“Seeking sexual intercourse through force is not allowed in Islam”

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“Rape is rape. No excuse.” That’s the tagline of the digital campaign launched by a Malaysian politician Yeo Bee Yin in association with All Women’s Action Society, an independent feminist organisation based in the Selangor province of Malaysia, last month. The campaign, which seeks to raise awareness about marital rape, was paired with a twominute video showing responses from hardline Islamic groups denying the presence of marital rape in Islam. Statistics are not readily available but some estimates have it that one girl or woman is raped every 35 minutes in Malaysia.

Explaining how the campaign came about, Ratna Osman, executive director of Sisters in Islam, a civil society organisation based in Malaysia, says that today, like in India, the existing laws in Malaysia make an exception, in that forced or violent sexual intercourse by a man with his own wife (without her consent) is not deemed as rape. Now, women’s rights groups are campaigning for the inclusion of the term marital rape in the penal code. “It is imperative to remove the exception under Section 375 that does not recognise rape in a marriage,” Osman tells Ramesh Ramachandran in an email interview.

Osman, who studied at the International Islamic University at Islamabad in Pakistan and graduated with LLB (Law and Sharia), believes Islam does not restrict women; it is the culture and patriarchal interpretation of Islam that hinders their progress. Studying and living in Islamabad opened up her perspective on a diverse Muslim community, something she had not experienced growing up in a culture that was dominated by Malay-Muslim mindset.

For someone who quit the corporate world, where she worked with an international brokering house and handled the professional indemnity insurance scheme, to join the controversial feminist group, Osman says that knowing one’s religion and accepting without question whatever Mullahs (or religious persons) tell one about Islam has been the “greatest mistake of majority in the Muslim world, and I was also guilty of doing it.”

“It is important to take into consideration socio-historical context when reading the Quran[.] We forget to think, even though Quran is loaded with verses commanding people to think,” Osman notes. She cautions that not many people realise the difference between Sharia and Fiqh — the former being God’s divine message; the latter being the interpretation of that message by human beings who are not infallible.

“Fiqh is the science of Islamic jurisprudence that involves human interpretation and human intervention to understand and explain what Sharia is. The problem that we face today is Fiqh is now misunderstood to mean as Sharia and therefore it is from God and not from the work of religious scholars. So when Fiqh is suddenly accepted as divine word of God, and any laws passed by religious scholars to be accepted as coming straight from God, that’s where the conflict starts,” she explains, adding that her organisation is calling for restriction in the conditions for allowing Muslim men to take another wife.


Ratna Osman
Ratna Osman

Edited Excerpts from an Interview

What is the existing law in Malaysia – for Muslims and non-Muslims? And what changes are you advocating in the existing law for Muslims and non-Muslims?

The penal code in Malaysia addresses rape and violence in sexual intercourse under Sections 375 and 375A and both apply to Malaysians, Muslims and non-Muslims. Section 375, which covers rape, however, has an exception, that is, “sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force or is recognised in the Federation as valid, not rape.” This exception is particularly problematic because it nullifies any possibility of rape within a marriage. Section 375A states that any man under a valid marriage causes hurt of fear or of death or hurt to his wife or any other person in order to have sexual intercourse with his wife shall be punished with imprisonment for up to five years. We have been advocating for the inclusion of the term marital rape in the penal code and to ultimately recognise it as a crime. In addition, it is imperative to remove the exception under Section 375 that does not recognise rape in a marriage.

What does Islam say about marital rape?

Islam is a religion that teaches its followers to treat women with dignity and respect. This can be seen in Surah An-Nisa verse 19, “It is not lawful for you to inherit women by compulsion.” This verse can be interpreted as a clear indication that any form of compulsion towards women, including when seeking sexual intercourse through force, is not allowed in Islam.

In Malaysia, a Muslim man can be punished under the Sharia law if he is found to have used violence to force himself on his wife and he can be imprisoned up to five years upon conviction. Some would argue that if that is indeed so, why insist on amendments/changes to the existing law to criminalise marital rape?

In the Malaysian Islamic Law, Section 127 only recognises ill-treatment towards the wife which is punishable with a fine of 1000 Malaysian Ringgit (about 18,000 Rupees) or imprisonment of up to only one year. This is insufficient because it does not mention or recognise marital rape as a crime.

How prevalent is the phenomenon of marital rape in Malaysia?

Owing to marital rape not being recognised in Malaysia, both in the penal code and Fatwa (religious edict), there is no official statistic recording marital rape in Malaysia.

How do you personally approach the debate over consent versus obligation? Some argue that a wife’s consent is necessary, otherwise it amounts to marital rape. Others maintain that it is a wife’s obligation to fulfil her husband’s sexual needs or demands. Your view.

In debating between consent and obligation of providing sexual access to husbands, we need to reassess the modern-day marriage, the responsibilities of husband and wife in a marriage and if the classical understanding of marriage as being a contract for unhampered sexual access for husbands is still relevant. In an era where women actively participate in the working field and contribute to the household income, the classic patriarchal understanding of marriage which places responsibility of sexual obligation only to wives is outdated. The changing dynamics of a marriage where there is mutual respect, shared responsibility and equal dignity means that it no longer makes sense to view wives as just objects designed to fulfil a husband’s sexual needs. Therefore, the consent of a wife for sexual intercourse is not only a right of all women, it is also important in ensuring a healthy marriage.

How do you view the responsibilities of a husband vis-a-vis the duties of a wife?

The responsibilities of a husband vis-a-vis duties of a wife, excluding biological capabilities, should be the same. Reiterating the fact that most women now contribute to the household income, the responsibility of raising a family also falls on the husband. The gendered notion whereby husbands are the sole breadwinners and wives work in the kitchen is now obsolete. Men today should emulate the behaviour of the Prophet as a husband who broke the patriarchal Arab tradition by helping with household work.

An Islamic preacher, Wan Ji Wan Hussain, has been quoted as saying that rape is defined in Islam as an act between two unmarried individuals. “That term (marital rape) is not accurate in the practice of Islam because rape in Islam is defined as forced sexual intercourse outside of marriage,” he has said. Your comments.

Marriage does not dissolve any violence or pain felt from rape or sexual violence outside of marriage. Whatever that is felt from rape outside of marriage applies to violence done in pursuit of sexual intercourse inside a marriage, the violence being either physical or emotional. We need to separate rape from sexual intercourse to understand that rape can happen inside a marriage. In addition, claiming that rape in Islam is defined as forced sexual intercourse outside of marriage suggests that forced sexual intercourse inside a marriage is acceptable. This is in conflict with Islamic teachings as displayed in Surah Ar-Rum verse 21, “… among His Signs is that He created for you mates from among yourselves, that you may dwell in tranquillity with them, and He has put love and mercy between your (hearts)”. How can love and mercy exist in a marriage when there is always a hanging threat of forced intercourse?

Another Islamic scholar, Perak Mufti Tan Sri Harussani Zakaria, has said that a Muslim woman has “no right” to reject her husband’s demand. How would you respond to his observation?

The reasoning behind rape is more complicated than just being a result of uncontrolled lust. There is a power dynamic behind the act of rape. History has shown that rape has been used as a tool of violence in wars, to humiliate and assert authority over another person. Claiming that a woman has “no right” to reject her husband’s demand for sexual access, again takes a narrow and even false understanding of rape, that it is only a result of uncontrolled lust. It ignores the fact that a form of domestic violence is rape and that many women are forced to deal with this violence in their marriage. Denying wives the right to reject a husband’s demand for sexual access perpetuates a power imbalance between husbands and wives. Islam is a religion that respects women and holds women very highly, thus arguing that wives do not have the right to reject her husband’s demand is a violation of human rights and un-Islamic because it disrespects women.

ramachandran@tehelka.com

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