1.0 Introduction.

1.1 Marriage.
A marriage is a legally recognized union between two people with different
gender. Generally a man and a woman, in which they are united sexually,
cooperate economically, and may give birth to, adopt or rear children. The union
is assumed to be permanent although it may be dissolved by separation or divorce.
(Bryan Strong, and friends, 2008)
Marriage in slam is strongly recommended on religious, moral, social,
psychological, and physiological grounds. The !uran which Muslims believe to
be the word of God reads"
And marry those among you who are single If they are needy,
God will mae them free from want out of !is gra"e#$
#ne of $is signs is this"
%hat !e has "reated mates for you from themsel&es that you
might find 'uiet of mind in them, and he (ut )etween you lo&e and "om(assion,
surely there are signs in this for a (eo(le who refle"t#$
There are % form of marriage" the first one is monogamy, having only one
spouse at one time. This means that one man can marry one woman at one time.
This form of marriage is common in all cultures in every country within the
world.
1
The second form of marriage is polygamy. This form of marriage is the
practice of having than one wife or husband. #ne study of &'( non)western
societies found that &* percent of the cultures studies +representing nevertheless a
minority of the world,s population- practiced or accepted polygamy.
The third form of marriage is polyandry. This form of marriage is the
practice of having two or more husbands. This situation is .uite rare found in
many states.
2.0 Duties as Husband and Wife.
/.1 $usband 0uties
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n slamic view, the husband is the head of the household. $e totally responsible
to their household. A husband is responsible to give the protection, ta1e care,
happiness and always gives maintenance of his wife. $e also responsible for the
all cost of his wife food, clothes and shelter. A husband should give his wife
independent accommodation. 2he is not obliged to stay with the husband,s parents
or others relatives as he is not obliged to lives with her. According to
Muhammad Abdul 3auf in his boo1 4The slamic family a general view, page
*(56
!e is res(onsi)le for the "ost of her food, "lothes and a""ommodation#
Although, )y tradition, she may ha&e to "oo, he has to )uy her the raw materials,
and "ooing and it"hen fa"ilities# !e also has to )uy her two sets of "lothes or
more ea"h year, (ro&iding the ty(e of "lothing suita)le for the seasons# !owe&er,
the num)er of sets and their 'uality de(end on the hus)and*s means and so"ial
standing$
The husband, in return for being entirely responsible for the financial
needs of the family, has the right to be the final arbiter in family disputes. $is
authority, however, is neither absolute nor unchec1ed. As long as his final
decisions are in accordance with slam, his wife should willingly cooperate out of
love, respect, and honour for him. A husband should be 1ind and understanding
with his wife, and he should treat her in a tender and loving manner. The !ur7an
describes husbands and wives in this way6 4They are garments for you, and you
are garments for them5 +!ur7an /61&8-. A garment, used as a metaphor in this
verse, gives a person warmth, protection, comfort, and decency. deally, this is
3
what a husband and wife offer each other. According to the boo1 4Marriage in
slam, page %'5 by Muhammad Abdul 3auf , in this boo1 he mention that 6
A hus)and has to )e ind, understanding and forgi&ing, and must treat his wife
in a tender and lo&ing manner# !e not only should a&oid hurting her )ut should
)ear with her if she e&er does something disagreea)le, so long as this "lemen"y
does not s(oil her and she does not ha)itually )eha&e out of )ound#$
f the wife becomes pregnant, her husband should display greater
consideration for her and should do all he can to alleviate her discomfort. 9hen
she is delivered, he should be grateful to Allah for her safety and for what Allah
has beneficently graced them with. f his wife has been delivered of a male child,
he should not go out of his way to show his pleasure" and if it is a female, he
should not at all feel disheartened. After all, he does not 1now which is better for
him.
As man,s right, a husband have a right to being the of a household. Men
are in charge of women by that with which Allah has preferred some of them over
others and by that which they spend from their property. 2o the pious women are
obedient protecting in absence that which Allah has protected. $e also have a
right to be obeyed, it is the right of the husband that his wife obey him. This
obedience, however, does not include anything which is disobedience to Allah.
:o obedience in what is sinful" obedience is only in what is right. These
two things are now clear, that a woman is obligated to obey her husband, and no
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Muslim may obey anyone in what is disobedience to Allah. Additionally, one
strong opinion limits the re.uired obedience of the wife to those duties being
described in this chapter. n other words, the husband should not see1 to control
every detail of her life, even in things which have no direct impact on his rights as
her husband.
n physical relations, it is the obligation of the wife to respond whenever
her husband calls her to come to bed unless there is a strong reason why she
cannot. Again, li1e in the issue of leadership, this is the way which Allah has
given us to live which is best for us since nothing we do or cannot do in anyway
harm or benefit Allah Most $igh.
Thus, when women resist this and insist on being the ones who call the
shots in this regard or that it is somehow fifty percent, it is only the two of them
who will suffer. t will lead to frustration, marital discord and the husband7s desire
to see1 fulfilment of his needs elsewhere. f he ends up turning to the ; haram,,
then a very great harm indeed has been inflicted upon society. This point is clear
from many hadith, among them6
+Idhaa ar,ra-ulu da.aa /au-atahu li haa-atihi tal ta.tihi wa in aanat .alaa
at,tannoor#+ 0eans , +1hene&er a man "alls his wife for his desire let her "ome
to him e&en if she is o""u(ied at the o&en#+ At)Tirmidhi +sahih-.
Thus, a wife must be responsive to her husband even if that involves the
wasting of some wealth, because the social conse.uences of this brea1ing down
are so serious, so the danger to a woman who fails to respect it is very serious. A
5
husband also have a right to control over who enters the house, the wife is not to
allow anyone inside if she 1nows that her husband does not li1e for that person to
be in the house although male or female. This is the second right of the husband
over the wife. $e also entitled to does not give the wife7s truthfulness out house.

/./ 9ife duties
<irst of all, the wife must promote a soft and relaxing atmosphere so that she and
her husband can live smoothly, happily and en=oyable. t depends on her taste and
the way she prevailing values and conditions. The main important thing is that the
wife must be faithful and her loyalty to him must come first before her 1in. 2he
should avoid associating with undesirable element and should not entertain any
male friends. A wife should have good house1eeping s1ills to win her husband,s
heart. 2he has to 1eep the house clean and tidy, decorating their house and
sleeping in time and wa1ing up in time. According to Muhammad Abdul 3auf in
his boo15 The slamic <amily A General >iew5 page '*"
%he management of the household should (refera)ly )e the wife*s
(rimary res(onsi)ility# She has to tae "are of meal (re(arations, house,"leaning
and laundry# 1hether she undertaes these tass herself or has them done under
her "lose su(er&ision, it is her tas to manage them in the )est interests of the
family# She may e2(e"t some "oo(eration from her hus)and, )ut this should
de(end on what he "an afford to do# 1hat is im(ortant is the mutual goodwill and
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lo&e whi"h will no dou)t stimulate ea"h one to alle&iate the )urden of the other as
mu"h as (ossi)le#$
9hen her husband is out of doors, she may be able to protect her honour
and her husband,s belongings. A wife should regard the con=ugal home as her own
castle and she should not leave it except in the company of her husband and with
his specific and general approval. $owever, on the prevailing conditions and
customs, and an intelligent, honest wife can easily and intuitively ma1e her sound
=udgement in each situation.
9hen she goes out for shopping, visiting or to a =ob approved by her
husband, the wife should be decently dressed and should wal1 and behave in a
dignified manner. 2he should avoid ma1ing and exhibition of herself along the
way or in the mar1etplace. n managing the household, the wife should economize
and avoid extravagance. 2he is not to give of her husband,s wealth except within
the degree he approve of.
A wife should be warm, respectful and obedient to her husband. 2he
should ta1ing care of the husband,s emotions, ignoring small s.uabbles and not
ta1ing them to heart. A family, simple or complex is a team, and the husband is its
natural head, responsible for its protection and welfare. The wife, during
menstruation, pregnancy and in the postnatal period, she is not to be unduly
burdened with wor1. t is probably because of the fact that the husband,s
capability is not periodically chec1ed or interrupted by menstruation, child)
7
bearing, confinement or breastfeeding that Allah has installed him as the need and
put him in charge of the family. n this respect the $oly !ur,ans reads"
0en are in "harge of women, )e"ause of the degree men are granted
some o&er the others, (men*s usually greater finan"ial resour"efulness)$
%he !oly 3ur*an# 4ha(ter 55I6, &erses 70,78#
4The degree given to men over woman alluded to here is not a degree of
preference of men over woman in the eye of Allah, since the $oly !ur,an which
has established the e.uality of the sexes, cannot contradict itself. t alludes to the
biological differences which impose on the male partner the tas1 of leadership of
the household and the responsibilities emanating from it.5 (0uhammad A)dul
9auf# %he Islami" :amily A General 6iew# ;age <=,<8#)
A wife also should respect and obedience to his parents, avoiding undue
bic1ering and complaints, never insisting to visit her father,s home, never
complaining in adversities are such that way ma1e your future better and you will
remain the .ueen of your husband,s home.
A wife is not a blind follower but on e.ual active partner. $owever, her
soft nature, her beautiful role as the natural sexual partner, menstruation, child)
bearing and child rearing with their psychological and physical adverse effects,
are natural attributes not the design of a male chauvinistic dictatorship. These
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considerations ma1e her the dependent yet the adored, respected, virtuous and
beloved partner.
An interesting point which emphasizes that the Muslim wife does not lose
her own independent character on getting married is that she always retains her
full maiden name. This point is significant, as it expresses both the wife,s greater
freedom under slam and her continued relation with her own family.
3.0 Marital Rape.
Marital rape is unwanted sexual acts by a spouse or common law partner that are
committed against a person will. t also can be defined as any unwanted
intercourse or penetration +vaginal, anal or oral- obtained by force, threat of force
or when the wife is unable to consent. #ne of the most serious, widespread, and
overloo1ed forms of intimate violence, marital rape is a form of battering inflicted
by husband on wives, often as parts of a pattern of intimate terrorism. ?egal
definition of rape include,
9
4>nwanted se2ual (enetration, (er(etrated )y for"e, threat of
harm, or when the &i"tim is into2i"ated#$
The most difficult factor is that the attac1 was committed by a person who is
supposed to be trusted and is loved. 2ome country are made spousal rape a criminal
offences such as Malaysia, @hina, $ong Aong, and Germany. But some are not made
spousal rape a criminal offense such as ndia, :igeria, Cemen, and Mongolia.
Although there are laws in place to protect women, there are cultural
norms and perceived social stigma attached to rape that often discourage the
reporting of marital rape and prosecution is rare in many countries. $usband
raping wives is a horrible crime and victims need help.
%.1 slamic view
According to slam there is non)recognition marital rape in slam, because slam
views Jima, +means sexual intercourse between husband and wife- as a religion duty
between a husband and wife. Therefore, it is proper that there is no such offence as
marital rape in slam. This is because if a husband is prosecuted because of having sex
with his wife then it would be defeat the purpose of marriage that is to legalize sex.
$owever, this does not mean that the husband has unlimited access to his
wife. The wife also can rightfully refuse to have sex with her husband if she is in an
10
advanced stage of pregnancy. And if the wife has 1nowledge that the husband has
contracted sexually transmitted disease li1e herpes or A02 t also not permitted to
have sex during the daytime in the month of 3amadan, for both are liable for
expiation if they are involved in sexual activities.
According to slamic view, the wife cannot withhold her consent in having sex
with her husband if she is perfectly healthy and capable of sex with her husband.
There will be an undesirable result, li1e the husband will perform zina with another
woman. The following tradition reflects the $oly Drophet Muhammad,s +s.a.w- view
on the wife who refuses the husband,s need for marital intercourse.
:arrated Abu $uraira +r.a-, the prophet +s.a.w- said6
if a man in&ites his wife to slee( with him and she refuses to "ome to him,
then the Angels send their "urses on her till morning,$
Even thoughts it seems that a husband can have a unlimited access towards his
wife, the sunnah of the prophet +s.a.w- abhors those who does act cruelly towards his
wife. Thus if the wife politely refuse to have sex with her husband and she has valid
reasons for the refusal, the husband should be understanding enough to refrain himself
for a while and approach her later because it is important that husband should perform
Fima, with Adab.
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This is to create marital harmony. This approach is much better than to enact a
law of marital rape. Thus, the present provision in the Malaysia Denal @ode that
+Explanation to section %8' of the Denal @ode-"
if a man has se2ual inter"ourse with the wife without her "onsent or against her
will is not ra(e, unless if )oth of them are di&or"ed$ seems to be in tune with the
slamic viewpoint.
#ne reason why it is not feasible to criminalize marital sex is the difficulty to
prove the offence. n ?hudud*, for the offence of zina which incorporates fornication,
adultery and rape there is a need to prove the offence with four female witnesses.
Married people convicted zina face the maximum death penalty by stoning.
f the wife accused the husband of committing rape on her, she has to produce
four righteous men who can testify that they actually seen the a"t of (enetration of
the se2 organ of the male (artner into that of the female (artner$. f she fails, it is
possible that she cannot prove her case, given the case that four men will hardly ever
stumble into her husband,s act of raping her. t has to be noted that one cannot called
four men righteous or =ust watch the act of rape without lifting a finger. An unli1ely
but possible instance of that happening is when the four men imprisoned and therefore
cannot help the wife who is raped in their full view.
2ince the re.uirement of proof is very strict in the crime of 4zina5 and rape, it is
impossible to prove in court that the husband raped his wife based solely on the wife,s
testimony. Therefore the western =urists, and women activist,s efforts to ma1e a
12
marital rape a criminal offence will only lead to a brea1down of the marriage
institution, for they have already legalized sex outside marriage institution, for they
have already legalized sex outside marriage and are now championing to criminalize
sex within marriage. This clearly shows an evil precedence to disrupt the family unit.
$owever, the most practical approach to sole marital rape is by having a
comprehensive pre)marriage curriculum enforced throughout the nation.
%./ $uman right
As a result of nowadays developments, women made much progress in this
century for beside opportunity to higher education they also obtained the right to ma1e
a contract or a will and to sue or be sued in court. The Gnited :ation,s Gniversal
0eclaration of $uman 3ight stressed that 4All human beings are born free and e.ual
in dignity and e.ual rights.5 This applies to all man and women.
As an example, on H
th
August /((I, A Malaysian man who forced his wife
to have sex with him has been sentenced to the maximum five years in =ail, in the
country7s first successful prosecution under a new law against marital rape.
Drosecutor ?aw @hin $ow said the man was sentenced in a session,s court in
eastern Dahang state.
$e said the case was the first in the country under a /((8 law that ma1es it illegal
for a husband to cause Jfear of death or hurt to his wife ... to have sexual
intercourse.J
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The amendment to the penal code that made marital rape a crime was considered
a small step toward women7s rights in conservative Muslim)dominated Malaysia. But
some activists say it doesn7t go far enough because the law doesn7t stipulate a
minimum sentence, which means a man could go to =ail for as little as a day even if
convicted. The %')year)old man was, however, sentenced to the maximum five years
allowed. The punishment for rape outside marriage is up to %( years. The man was
also sentenced to 1( years in =ail and three lashes of the whip for forcing his wife to
have anal sex, ?aw said. Anal sex, even when consensual, is a crime punishable by up
to /( years imprisonment in Malaysia. The sentences are to run concurrently. ?aw said
the man changed his plea from innocent to guilty for both charges Tuesday, a day after
the trial started. (%he Straits %imes, Aug0@ 200A)
n other country view, we can see that 2ingapore is a party to the convention
#n the Elimination of All <orms of 0iscrimination against 9oman +@E0A9-, an
international treaty, and as a result the state regularly reports to the committee.
ncluding A9A3E,s also submitted shadow reports to the committee,s. Aware reports
include the following references to marital rape and say no to rape. 2ingapore,s <ourth
Deriodic 3eview to @E0A9 /((& highlights the amendment to the Denal @ode that
has criminalized forced sex on a spouse under certain circumstances, e.g. in cases
where a Dersonal Drotection #rder +DD#- was issued against the offending spouse.
9hile a step in the right direction, it is submitted that this does not go far enough. n
fact, the @E0A9 @ommittee,s @oncluding @omments voiced some concern for the
recognition of marital rape as a crime in such ;narrowly defined circumstances,.
14
A9A3E, in its previous shadow report discussed this discriminatory provision
that denies all married women full recourse for the criminal offence of rape merely by
virtue of the fact that her husband is the perpetrator. The amendment that came into
force in <ebruary /((& clearly does not go far enough as many women might not be
aware or able to get DD#s, and therefore effectively these women will have no legal
recourse. t is time that protection and recourse to rape be provided for all women
irrespective of marital status.
n 0ecember /((I, a petition with %,H(I signatures was submitted to the
Drime Minister,s office by the ;:o to 3ape, online petition coordinator, a group of
;concerned 2ingaporeans who have come together for the single purpose of promoting
change on this issue.,
:ot only among our neighbour +and many in Asia-, but also in the distant nation
of The Bahamas, marital rape is being ta1en seriously. The government presented
legislation to Darliament that would completely ban marital rape in The Bahamas.
Dresently, marital rape is only recognized in The Bahamas if the couple is separated
or is in the progress of getting a divorce. This has similarities to the position in
2ingapore, where marital rape is only treated as rape in limited circumstances.
%.% Malaysian view
n Malaysia, the penalty imposed is an imprisonment for a term which may
extend to twenty years, and shall also be liable to a fine, or to whipping. The crime
15
of rape always originates in and includes the crime of assault. f the attac1 continues
until sex penetration, the crime is rape. To some people, rape is a crime of
uncontrolled sexual passion. To them, a woman who is raped is sometimes made to
feel that she caused the attac1 by wearing provocative clothing, wal1ing on streets at
night, or whatever.
But criminologists who study the problem often feel that rape is basically a
crime of violence, not a crime of passions. They have to believe that a rapist usually
attac1s because of deeply aggressive hostility to women, not because of sexual
excitement.
Gnder the definition of rape generally used by the courts, rape is a crime if it
is an a"t of se2ual inter"ourse )y a male with a woman other than his wife$. Gnder
this commonly accepted definition, it is not legally possible for a husband to rape his
own wife. That the husband cannot be liable as the principal offender is based on the
idea that consent to marriage is also consent to sexual intercourse which cannot be
revo1ed while the marriage subsist. This rule is based on the old English @ommon
?aw concept of the husband and wife being legally one.
#ne of the legal presumptions of marriage is that the wife has given her
consent to all sexual relations. The marital rape exemption is thought to originate
from the following statement by an English Fudge, 2ir Matthew $ale,
16
%he hus)and "annot )e guilty of ra(e "ommitted )y himself u(on his lawful wife,
for )y their mutual matrimonial "onsent and "ontra"t, the wife )ath gi&en u( herself in
this ind unto her hus)and whi"h she "annot retra"t$#
This established the motion that once married, a woman does not have the right to
refused sex with her husband.
%.* @ommon law
n England, the @riminal ?aw 3evision @ommittee, in its 9or1ing Daper on
2exual #ffences +1I&(- has recommended that a husband should be liable for
prosecution for rape of his wife, and suggested that the consent of the 0irector of
Dublic Drosecution should be re.uired to bring such a prosecution in order to prevent
frivolous or spiteful complaints coming to court.
$owever, woman activists had pressed for reforms in the law concerning
marital rape and now under 2cottish law a husband can be convicted of raping his
wife, even though there is no legally enforceable agreement or court order relieving
them of the obligation to cohabit.
n Malaysia, under our present laws, if a man has sexual intercourse with the
wife without her consent or against her will, it is not rape unless the man and his
wife are divorced or =udicially separated. The law in Malaysia in this aspect is
similar to English law. A husband retained immunity from prosecution from the
17
moment the wife said 4 do5 until the in1 dries on a divorce decree. 2ince Malaysian
traditionally uphold family values which put the as the head of the family, the wife is
expected to follow the opinions and the needs of the man.
Even if the husband has the right to have unlimited sex with his wife this
does not mean that he can beat her up or assault her to obtain the self)gratification.
The Malaysian Denal @ode contains provisions where it is an offence for a person to
assault, use criminal force or to cause hurt and grievous. $owever the wife will have
difficulty to prove the in=ury obtained by her due to the abusive nature of her
husband. f she go to counselling she is advised to accept the pain and is as1ed to
pray for the best that the husband will behave humanely to her in the future.
f he husband is violence against the wife, the wife can use the law by
applying to a court for an in=unction. An in=unction is a written order from the court
can prevent the husband from doing certain acts. The in=unction issued by the court
can prevent the abuser from assaulting, molesting or harassing the wife. This
includes physical assaults, threats, or verbal abuse, or anything which stops the wife
from going about her daily routine, at home or at the place of wor1.
The remedy is available under section 1(% of the ?aw 3eform +Marriage and
0ivorce- Act.1I8H and section 1(8 +1- of the slamic <amily ?aw +<ederal Territory-
Act, 1I&*, 4the court shall have the power pending any matrimonial proceedings or
on or after the grant of an order of divorce, :asah or annulment, to order any person
to refrain from forcing his or her society on his or her spouse or former spouse and
from other acts of molestations.5
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Therefore, a Muslim wife can apply to the 2yariah @ourt for an order
restraining the abuser from molesting the victim. The word 4molestation5 has not
been defined in the Act but is widely construed by the 2yariah @ourts. The test is
whether the abuser by using violence against the wife has placed her in danger and
conse.uently in need of protection. The applicant must prove both that there has
been molestation in the past and that an order is necessary to protect the wife.
The present legal remedy of getting an in=unction under the matrimonial law
to protect the wife against violence has several significant limitations. <irstly, the
wife can apply for an in=unction only as an relief where matrimonial proceedings are
in progress.
The @ivil @ourt or the 2yariah @ourt have =urisdiction only to grant an
in=unction restraining the husband from interfering or molesting her when the wife
starts a matrimonial proceeding, or on or after the grant of decree of divorce,
annulment or =udicial separation in the case of a non)Muslim wife and in the case of
a Muslim wife on or after the grant of an order of divorce, annulment or fasah. The
battered wife would not be able to get an in=unction to restrain her husband from
molesting her unless she has filed a suit for a matrimonial cause.
The second limitation is that it is only effective in preventing one spouse
from molesting, assaulting or otherwise interfering with the other. The in=unction
order may not prevent the spouse to continue physically assaulting her through a
third party, that is, if the husband as1s his relatives or friends to continue beating her
in order to instil in her the sense of fear. <inally, the court has no power to issue an
19
ouster order to the violent spouse to vacate the matrimonial home. And as a direct
conse.uence of the wife obtaining the in=unction is that she has to leave her $ome
+usually with the children- and she has to find an alternative shelters. f there is no
voluntary shelter available, she has no choice but to go bac1 to her home and endure
more abuse from her husband.
4.0 Conclusion.
As a conclusion, marital rape is either legal or illegal in some country but some country
still denied marital rape as a crime. Marital rape is a crime that one married person should
avoid because this violence may affect the friendly relation between the husband and
wife. The 1ids will suffer much when their parents divorce.
20
5.0 Bibliorap!".
1. Muhammad Abdul 3auf, 9anita dan Aeluarga dari pandangan slam, 1II8,
penter=emahan Manahi @he brahim, Der1ahwinan dan Aesetarafan 2e1s,
pg. %1, 0ewan Bahasa dan Dusta1a.
/. Muhammad Abdul 3auf, Marriage in slam, 1II8, A $appy @on=ugal
$ousehold, Mutual 3ights and #bligations, pg. %')The $usband 0uties,
Dusta1a Antara Auala ?umpur.
%. Mohd. 2hahrizad Mohd. 0iah, 1IIH, The ?egal and 2ocial ssues of 9ife
Battering and Marital 3ape in Malaysia, pg.8H)88)position of Marital 3ape
in slam.
21
*. Bryan 2trong, @hristine 0evault, Theodore <. @ohen, Thomson 9adsworth,
/((&, The Marriage and <amily Experience, ntimate 3elationship in a
changing society, 1(
th
edition.
'. 0avid Auox, @aroline 2chacht, 1III, Marriage in the <amily 6 A brief
introduction.
H. Mary Ann ?amanna, Agues 3iedmann, 1III, Marriages in <amilies 6
Ma1ing @hoice in a 0iverse 2ociety, 8
th
edition.
8. The 2traits Time, H
th
August /((I.
22