Rape and consensual sexual intercourse are governed by distinct situational and obligatory rulings. The distinction between these two is particularly significant when considering the divine and human rights aspects. Rape involves a violation of both divine and human rights, while obedient sexual intercourse is primarily governed by divine principles. This fundamental difference necessitates a differential approach, focusing on protecting the victim in cases of rape. One of the legal challenges arising in this context is the classification of sexual intercourse with a promise of marriage, and the subsequent civil and criminal liabilities resulting from it. This issue has led to various jurisprudential viewpoints and judicial decisions.
Some of the key challenges related to this issue include: First, whether sexual intercourse with a promise of marriage should be recognized as adultery from a divine perspective when it involves the woman's consent, and as adultery from a human rights perspective when it occurs without the woman’s consent. In this case, the adulterer would be held responsible for paying the dowry (mahr al-mesl) and compensation for virginity (arsh al-bekareh) to the victimized woman. Second, whether repeated sexual intercourse with the promise of marriage would absolve the adulterer from the responsibility of paying the dowry and compensation for virginity, especially after the first instance of rape. Third, whether real non-consent is only attributed to minors and those who are insane. Fourth, whether ignorance of the nature and illegitimacy of adultery by adults can be considered as non-consent. Finally, whether there is a legal justification for imposing responsibility for moral damage compensation due to adultery with a promise of marriage.
This paper, employing a descriptive-analytical method and examining jurisprudential-legal theories and judicial procedures, argues that sexual intercourse with a promise of marriage can have different legal classifications depending on the perspective of the parties involved. The distinction between divine and human rights necessitates that, just as doubt about the divine aspect of rape may lead to exemption from the death penalty, ambiguity surrounding the victim’s consent in the human rights context obligates the rapist to pay conventional dowry (mahr al-mesl) and virginity compensation (arsh al-bekareh).
For the deterrence and prevention of adultery, it is essential to uphold the principle that the adulterer is responsible for paying the dowry and virginity compensation to the victim of adultery committed under the guise of a marriage promise. In addition to the potential physical harm, such as the loss of the hymen, adultery causes significant loss of dignity and spiritual credibility for the victim. The Islamic Penal Code of 2013 remains silent on the issue of moral damages compensation in addition to the dowry. Jurisprudential opinions on this matter are divided. Some jurists oppose moral damages compensation beyond the dowry, while others support it. However, the classification of adultery as a hudud crime does not preclude the possibility of moral damages compensation. Section 14(2) of the Criminal Procedure Act (2013) explicitly prohibits moral damages for crimes categorized as diyat and ta’zirat under Sharia law, but this does not extend to crimes classified as hudud. Furthermore, Section 9 of the Civil Liability Act (1960) acknowledges the responsibility for moral damages compensation in cases of illicit cohabitation through deceit, threats, or abuse of authority.
Therefore, adultery with the promise of marriage falls under the recent legal provisions, obliging the adulterer to compensate the victim’s spiritual damage in addition to the dowry (mahr al-mesl). In other words, there is a legal justification for imposing moral damage compensation due to adultery with the promise of marriage.
The frequent sexual intercourse of a woman with a man, in the hope of fulfilling the promise of marriage, does not absolve the adulterer from responsibility for paying the dowry (mahr al-mesl) and compensation for virginity (arsh al-bekareh) in cases of rape, especially in the initial instance. Ignorance regarding the nature and illegitimacy of adultery, particularly in adults or individuals who lack understanding, can be interpreted as non-consent. Adultery with a minor, or a girl under the age of eighteen, who is unaware of the nature and illegitimacy of the act, should be considered an example of doubt regarding illicit sexual intercourse. According to Article 91 of the Islamic Penal Code (2013), it is unnecessary to address the existence of real consent in such cases, as legal logic dictates that this should be attached to the crime of adultery. The victimized girl, in such cases, should be compensated for the harm caused.
In conclusion, the legal landscape surrounding sexual intercourse with a promise of marriage presents numerous challenges and ambiguities. These challenges highlight the need for a nuanced approach that considers both divine and human rights aspects. By ensuring the responsibility of the adulterer to compensate the victim, including for moral damages, the legal system can uphold justice and protect the dignity and rights of the victim. The complexity of this issue requires careful consideration of jurisprudential principles, judicial precedents, and the evolving legal framework to ensure fair and just outcomes for those affected by such offenses.