A Jurisprudential and Legal Analysis of the Right to Sexual Enjoyment in Marriage and the Influence of Custom on Its Determination

Abstract

The right to sexual enjoyment (istimtāʿ), as one of the fundamental and reciprocal rights and obligations of spouses, plays a central role in strengthening the institution of the family. Rooted in the verses of the Holy Qur’an, the traditions of the Infallibles (peace be upon them), and established principles of Islamic jurisprudence, this right is also recognized within the Iranian legal system through provisions such as Article 1103 of the Civil Code, concerning good marital relations, and Article 1108, concerning marital disobedience (nushūz) and the forfeiture of maintenance. Nevertheless, the principal challenge in this area lies not in the existence of the right itself, but rather in determining its conceptual scope and practical manifestations in the context of contemporary social and cultural transformations. Key concepts in this field, including “sexual enjoyment” (istimtāʿ), “marital compliance” (tamkīn), “marital disobedience” (nushūz), and “cohabitation according to what is customary and proper” (muʿāsharat bi-l-maʿrūf), are characterized by a degree of ambiguity and indeterminacy regarding their specific applications and precise boundaries. Such ambiguity arises from the qualitative and culturally contingent nature of these concepts, as well as from the wisdom of the Lawgiver in leaving the determination of their details to the conventional understanding of society and the requirements of changing circumstances. Employing an analytical-critical method and a comparative approach to Imami jurisprudence and positive law, this study provides an in-depth examination of the status of custom (ʿurf), the mechanisms through which it exerts influence, and the challenges associated with its application. The findings indicate that “sexual enjoyment and its preliminaries” do not possess an independently established technical meaning in the Sharīʿa (ḥaqīqa sharʿiyya) and must instead be regarded as matters whose meaning and instances are determined by custom. Accordingly, custom, as a rational and socially recognized interpretive instrument, serves both to disclose the intent of the Lawgiver and as a primary interpretive criterion for legal texts and statutory provisions, thereby playing an indispensable and determinative role in identifying relevant instances, delimiting the scope of the right, and determining the manner in which the right to sexual enjoyment is to be exercised. A jurisprudential analysis of the Qur’anic foundation expressed in the command “live with them according to what is proper” (ʿāshirūhunna bi-l-maʿrūf), together with an examination of Article 1103 of the Iranian Civil Code, demonstrates that maʿrūf, as a concept intrinsically connected with prevailing custom, may function both as an expansive normative criterion allowing newly emerging instances to enter the domain of spouses’ rights and obligations and as a limiting mechanism preventing the imposition of improper, unreasonable, or socially unconventional obligations.