One of the basic rights of prisoners is to enjoy conjugal rights with their spouses. In Islam, it is unlawful to prevent spouses from practicing their conjugal rights when one of them is imprisoned for a long time. The concerned authorities should give attention to this issue, and they should try their best to preserve the safety of society.
Dr. Nasr Farid Wasil, the former mufti of Egypt, states the following: Islam highly respects the marital relationship and stipulates that spouses have rights on each other and owe duties to each other as well. One of the basic mutual rights between spouses is that they kindly make love to one another.
The majority of scholars hold that a woman has a right on her husband that he makes love to her at least once a month, unless there is a strong reason that prevents him from doing so. Allah Almighty says: (They question thee (O Muhammad) concerning menstruation. Say: It is an illness, so let women alone at such time and go not in unto them till they are cleansed. And when they have purified themselves, then go in unto them as Allah hath enjoined upon you) (Al-Baqarah 2:222).
Emphasizing the importance of this marital right for both spouses in preserving their chastity and stability, and hence, the stability of society in general, the Prophet (peace and blessings be upon him) clarified that when a husband makes love to his wife, he gets a reward from Almighty Allah for this: “(Even) when one of you makes love to his wife, he gets a reward for this.” The people in the Prophet’s presence then wondered “Would one of us satisfy his (sexual) desire and get a reward for it too?” He (peace and blessings be upon him) said, “You see when a person satisfies his sexual desire unlawfully, would he not be sinful? Parallel to this is that a person gets a reward when he satisfies his desire lawfully.”
Moreover, Imam Ahmad is of the opinion that a husband should not travel and leave his wife for more than six months, unless there is a strong excuse preventing him from returning home after the elapse of six months. Imam Ahmad draws evidence for this viewpoint from the incident in which Caliph `Umar (may Allah be pleased with him) was reported to have asked his daughter Hafsah, Mother of the Believers (may Allah be pleased with her) “How long may a woman stand her husband’s being away from her?” She answered, “Five or six months (at most).” Upon this he (may Allah be pleased with him) ordered that soldiers in the Muslim army return home each six months, a month spent going to the battlefield, four spent there, and a month going home.
A husband is to give his wife’s right to intercourse according to the amount she needs to remain chaste. In this regard, Imam Al-Ghazali, a Shafi`i scholar said, “One should make love to one’s wife every four nights, as is fairest, since the number of wives one may have is four, and one may wait this long to do so. However, one should make love to her more or less than this, according to the amount she needs to remain chaste and free of want for it, since it is obligatory for a husband to enable her to keep chaste.”
With respect to the question in point, it is unlawful in Islam to prevent spouses from practicing their right to intercourse towards each other when one of them is imprisoned for a long time, for the following reasons:
First, punishment in Islam is confined to the person who committed the crime; it is not to extend to other innocent persons. Almighty Allah says: (Each soul earneth only on its own account, nor doth any laden bear another’s load) (Al-An`am 6:164). Based on this, it is not lawful to prevent a wife from her right to lovemaking with her imprisoned husband. Denying her this right makes the punishment given to her husband a collective one implying her, too, which is unlawful in the Shari`ah.
Second, allowing spouses to practice this right in spite of the period of detainment preserves the woman’s chastity and thus protects the family and society against disintegration and instability.
Third, giving the prisoner this right may be a means to guiding him to the path of true repentance.
Hence, women have every right to demand meeting their detained husbands in private under decent conditions.
Based on the above, the concerned authorities should give attention to this issue and seek to implement it as much as possible so as to preserve the good and safety of society. They should, at the same time, take into account that allowing prisoners to practice their personal, social, and psychological rights helps them rehabilitate in society after they spend their imprisonment sentence.