Sexual Dysfunction and Family Law (book)

Author: Ahmad Shayeq Niknafas

• Abstract

Sexual Dysfunction and Family Law(in persian: اختلال جنسی و حقوق خانواده) is a Persian book that examines the ruling on the “inability to establish a successful sexual relationship” from the perspective of jurisprudence and private and public family law. According to Farajullāh Hidāyatnīyā, the author of the book, sexual dysfunction is important as a jurisprudential and legal topic due to its effects on the financial and non-financial relationships between spouses, as well as its impact on the dissolution of marriage.

Hidāyatnīyā considers sexual dysfunction to be among the emerging issues whose primary position is in the realm of private family law. However, until now, this issue has not been jurisprudentially examined from the perspective of private law, nor has this concept been addressed in family laws from a legal perspective. At the same time, given the negative effects of dysfunctions on an individual’s sexual ability or the harms and hardships they may cause in sexual relations for both or one of the spouses, this condition has effects on financial rights and marital relationships of spouses.

The author believes that defects that lead to the dissolution of marriage should not be considered to be limited and confined to cases that have been explicitly mentioned in religious texts. By relying on methods such as tanqīḥ al-manāṭ (clarifying the basis of the ruling) and qīyās al-awlavīyyah (logical deduction of priority by analogy), he argues that sexual dysfunctions should also be recognized as grounds for the right to annulment. He also maintains that a wife’s sexual right is not limited to having relations once every four months, and her sexual inability absolves her of her duty of tamkīn (the obligation to comply with marital duties).

Regarding the relationship between government and family, the author believes that the government should have minimal interventions in family affairs. He limits the role of the government to supportive measures (such as providing treatment opportunities) and preventive actions (addressing threats that endanger the family).

Brief introduction

The book Sexual Dysfunction and Family Law was written with the aim of examining the effects of sexual dysfunction on public family law and spousal relationships. It was first published in 2020 (1399 SH) by the publishing organization of the Research Institute for Islamic Culture and Thought. In this book, Farajullāh Hidāyatnīyā explores the rulings on sexual dysfunctions from the perspective of Islamic jurisprudence. He believes that sexual dysfunction is effective on marital relationships and financial rights, in some cases leading to the annulment of rights and in others creating new rights.

From the perspective of the book’s author, sexual dysfunction, in terms of subject classification, is considered as one of the newly emerging issues in Islamic jurisprudence. This is because some instances of sexual dysfunction, such as premature ejaculation, delayed ejaculation, and vaginismus, have not been addressed in jurisprudence. The author believes that there are numerous ambiguities and questions regarding the effects of sexual dysfunction on the financial and non-financial relationships between spouses, as well as about its impact on the dissolution of marriage. For many of these questions, no answers can be found in existing jurisprudential sources or the domestic laws of the Islamic Republic of Iran. No research has been conducted on this matter in the existing jurisprudence, and the topic remains absent from discussions on marriage and divorce (p. 22).

In addition to the main goal, the author introduces addressing the needs of the Islamic Republic of Iran's legal and judicial system in the fields of lawmaking and adjudication as another objective for writing this book. He believes that the laws and regulations of the Islamic Republic of Iran have not addressed the issues of sexual dysfunction. Therefore, the findings of the researches of this book may serve as a reference for family court judges who may rely on and cite them in cases of legal gaps, shortcomings, and conflicts (p. 22).

About the author

Farajullāh Hidāyatnīyā, the author of the book Ikhtilāl-i Jinsī va Ḥuqūq-i Khānivādi, holds a Level 4 qualification from the Seminary in the field of Islamic Jurisprudence and Principles (fiqh va uṣūl). He is a graduate of Law from the University of Tehran and holds a Master’s degree in Private Law from Mofid University in Qom. He is also an Associate Professor in the Department of Jurisprudence and Law at the Research Center for Islamic Systems and a faculty member at the Research Institute for Islamic Culture and Thought . Hidāyatnīyā has teaching and research experience in the fields of family and women’s law, as well as civil jurisprudence and law, and has published some works in these areas .

Structure and table of contents of the book

The book Ikhtilāl-i Jinsī va Ḥuqūq-i Khānivādi has been organized in four parts, each of which includes two chapters:

• The first part of the book deals with “the subject analysis of sexual dysfunction.” The first chapter of this section focuses on the semantics, causes, instances, types, and nature of sexual dysfunction. The second chapter pertains to the “jurisprudential-legal subject analysis of sexual dysfunction.” The discussions in this section relate to “defects leading to annulment in family law and jurisprudence” and their correlation with “sexual defects” and the various diseases that, depending on the case, lead to annulment or divorce, or affect spousal rights.
• The second part of the book explains the jurisprudential method for deriving rulings related to sexual dysfunction or its instances in Islamic jurisprudence. It then examines the legal approaches to that subject.
• The third part examines the effects of sexual dysfunction on financial and marital relationships (nafaqah (costs of living for the wife), mahr (marriage portion), refraining from tamkīn (complying with marital duties), and refusal of intercourse) and the dissolution of marriage. This section comprises the largest portion of the book.
• The final part of the book is dedicated to “individual and familial consequences, as well as the legal responsibilities of the government” in ensuring family health, preventing harmful marriages, or treating couples suffering from sexual dysfunctions.

Sexual dysfunction and similar and relevant concepts

In the first part of the book, Farajullāh Hidāyatnīyā first explains the meanings of the Persian words "Ikhtilāl" (disorder) and "Jins" (sex). He then examines the meaning of the combined term "Ikhtilāl-i Jinsī” (sexual dysfunction) from a psychological perspective (p. 30), writing that, from the perspective of researchers, sexual dysfunction refers to problems that arise in one or more stages of sexual intercourse, leading to a reduction in sexual pleasure or the inability to achieve sexual climax (p. 33).

He believes that the most appropriate term for sexual dysfunction is "kazhkārī-yi jinsī” (sexual dysregulation) (p. 33), which means "the inability to establish a successful or satisfying sexual relationship" (p. 37) and is a term that encompasses all stages of the human sexual response. This is because researchers believe that the human sexual response has four distinct stages. These four stages are libido (sexual desire), physical arousal, sexual climax, and resolution. The term “sexual dysregulation” refers to the presence of a disorder in one of the stages of the human sexual response (p. 35). Accordingly, some individuals with sexual dysregulation have little or no sexual desire, others experience delays in the physical arousal stage or fail to become aroused altogether, and some are unable to experience the orgasm stage (p. 35).

According to Hidāyatnīyā, sexual disorders should not be conflated with sexual problems or sexual disabilities. This is because sexual problems are temporary and transient, unlike sexual dysregulation, which is persistent and recurring (p. 36). Also, the term "sexual dysfunction" differs from gender identity disorder and sexual deviation. An individual with a gender identity disorder has issues with their natural gender, while someone with a sexual deviation engages in abnormal sexual behavior (pp. 37-42).

The relationship between defects leading to the annulment of marriage and sexual dysfunctions

The author notes that no definition is found in jurisprudential resources for “defects leading to the annulment of marriage.” He believes that, given that there are religious texts about defects in the context of marriage, debating whether the definition of defects in the context of sales (mabi‘) can be applied to defects in the context of marriage is not particularly useful (p. 66).

Discussing the essential relationship between sexual dysfunction and defects that lead to annulment (faskh), Farajullāh Hidāyatnīyā argues that sexual dysfunction is a psychological issue and falls under the category of mental disorders. Therefore, it should be distinguished from the defects, mentioned in Islamic jurisprudence, that justify annulment. He then refers to examples of defects that lead to the annulment of marriage as recorded in Iranian jurisprudence and law (pp. 66-68) and draws a connection between the "defects leading to annulment" and "sexual defects." He considers the relationship between the defects mentioned in jurisprudence and law and sexual dysfunction to be one of commonness in some respects and difference in others (‘Umūm va Khuṣūṣ min Vajh) (p. 69). This is because he believes that sexual dysfunction includes instances that do not fall under the category of defects that justify annulment. Most sexual problems, or dysregulations, which are today recognized as sexual dysfunctions, have no precedent in Islamic jurisprudence, and only general references to them can be found in this discipline. These issues include premature ejaculation, frigidity, and vaginismus.

The method of ijtihad regarding current and new instances of sexual disorder

Before explaining his own method of ijtihad (analytical effort) for deriving Islamic jurisprudential rulings on sexual dysfunctions, the author examines the prominent methods of ijtihad in Islamic jurisprudence. He has dedicated approximately 30 pages of the book to this discussion (pp. 86–116).

According to Hidāyatnīyā, regarding current instances of sexual dysfunction, the jurist (mustanbiṭ, the one who derives the ruling) has access to the religious texts (nuṣūṣ) that clarify rulings; therefore, he chooses the method of text-focused (naṣ-miḥvarī) ijtihad from among the available approaches, such as maqṣadgirāyi (purposivism), naṣ-basandī (based solely on religious texts(Quran)), and naṣ-miḥvarī (with the main focus on religious texts), to derive the jurisprudential rulings on sexual dysfunction (p. 117).

The use of jurisprudential titles is also the method of ijtihad in new instances of sexual dysfunction. The author believes that the title of sexual dysfunction and its new instances have not been addressed by religious evidence (adilla shar‘iyya). However, these cases can be traced back to titles for which specific or general evidence exists in jurisprudential sources. For example, if it is proven that an individual’s affliction with a specific instance of a sexual disorder has caused sexual dysfunction or has made sexual relations harmful or excessively burdensome for them or their spouse, the ruling can be derived through the principles of negating “harm” (ḍarar) or “excessive hardship” (ḥaraj) (p. 117).

The effects of sexual disorder on rights of spouses

The author considers the primary domain of discussions on sexual disorders to be within the realm of private family law (p. 121). Citing criteria and standards such as the theory of “benefit” (manfa‘at) and the “rules governing personal relationships,” the author categorizes family law as part of private law. The author explains that the purpose of family law is to regulate familial relationships and clarify the rights and responsibilities of spouses, parents, and children, and that the involvement of state institutions in family law is aimed at supporting the enforcement of its rules and guaranteeing the rights of its members (pp. 120-122).

According to the author of the book, the most significant effect of “classifying family law as private law” is the principle of the autonomy of the contracting parties’ (spouses) will and the recognition of their agreements within the framework of law, as well as the principle of non-interference by the government (p. 122). Therefore, the government does not have the right to interfere in the relationship between spouses or impose its will on the parties to the marriage contract. The author believes that this issue has a jurisprudential foundation (p. 123).

Effects of the wife’s sexual dysfunction on the rights of the husband

The author writes that the wife’s sexual dysfunction nullifies her obligation to comply with marital duties (tamkīn), and from a jurisprudential perspective, this inability does not affect the husband’s marital rights. This is because the husband, in any case, can divorce his wife and marry another, or keep her in the marital bond while taking another wife for his sexual needs. However, from a legal perspective, it does have an effect. According to the Family Protection Law enacted in (1974), a man cannot take a second wife while having a current wife, except in the following cases: a) consent of the first wife, b) inability of the first wife to fulfill her marital duties, or c) the wife’s refusal to obey her husband (tamkīn). The author believes that this legislation is based on social necessities (p. 160).

Effects of the husband’s sexual dysfunction on the rights of the wife

In cases of sexual dysfunction, the wife's right originates from the right to take pleasure in her husband. This is because most jurists do not permit the husband to abstain from intercourse with his wife for more than four months, a ruling supported by the hadith narrated by Ṣafvān ibn Yaḥyā from Imam Riḍā (AS). However, jurists allow abstention from intercourse if the husband is unable to achieve an erection (p. 163).

According to Farajullāh Hidāyatnīyā, the wife’s right to intercourse in less than four months lacks a valid basis (p. 169). He argues, citing the Quranic injunction of ‘living [with them] in kindness,’ that the right to intercourse with one’s wife is not restricted to a specific time and is a matter of custom. Custom does not accept that a man may seek intimacy with his wife whenever he desires without assuming any mutual obligation (p. 170).

Effects of sexual dysfunction on tamkīn and nafaqah

According to the author, sexual dysfunction may affect the financial and non-financial rights of spouses; such as the wife’s entitlement to receiving nafaqah (costs of living), which may be forfeited if she is unable to fulfill her marital obligations. On the other hand, the wife’s obligation for tamkīn (compliance with marital duties) is nullified in case if the husband suffers from certain instances of sexual dysfunction (p. 124). The author believes that this discussion should be raised in the jurisprudential section on “the patient’s nafaqah (costs of living)” and continues to examine two different foundations for determining the costs of living for the wife and evaluates the provision of costs of living for a sick wife based on each of these foundations (138).

The author begins by examining the widely accepted view among Shi’a jurists, who consider tamkīn as a condition for the obligation of the provision of nafaqah. According to this theory, provision of nafaqah becomes necessary by the marriage contract and tamkīn. Here, tamkīn refers to complete compliance. Therefore, if the wife does not comply or only complies at some times or in certain instances of compliance, she is considered nāshizah (rebellious) and is not entitled to nafaqah. Based on this view, if the wife is completely unable to provide marital satisfaction to her husband due to sexual dysfunction, she would generally not be recognized to be entitled to nafaqah (p. 144). According to the author, the arguments presented by jurists to prove that tamkīn causes the obligation of nafaqah lack the necessary strength to establish tamkīn as a condition; arguing that if tamkīn, especially complete tamkīn, were a condition for nafaqah, then a sick woman who is unable to comply would logically have no right to nafaqah, while jurists consider nafaqah obligatory for a sick wife.

In contrast to the widely accepted view among jurists, some other jurists consider the marriage contract as the complete cause of the obligation of nafaqah and call Nushūz (disobedience) as the factor that nullifies it (p. 142). In refutation of this opinion, the author argues that a woman suffering from sexual dysfunction generally deserves nafaqah, as she does not at all fall under the definition of nāshizah and is excused for her lack of tamkīn (p. 144).

He then examines the cause of nafaqah in the Civil Law and after investigating articles of the law in this regard, he writes that if the wife is allowed to refrain from tamkīn based on the law, the husband cannot use this refusal as a reason for refusing to pay nafaqah. The cases in which the wife is allowed to refuse from tamkīn include sexually transmitted diseases (Article 1127 of the Civil Code), the exercise of the right of retention to claim the mahr (Article 1085 of the Civil Code), menstruation, and sexual dysfunctions. Regarding the latter two reasons, the law remains silent (p. 147).

Possibility of dissolution of marriage due to sexual dysfunction

Given that annulment (faskh) and divorce are two significant causes for the dissolution of marriage, the author examines the impact of sexual dysfunction in both cases. The question is, if it becomes evident that one of the spouses had been suffering from one of the instances of sexual dysfunction (conditions that have no precedent in jurisprudential sources) before the marriage contract, and the other party was unaware of this condition, does the latter have the right to annul the marriage or not? If, after the marriage contract, the husband develops sexual dysfunction to the extent that the marital relationship becomes harmful or excessively burdensome for the wife, is she entitled to request divorce or not (p. 124)?

The basis for limiting the dissolution of marriage to cases mentioned in religious texts

The author explains the jurisprudential basis for limiting the defects that justify the annulment of marriage to those explicitly mentioned in religious texts and writes that the main principle in a marriage contract is its binding nature (luzūm), and this principle is only abandoned if there is a valid reason. This basis leads to confining [the cases of annulment] to those explicitly mentioned in religious texts (p. 177). As such, the Iranian Civil Code, following the generally accepted jurisprudential theory, has enumerated the defects that justify the annulment of marriage. On the other hand, a group of jurists have considered it possible to extend the right of annulment to other defects and illnesses and have issued fatwas to that effect (p. 177). Hidāyatnīyā believes that if there is another reliable reason, apart from explicit religious texts, to deviate from the basis, it can be acted upon; because those who do not consider it permissible to go beyond the religious texts have, in practice, not adhered to this and have sometimes deviated from it. For example, although the author of Sharāyi‘ has expressed doubts about the permissibility of annulment due to jubb (the absence of genital organs) because of the absence of a specific religious text on this matter, the majority of jurists have gone beyond the religious texts and have considered jubb among the defects that justify the annulment of the marriage contract (p. 179).

Relying on Tanqīḥ al-Manāṭ and Qīyās al-Awlavīyyah

From the author’s perspective, in any case where it becomes evident after the marriage contract that one of the parties suffers from a type of defect or illness that renders sexual relations impossible, harmful, or excessively burdensome, the right to annulment is fixed for the other party, provided that the defect or illness is incurable (p. 180). The author also uses the methods of Tanqīḥ al-Manāṭ (clarifying the basis of the ruling) and Qīyās al-Awlavīyyah (logical deduction of priority by analogy) to prove the right of annulment in cases of defects or illnesses that pose a high risk to either spouse. The author extends the ruling of annulment from explicitly mentioned defects to those defects and illnesses that meet the same criterion and have been identified in the modern era as being equally harmful or burdensome as the defects explicitly mentioned in religious texts (p. 183). The author further writes that, considering the binding nature of the marriage contract and the necessity of its stability, the extension of the annulment ruling to sexual dysfunction should be limited to the minimum and to what is certain. In cases where the aforementioned criterion is absent or its presence is doubtful, the annulment ruling cannot be implemented (p. 194).

The impact of sexual dysfunction on public family law

The author notes that there are several theories regarding the relationship between the government and the family: maximal government intervention in family affairs, rejection of government’s intervention in family affairs, and conditional and limited intervention by the government in the affairs of the family are theories that have been examined in some sources (p. 125). The author believes that as he has previously demonstrated, the government should not interfere in this institution. However, from an Islamic perspective, the government or state is responsible regarding the family and should play a supportive role (p. 125). Based on this, after examining the foundations of family law in public law, the author has analyzed the government’s responsibility regarding problems arising from sexual dysfunction from two perspectives:

• a) The preventive responsibility of the government: Since some of the harms that pose threats to the family originate before marriage, the government has a duty to fulfill its role in areas such as the sexual education and upbringing of children, the sexual education of spouses, and the issuance of sexual health certificates for marriage (pp. 269-285).
• b) The supportive responsibility of the government (p. 139): This includes creating opportunities for easy access to medical services and providing financial support for the affected individual (pp. 287-312).