Re: Rape - Quran and Hadith
As Saleem stated, marriage is a contract between a man and a woman. Both have some rights and certain responsibilities. Both are required to fulfill sexual needs of their spouse. This is fine. Often a hadith is quoted that if a man calls his wife to fulfill his desires and she refuses it or ignores it without a genuine reason and the husband remains annoyed for this behavior then Allah has shown displeasure with such a woman. One thing that many overlooks is that no where it is stated or implied that if she refuses then husband can have his way with her. It is implied in the hadith that the sexual relationship between man and his wife is based on consent of each other. One may not be fulfilling his/her responsibilities towards his/her spouse as the woman in the hadith but it does not give a free hand to the husband to take his wife to bed using his physical might, any threat etc.. In cases where there is no legal bond of marriage, such an act would obviously be 'rape' but you can give another name like 'abuse' etc. but that doesn't change the fact that sexual union of man and wife must be consensual since marriage does not make you a sex slave.
A person who has crossed the limits with his wife, he should be punished. I am not aware of Islamic rulings in this case but my personal thinking is that mere annulment of the marriage is not enough.
Brother, I think that you are not trying to understand Islamic ruling and mixing it up with concept of rape that exists today (No … means ‘NO’ ... else it is 'Rape').
In Islam and in any world laws … rape is considered as ‘RAPE’ when a woman claims that she was raped ... where rape means sex happened without her consent. It is as simple as that. Obviously, if woman claims that she was raped then it is rape, but for a rapist to get punishment, she or someone on her behalf has to register case (on known or unknown rapist) … as without registering a case, no investigation can start nor any punishment can happen.
Rape could be of (basically) three types.
One is non-violent … where girl can be drugged, placated, deceived, cheated, while deeply in sleep, subconscious, or whatever … In non-violent rape, culprit would get punished because he violated girl’s honour and right … and could have harmed her mentally (given her mental scar).
Another is violent … that happens when girl is forced, abused, kidnapped, beaten up, made to perform under threat, and so on…. In violent rape, culprit would get punished not only because he violated girl’s honour and right, but also (mentally and physically) harmed her due to his violence (giving her mental and physical scar).
Third type of rape cases could be, rape after violating trust. This type of rapes happen where culprit is violating trust of person in his authority, for instance, husband taking advantage as a caretaker of his sick or vulnerable wife ... or doctors, police, teachers, and so on taking advantage of their position. Such rapes are worse than above two rape cases especially when authorities are involved, as other than girl suffering mental scar (possibly physical scars too), she suffers from ‘loss of trust’ that could affect her life permanently and also effect trust on authorities, and thus punishment to people involved in such rape should be most severe (though unfortunately in many cases, such type of culprits get away).
In most cases, and in most countries, all three types of rapes could carry different severity of punishment.
In marriage … Islam does not recognise rape. **In marriage, sex cannot happen without consent, as consent is given at the time of marriage, that is considered as permanent consent (no need to get consent each time sex happens ... hence 'no rape' is possible).
It is just like, if a person trespass a property, that person can be sued for trespassing. But a tenant cannot be prosecuted for trespassing the property he rented, because once tenant agreement is signed, permanent consent is given to the tenant that he can live in the property he rented (as long as agreement exists) ... or in marriage and sex, as long as marriage is valid, no consent is required for sex.**
So, for wife to declare rape as rape, she has to claim that she is raped (someone had sex with her without her consent) ... but since in Islamic marriage there is no rape as consent is there all the time by default, due to marriage contract, she can only contest such case on basis of excessive abuse. Thus:
Type one rape goes out of window.
In type two rape, rape is accompanied with violence. Islam do not recognises rape part, but recognises violence (physical abuse) as criminal violation… considering that as excessive abuse.
In third type rape, since ‘sex and marriage’ in Islam goes hand in hand, Islam do not recognise violation of trust when sex happens within marriage ... at time of marriage, permanent consent for sex is given by wife to husband, and thus having sex by husband is not violation of trust or against consent. Hence third types of rape where husband is culprit, in Islamic marriage (actually, in any marriage) do not exists (husband cannot violate trust when having sex with wife).
Punishment: It is responsibility of state to give justice, and only state can give punishment (unless one in relationship gives clandestine punishment … like wife is rich, spends on her husband, and now decline to spend on him … or husband works for wife and she sacks him … or wife took violation of husband so seriously that she divorces him ... ).
State can punish a husband on ground of excessive abuse to his wife … and that excessive abuse could be due to whatever reasons, be that reason forced sex, anger, frustration, revenge, financial problems, pride, bossiness or … xyz.
*Now let see if same situation exists both ways or is it only husband that gets away (and is only related to rape): *… Situation works both ways.
Let see cases … please read carefully, so that it would become understanding easier:
*Case one (marriage makes difference): *
Married: If wife takes (steals) money from husband to fulfil her justified needs without his knowledge or consent (relying on marriage contract and consent), than husband cannot sue her for stealing … just like, if husband have sex with her without her consent (relying on marriage contract or consent), she cannot sue him for rape.
Unmarried: If such happens between two unmarried man and woman, than in above cases, man can sue the girl for stealing, and similarly girl can sue the man for rape.
Case two (marriage makes no difference):
Married: If wife defraud or deceive her husband (take money from him with or without his knowledge or consent, to give to someone, or for whatever reason not related to marriage contract) then husband can sue his wife on charges of cheating or defraud (as that is not part of marriage contract). In same way, if husband abuse her (physically or mentally harms her) for sex than she can sue her husband on charges of excessive abuse (as abuse is not part of marriage contract).
Unmarried: If such happens between two unmarried man and woman, than in above cases, man can sue the girl for stealing, cheating and defrauding, and similarly girl can sue the man for rape and excessive abuse.
So ... one can see that when it comes to marriage ... marriage contract nullifies many things, that includes ' rape in marriage' by husband ... or 'stealing money' by wife from husband for justified personal or family needs. But what is not part of marriage contract, things do not change.
Excessive abuse and punishment: You are right that divorce is not the only punishment of excessive abuse. State can even put the husband in prison for few months to punish him. But if wife wants to divorce a husband who she thinks abused her, than she can, and abuse would be enough excuse for judge to grant her divorce without her paying back ‘mahr’ … actually, judge can even award her more than that, by asking husband to pay her for abuse, that could be more than just writing off ‘mahr’... but then, judge can just consider it appropriate to grant divorce (khula) but ask wife to return back the mahr.