In Islam, marriage is a comprehensive contract, but sometimes couples may stipulate unusual conditions in their marriage contract. A question can arise about the validity of a marriage where one party, from the outset, stipulates that there will be no intimacy, perhaps confining the spouse’s role to companionship or household chores.
Here is an exploration of the Islamic ruling on such conditions and the rights of each spouse.
Spousal Rights and Concessions
Sexual intimacy is a mutual right between spouses. Neither of them is permitted to deprive the other of this right without their consent.
However, it is lawful for a spouse to concede their right to intimacy, if the other party agrees to this arrangement with full consent (not by coercion) and if this arrangement does not subject either of them to temptation or sin.
The Invalidity of the Condition (Not the Contract)
Stipulating “no intimacy” in the marriage contract is considered an invalid condition. However, classical scholars clarify that while the condition is invalid, it does not render the marriage contract itself invalid.
This means the marriage is valid, but the condition is void and cannot be enforced if the other spouse later demands their right to intimacy.
Prominent scholars state that intimacy is a subject for the couple to decide. If they mutually agree to give it up, there is no blame on them. However, if one spouse (e.g., the husband) wishes to abstain but the wife does not agree, she has the right to demand her marital rights.
This is indicated by the Quranic verse on ila’ (forswearing):
“Those who forswear their wives must wait four months; then, if they change their mind, lo! Allah is Forgiving, Merciful. And if they decide upon divorce (let them remember that) Allah is Nearer, Knower.” (Al-Baqarah: 226)
According to scholars, this verse implies a man cannot abstain from intimacy against his wife’s desire indefinitely. If he resolves to continue abstaining (beyond four months), the wife has the right to seek a divorce. Conversely, if the wife refuses intimacy, the husband may choose to be patient or may seek other solutions.
Classical scholars have clarified that several types of conditions are invalid, for example:
The husband stipulating he will not pay a dowry.
The husband stipulating he will not support his wife financially.
The wife stipulating that she will not have sexual intercourse.
In all such cases, scholars state that the conditions are invalid, but the marriage contract itself remains valid.
Ruling on Marrying a Late Wife’s Sister
A related, but separate, issue is the lawfulness of marrying a wife’s sister.
While it is unlawful in Islam to be married to two sisters at the same time, this prohibition ceases upon the death of the first wife. According to classical scholars, if a man’s wife dies, he may marry her sister immediately (after her proposal and his acceptance), as the `iddah (waiting period) does not apply to him.
If, however, he divorces his wife (an irrevocable divorce), he must wait until her `iddah is complete before he is lawfully able to marry her sister.
