Jurists agree that hymen repair surgery is forbidden for the woman who is deflowered by sexual intercourse within the bounds of legal marriage, as in the case of married or divorced women and widows. Repairing the hymen in this case involves unnecessary looking at the `awrah (parts of the body that should not be exposed to others). Also, jurists agree that this surgery is unlawful for the woman who has committed zina (adultery or fornication) openly, as repair in this case would be deceitful.
However, scholars differ with regard to the woman whose hymen is ruptured by rape. The more correct view in this case is to repair it, considering that the accusation of zina does not hold in this case and concealing the victim is encouraged.
Jurists have also differed regarding the woman whose hymen was ruptured by willingly committing zina but secretly. The more correct view in this regard is not to repair the hymen, as this would be deceitful and an escape from the accusation of zina.
Dr. MuhammadAbdel-Latif Al-Banna, managing editor of the Arabic Shari`ah Department in IslamOnline.net, states the following: Hymen rupture can be repaired by surgery. This is a medical advancement in itself, but it has raised juristic debate over the subject. There are many points to be underlined and carefully considered. Before giving the rulings pertaining to the question in hand, let’s first clarify the scholarly views over it in light of the contemporary Islamic jurisprudence.
There are two scholarly opinions on the matter. The first opinion holds that such operation is not permissible at all, while the second view goes into details as it addresses the following points:
1. If the woman was deflowered against her will, as when under coercion or while sleeping or in ignorance, then it is permissible to undergo this surgery.
2. If the defloration was caused by sexual intercourse within the bounds of legal marriage, then it is not permissible to have the hymen repaired.
3. If the woman was deflowered willingly but not within the bounds of legal marriage, there are further points to be considered in this case:
a. If defloration was done by zina known to people, the most correct opinion is that one should not undergo this surgery.
b. If defloration was done in secret, some jurists incline to permit undergoing this surgery.
Contemplating the evidence cited by both views, we conclude the following:
· There is scholarly agreement that hymen repair is forbidden in the case of married, divorced, and widowed women, and in the case of those who committed zina openly. Regarding married women, hymen repair will necessitate their revealing part of the `awrah to others (surgeon and assistants), which is unlawful in Islam when there is no medical necessity for it. Concerning divorcees and widows, there is no need for hymen repair principally, as they have not committed a sin by being deflowered during their marriage. In the case of women who committed zina known to people, repairing the hymen would be an act of deceit and an escape from the accusation of zina.
· There is scholarly difference with regard to permitting hymen repair for those deflowered owing to ignorance, rape, and coercion, and those who willingly committed zina that is kept secret.
I do agree with the juristic opinion that forbids hymen repair for married, divorced, and widowed women, and for those who committed zina openly.
As for those deflowered by force — including victims of rape, captives, or ignorant — and those whose hymens are ruptured by an accident, I incline to the opinion that it is permissible for them to undergo hymen repair, for the following reasons:
1. The difference between virgins deflowered in the above cases and women deflowered within the bounds of legal marriage is that the latter have been willingly deflowered in sexual intercourse with their husbands, while this does not apply to the virgins in question, as defloration happened against their will.
2. What makes a person legally responsible for his or her deeds is that he or she commits them out of knowledge and free will. In this respect, `Umar ibn Al-Khattab (may Allah be pleased with him) exempted from punishment the women who committed zina under compulsion or while not knowing its legal ruling in Shari`ah, because the condition of free will was lacking in these cases. In addition, Almighty Allah accepts the faith of one who is forced to do acts or utter words of disbelief in Him Most High so long as his or her heart is still content with faith. By comparison, committing zina under compulsion is far less grave than disbelief; thus, it is, with all the more reason, to be exempted from the legal responsibility involved in committing zina in general. Accordingly, “if a woman is forced to make sexual intercourse under threat of being killed or harshly beaten, she is not to receive the legal penalty (involved in committing this deed by f
ree will). On the other hand, he who had intercourse with her in this case would be punished if he did it on purpose; otherwise, his punishment is scholarly debatable” (Manh Al-Galil Sharh Mukhtasar Khalil, vol. 9, pp. 245-55).
3. Since the woman forced to commit zina is exempted from the penalty of zina, she is not to be labeled as zania (adulterer). “Hence, if a legally responsible man has sexual intercourse with a girl under age or an insane or unconscious woman, this would be labeled as zina on part of the man only; he, in these cases, is an adulterer having intercourse with an innocent woman” (Al-Jami` li Ahkam Al-Qur’an, vol. 12, p. 170).
4. The case of such a woman is like that of the repentant — though there is a difference considering that the former did not sin principally. Almighty Allah accepts the repentance of all, provided that they do not ascribe partners unto Him. He Almighty says,[Lo! Allah pardons not that partners should be ascribed unto Him. He pardons all save that to whom He will. Whoso ascribes partners unto Allah has wandered far astray] (An-Nisaa’ 4:116). If Allah Almighty accepts the repentance of those who willingly commit grave sins, does it not behoove us to cover and not to blame innocent victims?
5. The hymen is only a sign of virginity, and the maintenance or loss of it does not entail legal consequences like invalidating the marriage contract, separating the couple, or divorce. Therefore, young women deflowered against their will are still be considered virgins and their opinions are to be taken into account when it comes to marrying them. InAl-Fatawa Al-Hindiya, we read “If a girl’s hymen is lost by a jump, a gushing menstruation, a surgery, or spinsterhood, then she is still considered a virgin.”
6. Hymen repair in the case of these women is a kind of concealment of the scandal resulting from defloration, and this achieves the following goals:
a. Hymen repair will help the woman who is unwillingly deflowered to regain trust in herself and avoid sinning in despair, as she would then feel that the society supports her and seeks to conceal this shameful act that was done to her.
b. It will spare her also the attempts of the dissolute to seduce her.
c. It will guarantee the society’s safety, as it will diminish the circle of zina and eliminate it altogether.
As for those women who were willingly deflowered in open or secret zina, I agree with the scholars who maintain that they are not to undergo hymen repa
ir, for the following reasons:
1. The benefits sought by hymen repair do not apply in their cases. Society’s safety will not be secured and no concealment of the sin involved will be achieved, as the sin here has already been revealed to people.
2. The legal penalty of zina is to be applied to them if the conditions of proving it are met. The application of the hadd (prescribed penalty) should be witnessed by a group of the believers. Establishing the penalty of zina here would deter others from committing similar sins.
3. The existence of the hymen after defloration and repair would be illusionary evidence of their innocence of the accusation of zina, and this may imply the loss of others’ rights, especially those pertaining to litigation, which is forbidden in Islam.
4. They have committed zina willingly, and this incurs censure and punishment upon them.
5. Hymen repair here would be a kind of deceit, as those women committed the sin on purpose and then sought to conceal its signs and lie to their would-be husbands, and deceit is forbidden in Islam.
6. Likewise, women deflowered in secret zina are also not to have their hymens repaired, as they committed zina willingly; willingness here incurs the involved consequences upon them. Hymen repair is also a kind of deceit, as they are no longer considered virgins. Besides, repairing the hymen would make it easy for them to commit zina, as long as they know they can have the hymen repaired afterwards.In addition, repairing the hymen involves revealing part of the `awrah to others, which is unlawful in Islam.
However, it should be kept in mind that having the hymen repaired does not mean that the legal penalty of zina should not be applied on those proved before the concerned authority to have committed it willingly, as Allah’s Laws are to be established.