Document Type : Original Article
Author
Professor of Criminal Rights and Criminology, Faculty of Law, University of Qom, Qom, Iran
Abstract
Highlights
**Conclusion**
1. Classical jurists uniformly considered the condition of spousal access for establishing *ihsan* (being a *muhsan*, i.e., a married person liable for the enhanced penalty of stoning for adultery) as equally applicable to both husband and wife. However, later jurists (*muta'akhkhirin*) have interpreted this condition restrictively for the wife, resulting in the attribution of a passive role to her. According to this interpretation—and in contrast to the *ihsan* of the husband, which requires that he have the possibility of sexual intercourse with his wife whenever he wills—the wife's *ihsan* is established merely by her being ready for intercourse whenever her husband desires it, even if the husband disregards her desires and needs. This interpretation has been adopted by Article 226 of the Islamic Penal Code, the amendment of which is recommended due to the weakness of its jurisprudential foundations.
2. An examination of jurisprudential sources and evidence indicates the inaccuracy of the position held by later jurists. This is because the narrations (*riwayat*) make no distinction in stipulating the possibility of mutual access between spouses for the realization of *ihsan*.
3. It has been argued that since the discretion to initiate intercourse lies with the husband, and such a right is not formally recognized for the wife to initiate whenever she wills, therefore, the condition of having the means of access to the spouse cannot be accepted for the wife in the same manner as it is for the husband. This argument is based on a conflation between the essence of *ihsan* and the rights and duties arising from marriage, which is incorrect as there is no necessary correlation between them. *Ihsan* leads to an aggravated punishment because the individual, despite having conditions that render him/her free from the need for adultery, commits this abominable act. Thus, mere marriage is not a sufficient cause (*illah tamah*) for *ihsan*; this is why, for example, having a temporary wife (*mut'ah*)—even if she fulfills one's sexual needs—or having a spouse with whom intercourse has not yet occurred, cannot establish *ihsan*. Therefore, even if we accept a basis that limits the wife's right to intercourse to once every four months, this would still not contradict restricting *ihsan* to those couples where the husband, beyond his basic duty, strives to attend to his wife's needs continuously. However, the premise of limiting the wife's right to intercourse to once every four months itself lacks strong support. According to the more robust opinion (*qawl qawi*), the husband is obligated to respond whenever his wife has a need, and based on this premise, the original objection becomes moot.
4. Another proof cited by opponents of the theory of spousal equality regarding the condition under investigation is narrations indicating the persistence of *ihsan* during the waiting period (*'iddah*) of a revocable divorce (*talaq raj'i*), even though the spouses are separated during this period and the right to revoke the divorce is granted to the husband. An analysis of these narrations reveals the contentious nature of this objection. Apart from potential issues with their chains of transmission (*isnad*), they are ambiguous in their textual implication (*dalalah*). Furthermore, even disregarding that, to reconcile them with narrations that consider the husband's cohabitation with and accessibility to the wife as a condition for *ihsan*, the general implications of the narrations in question must be restricted to cases where the wife's disobedience (*nushuz*) was the grounds for divorce, and if she becomes obedient, the husband is willing to continue marital life.
5. The final justification presented for differentiating the condition of having the means of sexual enjoyment from one's spouse between husband and wife is the wisdom (*hikmah*) behind legislating the punishment of stoning (*rajm*) to safeguard the family unit from deviation and corruption. Based on this, it is argued that one cannot simply consider a wife's adultery as that of a non-*muhsanah* merely because the husband is not willing to have intercourse with her. In response to this justification, it must be stated that limiting the method of preserving family life to taking the life of an adulterous wife is irrational—an objective achievable through other means. Moreover, such discretionary reasoning (*istihsanat*) cannot override the numerous emphatic directives of sacred law (*shar'*) regarding the necessity of extreme caution in matters involving bloodshed.
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