Question:
If a husband and wife have not consummated their marriage [through the actual act of sex], but engage in other intimate acts with each other, is their marriage invalid? Is there a time limit after marriage for a husband and wife to consummate their marriage through sex? If 3 or 6 years pass by, does this mean they are not married anymore and should seek divorce, or re-marry each other again?
Answer:
In the Name of God, Most Merciful, Most Kind
Jazāk Allāh Khayr/ Thank you for contacting Mathabah with your question.
May God bless all married couples with happiness, peace and success.
A marriage is still valid if sexual intercourse is not taking place, as per the comfort and mutual agreement of the couple.
In Islam, consummation of marriage (al-khalwah al-ṣaḥīḥah) occurs when the couple spend some time after the marriage in seclusion and or privacy. Intercourse is not necessary for consummation of marriage, from an Islamic point of view. This is the agreed position of the jamhūr (majority jurists), including the Ḥanafī, Mālikī and Ḥanbalī schools. This was also the opinion of the four Caliphs after the Prophet Muḥammad (peace and blessings upon him). – (See Fiqh Al-Islāmīy wa Adillatuh, Sharḥ Zarakhshīy, Al-Badāʿi Al-Ṣanāʿi, Al-Bahjah, Tafsīr Al-Ḥāwī).
The Shāfiʾe school’s view is that the actual act of intercourse (dukhūl) must take place in order for consummation to be considered.
The Prophet Muḥammad (peace and blessings upon him) stated, “The husband who lifts the veil of his wife [following nikāh], looks at her [privately], the mahr (bridal gift) becomes mandatory, whether he had intercourse with her or not.” – (Al-Dār Al-Quṭnīy)
Ibn ʿOmar (may God be pleased with him) said, “When the doors are closed, the curtains are drawn and nudity is seen, she is entitled to mahr, inheritance and must complete the ʿiddah (waiting period).” – (Tafsīr Al-Ḥāwī)
If both partners have agreed not to engage in sexual intercourse, then there is no issue. The marriage is intact. If however, either the husband or the wife is demanding sexual intimacy, and the spouse is not making them-self available for it, then the deprived partner has a right to initiate a divorce.
Each partner has the right to enjoy sexual intimacy. It is wājib (necessary) upon the partner to fulfill this right whenever the partner desires, especially if there is no genuine excuse (such as absence due to travel or intense sickness). One has the right to separate if sexual intercourse does not take place at least once in four to six months.”. (See Fiqh Al Ḥalāl Wal Ḥarām by Sh. Khalid Saifullah Al Raḥmānī)
It is worthy to note that after a divorce wherein intercourse did not take place, there is nothing wrong in clarifying to a potential spouse, when considering a new marriage, that Islamic consummation did take place without the act of intercourse.
And Allāh Knows Best.