While insisting that the concept of marital rape does not exist in Islam, religious scholars say it is sinful for a Muslim man to force his wife to have sex when she is ill or menstruating.

Perak Mufti Tan Sri Harussani Zakaria said that men can always have sexual intercourse with their spouses even if the latter do not agree, saying that a Muslim woman has “no right” to reject her husband’s demand.

“Even the Prophet says even when they’re riding on the back of the camel, when the husband asks her, she must give.

“So there’s no such thing as rape in marriage. This is made by European people, why should we follow?” he told Malay Mail Online when contacted yesterday as he cited the hadith or reported teachings of Prophet Muhammad.

Harussani claimed that Europe itself did not regard women highly before creating the concept of marital rape after the 18th century when Europeans came into contact with the Muslims and were attempting to improve Islamic laws.

According to Harussani, a woman’s agreement to marry will be sought when her father gives her away to a man in marriage. Subsequently, she can only refuse her husband sex if she is menstruating, sick, or has just given birth, he said.

“Once she got married, the dowry is paid, she can’t refuse unless when she’s [on her] period,” he said, saying that the Quran clearly states that it will be “haram” or forbidden to have a sexual intercourse with a woman who is menstruating.

Independent Muslim preacher Wan Ji Wan Hussin said that rape is defined in Islam as an act between two unmarried individuals.

“That term (marital rape) is not accurate in the practice of Islam because rape in Islam is defined as forced sexual intercourse outside of marriage,” he told Malay Mail Online when contacted yesterday.

While stating that husbands cannot force their wives to have sex, he said the key issue is not about getting consent, but revolves around how men can show love and create a romantic atmosphere to change their spouses’ minds to willingly agree to sexual intercourse.

“That means if the husband does not seek consent, it cannot be considered rape, but that action is considered not polite (beradab) in Islam,” he said, adding that it would not be considered “haram” or sinful, but would be “makruh” or frowned upon by Islam.

Wan Ji said women have the right to refuse sex when they are either sick, menstruating or old, insisting that men having sex in such cases are considered sinful.

During the fasting month for Muslims, both men and women are not allowed to have sexual intercourse and wives must reject such requests by their husbands, he said.

Women may opt to either turn down their husbands’ requests or cancel their fast during optional and additional fasting days, he said, adding that women can even refuse sexual intercourse if they are in a bad mood or were exhausted from work.

Both Harussani and Wan Ji said that using violence to force a wife to have sexual intercourse would be clearly criminal, with the former saying that the wife can call the police or a religious judge as it would be an offence in both the civil and Shariah legal systems.

Wan Ji said the use of actual violence would fall under the “qisas” system of Islamic offences that would allow retributive punishments, explaining that the threat to harm a wife would not be an offence but would be considered a sin as it could affect her emotions.

In Malaysia, marital rape is not a legal offence, but a husband may be prosecuted and imprisoned up to five years for forcing his wife to have sex by threatening violence or by harming her.

Following the launch of DAP lawmaker Yeo Bee Yin’s joint rape awareness campaign with the All Women’s Action Society (AWAM) last week, some Muslims have disagreed with a poster that said “Without her consent, it is rape. No excuse” and claimed that rape does not exist in the context of Islamic marriage.