1. The words in parenthesis are from Ibn Jarir.

2. The great majority have read the text as it appears in all copies now. But Mujahid read “farad-naha” as “farrad-naha,” explaining the term as, “We have expounded it, and have sent down thereby commandments of various sort.” But most others, having read it as “farad naha,” understood it as meaning, “We have made obligatory the injunctions therein” (Ibn Jarir, Razi, Qurtubi, Alusi).

Al-Fard in Arabic is to break up a thing. Hence “Fara’id al-Mirath” i.e., “Breakup of the inherited property” (Qurtibi).

Majid, and after him Mawdudi, both stress on the emphatic form of the address here. In the simpler words of Mawdudi, “(That is), whatever has been said in this Surah is not in the nature of ‘recommendations’ or ‘suggestions’, that may or may not be followed.. They are, instead, categorical commands which must be followed.. Further, far from being ambiguous, these commands are couched in terms which are both clear and categorical.. No other Surah of the Qur’an has a more forceful preamble.”

3. Asad writes: “It would seem that the special stress on God’s having laid down this Surah ‘in plain terms’ is connected with the gravity of the injunctions spelt out in the sequence: in other words, it implies a solemn warning against any attempt at widening or re-defining those injunctions by means of deductions, inferences or any other considerations unconnected with the plain words of the Qur’an.”

4. English dictionaries define fornication and adultery variously. We have for our convenience chosen to use throughout this discourse the term fornication for sex of the ghayr muhsin (roughly, the unmarried) and adultery for illegal sex committed after ihsan (consummation of marriage).

Commentators have pointed out that in the verse (5: 38),

{وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِنَ اللَّهِ} [المائدة: 38]

“As for the thief - man or woman - amputate their hands, as a recompense for what they have earned: a punishment exemplary from Allah..” the male was mentioned first. But in the present verse it is the female fornicator that has been mentioned first. Why? It is because it is women who allow fornication to happen.

The affair starts with the eye-contact. It is by the means of looks in her eyes that a woman expresses her consent to go further on the road to sin. Encouraged by the looks in the eyes, man makes proposals with the help of sneaky insinuations. When acceptance is shown by the other side, then come direct proposals leading to moral corruption of both. If a woman refuses to respond through eye contact, there is nothing the male can do about it. In fact, right up to the end the woman can refuse. If she is not ready, there is no course left to the man but to withdraw. Thus, women are the major cause of fornication and perhaps the reason why her mention preceded that of man (Au.).

5. That is, not the married adulterer and adulteress but rather the unmarried fornicator and fornicatress (Ibn Jarir).

6. The textual word for “lash each of the two” is preceded by a “fa” which is known as “fa shartiyyah” (the conditioning fa) implying that they might be lashed only if the crime is well proven (Qurtubi). Thus a single syllable serves the function of a sentence (Au.).

Alusi presents a few other reasons for which one might look up into the original.

7. An incident preserved by Bukhari provides us some legal details:

قَالَ إِنَّ ابْنِى كَانَ عَسِيفًا عَلَى هَذَا ، فَزَنَى بِامْرَأَتِهِ ، وَإِنِّى أُخْبِرْتُ أَنَّ عَلَى ابْنِى الرَّجْمَ ، فَافْتَدَيْتُ مِنْهُ بِمِائَةِ شَاةٍ وَوَلِيدَةٍ ، فَسَأَلْتُ أَهْلَ الْعِلْمِ فَأَخْبَرُونِى أَنَّمَا عَلَى ابْنِى جَلْدُ مِائَةٍ ، وَتَغْرِيبُ عَامٍ ، وَأَنَّ عَلَى امْرَأَةِ هَذَا الرَّجْمَ . فَقَالَ رَسُولُ اللَّهِ - صلى الله عليه وسلم - « وَالَّذِى نَفْسِى بِيَدِهِ لأَقْضِيَنَّ بَيْنَكُمَا بِكِتَابِ اللَّهِ ، الْوَلِيدَةُ وَالْغَنَمُ رَدٌّ ، وَعَلَى ابْنِكَ جَلْدُ مِائَةٍ وَتَغْرِيبُ عَامٍ ، اغْدُ يَا أُنَيْسُ إِلَى امْرَأَةِ هَذَا فَإِنِ اعْتَرَفَتْ فَارْجُمْهَا » . قَالَ فَغَدَا عَلَيْهَا فَاعْتَرَفَتْ ، فَأَمَرَ بِهَا رَسُولُ اللَّهِ - صلى الله عليه وسلم - فَرُجِمَتْ

It is reported that two bedouins came to the Prophet (saws). One of them said, “This son of mine was a house-servant in this man’s house. He fornicated with his wife. So I ransomed my son by offering a hundred goats and a slave-girl. Then I consulted the knowledgeable people and they told me that my son should be whipped a hundred times and banished for one year, and that the woman should be stoned to death.” The Prophet answered, “I shall rule by the Book of Allah. The slave-girl and the goats may be returned to you. Your son should be whipped and banished for a year.” (Then he pointed) and said, “O Unays, rise up and seek to know from the woman. If she admits, stone her to death.” He went up to her, she admitted and was stoned to death. Accordingly, all three Imams have ruled that a free unmarried person, if he is mature of body and sound of mind, should be whipped and banished for a year. Imam Abu Haneefah however ruled that the banishment is the prerogative of the ruler. He could banish if he wished or imprison him for a year (Razi, Ibn Kathir).

The hadith also proves that if one or both are married, then the Islamic punishment for adultery is death by stoning. And, the Prophet’s words, “I shall rule by the Book of Allah” go to prove that a verse specifically mentioning stoning to death was there in the Qur’an. Otherwise, the verses in question do not recommend stoning to death which was what the Prophet (saws) decided for the woman. The rajm verse has been taken off recitation, but the injunction remains in practice. According to a hadith in Muslim, Tirmidhi, Abu Da’ud, Nasa’i, Ibn Majah and Ahmad, the Prophet said,

خُذُوا عَنِّى خُذُوا عَنِّى قَدْ جَعَلَ اللَّهُ لَهُنَّ سَبِيلاً الثَّيِّبُ بِالثَّيِّبِ جَلْدُ مِائَةٍ وَرَمْىٌ بِالْحِجَارَةِ وَالْبِكْرُ بِالْبِكْرِ جَلْدُ مِائَةٍ وَنَفْىُ سَنَةٍ

“Take from me, take from me. Allah has made a way for them. A married with a married person: a hundred lashes and stoning to death; a virgin with a virgin: a hundred lashes and exile for a year."

And, when he said, “Allah has made a way for them,” the Prophet was referring to the verse in Surah al-Nisa’ (no. 15) which said,

{وَاللَّاتِي يَأْتِينَ الْفَاحِشَةَ مِنْ نِسَائِكُمْ فَاسْتَشْهِدُوا عَلَيْهِنَّ أَرْبَعَةً مِنْكُمْ فَإِنْ شَهِدُوا فَأَمْسِكُوهُنَّ فِي الْبُيُوتِ حَتَّى يَتَوَفَّاهُنَّ الْمَوْتُ أَوْ يَجْعَلَ اللَّهُ لَهُنَّ سَبِيلًا } [النساء: 15]

“Such of your women as commit indecency let four of you testify against them. If they do testify then detain them in the homes until death overtakes them or Allah appoints for them a way” (Shafi`).

See notes 60-75 of Sura al-Nisa’ of this work for a few other details.

Hence `Umar is recorded in the Sahihayn as having said while on the mimbar,

أما بعد، أيها الناس، فإن الله بعث محمدًا بالحق، وأنزل عليه الكتاب، فكان فيما أنزل عليه آية الرجم، فقرأناها وَوَعَيْناها، وَرَجمَ رسول الله صلى الله عليه وسلم وَرَجمْنا بعده، فأخشى أن يطول بالناس زمان أن يقول قائل: لا نجد آية الرجم في كتاب الله، فيضلوا بترك فريضة قد أنزلها الله

“People. Allah sent Muhammad with Truth and sent down a Book which once contained the verse pertaining to rajm. We read it and stored it in knowledge. Following that, the Prophet stoned (the adulterer) to death, and we did the same after him. But I fear that after a long time has passed someone will say, ‘We do not find the commandment of rajm in the Book of Allah.’ They would thus abandon a commandment that was revealed in the Book and will go astray for not following what Allah has revealed.”

According to a report in Musnad Ahmad, he added,

وَلَوْلاَ أَنْ يَقُولَ قَائِلُونَ أَوْ يَتَكَلَّمَ مُتَكَلِّمُونَ أَنَّ عُمَرَ زَادَ فِى كِتَابِ اللَّهِ مَا لَيْسَ مِنْهُ لأَثْبَتُّهَا فِى كِتَابِ اللَّهِ كَمَا نُزِّلَتْ

“If not for the fear that people would say `Umar added into the Book of Allah, I would have got the rajm commandment added to Allah's book, as it was revealed.”

`Umar also predicted that there will be people (in this Ummah) who will reject rajm, intercession, punishment in the grave, and that people will be removed from the Fire after they have been burnt (to coals). Another report of Nasa’i has Zayd b. Thabit (the scribe who wrote the Qur’an) says,

وإن كنا لنقرأ فيها : والشيخ والشيخة إذا زنيا فارجموهما ألبتة ... فرفع فيما رفع

“We used to recite (in the Qur’an) the verse, ‘The old man and the old woman that commit adultery, stone them to death.’ But later, it was withdrawn among those that were withdraen” (Razi, Ibn Kathir).

In other words, it is not these words, “the old man and the old woman ..” that were the words removed from the memory. They forgot the actual words (Au.).

The above is one of the many versions. Bukhari and Muslim also have the first part of the above report (Au.).

Thus, adds Alusi, apart from the reports of the Prophet’s own example, stoning to death is proved by the Ijma` of the Ummah. If the reports from the Prophet (saws) are of the Ahad kind (singletons), then the consent of the Companions accords it legality. For, when `Umar spoke of the punishment by stoning to death, and that he wished he could insert it as a footnote in the Mus-haf, none of the Companions disagreed with him according the issue the status of “Ijma` al-sukuti” (silent consent).

Mawdudi wrote: “This practice (of stoning to death) was also followed (after the Prophet) by each of the four Rightly-Guided Caliphs during their respective periods of rule. Besides, they openly declared this to be the punishment for such an offence. The Companions and Successors were completely unanimous in their views on this verse. Not a single statement was made by anyone which might lead one to conclude that anyone in the early period of Islam had any doubts about the validity of this punishment. Even in later times, leading Muslim jurists in different parts of the world were unanimous that this punishment was a well-established practice of the Prophet (peace be on him).”

Indeed, apart from the woman of the above incident, we also have the incidents of Ma`iz Aslami and the Ghamidi woman who were both stoned to death (Au.).

The punishment of stoning to death is not peculiar to Islam. That was the punishment prescribed in the Mosaic Law which Jesus Christ confirmed as valid. Majid quotes from the Jewish Encyclopedia (v. III, p. 554): “Prostitution by a betrothed virgin, .. and the rebellious son are, according to the Pentateuchal laws, to be punished with death by stoning.” This is substantiated by Torah texts. One of them says, “If there is a betrothed virgin, and a man meets her in the city and lies with her, then you shall bring them both out to the gate of that city, and you shall stone them to death with stones..” (Deuteronomy, 22: 23-6). The Talmud stipulates a punishment for the daughter of a priest that the Jews might not want the non-Jews to know. Mawdudi quotes: “.. if a man fornicates with the daughter of a priest, according to Judaic law, he is to be hanged until death, whereas the girl is to be burnt alive (Everyman’s Talmud, pp. 319-20).” Either of the two, Hinduism or Judaism, seem to be influenced by the other, for, as Mawdudi quotes again, the Dharma Shastra of Manu says that if a girl is a Brahmin, and the male a non-Brahmin, then the punishment would be to burn alive the man” (Mawdudi).

Jesus confirmed that the law of stoning to death was still valid. He was brought a woman who had fornicated. The Jews had brought her to him in the hope of trapping him. If he judged that the woman was to be stoned to death following the Judaic law, he could have got arrested for judging by other than the Roman Law. If he had, on the other hand, judged by the Roman Law, which did not allow for stoning to death, he stood to be condemned as a false Prophet. But he defeated their purposes. The whole story, which reads still beautiful, is as follows:

“Jesus went to the mount of Olives. And early in the morning he came again into the temple, and all the people came to him; and he sat down and taught them. And the scribes and Pharisees brought to him a woman taken in adultery: and when they had set her in the midst. They said to him, Master, this woman was taken in adultery, in the very act. Now Moses in the law commanded us, that such should be stoned; but what sayest thou? This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with [his] finger wrote on the ground, [as though he heard them not]. So when they continued asking him, he raised himself, and said to them, He that is without sin among you, let him first cast a stone at her. And again he stooped down, and wrote on the ground. And they who heard [it], being convicted by [their own] conscience, went out one by one, beginning at the eldest, [even] to the last: and Jesus was left alone, and the woman standing in the midst. When Jesus had raised himself, and saw none but the woman, he said to her, Woman, where are those thy accusers? Hath no man condemned thee? She said, No man, Lord. And Jesus said to her, Neither do I condemn thee: go, and sin no more” (John 8: 1-10).

The above shows that the Hebraic law required stoning to death as punishment for adultery. It was not applied however, because of common prevalence. Majid brings to our notice the following: “Capital punishment (among the Israelites) was of such rare occurrence as to be practically abrogated. In fact, many a judge declared openly for its abolition, and a court which had pronounced one sentence of death in seven years was called the court of murderers.” Indeed, the Jews went further and slandered their Prophets and holy men in order to mitigate their own sexual crimes. Majid quotes from History of Prostitution by Scott, “Most of the old Hebrew prophets and lawmakers themselves patronized harlots, and looked upon such escapades as the mildest of paccadillos .. In short, promiscuous sexual relations on the part of men, so long as they were not duly advertised, came in for little in the way of censure.”

As regards lashing before stoning to death, whether it is mandatory or not, it might be noticed that the two in the case quoted above were not lashed. The opinion of the Fuqaha’ therefore was that it is not mandatory, except that Imam Ahmad ruled that an adulterer must be first lashed, following the Qur’an, and then stoned to death, following the Sunnah. Imam `Ali too was of this opinion. In his own time he got a woman first whipped on a Thursday and then got her stoned to death on a Friday remarking, “I got her whipped following the Book of Allah, and stoned to death following the Prophet’s Sunnah” (Ibn Kathir).

8. What exactly is the implication of the words “No tenderness for them should seize you?” Is it the feeling of pity on them that is disapproved of? No. It implies that 'your pity should not prevent you from inflicting the punishment as prescribed.' That is what the addition of the words, “in Allah’s religion” lends. That is how Mujahid, Sa`id ibn Jubayr, Ibn Jurayj and others understood it. Abu Hurayrah is reported to have said, “Execution of one of Allah’s prescribed punishment on a piece of land is better for its people than forty nights of rain.” Abu Hurayrah then recited this verse.

The above is sometimes attributed to the Prophet, but that is incorrect. They are Abu Hurayra's own words (Au.).

And hence, as Abu Mujliz and Ibn Zayed said, once the case has been presented to the authorities, they should show no tenderness towards the perpetrators, but rather, punish them according to the law. However, they may not go an extra mile in punishing them. For example, when `Umar’s unmarried slave-girl committed fornication, and the time for whipping came, he pointed to the lasher at her legs – meaning strike her there. Someone reminded him, “No tenderness for them should seize you.” He answered, “Should I kill her?” (Ibn Jarir); according to other reports, "We have not been asked to kill her."

As for the feelings of pity for the sinners, it should always be there. Why, it should be there for animals too! We have a hadith in Ahmad which says that a Companion told the Prophet,

يَا رَسُولَ اللَّهِ إِنِّى لأَذْبَحُ الشَّاةَ وَأَنَا أَرْحَمُهَا أَوْ قَالَ إِنِّى لأَرْحَمُ الشَّاةَ أَنْ أَذْبَحَهَا. فَقَالَ: وَالشَّاةُ إِنْ رَحِمْتَهَا رَحِمَكَ اللَّهُ

“Messenger of Allah, when I slaughter a sheep I feel sorry for it.” He replied, “As for the sheep, if you felt compassion for her, Allah will show you compassion” (Ibn Kathir).

Haythamiyy remarked in the Zawaa'id that t he above report is trustworthy (Au.).

Some have, all the same, understood the words to mean, whip them hard so that they feel the pain. Qatadah, Hasan, Sa`id b. al-Musayyib figure here, although they do not seem to have much ground for this opinion since, after all, levels of the pain felt being different from person to person, the strength of the lashes cannot be determined (Ibn Jarir reworded, Ibn Kathir).

Mawdudi looks at various aspects of the issues involved and offers a detailed study. The reader will do well to study the original. We pick up a few sentences from here and there. He writes: “Unlawful sex is viewed by Islam as a crime which, if no steps are taken to curb it, strikes at the very root of humanity and civilization. Both the survival of the human race and the continuity of man’s collective existence make it imperative that sexual relations between men and women are confined to their lawful forms alone.” Elsewhere, “In fact, human society cannot even come into being without the matrimonial tie which makes a man and woman live together and, thus, found a family and thereafter foster further relationships between other families, which in turn gives birth to a community and a society. If a man and a woman were to start freely meeting each other just for the purpose of mutual enjoyment in total disregard of the objective of establishing a family, then this would strike a fatal blow to man’s collective life and demolish the very foundation on which society is built.”

9. The word in the text for group is “ta’ifah” which is applicable to any number of people above one. Hence Mujahid’s opinion was that the presence of even one meets with the condition. Qatadah, Zuhri and others thought that at least three persons should witness the punishment (Ibn Jarir, Ibn Kathir).

Asad adds: “The number of those to be present has been deliberately left unspecified, thus indicating that while the punishment must be given publicity, it need not be made a ‘public spectacle.’”

As regards the purpose of a group of people witnessing the scene, apart from the obvious feelings of shame and guilt that their presence is likely to provoke, it is a means of admonition to those present. It is also expected that the group will, as Nasr b. `Alqamah has said in a report in Ibn Abi Hatim, pray for their forgiveness (Ibn Kathir).

The strong deterring effect cannot be overemphasized (Au.).

General Notes

“Islamic jurisprudence, in this respect, stands in ‘splendid isolation’ from the laws of many other nations. Among the Greeks, and also in early Rome, illicit sexual intercourse was no crime at all unless a married woman was involved. Even in ‘Great Britain’ it was reckoned a spiritual offence, that is cognizable by the spiritual courts only. The common law took no further notice of it than to allow the party aggrieved an action of damage.’ (EBr. I. p. 234, 11th ed.)” – Majid.

There are four crimes for which the Qur’an and ahadith mutawatirah have themselves fixed the punishment, not leaving them to the opinion of a jurist or a ruler. These are known as hudud. They are only four: Theft, slander, intoxication and illicit sex. For other kinds of crimes, the Shari`ah has not prescribed the punishment, but rather, has left to the discretion and judgment of the rulers and law enforcing authorities. Such of them are known as ta`zirat (Shafi`).

“(In view of the requirement of four eye-witnesses to the crime of adultery), it might be thought that the punishment prescribed is an illusory thing, affecting no one, and that it can never be applied. The answer is that Islamic system of life is not built on punishments. But rather on the prevention of the causes that lead to crimes. It also relies on the purification of the souls and the cleansing of the conscience, as also on the good feelings that the hearts give rise to and prevent a man from committing crimes that disconnect him who commits and the society at large. Therefore, it does not punish but either the braggart who does it so openly that the people are able to witness, or someone who admits and seeks redemption, like Ma`iz Aslami or the Ghamidiyy woman” (Sayyid).

Fiqh Points

• Zamakhshari in brief but Imam Razi, Qurtubi and Alusi deal with various issue involved at great length. We present only the main points ignoring the substantiations that go with them. To draw advantage from ready-made translations, we have taken some notes from Mawdudi, even if found in Arabic commentaries:

• Adultery is a major sin. Allah (swt) mentioned it along with shirk and murder. He defined the believers in words (25: 68), “And those who do not call upon another deity along with Allah, do not kill a soul that Allah has forbidden save in right, and do not commit adultery; and whoever did that, will meet a great sin.” Its final commanded was preceded by a lesser one as prescribed in (4: 15) which said (although there, it was only women who were mentioned: Au.), “Such of your women as commit indecency let four of you testify against them. If they do testify then detain them in the homes until death overtakes them or Allah appoints for them a way.”

• Zina has been defined as “A man having sex with a woman in her vagina, she being other than his legal wife, without he owning her, with or without consent of the woman, and he without any doubt about the identity of the woman.” (That is, the man might not have mistaken her for his wife: Au.).

• The definition would remain the same in reverse if the accused is a woman.

• The conditions for “ihsan” are, according to Imam Abu Hanifah, six: Islam, freedom, soundness of intellect, puberty, a legal marriage and, consummation.

• A Muslim who has married a slave-girl, a child, a mad woman or a woman of the People of the Book, is, technically not a “muhsin” (Alusi).

• The commandment of death by stoning have been reported by Abu Bakr, `Umar, `Ali, Jabir b. `Abdullah, Abu Sa`id al-Khudri, Abu Hurayrah, Buraydah Aslami, Zayd b. Khalid and many other Companions.

• Although the act is of the same class, greater number of scholars have ruled that technically sodomy is not Zina.

• Adultery of a married pair entails stoning of both to death. (This is proved by reports that have come to us through mutawatir narrators, even if the reports do not attain the strict technical mutwatir status. The evidence for the prescribed punishment (rajm) is of the same nature as `Ali’s courage. We do not have a report about his courage that can be technically declared mutawatir, but at the same time the fact is so well-known that it can be declared as something beyond doubt (Alusi).

• If one of them is not married, then it is a hundred lashes for the crime.

• According to Imam Shafe`i, the punishment for sodomy is the same as that for adultery: either stoning to death, or lashes, and an year’s exile, depending upon the marital condition of the perpetrator. Malik, Ahmad and Is-haq are of the same opinion. Abu Bakr thought that a wall should be demolished over him. `Ali ibn abi Talib however said that he might be thrown down a cliff, which (both opinions: Au.) seem to be influenced by the punishment Allah (swt) meted out to the people of Lut.

• Abu Hanifah, Malik and Thawri have ruled that to have sex with an animal is not zina. Nevertheless, the person involved deserves to be punished (Razi). And the animal should be killed (Au.).

• Imam Shafe`i has ruled that a virgin male committing fornication may be lashed and then exiled for a year. He followed the report of the Prophet’s time of a farm worker committing sex with his master’s wife who was exiled. Imam Malik ruled that the male should be exiled but not a female. Abu Hanifah however said that exile should be left to the Amir to decide, (it is not essential part of the punishment) for, a singleton report (ahad) cannot abrogate a Qur’anic rule which did not mention exile. Also, during the time of `Umar when he exiled someone, the exiled man went and joined the Romans. So `Umar remarked, “Here onward I shall not exile anyone” (Razi). It is possible the Prophet had exiled the young man for a specific reason (Alusi).

• With reference to adultery, the following are a few other conditions for the application of hadd (capital punishment): (a) adulthood, (b) soundness of mind, (c) free (and not a slave), (d) a properly conducted marriage, and (e) consummation of marriage (dukhul) - sex before puberty does not remove the condition of ihsan, this was the opinion of Abu Hanifah, (f) Islam (i.e., the sinners should be Muslims) since, according to Abu Hanifah, greater responsible position (as that of a Muslim) entails greater punishment as against a Dhimmi who has lesser responsibility (to behave) not having received the message of Islam. However, Shafe`i disagreed with Abu Hanifah over this and said that it is not necessary for a person to be a Muslim to receive the Islamic hadd since the Prophet (saws) had ordered a Jewish pair to be stoned to death.

• The four witnesses required for proving adultery where the sinners do not admit, must testify that they saw the very act and the very organs one in another. That they saw them on top of one another might not prove the case (Au.).

• As regards confession of the crime, according to Imam Shafe`i, one admission is enough, but Abu Hanifah ruled that the accused must admit four times in different sittings before he can be delivered the capital punishment. On the other hand Imam Ahmad said that four confessions were enough, even if in one sitting.

• If the accused does not confess, medical examination will not be conducted to determine whether sexual intercourse did occur (Mawdudi).

• “The majority of jurists.. do not consider the mere fact of pregnancy a sufficient ground to subject anyone to lapidation or flogging” (Mawdudi).

• In case of accusation or confession, the identity of the partner in crime, man or woman, will not be demanded (Mawdudi).

• The other party, if identified by the partner, will not be prosecuted on the basis of the accusation alone if he denies involvement (Mawdudi).

• In fact, a person voluntarily admitting the crime may not be immediately subjected to the capital punishment, since, as Mawdudi puts it, “Islamic law does not make it obligatory for people to confess their crimes. Nor does it make obligatory for them to report offences committed by others to the authorities.” According to a report in Bukhari, when someone came to the Prophet and said that he had committed a crime and deserved hadd punishment, he paid no attention to him. A little later, when the man rose up after his Prayer behind the Prophet and said, “I am guilty, so punish me,” the Prophet (saws) asked, “Did you not offer Prayers with us just now?” When he said yes, the Prophet told him, “Allah has pardoned your sin” (Mawdudi modified).

• “However, once the authorities are informed that such an offence has been committed, there remains no room to spare the guilty the required punishment.. (When Hazzal had led Ma’iz Aslami to report his sin to the Prophet, which led to his death by stoning), the Prophet told Hazzal, “Had you covered his crime with your garment, it would have been better for you” (Mawdudi).

• In case of qadhf (slander), the hadd punishment will only be applied when the slandered demands it. If he or she forgives, the courts will take no action (Shafi`).

• A slave receives half the punishment as a free Muslim does. And since half of stoning to death is not executable, they are only flogged. According to some, the fornicators receive only forty lashes.

• There is no difference in opinion that it is an established Muslim authority, i.e., an Islamic state, that can execute Islamic capital punishments. A corollary of this is that, since application of capital punishment is obligatory in Islam, establishing a state on Islamic principles also becomes obligatory.

• Nevertheless, as regards slaves, Imam Shafe`i’s opinion was that a master could execute the Islamic punishments on his slaves. But, once again, Abu Hanifah differed. He would not allow such authority and such powers to anyone except an Islamic state. As regards the hadith which instructs that if a slave-girl commits fornication twice, the master may whip her, it should be understood in the general sense of “punish her” and not in the sense of “execute the Islamic punishment.”

• Testimony of only those witnesses who fulfill the conditions laid down by Islamic Law as being trustworthy can be accepted (Mawdudi).

• Whipping should be neither light nor hard. Zamakhshari points out that the Qur’anic word “fajlidu” with its root in “jild” (meaning skin) implies: do not whip so hard as to hurt the flesh, nor so light as to spare the skin too of the pain. When `Umar was brought a tough looking whip he said, “This is hard. Bring me a lighter one.” So they brought a light one. He remarked, “This is too soft. Bring me something in between.” Qurtubi reports that once `Umar handed over a whip to a lasher and remarked: “Here, whip him but let not your arm-pit be exposed.” In fact, once `Umar got a lasher lashed twenty strokes for having lashed another too hard.

• The number of strokes could however be increased in more serious cases. For example when somebody was brought to `Umar in a drunken state in the month of Ramadan, he ordered that he be given a hundred lashes: eighty for drinking, and twenty for defiling Ramadan. Similarly, when a man was found molesting a child, the governor of the town ordered that he be given three hundred lashes. When Imam Malik came to know of the judgment, he did not object to it (Qurtubi).

• There is no need to remove a man’s ordinary clothes at the time he is whipped. But he should not be allowed to wear padded ones. As for a woman, in no case any part of the body should be uncovered. In fact, she should be so well wrapped that no part gets accidentally uncovered during whipping.

• A male is to receive the lashes from a standing posture, but a Muslimah should be made to sit.

• All parts of the body might receive the lashes, but not the face, the stomach, or the private parts. Although some have allowed whipping on the head, Imam Abu Hanifah would not allow it. Imam Razi’s own belief is that hitting on the head can result in injury to the brain. This opinion is influenced by the Prophet’s words to Hilal b. Umayyah who brought to him the accusation against his wife. The Prophet (saws) remarked: “Either you produce four witnesses, or you will receive lashes on your back.”

• It is not allowed to whip in small numbers at a time, say two lashes a day. However, larger break down, such as twenty a day, is allowed. Alusi adds: Once `Ali (b. Abi Talib) whipped a man with a branched whip, giving him forty lashes. That is, he counted each stroke as equal to two.

• A pregnant woman may not be whipped until she has delivered.

• A sick man may not be whipped until he recovers. If he suffers from a permanent disease of dangerous order, he may not be whipped at all. He might, instead, be lashed just once with a broom made up of a eighty strands. This is following the instruction to Ayyub, who had sworn that he would whip his wife a hundred times, but wished to find a way out. Allah ordered him (38: 44), “And take in your hand a (bunch of) grass, and strike therewith: and break not (your oath)..”

• Whipping should be done in normal weather conditions, when it is neither too cold nor too hot.

• According to Imam Shafe`i and Ahmad, the Imam (judge) or the witnesses may or may not witness the execution of the punishment. However, Abu Hanifah ruled that in case of stoning to death, the witnesses should throw the first stones, then the Imam (judge) and then others. The Prophet himself however did not attend the stoning to death of either Ma`iz al-Aslami or of the Ghamidiyyah woman.

• If fornication or adultery is proved through free confession, capital punishment will still be withheld if the person recants. This was the opinion of Abu Hanifah, Thawri, Ahmad and Is-haq.

• A woman is to be buried up to her breast in the ground before stoning begins. But a man need not be so buried. Ma`iz Aslami was not buried and so he began to run away when the stoning began, although he had brought the case of adultery against himself, and had insisted on the enforcement of the punishment. When he ran away, he was caught and stoned to death. When the incident was reported to the Prophet (saws), he remarked, “Why did not you let him escape?”

• If a man and woman are found enwrapped in a sheet, and so it is not possible to establish whether they had sex or not, the hadd is not applicable. However, `Umar, `Ali, `Ata’, Malik and Ahmad have said that they should be given a hundred lashes each (Alusi).

• When dead, the sinner(s) might be given bathing and buried in the normal manner.

• If a man has sex with his wife’s slave-girl, he will face the hadd punishment (Qurtubi).

• There is no Allah-prescribed punishment (hadd) for slandering an unbeliever, man or woman. On the other hand if a non-Muslim falsely accuses a Muslim, he will be given eighty lashes (Qurtubi).

• If a slave slanders a free person, he or she will receive half the punishment, forty lashes. This is following the instruction in verse 25 of Surah al-Nisa’ (Qurtubi).

• Slandering a dead Muslim is as good as slandering someone alive, but up to one generation and not further up to second-generation or third (i.e., grandfather and above). If a heir (say a son) takes the case to the court, and the crime is not proved, the accuser will receive lashes (Alusi).

• There is no prescribed punishment for a master who falsely accuses his slave. This is following a hadith in the Sahihayn which says: “Whoever accused his slave will have the hadd (the legal punishment) executed on him on the Day of Judgment, unless the slave committed what he was accused of” (Qurtubi).

• If one of the four witnesses evinces uncertainty, the other three will be lashed (Qurtubi).

• Imam Shafe`i and Malik have ruled that fornication is forbidden by Allah (swt). Therefore, if a Muslim commits it in non-Muslim lands, hadd should be executed on him. But As-hab al-Ra’yi (presumably Hanafiyyah) have said that if fornication is committed in Dar al-Harb, a Muslim might not be punished by Islamic Law in the Islamic land (Qurtubi).

(In the statements above, it is remarkable to note that although Razi was himself a general follower of the Shafe`i Maslak, he clearly indicated his inclination to accept Hanafiyy position on several points (Au.).

Hadith literature has preserved a few cases of adultery or fornication that were brought to the notice of the Prophet: They were all Muslims while one involved a Jewish pair. Two of them have already been referred to. Hereunder are three others, stated briefly.

(i) Muslim reports: Ma`iz b. Malik al-Aslami came to the Prophet (saws) and said, “Messenger of Allah. I have sinned, so purify me.” The Prophet turned his face away from him and told him, “Go away and seek Allah’s forgiveness.” But Ma`iz appeared again and again. At the third time the Prophet sent word to his tribe to find out if there was anything wrong with the man. They said nothing was wrong with him and that he was otherwise a righteous person. When Ma`iz came back a fourth time the Prophet asked him, “(Purify you?) Of what should I purify you?” He replied, “Of adultery.” The Prophet (saws) asked the people around him, “Is this man out of his mind?” They said no, he was perfectly in his senses. Then he asked if he was drunk. So someone went up, smelled his mouth and said, “No he is not drunk.” Then the Prophet asked, “Did you commit adultery?” He replied, “Yes.” He asked him, “Did you have sexual intercourse with her” He said, “Yes.” He asked him, “Did yours disappear into hers?” He replied, “Yes, like a kohl-stick into its bottle.” So the Prophet ordered that he be stoned to death. They took him to Baqi` fields and stoned him to death. The Prophet did not go. When they began to stone him he ran away. He was chased, caught, and stoned until he was motionless. He actually shouted at them that he had been deceived by his tribesmen who had assured him that he would not be killed and so he should be allowed to go back to the Prophet. But the crowd wouldn’t listen to him. When the Prophet was told about it, he remarked, “You should have let him come to me.” Later he said, “Ma`iz repented a repentance that would suffice for a whole community.” According to another report in Abu Da’ud, the Prophet was going somewhere after the Ma`iz incident. He heard two men say something about the man dying the death of a dog. As he continued on his way he found the carcass of a donkey. He halted and beckoned the two. When they came up he said, “Eat out of it.” They exclaimed, “Messenger of Allah, who can eat of it?” He said, “Your indulgence just now in the honor of your brother was worse than eating from this carcass. By Him in whose hands is my life, just now he is in the rivers of Paradise, diving in and out of them.”

(ii) The second incident is in Muslim and other books. They speak of a woman from the Ghamid tribe. She came and reported that she had committed the sin. The Prophet (saws) told her, “Woe unto you. Go and seek Allah’s forgiveness.” She replied, “Rather not. Perhaps you want to turn me back as you had tried to turn back Ma`iz. But I am pregnant from the sin.” The Prophet told her, “Come back after you have delivered.” So she came back after the birth. He told her that the child was too young and that she was to breast feed her. So she went back and came later with a piece of bread in the child’s hand. The Prophet said, “I am not going to get you stoned to death while the baby has no one to look after.” At that point one of the Ansar said, “I volunteer to look after the child.” So the Prophet ordered her stoned to death. When Khalid b. Walid threw a stone at her, her spattered blood sprinkled his clothes. He cursed her. The Prophet told him (later), “She repented a repentance which, if distributed over the people of Madinah, would have sufficed them all.”

(iii) The case of a Jewish pair was brought to the Prophet. He was asked to judge. He went to their dwellings and after he was seated, asked them what the punishment was according to their law. They replied, “Disgrace them and then flog them.” `Abdullah ibn Sallam intervened, “You have lied. It (Torah) mentions stoning to death. Produce it.” So they brought it out and spread it before him. However, while reading they placed their hand at the portion which mentioned stoning. `Abdullah b. Sallam cried out, “Lift your finger.” They removed the finger and there it was, stoning to death. So the Prophet (saws) ordered the pair stoned to death. The narrator says, “I could see the man trying to shield the woman from the stones.”

10. The word “nikah” as it appears in this context (which Asad renders as: “couples with”) affords two meanings and hence the verse has been understood differently by different scholars. Originally the word was coined to mean wedlock. But with usage it came to be used for sexual intercourse also.

11. Ibn Jarir writes: It is widely reported that there were a few prostitutes in Madianh, (some of them Jews or Christians while others Yethrabite slave-girls: Alusi), who were available on hire. They placed signs over their houses and anyone could enter freely. Now, there were many migrant Muslims (As-hab al-Suffah: Qurtubi) who were too poor to be able to marry. So they thought they could for the moment fill the void by marrying one of them. Some of the owners thought they might even use them as a source of income. They consulted the Prophet (saws) who prohibited them saying that they were fit for fornicators and pagans alone. Subsequent to that this verse was revealed. (The reports are widely reported: Qurtubi. They are in Ahmad and Nasa’i: Ibn Kathir).

The report of Marthad b. Abi Marthad meeting his old lover `Inaq as he penetrated Makkah to smuggle out some Muslims is quite widely reported. After one such operation, during which he encountered her, he expressed his wish to marry her if the Prophet would allow and this verse was revealed.

Shawkani traces the report in Abu Da’ud, Tirmidhi, Nasa’i, Ibn Jarir, Ibn al-Mundhir, Ibn Abi Hatim, Ibn Marduwayh, Bayhaqi and Hakim, the last of whom declared it trustworthy. And S. Ibrahim adds that Albani too thought it was trustworthy.

In any case, there is almost consensus of opinion that a fornicator or fornicatress could be taken in marriage if they sincerely repent (Ibn Kathir); although there is a hadith which says,

لا ينكح الزاني المجلود إلا مثله

“A fornicator who has been whipped will not marry but someone like him.” Albani declared this hadith of Abu Da’ud and Ahmad as Sahih (S. Ibrahim).

A group of scholars believe that this commandment stands abrogated by a verse which follows (no. 32), “And marry off your orphans..” (Ibn Jarir, Ibn Kathir). For, one problem then would be that such men and women who committed sinful sexual acts, would be forced to marry either fornicators or pagans. Ibn al-`Arabiyy was also against such a meaning, and therefore, the correct meaning seems to be, as Ibn `Abbas has said, “Sex with an adulteress does not happen but from a fornicator or a pagan.” Ibn Khuwayzmandad had another point: “Probably the verse is applicable to a fornicator who commits the act so openly as to get caught and punished. He or she should not be taken in marriage by a believer” (Qurtubi).There have been many other interpretations, too numerous for presentation (Au.).

It is also reported that Ibn `Abbas understood that the Qur’anic statement expresses a fact, viz., none but a fornicator commits sex with a fornicator or with a pagan (Razi, Qurtubi). Thus he understood the word “nikah” in the sense of sexual intercourse. That is how Sa`id b. Jubayr, Mujahid, Dahhak and a few others understood. Ibn Jarir’s own preferred meaning is also the same. In other words, the allusion is to fornicators, adulterers, and pagans who have free sexual intercourse between themselves, which is prohibited to the Muslims.

12. Lit., muhsanat is “women who are fortified (against unchastity), i.e., by marriage and/or faith and self-respect” (Asad). The term “muhsanat” has been the choice perhaps because any slander against a woman can be far more destructive than against a man. But there could be a linguistic reason too. Perhaps it is the “anfus” (souls) that is meant, which is feminine in Arabic and hence “muhasanat.” When the allusion was to women alone the Qur’an used the following expression (4: 24):

{وَالْمُحْصَنَاتُ مِنَ النِّسَاءِ} [النساء: 24]

“the chaste ones of the women” (Qurtubi).

13. There has been difference in opinion over acceptance of someone’s testimony who falsely accused another of sexual misdemeanor. Is his testimony to be never accepted? According to Sha`bi, `Ata, Ta’us, Mujahid, Dahhak and others, if he repented and admitted that he was wrong in his accusation, his testimony could be accepted after he received his due punishment (Ibn Jarir). That was the opinion of Imam Malik also (Qurtubi). `Umar ibn `Abdul `Aziz accepted him only when another was there in his support. Qadi Shurayh however would not allow such a man’s testimony ever after that. He remarked, ‘We do not know if he has truly repented and amended or not.’ So said Hasan, Ibrahim and a few others (Ibn Jarir).

Imam Abu Haneefah was also of the same opinion. (His opinion was that the words: “Except those who repent thereafter and make amends,” are connected with their questioning in the Hereafter. If they repent, Allah (swt) might forgive them since, as stated in the next verse, “surely then Allah is Oft-Forgiving, Most Kind.” As for their ban against testimony in this world, it remains (Shafi`). However the other three Imams declared that if the man repented and amended, his testimony could be accepted (Qurtubi, Ibn Kathir).

Quite a few have thought that the testimony of a person who was involved in a false case, will never be accepted again in his life, even if he repented, in matters over which he was whipped. And the differences in opinion have prevailed because of the difference over to whom the article “illa” of the fifth verse is applicable (Qurtubi).

Asad adds: “.. Since such a complete evidence (of four eye-witnesses) is extremely difficult, if not impossible, to obtain, in practice, it is obvious that the purpose of the above Qur’anic injunction is to preclude, in practice, all third-party accusations relating to illicit sexual intercourse – for, ‘man has been created weak’ (4: 28) – and to make a proof of adultery dependent on a voluntary, faith-inspired confession of the guilty parties themselves.”

14. The textual word for “the pervert” is fasiqun which leads us to believe that to slander a chaste person is one of the major sins in Islam (Razi). Thanwi adds: If the slanderer is lying, then he is obviously a fasiq, but if he is truthful, then too he is a fasiq for he accuses without four witnesses and unnecessarily embarrasses the accused.

15. Ibn `Abbas reports that when the verse about the requirement of four witnesses was revealed Sa`ad b. `Ubadah remarked, “Is this how it was revealed Messenger of Allah? By Allah, if I am to chance upon someone in the very act (with my wife) am I to go about looking for four witnesses? By Allah, I would not look for four witnesses and let the man finish his act (but rather, I would kill him then and there).” The Prophet (saws) complained to the Ansar about their leader Sa`ad. They said, “Messenger of Allah, indulge him, for he is a man of great sense of honor. He never married but virgins, and when he divorced a woman we did not have the courage to marry her.” It should so happen that the very next day Hilal b. Umayyah came to the Prophet to register his accusation against his wife but without four witnesses. (That was in the ninth year after Hijrah: Qurtubi). The Prophet in truth did not like to hear him, but he would not withdraw. Finally, he resorted to Li`an (mutual invocation of curse) that is, made the two swear as in the above verse. When Hilal had sworn four times the Prophet told the people to restrain him from the fifth oath since it would draw Allah’s wrath. But Hilal swore unhesitatingly the fifth time too. Similarly when the woman’s turn came she too swore four times. The Prophet told his Companions to prevent her from swearing the fifth time, as it would draw Allah’s wrath. When warned, the woman hesitated for a moment and then saying, “I shall not disgrace my people” went on to swear the fifth time. When she had done that, the Prophet spared them both the punishment, separated them and remarked, “Watch her baby. If she brings someone of such and such qualities then it belongs to the father, but if she brings one of such and such qualities then it belongs to the alleged one.” She indeed brought a well-built child, brownish, who later became a governor of Egypt. His parentage remained unknown. According to a few other reports it was Hilal b. Umayyah himself who had first entered the mosque and said to the people (commenting at the revelation of the verse about four witnesses, “(Isn’t it that) a man finds someone with his wife. Now if he killed him, you will kill him too. But if he brought her to the authorities (without the four witnesses), you will whip him?” The Prophet did not like to hear those words. And, it wasn’t even a week before he came complaining that he had seen his wife with a man (in bed), and Allah (swt) revealed the verse of mutual curse (Ibn Jarir, Razi).

The above report is to be found in many hadith works. A shorter version is in Bukhari according to whom when she gave birth to a child similar to Shurayk b. Sahma’ (the man involved), the Prophet (saws) remarked, “If not for the testimony she bore, I would have got her stoned to death” (Ibn Kathir).

Fiqh Rules

• After the oath of condemnation (or, mutual invocation of curse: Li`an), the two, husband and wife, are to be separated by the court, with nothing due to either from the other.

• Their separation will be considered talaq ba’in, that is, they can never remarry each other (Thanwi).

16. The difference may be noted. A lying man receives Allah’s curse while a lying woman receives His anger. This is because it is very unlikely that a man will accuse his wife falsely (as he has the power to divorce her: Au.); while it is more likely that a woman will deny out of shame and fear of the people, hence she is promised greater punishment (Ibn Kathir, reworded).

17. The verse ends abruptly, Asad comments: “This sentence, which introduces the section dealing with the condemnation of all unfounded or unproved accusations of unchastity – as well as the similar sentence which closes it in verse 20 – is deliberately left incomplete, leaving it to man to imagine what would have happened to individual lives and society if God had not ordained all the above legal and moral safeguards against possible false accusations, or if He had made a proof of adultery dependent on mere circumstantial evidence. This idea is further elaborated in verse 14-15.”