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Rape in Islamic Law: Difference between revisions
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{{Quote|{{Quran-range|4|23|24}}|Prohibited to you (For marriage) are:- Your mothers, daughters, sisters; father's sisters, Mother's sisters; brother's daughters, sister's daughters; foster-mothers (Who gave you suck), foster-sisters; your wives' mothers; your step-daughters under your guardianship, born of your wives to whom ye have gone in,- no prohibition if ye have not gone in;- (Those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft-forgiving, Most Merciful;-'''Also (prohibited are) women already married, except those whom your right hands possess''': Thus hath Allah ordained (Prohibitions) against you: Except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property,- desiring chastity, not lust, seeing that ye derive benefit from them, give them their dowers (at least) as prescribed; but if, after a dower is prescribed, agree Mutually (to vary it), there is no blame on you, and Allah is All-knowing, All-wise.}} | {{Quote|{{Quran-range|4|23|24}}|Prohibited to you (For marriage) are:- Your mothers, daughters, sisters; father's sisters, Mother's sisters; brother's daughters, sister's daughters; foster-mothers (Who gave you suck), foster-sisters; your wives' mothers; your step-daughters under your guardianship, born of your wives to whom ye have gone in,- no prohibition if ye have not gone in;- (Those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft-forgiving, Most Merciful;-'''Also (prohibited are) women already married, except those whom your right hands possess''': Thus hath Allah ordained (Prohibitions) against you: Except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property,- desiring chastity, not lust, seeing that ye derive benefit from them, give them their dowers (at least) as prescribed; but if, after a dower is prescribed, agree Mutually (to vary it), there is no blame on you, and Allah is All-knowing, All-wise.}} | ||
This verse indicates that Muslims are permitted to marry those whom their right hands possess (female [[Slavery|slaves]]) who already have husbands, so long as the dower is paid. Other verses show that slave owners did not even have to marry their slaves in order to have intercourse with them (See the section below [[ | This verse indicates that Muslims are permitted to marry those whom their right hands possess (female [[Slavery|slaves]]) who already have husbands, so long as the dower is paid. Other verses show that slave owners did not even have to marry their slaves in order to have intercourse with them (See the section below [[Rape_in_Islamic_Law#Freedom_and_marriage_as_a_universal_requirement| Freedom and marriage as a universal requirement]]). | ||
Sahih hadiths in Muslim and Abu Dawud detail the nature of the permission granted by this verse: some of Muhammad's fighters were reluctant to have sexual contact with female captives who were already married to the [[Kafir (Infidel)|un-believing]] men of the defeated party. | Sahih hadiths in Muslim and Abu Dawud detail the nature of the permission granted by this verse: some of Muhammad's fighters were reluctant to have sexual contact with female captives who were already married to the [[Kafir (Infidel)|un-believing]] men of the defeated party. | ||
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Abu al-Hussain bin al-Fadhl al-Qatan narrated from Abdullah bin Jaffar bin Darestweh from Yaqub bin Sufyan from al-Hassab bin Rabee from Abdullah bin al-Mubarak from Kahmas from Harun bin Al-Asam who said: Umar bin al-Khatab may Allah be pleased with him sent Khalid bin al-Walid in an army, hence Khalid sent Dhiraar bin al-Azwar in a squadron and they invaded a district belonging to the tribe of Bani Asad. They then captured a pretty bride, Dhiraar liked her hence he asked his companions to grant her to him and they did so. He then had sexual intercourse with her, when he completed his mission he felt guilty, and went to Khalid and told him about what he did. Khalid said: 'I permit you and made it lawful to you.' He said: 'No not until you write a message to Umar'. (Then they sent a message to Umar) and Umar answered that he (Dhiraar) should be stoned. By the time Umar's message was delivered, Dhiraar was dead. (Khalid) said: 'Allah didn't want to disgrace Dhiraar'}} | Abu al-Hussain bin al-Fadhl al-Qatan narrated from Abdullah bin Jaffar bin Darestweh from Yaqub bin Sufyan from al-Hassab bin Rabee from Abdullah bin al-Mubarak from Kahmas from Harun bin Al-Asam who said: Umar bin al-Khatab may Allah be pleased with him sent Khalid bin al-Walid in an army, hence Khalid sent Dhiraar bin al-Azwar in a squadron and they invaded a district belonging to the tribe of Bani Asad. They then captured a pretty bride, Dhiraar liked her hence he asked his companions to grant her to him and they did so. He then had sexual intercourse with her, when he completed his mission he felt guilty, and went to Khalid and told him about what he did. Khalid said: 'I permit you and made it lawful to you.' He said: 'No not until you write a message to Umar'. (Then they sent a message to Umar) and Umar answered that he (Dhiraar) should be stoned. By the time Umar's message was delivered, Dhiraar was dead. (Khalid) said: 'Allah didn't want to disgrace Dhiraar'}} | ||
As with the quote taken from Imam Shafi'i, this almost certainly refers to a violation of the system for distributing war spoils. Dhiraar's intercourse with the captive girl was illegal and merited stoning not because of her captive status or lack of consent, but because he had intercourse with the girl without that girl having been allotted to him at the behest of the caliph (Umar in this case), who has the responsibility of distributing spoils. Neither captivity nor consent are mentioned as a factor in the punishment. Indeed, in a [[ | As with the quote taken from Imam Shafi'i, this almost certainly refers to a violation of the system for distributing war spoils. Dhiraar's intercourse with the captive girl was illegal and merited stoning not because of her captive status or lack of consent, but because he had intercourse with the girl without that girl having been allotted to him at the behest of the caliph (Umar in this case), who has the responsibility of distributing spoils. Neither captivity nor consent are mentioned as a factor in the punishment. Indeed, in a [[Rape_in_Islamic_Law#Umar_tells_a_man_to_beat_his_wife_for_preventing_intercourse_with_his_slave_girl|another hadith discussed above]], Umar tells a man to have intercourse with his slave girl after his wife tried to prevent it. | ||
===Freedom and marriage as a universal requirement=== | ===Freedom and marriage as a universal requirement=== | ||