumstances; indeed, Azizah Y. al-Hibri notes that "the majority of Muslim scholars permit abortion, although they differ on the stage of fetal development beyond which it becomes prohibited." According to Sherman Jackson, "while abortion, even during the first trimester, is forbidden according to a minority of jurists, it is not held to be an offense for which there are criminal or even civil sanctions," so Muslims should not support legal restrictions on abortion rights unsupported by Islamic law, as opposed to solely moral activism.
Most Muslim scholars hold that the child of rape is a legitimate human being and therefore subject to the same laws of abortion (i.e. its abortion is permitted only if the fetus is less than four months old, or if it endangers the life of its mother). Some scholars disagree with this position. Some Muslim scholars[who?] also argue that abortion is permitted if the newborn might be sick in some way that would make its care exceptionally difficult for the parents (e.g. deformities, mental retardation, etc.).[dubious ][clarification needed]
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