Rape can't nullify marriage

Imrana Ilahi, an ordinary Muslim Indian woman, recently found her name mentioned in countless articles, news dispatches, e-mail messages and angry reports going in all directions. Many people would love to be famous and some know how to use such sudden fame to advantage. But not so Imrana, whose newly acquired fame is for the wrong reasons and for nothing she had done or contemplated. Imrana has been target of several wrong actions by the wrong people.

To start with, Imrana was the victim of rape by none other than her father-in-law, who, according to news reports, is now in prison awaiting trial. She was secondly the victim of a fatwa issued by certain people who ruled that she can no longer remain married to her husband; rather, she should treat him like her own son.

Thirdly, Imrana was further victimised by the local authorities who said they endorse the fatwa since it has been issued by a recognised institute. Fourthly, she has been the victim of many self appointed defenders who took up her case and are trying to bring pressure to bear on her, her family and the authorities to reverse this fatwa. Finally, according to some reports, Imrana has been told to move in with her rapist as she can be married to him now instead of his son, her own husband.

Unfortunately, when the media takes up such a case, the truth is often forgotten and we are rarely able to establish the simple facts of the case. In all news agency reports I have seen, very little is written about the basis of the fatwa. A couple of quotations attributed to spokespersons at Darul-Uloom at Deoband are often mentioned, but we cannot determine who actually said what.

Nevertheless, it is important to make clear the Islamic standpoint on such cases. It is the standard practice of Islamic scholarship that the views of any school of thought should be taken from books written by its own scholars. Thus, if we see a reference to, say, a Hanafi viewpoint in the writings of a highly reputable scholar known for his accuracy and scholarly achievement but is not a Hanafi, we cannot rely on his reporting of the viewpoint and accept it as the standard Hanafi view. We must go back to references and scholars of the Hanafi school and consult them. Only when they confirm the same viewpoint as reported by that scholar can we accept it as a Hanafi view.

Therefore, without having seen the fatwa as issued by Darul-Uloom and reviewing its basis and the evidence cited in support of it, I cannot comment on the fatwa itself. What I propose to do is to discuss the reports I have seen, and then I will look at the case of a woman raped by her father-in-law and the effect of such a situation on her marriage.

The reports mention that the fatwa is based on the fact that the rape was a conjugal, sexual relation between Imrana and her father-in-law, and this makes it forbidden for her to be married to her husband. The reports quote certain spokespersons as saying it does not matter the relationship was by consent or compulsion.

If the reports are accurate, then we say those who issued the fatwa must have taken as their basis Verse 22 of Surah 4 of the Quran, titled Women, which may be translated as follows: "Do not marry women whom your fathers have previously married, unless it be a thing of the past. Surely, that is an indecent, abominable and evil practice." (Verse 22).

Signifies marriage

It has to be said, however, that the Arabic word nakaha, which is used in the verse for marriage is nowadays more often used in spoken Arabic to refer to sex, rather than marriage, but in official documents it continues to signify marriage. However, Quranic statements must be understood and interpreted according to the common usage by native Arabic speakers during the lifetime of the Prophet Mohammad (PBUH). We know for certain that this word was used in spoken and written Arabic to refer to marriage. In all other instances in the Quran, it is only used to mean marriage. Therefore, it must be treated as such, and we say that the verse refers only to marital relations.

Thus, all Muslim schools of thought are unanimous that a man cannot marry his father's former wife. There is no question about this. Scholars, however, differ as to whether a man can marry a woman with whom his father had committed adultery, but this is not relevant to the present case.

It is important also to look at the above Quranic verse and its construction in order to understand its full significance. The word nakahai, or "marry", is used twice in the verse, but it is used first in the present tense, which in Arabic signifies the present and the future, while it is used in the past tense in the second instance. Thus it prohibits the initiation of marriage with a woman who was previously married to one's father. In other words, the woman's relation with the father is over, either because she is divorced or the father has died. In any case she remains unlawful for his son to marry.

It cannot be overemphasised that the verse speaks about marital relations, and their initiation. As such, it is totally inapplicable to the case in hand, because Imrana was never in any sort of relation with her father-in-law prior to her marriage. What happened between them came later, after she has been in a valid marital relation with her husband to whom she has given five children. Therefore, there is no question about the validity of her marriage. What we need to discuss is the effect of the rape on such valid marriage, which we will do presently.

Most infuriating is the suggestion carried in news reports that some scholars are saying that Imrana should, or could move in with her father-in-law, or may marry him.

I seriously doubt this has been said by any scholar worthy of the name. The Quranic verse next to the one we have quoted above gives a list of the women we are not allowed to marry in any circumstances. The list includes: "The wives of your own begotten sons." (4: 23) They are again totally forbidden for us to marry in any circumstances. Is it possible that someone who has any knowledge of Islamic family law could suggest that now that the father-in-law has raped Imrana he can marry her? Can it be true that anyone imagines that the crime of rape could nullify a ruling by God, stated in His book, the Quran? The Prophet (PBUH) says no right can accrue as a result of an offence or wrongdoing. Here it is suggested that a prohibition by God Himself is set aside as a result of such wrongdoing. How absurd.

It is important to clarify the effects of the crime on Imrana's marriage. Suppose a married woman commits adultery, out of choice and with no element of coercion. This is, according to Islamic law, a crime of the most grievous nature, and it has a very tough punishment, if proven in accordance with the Islamic stringent proof requirements. But it does not invalidate her marriage.

Blameless

If her husband gets to know of the offence, he can certainly divorce her if he so wishes, but he can also keep her. Indeed, he is encouraged to do so if she has genuinely repented and firmly resolved not to commit the same offence again. This applies when the woman is a willing party to the crime. It applies even more in a situation of rape, when the woman is forced into a situation where she cannot defend herself or protect her honour. In this case, she is blameless and she must not be punished in any way.

The Prophet (PBUH) says: "My community are not accountable for anything they do, or omit to do, as a result of a genuine mistake, forgetfulness or coercion."

Rape is perhaps the clearest example of what is done under coercion or compulsion. No woman likes to be forced into such an action. Hence, Islam takes a very serious view of rape and allows a very severe punishment to be inflicted on the rapist, i