Redefining the Right of Sexual Enjoyment in Marriage: A Jurisprudential-Legal Reflection on the Role of Custom and the Challenges of the Digital Age

Abstract

The right of sexual enjoyment, as one of the fundamental rights and obligations arising from the marriage contract, has long been considered in Islamic jurisprudential and legal systems. However, social, cultural, and technological developments in the contemporary world have raised fundamental questions regarding the nature, scope, and manifestations of this right. The present article, adopting an analytical-critical approach and employing a comparative methodology between Imami jurisprudence and Iranian positive law, addresses three central issues: first, establishing the customary nature of the concept of sexual enjoyment and rejecting the existence of a specific religiously defined meaning (ḥaqīqah sharʿiyyah) for it; second, substantiating the wife’s right to sexual enjoyment as a parallel, reciprocal, and claimable right corresponding to the husband’s right of sexual enjoyment; and third, providing a jurisprudential and legal analysis of the emerging phenomenon of sexual enjoyment in cyberspace. The findings of this study indicate that “sexual enjoyment” is an entirely customary concept for which the Sacred Legislator has referred the determination of its instances, limits, and manner of implementation to the common understanding of people (general custom) through the mechanism of “honorable marital conduct” (muʿāsharah bi al-maʿrūf). Based on the Qur’anic principle of reciprocity (Al-Baqarah: 228), the principle of mutuality of rights and obligations, and the principles of lā ḍarar (no harm) and lā ḥaraj (no hardship), the wife’s right to sexual enjoyment is established as a parallel and reciprocal right. Regarding virtual sexual enjoyment, by distinguishing between “legitimate preliminaries” and the “religiously prohibited domain,” a jurisprudential-legal framework is proposed for determining the rights and obligations of spouses. By presenting two theoretical models, namely “customarily recognized sexual enjoyment” and “reciprocal marital compliance in the digital age,” this article provides a coherent, flexible, and equitable framework for redefining the right of sexual enjoyment in today’s changing world.