The impact of the transformation of the right to enjoyment into the crime of rape of a wife, a legal study compared to Islamic jurisprudence and personal status law

Abstract

This research deals precisely with the phenomenon of “marital rape.” It is known that marriage comes about through a contract concluded between a man and a woman, and one of the goals envisioned for this marriage is to create a bond for shared life and a bond for offspring. How can this bond be a collar around the neck of this bond that ends in marriage? The husband is in prison on rape charges! Therefore, the calls of contemporary legal and Islamic jurisprudence varied between rejecting and supporting, while the legislator decided to remain silent. The right to enjoyment between spouses turns into rape in certain circumstances that lead to this, and with the expansion of the meaning of rape, serious calls have appeared on the horizon aimed at destroying the classical frameworks that reject the idea of marital rape at a time when the international community is seeking to enshrine it in international agreements. In order to avoid the problems that affected both groups, as the research addressed, we concluded that the husband who forces his wife to have intercourse at a time when she is not in a “position” that allows her to respond to his request, such as illness and the like, has committed a sin that deserves to be held accountable, provided that it is up to the judiciary. A clear and explicit authority to impose punishment or not in light of what his conscience dictates to him, and the reports that come to him written by people of knowledge, experience and art.