7.3 Discussion
7.3.2 Discussion of the Answer
7.3.2.5 Force and Coercion
transnational online space. Thus a similar mobility and fluidity of ideas of masculinity to the peripatetic men of the tablighi movement is enacted in the transnational online space of askimam.org, potentially enabling women’s agency.
7.3.2.5 Force and Coercion
Desai’s strategies in dealing with male concerns of wifely non-compliance in sexual intercourse are to advocate for sexual communication and a benevolent masculinity towards keeping the marriage intact. But he precedes these with advice which dissuades the husband from “forcing” his wife into sex. Desai’s rationale links the discourse of force with the emotional and psychological well-being of the wife. He says:
By the husband forcing the issue upon the wife, she feels used for this purpose and becomes demoralized which could possibly ruin the marriage and complicate matters further.
Significantly, Desai does not negate the option of using force. He instead discourages it, citing her feelings and the resultant marital breakdown as the rationale. No jurisprudential logic is used in his answer, warranting an interrogation of this notion of force and coercion as it functions against with the discourse of mutuality. We will recall earlier in this chapter, a male petitioner in fatwa S refers to the idea of male force in a marriage. He declares in the context of sex during menstruation,
Is it permissible in islam or not? There is no forcing or desire shown from husband for sex. It is only wife expectation.
In a framework of marriage that ensures male sexual satisfaction through female sexual availability and where a wife’s recalcitrance may lead to physical castigation, the possibilities for forced compliance are real. The literature points to contestations on the recognition of marital rape as a form of violation in Islam (Bennet 2007; Ali 2006). Wadud (2006: 236) suggests further that, “according to sharī‘a, if a Muslim man desires intercourse with his wife she must comply. If she does not she is guilty of nushūz (recalcitrance)”, an argument drawn from various interpretations of Quranic 4:34 that the husband may beat his wife if he deems her guilty of nushūz.
Relevant excerpts from two fatwas in my sample find that ordinary Muslims and jurists who are committed to the relevance of the classical jurisprudential tradition as a pietistic requisite, experience a tension when the discourse of force intersects with discourse of mutuality. These two fatwas initiated by the same female petitioner, who had been sexually molested as a child, were generated within a few weeks of each other. They lend themselves to a diachronic analysis of the competing discourses of force and mutual consent as it relates to lawful sex before and within marriage. One petition was written before the female petitioner’s marriage and the other after.
Excerpt of Fatwa # 32049, hereon referred to as fatwa E:
I am to be wed to this guy who is religious and my mom loves him. I on the other hand do not…..
..I do not agree to this marriage, at the start I was ok with it because I told him and my parents I wated to get married a year later after m studies (my mom didn't care..she said I wont find another guy like him)…….
…One week ago, I told the guy I feel sad that no one values my opinion, that I wished I could have gotten married a year later then now…..My parents yells at me, threaten to kill me and my mom was about to jump out the window to sucided…..I got a few minor kicks and bruises from them. They said it was my fault for not strongly saying no earlier and now its too late...if they stop the wedding they will lose their respect and won't be able to show their face anymore in the mosque. They also said it'd my fault if no one will marry my other siblings.
…… My mom expects me to connsumate the marriage, but I am scared. I HATE the idea of him touching me, i feel grossed and throwing up (my mom thought about him, how he maybe he has hope -- she doesn't really care what I feel)…Please help me. I do not feel at peace, I feel like im going crazy.
The petitioner initially remains silent on the issue of marriage, then agrees in principle to the idea, and then finally decides, and clearly articulates that she doesn’t want to marry this person. She expresses conflicting feelings in terms of being compelled into a marriage she does not want, of managing parental expectations, of feelings of anger and betrayal at her parents, of her anger at the ‘guy’ for colluding with her mother, and of feelings revulsion at being touched and the fear of sex with her future husband.
The UK jurist, Saleem Khan, interprets her question as to whether she should go ahead with the nikāḥ (marriage) or not. After stating he understands her predicament, Khan completely ignores all the emotional and psychological concerns, the abusive displays of coercion and force, and downplays her agentival capacity in terms of her right to consent to the marriage in Islamic law, and instead emphasises the ‘marriage imperative’ and a trust in her parents and God:
In principle, you are an adult and you have an independent right in Shariah to withdraw from this marriage arrangement. However, in the context of the circumstances you are facing, you seek our help, probably our advice. Often in life we have to distinguish permissibility from practicality. What may be permissible may not necessarily be practical or ideal.
Later on he says:
Our advice is you change your mind-set and proceed with the marriage. Living together will give both of you the opportunity to win over each other’s hearts, which will dominate all negativities. If you trust your parent’s love for you then change your attitude and look forward to making the marriage a success. After adopting all possible means for a successful marriage, place your trust in Allah.
Khan advises the petitioner to get married and to trust in her parent’s choices for her, imposing a normative gendered subjectivity on her, that “girls are supposed to be apprehensive, and to give the boy the benefit of the doubt”. Bearing in mind that the legal framework of a Muslim marriage strongly supports female agency in terms of consent before marriage, but severely restricts it within the marriage, it is significant in this instance that Khan advises the unmarried petitioner to disregard her legal right to withhold consent to the marriage. Abdur Rahman Doi (1989) in his book Women in Sharī‘a, presents numerous ahadith and Quranic sources that attest to the importance of free consent before marriage (1989: 35). He argues that even the great hadith scholar Bukhari (194-256 H810-880 AD) stressed this aspect of consent to the effect that one of the chapters of his hadith compilation is called: When a man gives his daughter in marriage and she dislikes it, the marriage shall be annulled.
In addition, a foundational Hanafi text, which is used in Desai’s curriculum in his mufti training institute, Mukhtasar al Qudūrī, relates in the book of marriage:
The marriage of a free, major, sane woman is concluded with her consent, even though a guardian does not conclude it [for her], according to Abu Hanifa…be she a virgin (bikr) or a previously married woman who had consummated her marriage... it is not permitted for the guardian to compel a sane, major virgin [to marry] ( Al- Qudūrī n.d: 379-380).
Arising from these theoretical viewpoints, it can be concluded that the idea of consent to marriage is stressed as an important Islamic legal requirement, and a woman’s agency in her decision is strongly upheld and respected within the traditional Hanafi legal framework. But after a nikāḥ, and particularly after consummation, her capacity or the requirement that she consent to further sex is not a matter of consensus amongst scholars. Many render her consent subordinate to her wifely obedience and subservience to her husband, to the extent that she should make herself sexually available in order to fulfil her husband’s sexual right, as is reflected in the fatwa below.
In fatwa # 32362, hereon referred to as F that follows a few weeks later, the idea of force is played out once again, this time in relation to the same petitioner refusing to engage in intercourse or intimacy with her new husband. She mentions that she went ahead with the marriage with the intention of building trust and love before sex. But she is being coerced by both her mother and her husband to consummate the marriage. A section of the petition in fatwa F reads:
Petition 2:” …They both knew I had my monthly cycle and I wasn’t ready. I told them it was in the quran that you shouldn’t force a woman or touch her when she’s in her monthly cycle but they didn’t seem to care...
…My ‘husband’ knew about my traumatic childhood experience but forced kissed me and touched when I was sleeping…i cried in the bathroom because I felt violated and hurt. I really do not like him, and I feel like I can’t full fill my duty as a wife towards him. How can I love someone when I was forced into this? Forced marriage is against islam….
…“I know i won't be able to full fill my duty as his wife, it’s not fair to me nor to him”
I don’t want this marriage. Never did. Isn’t this void?
I observed in chapter five that the theoretical dialectic and the rhetorical patterns this petitioner displays suggest an internalization of the two divergent voices that Ahmed describes, leaning towards the ethical voice through her appeals to fairness within her marriage. Now we can tell that the petitioner also displays a religious commitment to the classical Islamic legal tradition. The first is obvious in terms of petitioning a legal scholar twice, for assistance, and the second is evident in accepting her “duty” to fulfil her husband’s sexual needs in her second petition despite her views of what’s fair and what’s lawful.
I noted in chapter five that a slippage occurs as she resists the discourse of male sexual need. Now this synchronic movement puts her temporarily in a subjective position of power in relation to the discourse of male sexual need and accompanying ideas of force.
The above fatwas demonstrate how a petitioner attempts to balance concerns of religiosity which are located for her in normative legal understandings of marriage (her understanding of wifely duty) with contemporary personal desires and expectations of mutual consent in marriage and arising out of the ethical voice of fairness.
Fatwa E further exemplifies the manner in which a mufti can go beyond psychological and emotional appeals of abuse and force of a petitioner, and her concern about the dominant discourse of consent before marriage, to what he believes is an important issue of the practicality of marriage regardless of the circumstances. In this case he uses a rhetorical strategy of foregrounding his own concern and opinion on the importance of the marriage imperative. The idea of force and the dominant discourse of mutual consent before marriage are both linked to the legal logic of a Muslim marriage. The psychological and emotional concerns of the petitioner and the notions of fairness are embedded in the ethical exhortations of marriage. The analysis suggests that Khan uses his position as a religious authority figure to advise in such a way that he removes the petitioner from a position of relative power as an unhappy
unmarried woman, where she has a legal choice to consent, to one of powerlessness as a married unhappy woman where her lawful choices to mutual consent to sex are diminished and where the idea of force continues to be present. This demonstrates how a jurist attempts to balance his own concerns for the marriage imperative, by shifting away even from the legal rules of mutuality before marriage.
Judging from the excerpts of these fatwas, and the experiences of women undergoing divorce procedures in Hoel’s and Shaikh’s (2013) study as noted in the literature, the ultimate demonstrator of the tenacity of the marriage imperative in modern juristic discourses is divulged through firstly, a glimpse into how the legal rules of mutual consent before marriage and consummation can be undermined by a jurist, and secondly, how a “marriage at all costs” articulation can also severely hamper the sexual reproductive health choices of women in perilous marriage situations. In both scenarios conditions are created that jeopardise female sexual agency.
As noted though in this chapter, Desai’s approach diverges from the juristic praxis in Hoel’s and Shaikh’s study and to that noted in fatwa E. He also stresses the marriage imperative, but gives precedence to the wife’s psychological and emotional health relayed as her “feelings of demoralization” and her potential feeling of being ‘used for sex’, through an encouragement of sexual communication and a benevolent masculinity.