24. An-Nur Page 350 24. An-Nur بِسْمِ اللّٰهِ الرَّحْمٰنِ الرَّحِیْمِ سُوْرَةٌ A Surah اَنْزَلْنٰهَا We (have) sent it down وَ فَرَضْنٰهَا and We (have) made it obligatory وَ اَنْزَلْنَا and We (have) revealed فِیْهَاۤ therein اٰیٰتٍۭ Verses بَیِّنٰتٍ clear لَّعَلَّكُمْ so that you may تَذَكَّرُوْنَ take heed اَلزَّانِیَةُ The fornicatress وَ الزَّانِیْ and the fornicator فَاجْلِدُوْا [then] flog كُلَّ each وَاحِدٍ one مِّنْهُمَا of them مِائَةَ (with) hundred جَلْدَةٍ ۪ lash(es) وَّ لَا And (let) not تَاْخُذْكُمْ withhold you بِهِمَا pity for them رَاْفَةٌ pity for them فِیْ concerning دِیْنِ (the) religion اللّٰهِ of Allah اِنْ if كُنْتُمْ you تُؤْمِنُوْنَ believe بِاللّٰهِ in Allah وَ الْیَوْمِ and the Day الْاٰخِرِ ۚ the Last وَ لْیَشْهَدْ And let witness عَذَابَهُمَا their punishment طَآىِٕفَةٌ a group مِّنَ of الْمُؤْمِنِیْنَ the believers اَلزَّانِیْ The fornicator لَا (will) not یَنْكِحُ marry اِلَّا except زَانِیَةً a fornicatress اَوْ or مُشْرِكَةً ؗ a polytheist woman وَّ الزَّانِیَةُ and the fornicatress لَا (will) not یَنْكِحُهَاۤ marry her اِلَّا except زَانٍ a fornicator اَوْ or مُشْرِكٌ ۚ a polytheist man وَ حُرِّمَ And is forbidden ذٰلِكَ that عَلَی to الْمُؤْمِنِیْنَ the believers وَ الَّذِیْنَ And those who یَرْمُوْنَ accuse الْمُحْصَنٰتِ the chaste women ثُمَّ then لَمْ not یَاْتُوْا they bring بِاَرْبَعَةِ four شُهَدَآءَ witnesses فَاجْلِدُوْهُمْ then flog them ثَمٰنِیْنَ (with) eighty جَلْدَةً lashe(s) وَّ لَا and (do) not تَقْبَلُوْا accept لَهُمْ their شَهَادَةً testimony اَبَدًا ۚ ever وَ اُولٰٓىِٕكَ And those هُمُ they الْفٰسِقُوْنَۙ (are) the defiantly disobedient اِلَّا Except الَّذِیْنَ those who تَابُوْا repent مِنْۢ after بَعْدِ after ذٰلِكَ that وَ اَصْلَحُوْا ۚ and reform فَاِنَّ Then indeed اللّٰهَ Allah غَفُوْرٌ (is) Oft-Forgiving رَّحِیْمٌ Most Merciful وَ الَّذِیْنَ And those who یَرْمُوْنَ accuse اَزْوَاجَهُمْ their spouses وَ لَمْ and not یَكُنْ have لَّهُمْ for them شُهَدَآءُ witnesses اِلَّاۤ except اَنْفُسُهُمْ themselves فَشَهَادَةُ then (the) testimony اَحَدِهِمْ (of) one of them اَرْبَعُ (is) four شَهٰدٰتٍۭ testimonies بِاللّٰهِ ۙ by Allah اِنَّهٗ that he لَمِنَ (is) surely of الصّٰدِقِیْنَ the truthful وَ الْخَامِسَةُ And the fifth اَنَّ that لَعْنَتَ (the) curse of Allah اللّٰهِ (the) curse of Allah عَلَیْهِ (be) upon him اِنْ if كَانَ he is مِنَ of الْكٰذِبِیْنَ the liars وَ یَدْرَؤُا But it would prevent عَنْهَا from her الْعَذَابَ the punishment اَنْ that تَشْهَدَ she bears witness اَرْبَعَ four شَهٰدٰتٍۭ testimonies بِاللّٰهِ ۙ by Allah اِنَّهٗ that he لَمِنَ (is) surely of الْكٰذِبِیْنَۙ the liars وَ الْخَامِسَةَ And the fifth اَنَّ that غَضَبَ the wrath of Allah اللّٰهِ the wrath of Allah عَلَیْهَاۤ (be) upon her اِنْ if كَانَ he is مِنَ of الصّٰدِقِیْنَ the truthful وَ لَوْ لَا And if not فَضْلُ (for) the Grace of Allah اللّٰهِ (for) the Grace of Allah عَلَیْكُمْ upon you وَ رَحْمَتُهٗ and His Mercy وَ اَنَّ and that اللّٰهَ Allah تَوَّابٌ (is) Oft-Returning (to Mercy) حَكِیْمٌ۠ All-Wise
(24:1) This is a surah which We have revealed, and which We have made obligatory; We have revealed in it clear instructions1 so that you may take heed.
(24:2) Those who fornicate - whether female or male - flog each one of them with a hundred lashes.2 And let not tenderness for them deter you from what pertains to Allah's religion, if you do truly believe in Allah and the Last Day3; and let a party of believers witness their punishment.4
(24:3) Let the fornicator not marry any except a fornicatress or idolatress and let the fornicatress not marry any except a fornicator or an idolater. That is forbidden to the believers.5
(24:4) Those who accuse honourable women (of unchastity) but do not produce four witnesses, flog them with eighty lashes, and do not admit their testimony ever after. They are indeed transgressors,
(24:5) except those of them that repent thereafter and mend their behaviour. For surely Allah is Most Forgiving, Ever Compassionate.6
(24:6) As for those who accuse their wives (of unchastity), and have no witnesses except themselves: the testimony of such a one is that he testify, swearing by Allah four times, that he is truthful (in his accusation),
(24:7) and a fifth time, that the curse of Allah be on him if he be lying (in his accusation).
(24:8) And the punishment shall be averted from the woman if she were to testify, swearing by Allah four times that the man was lying,
(24:9) and a fifth time that the wrath of Allah be on her if the man be truthful (in his accusation).7
(24:10) Were it not for Allah's Bounty and His Mercy unto you and that Allah is much prone to accept repentance and is Wise, (you would have landed yourselves into great difficulty on the question of unsubstantiated accusation of your spouses).
1. The opening verse persistently stresses ‘We’. The purpose behind this is to vehemently emphasize that this surah was revealed by ‘Us’ [i.e. by God] rather than anyone else. Hence, it ought not to be taken lightly, as. something coming from one who lacks power and authority. It should be appreciated that He Who has revealed this surah is One Who holds everyone’s lives in His grip, Who is so overwhelmingly powerful that no one can go beyond His control.
It is further clarified in the later part of the verse that whatever has been said in this surah is not in the nature of ‘recommendations’ or ‘suggestions’, that may or may not be followed by a person, depending on his own will. They are, instead, categorical commands which must be followed. If someone believes. in and wants to submit himself to God, it is imperative that he acts in conformity with these commands. Furthermore, far from being ambiguous, these commands are couched in terms which are both clear and categorical. As a result, it is not justifiable to make excuses and contend that since the injunctions were incomprehensible it was not possible to act upon them.
This preamble is followed by the commands themselves. The preamble seems to underscore how important the commands are in the sight of God. It is pertinent to point out here that no other surah of the Qur’an has such a forceful preamble.
2. The issue under discussion is hedged in by several legal, moral and historical aspects which need to be explained and elaborated upon. If these aspects were not mentioned in detail, it would be extremely difficult for a person of our own time to appreciate the Qur’anic legislation expounded here. Hence, what follows is an attempt to shed light on different aspects of the Qur’anic legislation in question:
(i) As it is, everyone knows what zina (unlawful sexual intercourse) means, namely that a male and a female have sexual relations without there being any legal sanction for the same. There has been absolute agreement among human beings from very early times that this act is morally wrong, religiously sinful, socially reprehensible and on the whole, condemnable. The only ones who see the matter differently are those who have allowed their carnal desires to overwhelm their reason or who have elevated their eccentricities into philosophy.
What accounts for this universal condemnation of unlawful sexual intercourse is that human nature itself is prompted by an inner impulse to regard it as forbidden. For the very survival of the human species and the sustenance of human society demands that men and women should not come together merely for sensual pleasure and then part company when that purpose has been fulfilled.
Rather, such a relationship should be based on a covenant of mutual fidelity of a durable and abiding nature, a covenant that is well known and enjoys the sanction of society.
Without stable relations of marriage, the human race cannot survive even for a day. This is so because the human baby requires, for its survival and growth, continual compassionate care and nurture for several years in the early part of its life. Now, a woman is not likely to be ready to single-handedly bear the burden of a child’s upbringing unless the male, who was equally responsible for that birth, also shares that burden. Likewise, a society cannot survive without that covenant which creates ties between a man and a woman. In fact, human society cannot even come into being without the matrimonial tie which makes a man and a 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. Hence, uninhibited relations between men and women which are not based on any known and accepted covenant of mutual fidelity are against the very nature of man. It is precisely because of these considerations that fornication has always been looked upon as a grave vice, an act of immorality, and in religious terms, a sin. This also explains why those who have endeavored to encourage people to marry have also sought to prevent the incidence of unlawful sexual intercourse by one means or another. These endeavors, however, differ from one legal, moral, social and religious system to another. This variation stems from the fact that some societies have a strong and clear consciousness about the harmfulness of unlawful sexual intercourse for the human species and human society while the perception of other societies is, relatively speaking, weak and hazy.
(ii) Although there has been general agreement that unlawful sexual intercourse is forbidden, there has been disagreement as to whether it is also a crime which calls for punishment. It is precisely on this point that the Islamic position: radically differs from a number of other religious and legal systems.
Those societies which have been close to human nature have always regarded unlawful relations between a male and a female to be a crime, and have prescribed severe punishments for the same.
As moral corruption made inroads into human society, there developed a lenient attitude, one of tolerance, towards this offence. The first lapse’ in this regard was to make a sharp distinction between fornication and adultery and to consider the former to be an ordinary offence and the latter a punishable one.
For this reason, several legal systems define fornication as the act of sexual intercourse between a male (regardless of whether he is married or not) and a female who is not, one’s wife.
This definition focuses only on the marital status of the woman, and not that of the man. If the woman is without a husband, it is simply a case of fornication rather than adultery, and it is regarded so irrespective of whether the man who commits the act has a wife or not. In ancient Egypt, Babylon, Assyria and India, fornication carried a very light sentence. The same was the case in Greece and Rome and it also influenced Judaic thought. According to the Bible, this offence entails only a monetary compensation. The relevant Biblical command is: If a man seduces a virgin that is not betrothed, and he lies with her, he shall give the marriage present for her, and make her his wife. If her father utterly refuses to give her to him, he shall pay money equivalent to the marriage present for virgins (Exodus 22: 16-17).
The same command is laid down in Deuteronomy, though here it is phrased somewhat differently. It clarifies that the man should pay the woman’s father fifty shekels of silver (Deuteronomy 22: 28-9). However, if a man fornicates with the daughter of a priest, according to Judaic law, he is to be hanged until dead, whereas the girl is to be burnt alive (Everyman’s Talmud, pp. 319-20).
That this view is almost identical with the Hindu code can be seen when we compare it with the laws (Dharma Shastra) of Manu. He says: “Anybody who commits fornication with an unmarried girl of his own caste with her consent, does not deserve any punishment. If the father of the girl is willing, the man should compensate him and marry the girl. However, if the girl belongs to a higher caste and the man is of a lower caste, the girl should be driven away from home and the limbs of the man should be amputated’ (Chapte8r, stanza 365, 366).
If the girl is a Brahmin, the punishment would be to burn the man alive 77).
The fact is that in all these legal systems, adultery which denotes a man’s sexual relations, be he married or unmarried, with a woman who is someone’s wife, is considered the major crime. Once again, what renders this act as a crime is not the mere fact that it is an unlawful sexual act. Rather, the main consideration. is that this act would compel another man to bring up a child who is not his. In other words, fornication as such is not considered a serious offence. Rather, the mixing-up of the parentage of one’s children with those of others is reckoned to be the serious offence which deserves punishment, both in the case of the man.
According to the Egyptians, in such a case the man should be severely beaten with sticks and the woman’s nose amputated. Similar punishments were prescribed in Babylon, Assyria and Persia. In Hinduism, the woman involved in such an act was required to be thrown to the hounds to be torn to pieces and the man put on a hot iron bed and a fire lit all around him. In Ancient Greece and Rome, the husband had the right either to kill the man whom he found having sexual intercourse with his wife or receive damages from him. Subsequently, in the first century B.C., Augustus Caesar decreed that half the property of a man guilty of adultery should be confiscated and that additionally he be exiled.
As for the woman, it was laid down that she would forfeit half her dowry and that one-third of her assets be confiscated and she be banished to a remote part of the Empire. Constantine changed this law and instead laid down capital punishment for both men and women who are guilty of adultery. In the days of Leo and Marcian, the punishment was changed to life imprisonment. Justinian reduced the punishment further and laid down that the woman be flogged and confined to a monastery. Her husband had the right either to obtain her release within two years or leave her there to suffer life-long confinement.
The following represent the legal provisions in Judaic Law pertaining to unlawful sexual relations: If a man lies carnally with a woman, who is a slave, betrothed to another man and not yet ransomed or given her freedom, an inquiry shall be held.
They shall not be put to death, because she was not free (Leviticus 19: 20).
If a man commits adultery with the wife of his neighbor both the adulterer and the adulteress shall be put to death (Leviticus 20: 10).
If a man is found lying with the wife of another man, both of them shall die, the man who lay with the woman, and the woman; so you shall purge the evil from Israel (Deuteronomy 22: 22).
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, the young woman because she did not cry — ‘for help though she was in the city, and the man because he violated his neighbor’s wife: so you shall purge the evil from the midst of you. But if in the open country a man meets a young woman who is betrothed and the man seizes her and lies with her, then only the man who lay with her shall die. But to the young woman you shall do nothing; in the young woman there is no offence punishable by death . . . (Deuteronomy 22: 23-6): By the time of Jesus’ advent, the Jewish rabbis, lawyers, and general public, literally everyone, had consigned this law to oblivion. Even though the law existed. was documented in the Scriptures and considered to be God’s command, still nobody cared to follow it. There is not a single report in Jewish history to suggest that it was ever enforced. When Jesus (peace be on him) embarked on calling people to the truth, he soon attracted a large number of followers, and the different means that were adopted to put a stop to the spread of his Message proved ineffectual.
Faced with this situation, the Jewish leaders and hypocrites thought of a ruse to embarrass Jesus. They brought to him a woman who was guilty of adultery, and asked him to decide her case (see John 8: 1-11).
In so doing, they intended to drive Jesus into one of two difficult positions.
If he pronounced any sentence other than stoning to death, he would be accused of tampering with God’s Law for the sake of worldly exigencies. On the other hand, if he sentenced the woman to stoning, he would put himself in a situation where he could be accused of taking a position that was in flagrant contradiction with the prevailing Roman Law. Moreover, any strict adherence to Mosaic Law by Jesus could be exploited insofar as people would be scared that he would strictly enforce the whole corpus of the Torah.
Jesus (peace be on him), however, turned the tables on his detractors by uttering a short sentence: ‘Let him who is without sin among you be the first to throw a stone at her’ (John 8: 7). On hearing this, the rabbis quietly dispersed, their moral depravity, thus, laid bare. As the guilty woman stood alone, Jesus made her repent. After she repented, he asked her to depart. He did so because in that situation Jesus (peace be on him) was in no position to act as judge, nor had the judicial procedure (such as having witnesses testify to the offence) been followed. Moreover, an Islamic State did not exist at the time which would have enforced the Law of God.
Christians are wont to base themselves on this and a few other statements that Jesus (peace be on him) made on a variety of occasions. In Christian societies an entirely different concept is entertained about unlawful sex. For them, if sexual relations take place between an unmarried man and an unmarried woman (by mutual consent — Ed.) it is certainly a sin but it is not a cognizable offence.
However, if either of the two persons who engage in unlawful sexual relations is married, or if both of them are married, their sexual relations are considered a cognizable offence. Nonetheless, what makes the act a sin is the violation of the marriage contract, rather than the mere fact of unlawful sex, and this makes the’ act an offence in the legal sense. According to Christian doctrine, the married man who engages in unlawful sex is a criminal because he has violated the marital vow which he solemnly made with his spouse at the altar of the church through a priest. However, the only legal consequence of such an act is that the wife of the man so guilty might secure separation from him by charging her husband with being unfaithful to the covenant he made with her. The same is also true of a woman who engages in sexual relations outside of her marriage covenant. At the same time, the husband of the woman who is a party to adultery, also has the right to claim damages from the man who subjected his wife to adultery.
This is the only punishment that Christian Law lays down with respect to married persons, both men and women, who are guilty of adultery. Unfortunately, this punishment is a double-edged sword. For if a woman secures separation from her husband who is guilty of infidelity, she would doubtless be released from him according to Christian Law which stipulates that she may not marry again. The same holds true for the husband who secures separation from his wife who is guilty of infidelity. According to the Christian Law. he too may not marry again. In other words, only those who are prepared to lead the solitary life of monks should brand one’s spouse with infidelity and take the matter to a Christian court.
The modern Western. legal enactments in regard to this question, which are enforced at the present time in most Muslim countries, are based on the very concepts mentioned above. According to Western legal concepts, fornication is regarded at most as a blemish, as an act of immorality, or a sin, but it is certainly not a cognizable offence. It becomes an offence only if one party has resorted to the use of force so that the sexual act took place against the will of the Other-As for having sexual intercourse with someone else’s married partner, the aggrieved party can file for a divorce from the offending party. If adultery is proved. the husband may obtain divorce from his wife and also receive monetary compensation from the man guilty of adultery.
(iii) As distinguished from these concepts, Islam regards the act of illegitimate sexual intercourse as a penal crime per se. Moreover, if such an act is committed by a married person, the severity of the offence increases. This severity does not emanate from the fact that the-adulterer has broken the marital vow, or has violated the sanctity of another person’s bedroom. The offence becomes more severe because of the fact that a legitimate means was available to a married person to satisfy his sexual urge, but he still resorted to unlawful means to so satisfy himself.
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. Now, such a goal cannot be achieved if such relations between men and women are left to everyone’s own will. For, if the opportunity to satisfy one’s sexual urge is available without being attendant to the responsibility of rearing a family, it would be impossible to confine people to lawful relationships alone This can be well illustrated by an example from our own day-to-day life. If people are given the option to travel with or without buying a ticket, how many people would still volunteer to buy such tickets? If carrying a proper ticket is considered a necessary condition for travelling, then it is obvious that travelling without a ticket should be treated as an offence. However, if someone travels without a ticket owing to his resourcelessness, he may be regarded as an offender of a lesser order Conversely, if a wealthy person simply refuses to buy a ticket even though he has the means to do so, he should certainly be regarded as a greater culprit.
(iv) In order to protect society from the harmful effects of unlawful sex Islam does not confine itself to legal sanctions. Instead, it makes use of a number of reformative and preventive measures as well. Legal sanctions are in fact used as a last resort. Quite obviously, in the Islamic scheme of things it is not at all desirable that people be subjected to flogging for having committed unlawful sexual intercourse. What Islam truly aims at is that people terrain from indulging in unlawful sex so that recourse to penal measures does not arise. Hence, Islam seeks, first of all, to purify people’s lives, seeks to infuse people’s hearts with fear of the Omniscient and Omnipotent Lord of the heavens and earth, makes man conscious of his accountability in the Hereafter, thereby making him realize that he cannot escape the consequences of his actions even in the Next Life, thus, creating a disposition in man to obey God’s Law as a necessary corollary of faith. Moreover, Islam repeatedly reminds man that unlawful sex, and unchasteness are mortal sins for which man will have to face a very strict reckoning from God in the Next Life. This is an idea that recurs time and again in the Qur’an. Furthermore, Islam takes every ‘step to create the conditions that facilitate marriage. If a man does not feel satisfied for some. reason by having just one wife, Islam provides him with the opportunity to have a maximum of four wives. If the spouses find their matrimonial relations incompatible, the male partner may resort to talaq (repudiation of the marriage by the husband) and the female partner may have recourse to khula (separation at the initiative of the wife). If there are serious differences between a husband and a. wife, Islam provides that the two may either approach other relatives with a request that they serve as arbitrators or they may refer their problems to a court of law. This may be done in order to achieve a reconciliation between them, or the two may be freed of their marital tie such that it becomes possible for them to re-marry whomsoever they wish.
These points are clearly expressed in Surahs al-Baqarah, al-Nisa’ and al- Talaq. It should also be noted that the present surah expresses its disapproval of those men and women who abstain from marriage, and that it calls upon them instead to marry. This injunction embraces both the free person and the slave, male and female. Islam also seeks to remove factors which prompt or provoke people into illegitimate sexual relations or which provide opportunities for engaging in the same. Hence, one year before laying down the punishment for unlawful sexual intercourse, women were directed in Surah al-Ahzab to cover themselves with their mantles and draw their outer garments about themselves. The wives of the Prophet (peace be on him), who were the role models for all Muslim women, were directed to stay indoors and not go about displaying their charms. If people wanted to ask anything of them, they were to do so from behind a screen, Muslim women look up to the wives and daughters of the Prophet. (peace be on him) rather than the women of pre-Islamic times who were devoid of the concepts just expressed.
Even before the enforcement of the’ penal laws pertaining to unlawful sexual relations, free-mixing between the sexes had ceased to be the norm in Muslim society. Women too had given up parading their charms in public. Furthermore, those conditions which create opportunities for and facilitate indulgence in unlawful sex had been done away with. It was, then, after these measures had been taken that the penalty for unlawful sexual intercourse was prescribed. Thereafter, it was in this very surah that deterrent measures were laid down so that the spread of fahsh (obscenity) would be prevented. Likewise, prostitution was outlawed and those guilty of accusing others of involvement in unlawful sexual relations were liable to a severe punishment if they were unable to substantiate their accusations with due evidence. Moreover, both men and women were asked to lower their gaze So as to put an end to ogling, which all too quickly leads to admiration of beauty and which, in turn, gives rise to love affairs. Women were also told to distinguish between their male relatives, treating their mahram relatives differently from their non-mahram relatives, and to abstain from meeting relatives of the latter category in a state that would make a display of their adornments.
When one takes note of all this, one appreciates the pervasive scheme of reform envisioned by Islam whereby the punishment prescribed for unlawful sexual acts is only one aspect. The idea underlying these penalties is that exemplary punishment should be meted out to the incorrigibly wicked who ignore all reform measures.
These are the ones who are so deeply immersed in evil that they fail to mend their ways despite all the different measures adopted by Islam to mobilize their inner resources to bring about changes in people’s attitude and behavior. Moreover, Islam adopted a number of measures facilitating marriage and the like so that legitimate opportunities were provided to people for satisfying their sexual urges.
Now, if after all this some insist upon satisfying those urges in an unlawful manner, then they deserve to be met with an exemplary punishment. If even one such individual in a society is duly punished, several others with similar propensities will realize how such culprits are treated, and presumably this will act as something of a deterrent. This penalty is not simply meant to chastise an offender, but also declares that Muslim society is not an entertainment park for those bent upon unfettered sexual self-indulgences. It is not a pasture for those who, impervious to all moral restraints, are inclined to let their lasciviousness loose.
When one considers the reformative scheme of Islam it is evident that it is both coherent and well-conceived. Each part is so vital that none can be dispensed with and nothing added. Ideas for altering this scheme often enter the heads of naive simpletons who are wont to throw down the mantle of reform without even comprehending Islam’s own scheme of reform. Alternatively, such ideas come to the minds of those, who out of their own perversity, deliberately seek to subvert the Islamic scheme of things.
(v) Unlawful sexual intercourse was declared an offence in 3 A.H. Nevertheless, it was not the kind of offence against which the Islamic State, or its police, or its courts could take action. By and large unlawful sexual intercourse was considered an offence against the family, or at best against society. Hence, it was members of the family concerned who were entitled to mete out punishment to offenders. The operative injunction at this stage was that if four witnesses testified to seeing a man and a woman engaged in unlawful sex, then both of them should be beaten and the woman confined to the house. This injunction was to remain in operation until the revelation of any further injunction on the subject. (See al-Nisa’ 4: 15-16 and Towards Understanding the Qur'an, vol. II, al-Nisa’ 4, n. 26, pp.17-19.) The actual injunction which laid down a specific penalty for fornication was revealed about three years after the revelation of this initial injunction: This fatter injunction abrogated the former and henceforth made fornication a cognizable offence.
(vi) The punishment laid down in this verse pertains to unlawful sexual intercourse per se. It is not the punishment which is prescribed for those who are convicted of unlawful post-marital sexual intercourse which is a very grave offence in the sight of Islamic Law. It is evident from the Qur’an that the punishment which is being prescribed here is meant for those unmarried persons who are guilty of unlawful sexual intercourse as indicated by the Qur’an itself.
For it was earlier stated in Sarah al-Nisa. ‘As for those of your women who are guilty of immoral conduct, call upon four from amongst you to bear witness against them. And if four men do bear witness, confine those women to their houses until either death takes them away or Allah opens some way for them (Towards Understanding the Qur’an, vol. I, al-Nisa’ 4: 15, p. 17).
A further command was laid down in the same surah: ‘And those of you who cannot afford to marry free believing women (muhsanat), then marry such believing women whom your right hands possess . . . Then if they become guilty of immoral conduct after they have entered into wedlock, they shall be liable to half the penalty to which free women (muhsanat) are liable (Towards Understanding the Qur’an, vol. II, al-Nisa’ 4: 25, p. 28).
The former verse indicates that God would ordain some other commandment for women guilty of fornication and who had, therefore, been sentenced to confinement in their houses till death or until Allah ‘opens some way for them (al-Nisa’ 4: 15). It is clear, then, that the present verse of Surah al-Nur is the command which is alluded to in Surah al-Nisa’. The second verse of Surah al- Nisa’ quoted above mentions the punishment for married slave-girls who are guilty of fornication. The word muhsanat (free believing women) is used twice in the verse and in both cases it occurs in the same context. Obviously it carries the same meaning in both places. In the second instance, (al-Nisa’ 4: 25), while laying down the punishment for married slave-girls reference is also made to those who cannot ‘afford to marry free believing women’ (al-Nisa’ 4: 25). This expression clearly excludes married women and is specifically directed at free believing women who are unmarried. Moreover, at the conclusion of verse 25 of Surah al-Nisa’, it 1s stated that if a married slave-girl commits unlawful sexual intercourse, she would receive half the penalty meted out to a free believing woman guilty of the same offence. It is evident from the context that the expression muhsanat carries the same meaning as in the other verse. In other words, the reference is not to a married woman, but to an unmarried free woman. Taken together, both these verses of Surah al-Nisa’ suggest that the injunction conveyed through this verse of Sarah al-Nar prescribes the punishment to be inflicted on unmarried persons who are guilty of unlawful sexual intercourse. (For further details see Towards Understanding the Qur'an, vol. II, al-Nisa’ 4, n. 46, p. 29.)
(vii) Let us now look at the question of what the punishment is for unlawful sexual intercourse committed by a free woman. The Qur'an, itself, is silent about this. A number of authentic traditions, however, fully establish the point that not only did the Prophet (peace be on him) specify lapidation as its punishment, but he himself put that punishment into effect in a few instances. This practice was also followed 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). The reason being that the evidence for its validity is so numerous and so weighty that no scholar worth the name would dare deny it. In fact, in the whole history of the Ummah none except the Khawarij and some Mu‘tazilah have considered it otherwise. Even then they did not reject it on the grounds that it did not have the Prophet’s sanction, but rather because they held it to be contrary to the Qur’an.
Their objection, however, was ill-founded and rested on their misunderstanding of the Qur’an. Such people claimed that the words zaniyah and zani (those who commit ‘unlawful sexual intercourse — whether female or male’) were used in an absolute (mutlaq) sense. Hence, they considered the Qur’anic prescription of flogging each of them with a hundred lashes an addition to the punishment prescribed by the Qur’an with regard to all those who indulge in unlawful sexual relations, regardless of their marital status. They did not see any justification in distinguishing between married and unmarried persons who commit unlawful sex nor in prescribing a different punishment for those who fall into the former category. They considered such a distinction to be opposed to the Law of God.
This line of argument is seriously flawed. It disregards the fact that the Prophet’s explanations of the Qur’an carry the same weight as the Qur’an itself. This is evident from the following example: The Qur’an makes an absolute statement about men and women who commit theft, and prescribes the punishment of cutting off his or her offending hand. If this Qur’anic command is not interpreted in light of its explanation by the Prophet (peace be on him), we will not be able to make any distinction between thieves, and the hand of every thief will be amputated even if he stole only a needle or a fruit. This is bound to happen if we do not restrict the absoluteness of the Qur’anic statement in light of its explanation by the Prophet (peace be on him). On the other hand, if someone who steals millions of rupees and, when arrested, contends that he has repented and mended his ways and that he should, therefore, be set free on the grounds of the Qur’anic verse which makes this absolute statement: ‘But he who repents after he has committed wrong, and makes amends, Allah will graciously turn to him. Truly Allah is All-Forgiving, All-Compassionate’ (al- Ma’idah 5: 39). Obviously, this apparently absolute statement has got to be qualified by other considerations, especially by the traditions which have a bearing on the subject.
To take another case, we find that the Qur’an forbids a man to marry his foster mother or foster sister (al-Nisa’ 4: 23) but it does not so forbid marriage to one’s foster daughter. If the above line of argument is followed consistently, one would be justified in contending that forbidding marriage with one’s foster-daughter is opposed to the Qur’an. The Qur’an also forbids a man from marrying two sisters at the same time (al-Nisa’ 4: 23), but it does not specify that he cannot marry two women one of whom is a maternal aunt and the other her niece; or one whom is a paternal aunt and the other her niece. Now, anyone who pursues this argument, is bound to say that to regard the above-mentioned marital ties as forbidden is opposed to the Qur’an. Likewise, marriage with one’s step-daughter is only prohibited if she has been brought up in her stepfather’s house (al-Nisa’ 4: 23). However, if someone were to consider marriage with his step-daughter to be forbidden in toto, he would be regarded, according to the line of argument mentioned above, as holding an opinion in opposition to the Qur’an.
Likewise, the Qur’an grants permission to pledge one’s property in terms which create the impression that this permission is dependent upon the person being a traveler and to whom no scribe is available to commit the loan document to writing (al-Baqarah 2: 2 and 3). If one follows this line of argument, one would consider pledging one’s property while still at home and when a scribe becomes available then commit the loan document to writing.
To consider another example, the Qur’an states in quite general terms: Take witnesses when you sell and buy something’ (al-Baqarah 2: 282). According to this logic, all transactions which take place day in and day out would be regarded as unlawful since no witnesses are brought forth to prove, them.
These examples establish the fallacious position of those who regard lapidation as contrary to the Qur’an. It is undeniable that in the Islamic scheme of things the Prophet (peace be on him) was required not only to convey God’s commandments, but also to explain their true purpose, illustrating how they are to be applied, and whether any exception may. be made in their application. Anyone who denies this role of the Prophet (peace be on him) goes against the very fundamentals of faith itself. Moreover, such a view would land us in ‘awkward situations which are just too many to enumerate here.
(viii) Muslim jurists are at variance with one another as regards what constitutes zina (unlawful sexual intercourse). According to Hanafi scholars, it consists of ‘a man’s frontal sexual intercourse with a woman to whom he is neither married, nor whom is his slave-girl, nor about whom there is any reasonable ground for him to assume that she is his wife or slave-girl This definition of zina excludes sodomy as well as sexual intercourse with animals. It is only sexual intercourse in the vagina of a woman which is reckoned as zina provided it is not done with legal title or under the misunderstanding that one is entitled to it.
By contrast, Shafi‘i jurists define zina as follows: ‘Unlawful sexual intercourse (zina) consists of the act of penetration of a person’s private part into the private part of another provided that it is unlawful to do so but to which people are instinctively inclined.’
According to the Malikis, zina consists in having sexual intercourse, either vaginal or anal, be it with a man or a woman, when one does not have the right to do so, and when there is no ground to assume that one has such a right. According to the last two schools, zina also covers sodomy.
The fact of the matter is that these latter two definitions do not conform with the well-known definition of zina and the Qur’an always uses a term in its widely familiar meaning. Should a particular word be employed as a special term, the Qur’an itself explains its connotation. There is, however, nothing in the above verse to indicate that the word zina is used for some special rather than its ordinary meaning. Hence, the word should be taken in its general, widely-known sense.
In other words, it should be deemed to stand only for what is normally considered as unlawful sexual intercourse between a man and a woman. Other forms of sexual perversion, therefore, lie beyond the scope of this above definition.
Moreover, it is common knowledge that there was some difference of opinion among the Prophet’s Companions regarding the punishment that ought to be meted out to those guilty of sodomy. Had sodomy been considered a part of zina, there would have been no reason for any disagreement among the Companions on this question.
(ix) Legally speaking, a man’s mere penetration of his penis into a woman’s vagina, provided it is unlawful for him to do so, is enough to constitute zina and make him liable for punishment. Full penetration of the penis or having full sexual intercourse are not the necessary constituents of zina. However, if the penetration of a man’s penis does not take place, the mere fact that a man and woman are found lying on the same bed, or that they are engaged in love play, or are found together in a nude position, none of these suffice to convict them of zina. If a man and a woman are found in such compromising positions, the Shari‘ah does not prescribe that they be subjected to a medical examination so as to determine whether sexual intercourse actually took place, and to punish them if it is so established. Those who are found in such shamelessly compromising positions would, however, be subjected to the punishment that might be decided upon by the gddi, depending on the circumstances of each particular case. It is also possible that the Shara of an Islamic State might determine the punishment to be meted out in such cases. However, if it is decided that the punishment consists of flogging, this may not exceed ten lashes.
This because of a hadith in which it is specified that a person may not be - subjected to more than. ten lashes in cases which do not involve hadd punishment. (See Bukhari, K. al-Hudud, ‘Bab kam al-Ta‘zir wa al-Adab’, Muslim, K. al-Hudud, ‘Bab Qadr Aswat al-Ta‘zir’ and Abu Da’ ud, K. al-Hudud. ‘Bab fi al-Ta‘zir’ - Ed.)
Conversely, if someone is not caught committing such an objectionable act [i.e. one which is short of zina] but voluntarily confesses the same from a feeling of remorse, it suffices to exhort him to repent. It is narrated by ‘Abd Allah ibn Mas‘ud that someone came and confessed that he had everything possible with a woman in the countryside short of sexual intercourse. So saying, he offered himself for punishment in the manner that was considered appropriate. In response, “Umar said to him: ‘When God has concealed. what you had done, you should not have made it public.’ The Prophet (peace be on him) remained quiet all along and the person departed. He then called for him and recited the following Qur’anic verse: ‘And establish the Prayer at the two ends of the day and in the first hours of the night. Indeed, the good deeds drive away the evil deeds.’ (Towards Understanding the Qur'an, vol. IV, Hud 11: 114, p. 137.) Someone asked whether this ruling was meant specifically for that person alone. To this the Prophet (peace be on him) replied: ‘No, it is a general ruling.’ (See Bukhari, K. Tafsir al-Qur’an, ‘Bab Qawlihi: wa aqim al- Salah tarafai al-nahar wa zulfan min al-layl ... (Hud 11: 114)’ and Tirmidhi, K. Tafsir al-Qur’an, ‘Bab wa min Surah Hud’ — Ed.) Not only that but if a person voluntarily admits to having committed an offence without specifying it, the Shari‘ah does not permit probing the offence he committed. In this respect, someone once appeared before the Prophet (peace be on him) stating that he was liable to hadd punishment and asking that the Prophet enforce the same. The Prophet (peace be on him) did not ask about the hadd to which the man was liable. After finishing the Prayer, the man rose once again, saying: ‘I am guilty. Punish me.’ Thereupon the Prophet (peace be on him) said: ‘Have you not offered Prayers with us just now?’ He said: ‘Yes.’ The Prophet (peace be on him) said: ‘Allah has pardoned your mis-deed.’ (See Bukhari, K. al-Hudud, ‘Bab idha aqarra bi al-Hadd . . . hal li al-Imam an yastura ‘alayh’ - Ed.)
(x) According to Islamic teachings, a man may not be convicted of zina unless certain conditions, which we shall explain below, are fulfilled. In this regard a distinction is made between conviction for zina as such, and someone’s commitment of that offence after marriage. With regard to someone’s conviction merely for zina, it is necessary that the person be adult and sane. If a minor or - an ‘insane person commits zina, he is not liable for the hadd punishment laid down.
As for convicting someone of zina after ihsan (marriage), some additional conditions have to be met apart from those of adulthood and sanity. These conditions are as follows: first, that the said person be free. There is unanimity among scholars — and this on the grounds that the Qur’an itself indicates (al- Nisa’ 4: 25 — Ed.) — that a slave is not liable to lapidation. We have mentioned earlier that if a slave-girl-is convicted of unlawful sexual intercourse, she is liable to half the punishment prescribed for an unmarried free woman. Jurists are unanimous that this also applies to male slaves. Second, such a person should have been duly married. There is unanimity of opinion on this question as well. In accordance with this condition, if a man has had sexual relations with his slave-girl or he has contracted a defective marriage, he is not reckoned "as a married person. In other words, if such a person is convicted of unlawful sexual intercourse, he is liable to be flogged rather than lapidated. Third, such a person should not only have been married but should also have had privacy (khalwah sahihah) with his wife [that is, he should have consummated his marriage]. The mere contract of marriage does not place a man or woman in the category of muhsan so that were he or she to commit unlawful sexual intercourse, they might be punished with lapidation. Most jurists are agreed on this point as well.
Abi Hanifah and Muhammad ibn al-Hasan al-Shaybani have further added that a man or woman will be considered muhsan only if both of them were free, sane and adult at the time of the marriage and their enjoyment of consummation of the marriage. The difference caused by this additional condition is that if someone married a slave-girl, a female minor or an insane woman and then had sexual intercourse with her, he will still not be lapidated even if he commits unlawful sexual intercourse thereafter. The same applies to women in similar circumstances. That is, if a woman has had sexual intercourse with a minor, insane or slave husband, she will not be lapidated even if she is guilty of unlawful sexual intercourse thereafter. Even a little reflection on this enables one to appreciate that these two authorities, renowned for their intellectual maturity, added something which perfectly stands to reason.
The fourth condition in this regard is that the culprit concerned should be a Muslim. There is, however, considerable disagreement among jurists on this point. Shafi‘t, Abi Yisuf and Ahmad ibn Hanbal do not consider this to be a requisite condition. For them, even if a dhimmi commits unlawful sexual intercourse, he will be lapidated. However, Abi Hanifah and Malik are agreed that lapidation should only be applied to Muslims who commit unlawful sexual intercourse after ihsdn (marriage). Among their argunients, the most reasonable and weighty is that in order for such a severe punishment as lapidation to be inflicted, the culprit should be proved as having committed the error even though he was in a full state of ihsan.
Ihsan means to be fortified so that one may be able to fully protect oneself. This is achieved by three things. The first of these fortifications consists of belief in God and in the accountability of the Hereafter and the acceptance of God’s commands as the binding norms of one’s behavior. The second consists of one being free, rather than a slave, so that.one is immune from any other person’s constraint which might prevent one from making use of the lawful means of gratifying one’s instinctive desires. In other words, a person is not faced with a state of compulsion and helplessness that prompts him to commit sin. Likewise, such a person should also not be devoid of the support that a person receives from his family in safeguarding his morals and honor. The third fortification consists of wedlock, which provides a person with the lawful means to satisfy his desires. It is only when one has these three protective fortifications that one becomes fully secure. It is only after these three conditions have been fulfilled that a person deserves to be lapidated for having merely gratified his lust.
If, however, someone does not believe in God, or in the Hereafter, or in a set of Laws prescribed by God, he is obviously not in a state of ihsan, Hence, committing such an otherwise outrageous act of immorality does not attain the same degree of graveness that warrants his lapidation. This opinion is endorsed by a tradition on the authority of ‘Abd Allah ibn ‘Umar which was narrated by Ishaq ibn Rahawayh in his Musnad and by Daraqutni in his Sunan: ‘He who associates aught with God in His Divinity is not a muhsan.’ There is, however, disagreement as to whether the sentence mentions “this tradition is a saying of the Prophet (peace be on him) or simply that Abd Allah ibn ‘Umar. Despite this weakness in the tradition, its content Seems perfectly sound. It is possible though to controvert this view by reference “on case which involved a Jew as the culprit whereby the Prophet (peace be on m decreed that he be lapidated. Such a contention, however, would not be tenable. For if we bring together the authentic traditions relating to this case it becomes evident that the Prophet (peace be on him) did not enforce this provision Islamic Law on the grounds of it being the law of the land, he rather enforced upon the Jew his own religious law. We learn from an authentic tradition in Bukhari and Muslim that when this case was put before the Prophet (Peace be on him), he asked the Jews present: “What is the relevant provision for this [offence] in your Scripture, the Torah?’ (See Muslim, K. al Hadud Ba Rajm al-Yahud Ahi al-Dhimmah’. There is, however, a slight discrepancy between words of hadith quoted by the learned author here. He quotes the words: “we have found that the actual words in Muslim are Ed.) When it became clear that the Torah prescribed lapidation, the Prophet (peace be on him) said: ‘So I decide according to what is laid down in the Torah. (See Abu Daud, K. al-Hudud, ‘Bab fi Rajm al-Yahidiyin’ — Ed.) According to another tradintion while giving his verdict on this case the Prophet (peace be on him) remarked: “O Allah, I am the first person to revive Your command which they [the Jews] caused to die. (See Muslim, K. al-Hudud, ‘Bab Rajm al-Yahud Ahl al-Dhimmah’ an Abu Da’ ud, K. al-Hudud, ‘Bab fi Rajm al-Yahidiyin’ — Ed.)
(xi) In order to convict’ someone of unlawful sexual intercourse, it is not only necessary to make sure that he committed that act, but also that he committed it of his own free-will. If someone is compelled into that act, he is neither guilty nor deserving of punishment. In such cases, the person is not liable to punishment in view of the general principle of the Shari‘ah which states: A man acquit of responsibility for acts to which he has been compelled,’ In verse 33 of ne Present surah we should note God’s forgiveness of women who have been subjected to sexual intercourse under duress. Several traditions also establish that in case of rape, it was only the rapist who was punished whereas the victim was spared. According to one tradition a woman who was proceeding to perform Prayers in the darkness of night was overpowered and raped. When she cried for help people came to her rescue and the rapist was arrested. The Prophet (peace be on him) had the rapist flogged while the woman was set free. (See Tirmidhi, k. al Hudud ‘Bab ma ja’ fi al-Mar’ah idha ustukrihat ‘ala al-zina’ and Abu Da ud, k. al Hudud, ‘Bab fi Sahib al-Hadd yaji’u fa yuqirr’ — Ed.) According to another tradition, someone raped a girl during the days of ‘Umar. Umar made the rapist flogged while the girl was free to go. (See Bukhari, K, al-Ikrah, ‘Bab Idha ustukrihat al-Mar’ah ‘ala al-zina fa la Hadd ‘alayha - Ed.) In view of these authentic traditions there is a unanimous ruling that women subjected to the sexual act under duress ought not to be considered guilty. There remains disagreement among scholars, however, on the question of whether a male who is compelled to commit unlawful sexual intercourse is guilty or not.
Abu Yusuf, Muhammad ibn al-Hasan al-Shaybani, Shafi‘i and Hasan ibn Salih are of the opinion that if a man is forced into-having sexual intercourse he should also be forgiven. Zufar, however, is of the opinion that such a person ought not to be forgiven on the grounds that sexual intercourse cannot be performed without penile erection and the fact that erection took place shows that the person was motivated by sexual passion. Abu Hanifah is of the opinion that if the State or any magistrate appointed by the State forces someone to have unlawful sexual intercourse, he will not be punished. For if the State itself forces someone to commit a crime, it forfeits the authority to enforce the punishment laid down for it. If, however, someone other than the State forces a person to commit unlawful sexual intercourse, he will be punished. This is so because the culprit could not have committed the crime without sexual passion, and sexual passion cannot be forced on anyone from without.
Of these three, the first position, namely that of the male who is compelled to commit unlawful sexual intercourse, is the most sound. What makes it so is that though erection may indicate the sexual arousal of the person concerned, it does not necessarily show his consent and desire to engage in unlawful sexual intercourse. Suppose a tyrant forcibly casts a person of good moral character into prison, confines him in a room, and then sends to that room a young and beautiful woman, stark naked and forcibly keeps the two confined in that room under lock and key, refusing to release that person until he commits the sexual] act with her. Let us suppose that under such circumstances the two do have ' sexual intercourse and the tyrant is able to produce four witnesses to that effect.
Would it be fair to stone them to death in disregard of the circumstances in which that act was committed? Would it be fair even to have them flogged? It stands to reason and also accords with human behavior that at times a person’s sexual passion might be aroused without his intention having any hand in the matter. Alternatively, suppose a person is imprisoned and is allowed to partake of nothing except wine. Now, if he were to drink Wine in such a situation, would it be fair to punish him for drinking wine even though he drank it under compulsive circumstances? Should we consider him deserving of punishment merely on the grounds that wine could not have gone down his throat unless he had willed it? For a man can be convicted of a crime not merely because of his will, but also because of his free-will which accompanied the crime. If someone is forcibly placed under circumstances which virtually compel him to engage in a criminal act, he should be absolved of all guilt in certain cases, and in others the extenuating circumstances should lighten his offence.
(xii) The Shari‘ah does not permit anyone other than the State to prosecute those who commit unlawful sexual intercourse, be they men or women. Nor is anyone besides the court empowered to punish them. All jurists of the Ummah are agreed that the demand to execute the Qur’anic command of flogging such persons is not given to ordinary people. It is rather directed to the magistrates and judges of the Islamic State. There is, however, disagreement over the question of whether a master has the right to enforce hadd punishment on his slave. All leading jurists of the Hanafi school are agreed that he is not empowered to do so. The Shafi‘is, however, are of the opinion that he has such authority. According to the Malikis, a master is not authorized to amputate the hand of a slave who is guilty of theft. He can, however, enforce the hadd punishment on a slave who is found guilty of zina or gadhf (unsubstantiated accusations of unlawful sexual intercourse) or drinking.
(xiii) Islamic Law declares the punishment for unlawful sexual intercourse to be a part of the law of the State. Hence, this punishment is enforced on all subjects of the State, be they Muslim or non-Muslim. Except for Malik all leading jurists share this opinion. Abu Hanifah though, is of the opinion that non-Muslims cannot be stoned to death. The reason behind not so enforcing this punishment on non-Muslims is that one of the conditions for the enforcement of stoning is that the person concerned be a fully-fledged muhsan. Now, since a person does not become a full muhsan unless he is a Muslim, so non-Muslims cannot be stoned to death. Malik, however, argues that the command to punish those who commit unlawful sexual intercourse is addressed exclusively to Muslims, i.e. the punishment laid down in Islamic Law for this offence is a part of the personal law of the Muslims. A musta’min (the non-Muslim who enters Dar al-Islam with the assurance of security) who commits unlawful sexual intercourse, according to Shafi‘i and Abu Yusuf, is to be subjected to a hadd punishment. But Abu Hanifah and Muhammad ibn al-Hasan al-Shaybani are of the opinion that he should be spared even this.
(xiv) Islamic Law does not make it obligatory for people to confess their crimes. Nor does it make it obligatory for them to report offences committed by others to the authorities. However, once the authorities are informed that such an offence has been committed, there remains no room to spare the. culprit the required punishment. According to a hadith, the Prophet (peace be on him) said: ‘He who commits any of these filthy acts, should keep it concealed under the cover that God has placed over it. However, if he exposes it, we will enforce on him the punishment laid down in the Book of God.” (See Malik, Muwatta , K. al-Hudud — Ed.) Abu Da’ud recorded with regard to Ma‘iz ibn Malik al- Aslami that after he had committed unlawful sexual intercourse, he was told by Hazzal ibn Nu‘aym to go to the Prophet (peace be on him) and confess his offence. He accordingly went to the Prophet and confessed what he had done.
Thereupon, the Prophet (peace be on him) subjected him to death by stoning.
At the same time, the Prophet (peace be on him) said to Hazzal: Had you covered his crime by your garment, it would have been better for you. (See Abu Da’ud, K. al-Hudud, ‘Bab fi al-Satr ‘ala Ahl al-Hudud’ — Ed.) There is also a hadith that the Prophet (peace be on him) said: ‘Better pardon one another with regard to hudud, because when it reaches me, it becomes obligatory to enforce it.’ (See Abu Da’ud, K. al-Hudud, ‘Bab al-‘Afw ‘an al-Hudud ma lam - tablugh al-Sultan’ and al-Nasa’i, K. Qat‘ al-Sdriq, ‘Bab ma yakunu Hirzan wa ma la yakun’ — Ed.)
(xv) As far as the offence of unlawful sexual intercourse is concerned, it is not liable to mutual settlement. The following incident is found in almost all collections of Hadith. A young man who worked as a laborer for someone committed unlawful sexual intercourse with that person’s wife. The father of the young man obtained the affected person’s consent in lieu of a hundred goats and a slave-girl. However, when the case was put before the Prophet (peace be on him), he said: ‘Your goats and your slave-girl are returned to you.’ (See Bukhari, K. al-Sulh, ‘Bab idha Istalahi ‘ala Sulh jawr fa al-Sulh Mardud’ — Ed.) Thereafter, he enforced on both the convicted man and the woman the punishment laid down for unlawful sexual intercourse. This not only indicates that this question may not be settled by mutual agreement, but also that it does not provide for paying damages in cases which involve the violation of a woman’s honor.
(xvi) In an Islamic State, no one can be subjected to any punishment for committing unlawful sexual intercourse unless that charge can be established by due evidence. Unless there is definite evidence against someone that he/she was guilty of unlawful sexual intercourse, he/she may not be subjected to the hadd punishment regardless of the number of sources from which the rulers come to know about the occurrence of that offence. There was a woman in Madina about whom it was generally said that her sexual immorality was widely known. According to a tradition, she made a display of her wickedness even after embracing Islam. (See Bukhari, K. al-Tamanni, ‘Bab ma yajuz... wa qawlahu Ta‘a la ‘law anna li bikum quwwah’ (Hud 11: 80) - Ed.) In another tradition, it is said that she made her immorality known publicly. (See Bukhari, K. al-Hudud, ‘Bab man azhar al-Fahishah’ — Ed.) According to these traditions ‘suspicion was attached to her because of her way of talking, her demeanor and because of the kind of people who frequented her. Nevertheless, since there was no definite proof of her being guilty of this act, she was not punished. This despite the fact that the Prophet (peace be on him) said about her: ‘If I had to stone someone to death without proof, I would certainly have had her stoned.’. (See Ibn Majah, K. al-Hudud, ‘Bab al-satr ‘ala al-Mu‘min wa Daf al-Hudud bi al-Shubuhat.’ There is a slight variation between the words quoted by the author and the text we have found in Ibn Majah. The text, according to the author is whereas we have found instead of —- Ed.)
(xvii) The first possible proof of the ‘offence is that there should be witnesses who affirm that the crime was committed by the people in question. What follows represents some of the important aspects of Islamic Law on this question: (a) The Qur’an: specifies that as far as the proof required in connection with sexual intercourse is concerned, there should be at least four eyewitnesses to the act. This point was made in al-Nisa’ 4: 15 and also in the present surah (see verse 13). Without witnesses, a judge cannot decide the case on the basis of his personal information, so much so that he cannot even decide the case had he seen the offence with his own eyes.
(b) Moreover, the testimony of only those witnesses who fulfil the conditions laid down by Islamic Law as being trustworthy can be accepted. These conditions include that the person has not been convicted of making a false testimony or of fraud and cheating; nor should he be a convicted criminal; nor someone well-known for his enmity towards the accused, etc. In any case, no person can be stoned to death or even flogged on the basis of evidence which is not fully reliable.
(c) The witnesses should testify that they saw the man and the woman concerned engaged in the actual state of sexual intercourse, i.e. they saw the act as clearly as a staining needle in a collyrium, or a rope immersed in a well.
(d) The witnesses should be agreed about the time, place and identity of the persons engaged in the act of sexual intercourse. Any variance in their statements on these vital aspects would render their testimony void.
These conditions of evidence clearly show that Islamic Law does not want that tripods be fixed here, there and everywhere and that the flogging of people become a daily spectacle. Instead, punishments are to be inflicted only when, and despite the efforts made to reform people and deter them from such criminal acts, there remains in an Islamic society those who shamelessly commit sexual intercourse before the eyes of at least four other people.
(xviii) There is a difference of opinion on the question of a woman being found pregnant even though she has no husband, or of a slave-girl being pregnant without her having a known master. In this respect, the question is does their pregnancy provide sufficient grounds for them to be prosecuted for unlawful sexual intercourse? ‘Umar considered this sufficient ground as did the Malikis. The majority of jurists, however, do not consider the mere fact of pregnancy a sufficiently strong ground to subject anyone to lapidation or flogging. In order that such a severe punishment be awarded, it is necessary that either the accused should admit guilt or the witnesses bear testimony that the offence was committed. .
One of the basic guiding principles of Islamic Law is that the accused be granted the benefit of doubt. The Prophet (peace be on him) said: ‘Avoid enforcing hudud as much as you can’ (Ibn Majah). There is another hadith of similar import: ‘Keep Hudud away from Muslims as much as possible. If there is any way to spare people from punishment, let them go. For it is much better that an imam (i.e. ruler) should err in acquitting someone rather than that he should err in punishing someone [who is not guilty]. (See Tirmidhi, K. al-Hudud, ‘Bab ma ja’ fi Dar’ al-Hudud — Ed.) In light of these principles, pregnancy might be a very strong ground for suspecting someone of being involved in unlawful sex, but it is certainly not conclusive proof of the same. For there is a one in a million chance that the male sperm might have reached a woman’s womb leading to conception even though sexual intercourse had not taken place. Even this remote possibility is sufficient to save the accused woman from being subjected to severe punishment.
(xix) There is also disagreement among jurists as to what should be done with those who level a charge of unlawful sexual intercourse when witnesses disagree in their statements, or when. their testimonies fail to establish the charge. Should those witnesses who testified to the offence be convicted of making false testimony? Some jurists are of the opinion that in such a case false witnesses should be held guilty of slander (gadhf) and as such flogged with eighty lashes. According to other jurists, they should not be punished for they only appeared as witnesses and not as plaintiffs. Their reasoning being that if such witnesses were liable to punishment then it would deter them from appearing before the courts to testify. In other words, who would take the risk of testifying when a person cannot be sure that his testimony will be considered true by the court, or when the possibility exists that any of the four witnesses might change his mind? In our opinion, this latter view is more reasonable for it allows the same benefit of doubt which is granted the accused to be extended to the witnesses as well. If the evidence of a witness does not necessarily lead to a person’s conviction, it should nonetheless not lead to the prosecution of that witness for slander (gadhf) unless it is conclusively established that he willfully lied.
Two arguments are, however, generally advanced in support of the view that a witness who testifies that someone committed unlawful sexual intercourse but where the crime is not established would be convicted of qadhf First, that the Qur'an itself holds slander to be a punishable offence. This argument, however, is not tenable because the Qur’an itself draws a distinction between a slanderer and a witness. A witness cannot be taken as a slanderer simply because his testimony was not considered sufficient by the court to convict the accused.
The second argument is that ‘Umar convicted Abu Bakrah and two other witnesses of slander in the case pertaining to Mughirah ibn Shu‘bah. However, when one studies the details of this case it becomes clear that it cannot be taken as a precedent for cases relating to insufficient evidence for conviction. The following represent some relevant details pertaining to the above incident.
Relations between Mughirah ibn Shu'bah, the Governor of Basrah, and Abu Bakrah had been strained for quite some time. The houses of both were situated on the same street, each facing the other. One day the windows of their houses were forced open by gusts of wind. As Abu Bakrah rose to shut his window, he glanced at the house opposite and saw Mughirah engaged in sexual intercourse.
At that time, three of Abu Bakrah’s friends — Nafi‘ ibn Kaladah. Ziyad and Shibl ibn Ma‘bad — were sitting with Abu Bakrah. He called to them, saying: ‘Look ‘and be witness to what Mughirah is doing.’ His friends asked him about the identity of the woman. Abu Bakrah told them she was Umm Jamil.
The very next day, the matter was reported to ‘Umar who immediately suspended Mughirah and appointed Abu Musa al-Ash‘ari, as Governor of Basrah. ‘Umar summoned both the accused and the witnesses to Madina. In their testimony, Abu Bakrah and the two other witnesses declared that they had seen Mughirah having sexual intercourse with Umm Jamil. Ziyad, however, said that the woman was not fully observable so he could not say with certainty that she was Umm Jamil.
During cross-examination, Mughirah established that it would not be possible for the witnesses to be completely sure about the identity of the woman they had seen through the window because of the distance between them and the objects of their observation. He also established that his wife and Umm Jamil resembled each other.
It was evident from the circumstances that the Governor of a province in the days of ‘Umar could not have asked a woman to let him commit adultery with her in his official residence where his own wife also lived. The accusation made by Abu Bakrah and his friends about Mughirah that he was seen committing adultery was thus more of a slander than a testimony of what they had observed.
So, not only did ‘Umar acquit Mughirah but also subjected Abu Bakrah, Nafi‘ and Shibl to the punishment prescribed for gadhf (slander). This judgement was obviously specific to the circumstances of this particular case. It cannot be considered as a basis for laying down the general rule that witnesses whose evidence does not lead to the conviction of the accused in a case of zina should necessarily be punished. (For details of this case see Ibn al-‘Arabi, Ahkam al- Qur’an, vol. 2, pp. 88-9.)
(xx) Apart from the testimony of witnesses, the confession of the accused can also lead to conviction. This confession should be couched in clear, unequivocal terms affirming that the person committed sexual intercourse with a woman with whom he was not so permitted to do. The court should also ensure that the culprit made the statement without any external pressure and that he was in full control of his senses at the time. Furthermore, this confession should be made four times and on each occasion the person should clearly admit his guilt. This opinion is held by Abu Hanifah, Ahmad ibn Hanbal, Ibn Abi Layla, Ishaq ibn Rahawayh and Hasan ibn Salih. Other jurists, however, consider a single confession sufficient for conviction. This opinion is maintained by Malik, Shafi’i, ‘Uthman al-Batti and Hasan al-Basri. In a case where a person is convicted -‘only on the grounds of his own confession and where no other evidence is available, revocation of the confession at a later stage should lead to suspension of the punishment. This is so even though it may be evident that such a revocation is made so as to escape the punishment in question.
The judicial precedents from which these rulings have been derived are found in different works of Hadith. The most outstanding precedent of all though is the case of Ma‘iz ibn Malik al-Aslami which was reported by a large number of narrators on the authority of several Companions, and which is contained in most Hadith collections. Ma‘iz was an orphan who belonged to the tribe of Aslam, and was brought up by Hazzal ibn Nu‘aym. Ma‘iz had unlawful sexual intercourse with a freed slave-girl. Hazzal asked Ma‘iz to go to the Prophet (peace be on him) and inform him of the incident. So Ma‘iz went to the Prophet’s Mosque and said to the Prophet (peace be on him): ‘O Messenger of Allah! Purify me. I have committed unlawful sexual intercourse.’ The Prophet (peace be on him) turned his face away from him, saying: ‘Woe unto you. Go back and seek God’s pardon.’ Ma‘iz appeared again before the Prophet (peace be on him) and repeated his plea, but the Prophet (peace be on him) once again turned his face away.
Exactly the same thing happened a third time, and at this stage Abu Bakr warned Ma‘iz that if he confessed for a fourth time, the Prophet (peace be on him) would have him stoned to death. Undeterred even by this Ma‘iz appeared again before the Prophet and repeated his request. The Prophet (peace be on him) on this occasion turned to him, saying: ‘Perhaps you kissed her, or amorously vexed her, or looked at her with sexual passion.’ Ma‘iz replied that that was not the case. The Prophet (peace be on him) then asked him: ‘Did you lie with her in the same bed?’ He said: ‘Yes.’ The Prophet (peace be on him) then asked him again: ‘Did you have mubasharah with her?’'! Ma‘iz replied in the affirmative. The Prophet (peace be on him) once again made the same query of him. Then the Prophet (peace be on him) asked him if he had had mujama ‘ah with her, a term which clearly means ‘sexual intercourse’ in Arabic usage. He again replied in the affirmative. The Prophet (peace be on him) asked him once again, using a term which means nothing but sexual intercourse and one which even has a somewhat unseemly nuance. This was a term which the Prophet had never used before, nor did he use it again afterwards. Had a person’s life not been at stake, the Prophet (peace be on him) would never have uttered such a word. Ma‘iz, however, once again replied in the affirmative. The Prophet (peace be on him) then asked him again in these words: ‘Did you approach her in such manner that your organ disappeared into her organ?’ He again said: ‘Yes!’ The Prophet (peace be on him) further asked him: ‘Did it disappear as does the staining needle in the collyrium or a rope disappears in a well?’ He said: ‘Yes.’ The Prophet (peace be on him) asked him further: ‘Do you know what zina is?’ To this he replied: ‘Yes! I did with her unlawfully what one does legitimately with one’s wife.’ The Prophet (peace be on him) asked him whether he was married. He replied in the affirmative. The Prophet (peace be on him) then asked him: ‘Are you drunk?’ This Ma ‘iz denied. A person stood up and checked his breath and confirmed that he was not drunk. The Prophet (peace be on him) then inquired of his neighbours ‘about Ma‘iz whether he was insane. This was also denied by them. The Prophet (peace be on him) then said to Hazzal, who was responsible for bringing the incident to the Prophet’s notice: ‘If you had left this matter covered with your garment, it would have been much better for you.’ After all this, the Prophet (peace be on him) then directed that Ma‘iz be stoned to death. Ma‘iz was taken out of the town and there he was stoned. When the stones began to hit him, he ran for his life, saying: ‘Take me back to the Messenger of God. My tribesmen have put me up to this. They betrayed me by telling me that he would not put me to death.’ Yet those who were stoning him continued until he was dead. When this matter was reported to the Prophet (peace be on him) he said: ‘Why did you not release him? You should have brought
The word used here could mean sexual intercourse as well as something less than that.
him to me. Maybe he would have repented and Allah would have accepted ‘is repentance.’ (See Abu Daud, K. al-Hudud, ‘Bab Rajm Ma‘iz ibn Malik’, Bukhari, K. al-Hudud, ‘Bab Hal Yaqulu al-Imam li al-Muqirr la‘allaka lamazta aw ghamazta’ and Muslim, K. al-Hudud, ‘Bab man I‘tarafa ‘ala nafsihi bi alzina’ — Ed.)
Another incident relates to a woman from the clan of Ghamid, a branch of the Juhaynah tribe. She too confessed that she had been guilty of unlawful sexual intercourse, that she was pregnant, and that she was carrying an unlawful baby in her womb. She also confessed on four different occasions that she had been guilty of unlawful sexual intercourse and that she was unlawfully pregnant. When she confessed for the first time, the Prophet (peace be on him) said to her: ‘Woe to you. Go back and seek pardon from God and repent to Him.’ She replied: ‘Do you want to defer me as you did with Ma‘iz? I am pregnant as a result of unlawful sexual intercourse.’ Since her confession was supported by her pregnancy, the Prophet (peace be on him) did not cross-examine her as thoroughly as he had done Ma‘iz. The Prophet (peace be on him) then said: ‘If you insist, go back now and return to me after you have delivered the child.’ After delivering the child she returned with the baby and asked the Prophet (peace be on him) to purify her by carrying out the punishment. The Prophet (peace be on him) again told her to go back, feed the baby, and return after weaning. She again returned to the Prophet (peace be on him) after she had finished’ weaning the child. She was also carrying a piece of bread with which she fed the child whilst saying to the Prophet: ‘O Messenger of God! His suckling is now complete. Look, he is now taking bread.’ The Prophet (peace be on him) then directed someone to look after the child and bring him up and he further ordered that the woman be stoned to death.
Common to both these incidents is the point that the culprit unequivocally confessed on four occasions. The hadith narrated by Buraydah mentions that the Companions generally felt that if Ma‘iz and the woman of the Ghamid clan had not confessed their offence four times they would not have been lapidated. (See Abu Da’ ud, K. al-Hudud, ‘Bab Rajm Ma‘iz ibn Malik’ — Ed.) However, in - another instance, we find the following statement made by the Prophet (peace be on him): ‘Go and ask his wife. If she confesses, stone her to death.’ (See Muslim, K. al-Hudud, ‘Bab man I‘tarafa ‘ala nafsihi bi al-zina’ — Ed.) There is no mention in this tradition of four confessions. Hence a group of jurists have inferred that one single confession is sufficient to enforce the punishment prescribed for unlawful sexual intercourse.
(xxi) The three cases mentioned above prove that anyone who confesses to having committed an unlawful sexual act will not be asked about the identity of their partner, for that would entail the punishment of two people and the Shari‘ah is not at all eager to so punish people. If the culprit, however, voluntarily discloses the identity of their partner, the other person will be interrogated about the matter. If they too confess, then they also will be subjected to the punishment laid down for the offence. Conversely, if they deny it, only the person who confesses to the offence will be punished.
There is some disagreement among jurists when the second party denies having been involved in unlawful sexual intercourse. In this respect, should the person who confessed be punished for zina or gadhf (unsubstantiated unlawful sexual intercourse)? According to Malik and Shafi‘i, the person concerned should receive the punishment prescribed for unlawful sexual intercourse because by their own confession they are definitely guilty of zina regardless of whether the other person’s involvement in the offence is established or not. Abu Hanifah and Awza‘i, however, are of the opinion that the confessor should be punished for qadhf This because the denial of the other party makes it doubtful that unlawful sexual intercourse actually took place. What is beyond all doubt though is the fact that they accused a person of involvement in zina which they then failed to prove. Hence the gadhf punishment. This view is endorsed by Muhammad ibn al-Hasan al-Shaybani, and according to at least one report, also by Shafi‘i. Muhammad ibn al-Hasan al-Shaybani expressed the opinion and Shafi‘i, according to one version, endorsed this — that such a person should be punished for both zina and gadhf, for they admitted to the former offence but could not establish the involvement of the other party in it.
A similar case was once brought before the Prophet (peace be on him). According to a tradition regarding this incident, as recorded in Abu Da’ud and Ahmad ibn Hanbal on the authority of Sahl ibn Sa‘d: ‘Someone came to the Prophet (peace be on him) and confessed that he had committed unlawful sexual intercourse with a certain woman. The Prophet sent for the woman and asked her. She denied the incident altogether. The Prophet (peace be on him) punished the man but spared the woman.’ This tradition, however, does not specify the exact punishment meted out to the man. According to another tradition on this question, one based on the authority of ‘Abd Allah ibn ‘Abbas, the Prophet (peace be on him) punished the’ man for unlawful sexual intercourse because he had confessed to the offence. He then asked the woman, and upon her denial he inflicted upon the man the flogging prescribed with regard to qadhf (See Abu Da’ud, K. al- Hudud, ‘Bab: Idha aqarr al-Rajul bi al-zina wa lam tuqirr al-Mar’ah’ — Ed.) This tradition is rated as weak in respect of its chain of narration: one of its narrators, Qasim ibn Fayyad, has been declared untrustworthy by several leading scholars of Hadith. Additionally, the tradition does not seem to stand to reason. One finds it hard to believe that the Prophet (peace be on him) would have a person flogged and then go about inquiring about the truth of the incident. Both reason and justice required that the Prophet (peace be on him) should not decide the case without referring the matter to the woman who was allegedly the other party. This view is supported by the tradition narrated by Sahl ibn Sa‘d we mentioned above. In view of this, the second tradition cannot then be regarded as trustworthy.
(xxii) Jurists hold different views on the question of what punishment is to be meted out to those men and women who are convicted of unlawful sexual intercourse. The following is a summary of the leading jurists’ main opinions.
Punishment for Married Men and Women Convicted of Unlawful Sexual Intercourse
Ahmad ibn Hanbal, Da’ud al-Zahiri and Ishaq ibn Rahawayh are of the opinion that they should first be lashed a hundred times and then be stoned to death. All other jurists, however, think that stoning to death should be their only punishment, i.e..the two punishments cannot be combined.
Punishment for Unmarried Persons Guilty of Unlawful Sexual Intercourse
According to Shafi‘, Ahmad, Ishaq, Da’ ud al-Zahiri, Sufyan al-Thawri, Ibn Abi Layla, Ishaq ibn Rahawayh, and Hasan ibn Salih, the punishment is a hundred lashes and one year’s banishment for both the man and the woman.
According to Malik and Awza ‘i, however, the man is to be lashed a hundred times and banished for a year while the woman is to be subjected to only one punishment, namely a hundred lashes. (All the jurists are of the opinion that banishment in this context denotes that the culprit be driven away from his town to such a distance that it makes it incumbent on him to shorten the Prayer.
However, Zayd ibn ‘Ali and Ja‘far al-Sadiq are of the opinion that imprisonment serves the purpose of banishment.) Abu Hanifah and his disciples, especially Abu Yusuf, Zufar and Muhammad ibn al-Hasan al-Shaybani are of the opinion that the hadd punishment for unlawful sexual intercourse for both males and females is a hundred lashes, and that alone.
If any punishment is added to that prescription, such as imprisonment or banishment, then this is ta‘zir rather than hadd. The judge may look at each case on the basis of its merit and if he finds that the culprit is a highly immoral person, or that the amorous relations between the two parties convicted of unlawful sexual intercourse are unusually strong, then the judge may add to the hadd punishment as he finds necessary, such as with banishment or imprisonment. * Hadd is the prescribed punishment that must be awarded to those who deserve to receive that punishment if the required evidence is available. Ta‘zir, on the other hand, is a punishment which is not specifically provided for in the Law - neither its kind nor its quantity. It is made more or less severe depending on the merits of each case which may be determined by the court.
Jurists have supported these variant opinions by adducing different traditions on the question. These are as follows:
A tradition has been narrated by ‘Ubadah ibn Samit (see Muslim, Abu Da’ud, Ibn Majah, Tirmidhi and Ahmad ibn Hanbal) according to which the Prophet (peace be on him) said: ‘Take it from me. Take it from me. God has prescribed the ruling for the woman who is guilty of unlawful sexual intercourse. For unlawful sexual intercourse committed by an unmarried man or an unmarried woman the punishment is one hundred lashes and one year of banishment, while the punishment for a married man and a married woman is a hundred lashes and stoning.’ (See Abu Da’ ud, K. al-Hudud, ‘Bab fi al-Rajm’, Ibn Majah, K. al-Hudud, ‘Bab Hadd al-Zina’, Tirmidhi, K. al-Hudud, ‘Bab ma ja’ fi al-Rajm ‘ala al- Thayyib’ and Muslim, K. al-Hudud, ‘Bab Hadd al-Zina’ — Ed.) Although this hadith has come down through a sound chain of narrators, there are nevertheless many sound traditions which prove that the hadith was never applied either in the days of the Prophet (peace be on him) or of the Rightly-Guided Caliphs. Furthermore, no jurist has issued any ruling which accords with this tradition. What is, however, beyond doubt is that Islamic Law distinguishes between those who are married and those who are not when awarding punishment for zina. An unmarried man who engages in unlawful sexual intercourse with a married or unmarried woman will be awarded the same punishment, regardless of the marital status of his partner. Likewise, if a married man commits unlawful sexual intercourse with a woman he will be awarded the same punishment regardless of the marital status of his female partner in that act. The same applies to the woman who is guilty of this offence. If she is married she will be awarded the same punishment regardless of whether the male partner to the act is married or not.
A tradition narrated by Zayd ibn Khalid al-Juhani (see Bukhari, Muslim, Abu Daud, Tirmidhi, Nasai, Ibn Majah and Ahmad ibn Hanbal), states that two Bedouin appeared before the Prophet (peace be on him). One of them said: ‘My son used to work as a laborer in this person’s house. He had unlawful sexual relations with his wife. I gave him one hundred goats and a slave-girl by way of compensation. I am, however, told by scholars that this is opposed to the Book of God.’ The other person also made the same plea. The Prophet (peace be on him) said: ‘I will decide the case exactly according to the Book of God. Take back your goats and the slave girl.
Your son will be lashed a hundred times and be exiled for one year.’ He then asked Unays, a member of the Aslam tribe, to ascertain the truth of this report by asking the woman concerned. He further directed that the woman be stoned to death if she admitted to the crime. She confessed and was so lapidated. (See Bukhari, K. al-Muharibin min Ahl al-Kufr wa al-Riddah, ‘Bab al-I‘tiraf bi al-Zina’, Muslim, K. al-Hudud, ‘Bab man i‘tarafa ‘ala nafsihi fi al-zina’ and Abu Da’ud, K. al-Hudud, ‘Bab fi al-Mara’h al-lati amara al-Nabiyu . . . bi Rajmiha min al-Juhaynah’ — Ed.) (This tradition does not mention that the woman was lashed before being stoned to death.) The unmarried man was flogged as well as exiled for having had unlawful sexual intercourse with a married woman.
None of the traditions relating to the cases of Ma‘iz and the woman of the Ghamid clan, as found in the different collections of Hadith, mention that the culprits were lashed before being stoned to death. Nor is there even a single tradition which indicates that the Prophet (peace be on him) ever combined the two punishments. In all cases where a person was convicted of unlawful sexual intercourse, the Prophet (peace be on him) awarded only one punishment, namely that of stoning to death. (See Bukhari, K. al-Muharibin .. . ‘Bab Rajm al-Habla min al-zina idha ahsanat’ and Muslim, K. al-Hudud, ‘Bab Rajm al- Thayyib fi al-zina’ - Ed.) The famous sermon of ‘Umar in which he forcefully argued for the punishment of lapidation for a married person, a tradition which is found in the works of Bukhari, Muslim, Tirmidhi and Ahmad ibn Hanbal with a variety of chains of narration, also does not mention that lashing was combined with stoning to death.
Among the Rightly-Guided Caliphs only ‘Ali combined the two punishments in a case. This incident was-reported by Ahmad ibn Hanbal and Bukhari on the authority of ‘Amir Sha‘bi. A woman named Shurahah confessed that she had become pregnant as a result of unlawful sexual intercourse. ‘Ali had her lashed on a Thursday and stoned to death on a Friday, saying that he had inflicted the former punishment in accordance with the Qur’4n and the latter in accordance with the Prophet’s Sunnah. (See Bukhari, K. al-Muharibin .. . ‘Bab Rajm al- Muhsin . . .” and Ahmad ibn Hanbal, Musnad, vol. 1, p. 107 — Ed.) This is the only incident where the two punishments were combined.
According to a tradition narrated by Jabir ibn ‘Abd Allah, a person committed unlawful sexual intercourse and the Prophet (peace be on him) awarded him only lashes. It later transpired that the man was martied whereupon the Prophet (peace be on him) had him stoned to death. (See Abu Da’ ud, K. al-Hudud, ‘Bab Rajm Ma‘iz ibn Malik’ - Ed.) We have already narrated several traditions which show that in the case of unmarried women the Prophet (peace be on him) awarded only the punishment of lashing. This is evade it from the example of a man who raped a woman while she was on her way to Prayers (see Abu Daud, K. al- Hudud, ‘Bab Rajm Ma‘iz ibn Malik’ — Ed.), as it is of the man who confessed to the crime whereas the woman denied it.
When ‘Umar exiled Rabi‘ah ibn Umayyah ibn Khalaf for drinking the latter _ joined ranks with the Romans. When ‘Umar heard of this he decided that in future he would never exile anyone. Likewise, he refused to exile unmarried: men or women who were convicted of unlawful sexual intercourse, saying that it would cause greater harm. (See Ibn al-‘Arabi, Ahkam al-Qur’an, vol. 2, p. 1324, Surah al-Nur and Jassas, Ahkam al-Qur’an, vol. 3, p. 261.)
When we consider all these traditions together it becomes evident that the opinion of Abu Hanifah and his disciples is the most sound, If a person commits unlawful sexual intercourse after marrying (ihsan), the only. prescribed punishment for this offence is stoning to death, whereas if a person commits this act before marrying, the only prescribed punishment is a hundred lashes. These two punishments were never combined right from the time of the Prophet (peace be on him) until the time of ‘Uthman. As for combining lashing with exile, we find that on some occasions this did happen but not on others, this further illustrates the soundness of the Hanafi doctrine on this question.
(xxiii) Insofar as the kind of lashing that is required, a clue to the same is provided by the Qur’4n itself. The imperative used in the Qur’an — fa ijladu — is derived from the root j-l-d which itself is derived from the word jild (skin). All linguists and commentators on the Qur’an consider it to mean that flogging whose effect is confined to the skin and which does not reach the flesh. Thus, a _ flogging that tears the flesh into pieces is contrary to the Qur’anic command.
Irrespective of whether a lash or a cane is used for flogging, the instrument should neither be too thick and hard nor too light and soft. According to a tradition in Malik’s Muwatta’, the Prophet (peace be on him) once called for a lash, with which to flog someone. The one he was given had been used many times and had thus become soft. The Prophet (peace be on him), therefore, asked for a harder lash. A new lash was presented to him which had not become soft because it had not been used. He then directed that another lash be given him, one that was midway between the two and which had been used before. The Prophet (peace be on him) then had the person in question flogged with that lash. A tradition of similar import is narrated by Abu ‘Uthman al-Nahdi of ‘Umar which says that he also used an average lash. (See Jassas, Ahkam al-Qur’an, vol. 3.) Note that a whip with knots or one with two or three prongs cannot be used for this purpose (See Abu Da’ ud, ‘Bab fi Darb al-Wajh fi al-Hadd’ — Ed.)
As for the flogging itself, it should be of average intensity. ‘Umar used to direct the flogger: ‘Strike in such manner that your armpit is not revealed’. (Ibn al-‘Arabi, Ahkam al-Qur’an, vol. 2, p. 84; Jassas, Ahkam al-Qur’an, vol. 3.) In other words, the arm should not be stretched fully nor the flogging be done with full force. Moreover, flogging should not cause any wound and should not be concentrated on any particular part of the body. It should rather be spread all over. Only the face, the private parts and, according to the Hanafis the head, - should be spared while all other parts of the body should be subjected to the flogging. While having someone flogged ‘Ali said: ‘Give each part of the body its due except the face and the private parts.’ According to another tradition, he instructed: ‘Spare the head and the private parts.’ (Jassas, Ahkam al-Qur’an vol. 3.) In this respect the Prophet (peace be on him) directed: ‘If anyone of you hits someone, he should avoid the face.’ (Abu Da’ud.)
Men should be flogged in a standing position whereas women should be flogged whilst sitting. In the days of Abu Hanifah, Ibn Abi Layla, the Judge of Kufah, had a woman flogged while she was standing. Abu Hanifah took strong exception to this and publicly declared this practice to be wrong. This incidentally, also sheds light on his position regarding the idea of contempt of court. During a flogging, a woman was to remain fully dressed; indeed, her clothes were to be so folded and bound that during the flogging no part of her body was to be exposed. All that was required of such a woman was that she cast aside clothes that were extraordinarily thick. There is some difference of opinion regarding the dress of male culprits. According to some jurists, they should be allowed to wear only such dress as covers their body up to the waist while other jurists insist that their shirts should also not be taken off. Abu ‘Ubaydah once ordered a person who was convicted of unlawful sexual intercourse to be flogged The culprit said: ‘Let my sinful body be punished fully’ So saying, he started to take off his shirt. Abu ‘Ubaydah, however, saw to it that he did not do so. (See Jassas, Ahkam al-Qur’an, vol. 3, p. 262.) In the time of ‘Ali someone was even flogged while he was wearing a sheet of cloth.
It is further forbidden to flog someone when it is either very hot or very cold. During winter, flogging can be carried out only when it is relatively warm and during summer, when it is relatively cool.
It is not permissible to flog someone after tying him up with something. An exception may, however, be made in the case of a person who tries to flee from his punishment. According to ‘Abd Allah ibn Mas‘ud, it is not permissible to flog someone either after having stripped him naked or after tying him to a tripod.
Jurists consider it lawful that a culprit be flogged at least twenty times a day. It is, however, preferable that the full punishment be inflicted in one go.
Flogging should not be entrusted to rough executioners. It should rather be entrusted to persons of knowledge and understanding who are well aware as to what kind of beating accords with the requirements of the Shari‘ah. As reported in the Zad al-Ma‘ad of Ibn al-Qayyim, ‘Ali, Zubayr, Miqdad ibn ‘Amr, Muhammad ibn Maslamah, ‘Asim ibn Thabit and Dahhak ibn Sufyan used to perform this duty in the time of the Prophet (peace be on him). (See Ibn al- Qayyim, Zad al-Ma‘ad, vol. 1, pp. 44-5.) Should the culprit be so sick that there is no reasonable chance of recovery, or if he is too old, he should be hit only once with a branch with a hundred twigs, or with a broom with a hundred straws so as to meet the formal requirements of the Law. In the time of the Prophet (peace be on him), a sick and old person was apprehended for unlawful sexual intercourse and he was awarded the above-mentioned punishment. (See Abu Da’ud, K. al-Hudud, ‘Bab fi Iqamat al-Hadd ‘ald al-Marid’ — Ed.) If a pregnant woman is to be flogged, her punishment should be deferred until she has delivered the child and completed the period of perinatal hemorrhage. If she is to be stoned to death, she cannot be punished before the baby is fully weaned. If the case of unlawful sexual intercourse is supported by due evidence, the witnesses would initiate the flogging, whereas in the case of the culprit’s confession, the judge himself would initiate it. This mechanism was devised to instill into the minds of both witnesses and judges the gravity of the matter. When ‘Ali decided the case of Shurahah and sentenced her to be stoned to death, he said: ‘Had there been a witness to this offence, he should have initiated the strike. However, as she has been sentenced in view of her own confession, I will initiate it.’ According to the Hanafis, it is obligatory for punishments to be performed in this manner. The Shafi‘is, however, do not consider it obligatory.
When one examines these detailed rules about the execution of flogging as _ prescribed by Islamic Law, one is struck by the temerity of those who brand the Law as savage and barbaric. Yet, these very same people have no qualms about the flogging which is common in prisons today. According to present-day laws, not only the courts but even the superintendent of a prison is authorized to award a sentence of thirty cane lashes to a prisoner for mere disobedience or insolent behavior. Harrowing indeed is the manner in which cane-lashing is practiced today for special kinds of cane are even selected for the purpose. The cane is then soaked in water such that when a criminal is lashed, his flesh will be cut into pieces. Moreover, a professional flogger is hired to execute the punishment, the requirement being that he constantly practice the art of flogging so that he might be able to do an efficient job whenever it is required. Furthermore, the prisoner is tied to a tripod in order to ensure that he does not budge even an inch in this state of immense pain. The flogger approaches him at full speed and hits him with all the force possible. The culprit is flogged consistently on his buttocks, as a result of which the flesh is torn into pieces, exposing his bones. The flogging is executed with such vehemence that even the healthiest person falls into unconsciousness before he has received thirty lashes. The wounds thus caused often take a long time to heal. This ‘civilized’ mode of punishment is very much in force in today’s prisons. It is ironic that those very persons who are responsible for the enforcement of this kind of punishment have the cheek to criticize the Islamic Law of flogging and denounce it as barbaric. We are also all well aware that it is not only criminals who are punished in the above manner, but even suspects, especially those suspected of political ‘crimes’, who are subjected to this highly savage torture during interrogation in our prisons today.
(xxiv) When the culprit who has been sentenced to stoning dies as a result of that punishment he has to be buried honorably in a Muslim cemetery following the correct funeral services. No one has the right to speak ill of him.
According to a tradition, ‘Abd Allah al-Ansari narrates that when Ma‘iz ibn Malik died as a result of stoning, the Prophet (peace be on him) spoke well of him and himself led his funeral Prayer. (See Bukhari, K. al-Muharibin min Ahl al-Riddah wa al-Kufr, ‘Bab al-Rajm bi al-Musalli’ - Ed.) There is another tradition which is narrated by Buraydah to the effect that the Prophet (peace be on him) said: ‘Seek forgiveness for Ma‘iz. He made a repentance which, were it to be divided over the whole community, it would suffice for everyone.’ (Muslim.) The same tradition mentions that when the woman of the Ghamid tribe died as a result of stoning, the Prophet (peace be on him) also led her funeral Prayer. And when Khalid ibn al-Walid spoke ill of her, the Prophet (peace be on him) said: ‘Restrain yourself, Khalid. By the Being Who holds my life in His Hand, she made such a true repentance that had the collector of {unlawful} imposts repented as she did he too would have been forgiven.’ (See loc. cit. — Ed.) A tradition is narrated by Abu Hurayrah that as the Prophet (peace be on him) was going somewhere a few days after the stoning of Ma‘iz he overheard two persons speaking ill of him. As the Prophet (peace be on him) continued on his way, he came across the carcass of a donkey. He halted and said to those two people: ‘Eat some of it [i.e. the carcass of the donkey].’ They said: ‘O Messenger of God, who can eat of it?’ He replied: ‘What you were eating just now was worse than eating this carcass.’ (See Abu Da’ ud, K. al-Hudud, ‘Bab Rajm Ma‘iz ibn Malik — Ed.) In another tradition it is stated that on the occasion of the funeral Prayer of the woman of Ghamid, ‘Imran ibn Husayn asked the Prophet (peace be on him) if the funeral Prayer would be made for a person who was guilty of unlawful sexual intercourse? The Prophet (peace be on him) replied: ‘She has made a repentance that were it to be distributed over all the inhabitants of Madina, it would suffice for everyone.’ (See Muslim, K. al-Hudad, ‘Bab man i‘tarafa ‘ala nafsihi bi al-Zina’ — Ed.) Another tradition on the authority of Abu Hurayrah | says: “While someone was being punished for having taken intoxicating drinks a person exclaimed: “May Allah disgrace you.” On hearing this, the Prophet (peace be on him) said: “Do not say so. Do not help Satan against him. (See Bukhari, K. al-Hudud, ‘Bab al-Darb bi-al-Jarid wa al-Ni‘al — Ed.) In the tradition as recorded in Abu Daud, one finds an additional sentence to that which is found in the above tradition. This additional sentence was a statement made nS the Prophet (peace be on him) to the effect that: "You should rather say O Allah pardon him and be merciful to him. (See Abu Da’ud, K. al-Hudud, ‘Ba - d fi al-Khamr’ — Ed.)
This, then, encapsulates the spirit of punishment in Islam. From an Islamic viewpoint, even the punishment that is meted out to the worst kind of criminal is motivated by good-will for all, including the culprit, rather than by any feeling of hostility or vengefulness. Hence, after the culprit is punished, he is treat with compassion and kindness. It remains for the present civilization to have t unique distinction of taking petty-mindedness to its current heights. It is possible under this civilization alone for someone to be killed by the police or the army, a killing which a judicial inquiry of sorts validates, but not for him to be given a decent burial or for anyone to say a good word about him.
(xxv) We have already mentioned the rules of the Shari‘ah in cases involving sexual intercourse with a woman within the prohibited degrees of marriage. (See Tafhim al-Qur'an, vol. 1, p. 336.) Likewise, we have mentioned the viewpoint of the Shari‘ah pertaining to sodomy. (See Tafhim al-Quran, vol. 2, pp. 51-4.) As for sexual intercourse with animals, some Muslim jurists prescribe the same punishment as laid down for unlawful sexual intercourse between humans.
However, Abu Hanifah, Abu-Yusuf, Malik, Zufar, Muhammad ibn al-Hasan al- Shaybani and Shafi‘i do not equate this act with unlawful sexual intercourse, they are of the opinion that the culprit should be subjected to ta‘zir rather than hadd and that the punishment meted out be left to the discretion of the judge. It is also possible that the Majlis al-Shura (consultative council) of the State may prescribe a punishment for this offence if it so desires.
3. What is most striking in the verse is that the expression used for a provision of the criminal law is ‘Allah’s religion’. One, thus, learns that Prayer, fasting, Hajj, and Zakah alone do not subsume ‘religion’. Religion, instead, also embraces law. Hence the Qur’anic expression ‘to establish true religion’ does not mean merely to establish Prayer, etc. but also to implement the Laws of God and the system of life promulgated by the Shari‘ah. If this is not done and Prayer alone is established, this amounts to only a partial establishment of the true religion.
Furthermore, if the Laws ordained by God are spurned in favor of other laws, this amounts to rejecting the religion of God.
It is also noteworthy that God warns the believers against that misplaced compassion which prevents them from enforcing the punishment of men and women who indulge in unlawful sexual intercourse. This is expressed in clearer terms by the Prophet (peace be on him) in the following hadith: ‘A ruler who has waived off even a single lash out of the prescribed punishment will be brought on the Day of Judgement and asked: “Why did you do so?” In reply he will say: “I did so out of mercy for Your servants.” It will be said to him: “Are you more merciful than Me?” He will then be ordered to be cast into Hell-Fire. Then he who added one single lash to those prescribed will be asked: “‘Why did you do so?” In reply he will say: “In order that they cease indulging in acts of disobedience to You.” It will then be said to him: “Are you wiser than Me in regard to them?” Then it will be commanded that he be cast into Hell-Fire.’ (Tafsir Kabir, vol. 6, p. 225.) This will happen when someone either increases or decreases the punishment laid down by God, either because of compassion or in order to deter people from committing acts of disobedience. If someone however, were to alter God’s Laws in consideration of the culprit’s social position, this would surely be considered the very worst kind of offence. There is a statement from the Prophet (peace be on him) which has been narrated by ‘A’ishah to this effect. In the course of a sermon the Prophet (peace be on him) said: ‘O people! The communities before you perished because when a respectable person of the community committed theft, people spared him and punished him as if he was a weak person.’ (See Bukhari, K. al-Hudud, ‘Bab Iqamat al-Hudud ‘ala al-Sharif wa al-Wadi’’ and ‘Bab Karahiyat al-Shafa‘ah fi al-Hadd idha rufi‘a ila al-Sultén’ and Muslim, K. al-Hudud, ‘Bab Qat al-sariq al-Sharif wa Ghayrih wa al-Nahy ‘an al-Shafa‘ah fi al-Hudud’ — Ed.) According to another tradition, the Prophet (peace be on him) said: ‘To enforce one prescribed punishment (hadd) is much more beneficial for the inhabitants of the earth than forty days of rainfall.’ (See Ibn Majah, K. al-Hudud, ‘Bab Iqamat al-Hudud’ and Nasa’i, K. Qat' al-Sariq, ‘Bab Targhib fi Iqamat al-Hadd’ Ed.) Some commentators on the Qur’an take the present verse to mean that no one who has been convicted should be released without enforcing the prescribed punishment of a hundred lashes. Other scholars, however, interpret this to mean ‘that the flogging should not be so light that the culprit would not experience any pain. Moreover, it unequivocally makes the point that anyone who is convicted for unlawful sexual intercourse should receive the punishment prescribed for it by God, and that it should not be changed to any punishment other than flogging out of compassion or mercy.
To regard flogging as a barbaric punishment is tantamount to unbelief itself.
Such an outrageous opinion is altogether inconsistent with faith. Only the worst hypocrites can believe in God and at the same time regard a punishment prescribed by Him as barbaric.
4. This means that the punishment should be carried out publicly. This would, - on the one hand, arouse in the culprit a feeling of shame and on the other serve as a lesson to others.
This throws further light on the Islamic concept of punishment. While laying down the punishment for stealing, the Qur’an adds: ‘This is a recompense for what they have done, an exemplary punishment from Allah.’ (al-Ma’idah 5: 38.)
In the same vein, people are being directed in the present verse to publicly enforce the punishment on those guilty of unlawful sexual intercourse. This highlights the three main objectives of punishment in Islam. First, it is to make the culprit suffer for the evil he has perpetrated on some of his fellow human beings or society as a whole. Second, it seeks to deter the people who are inclined towards evil so that they are dissuaded from committing the same offence again. Third, punishment is to be meted out to culprits in order that those members of society who are disposed to criminal acts should. be deterred from actually committing them. Moreover, one advantage of publicly enforcing punishments is that those in authority are likely to shrink from acting either too leniently. or with undue harshness with offenders.
5. A befitting match for a person who is guilty of unlawful sexual intercourse and who does not subsequently repeat the offence could only be either a woman who does not mind unlawful sexual relations or a polytheist. A believing woman of good moral character cannot be a good match for such a dissolute person. It is in fact prohibited for believers to willfully give their daughters in marriage to such persons. Therefore, as far as those women who are guilty of unlawful sex and who do not repent thereafter are concerned, it is in men of the same character or polytheists where they will find appropriate " spouses. For quite obviously such women are not befitting spouses for believers of good character.
In fact, it is not only inappropriate but also forbidden for a good-charactered believer to marry a woman who is known to be morally dissolute, especially in matters pertaining to sex. It is obvious then that this injunction applies to those men and women who persist in their evil ways. As for those who repent and mend their ways after some lapse, this verse is not applicable to them. For those who repent and subsequently mend their ways can no longer be treated as tainted with the guilt of unlawful sexual intercourse.
This verse, which interdicts marriage with a man guilty of unlawful sexual intercourse, is understood by Ahmad ibn Hanbal to mean that such a marriage, even if it is contracted, will be deemed void. The appropriate meaning, however, is that people should not contract such marriages. The verse does not mean that if someone actually contracts such a marriage despite the injunction, that the contract is void and that the contractees would be charged with unlawful sexual intercourse. The Prophet (peace be on him) laid down a general rule, saying: ‘An unlawful act does not render lawful acts unlawful.’ (Tabarani and Daraqutni.) In other words, an illegal act does not nullify other legal acts. Hence, if someone who committed unlawful sexual intercourse in the past marries someone later on, this does not mean that the relationship between the spouses is unlawful or that the partner in the Marriage contract who did not commit unlawful sexual intercourse is guilty of the other person’s earlier offence. As a matter of principle, no illegal act other than open rebellion renders a person an outlaw.
If we consider this verse in light of what has been said above, it is quite clear that its true purpose is to emphasize to believers that deliberately choosing those who are known for sexual immorality as marriage partners is an act of sin which they should stay away from. This because choosing such persons in marriage encourages persons of dissolute character. This is not appropriate because the Shari‘ah likes such people to be worthy of censure and condemnation.
This verse does not lend itself to the conclusion that a sexually deviant Muslim’s marriage with a polytheist woman or that of a sexually deviant Muslim woman’s marriage with a polytheist man is legitimate. Rather, the verse underscores the fact that unlawful sex is an outrageous act and a Muslim who is guilty of it is no longer worthy of having matrimonial relations with good-charactered persons of the Muslim society. If there is any such dissolute person, he should better turn his attention to those of his own ilk — either those who are guilty of sexual immorality like himself, or polytheists who do not consider themselves bound by God’s commands. (See Ahmad ibn Hanbal, Musnad, vol. 2, p. 159 Ed.) This verse can properly be understood in light of the traditions of the Prophet (peace be on him) on this question. In this respect, there is a tradition on the authority of ‘Abd Allah ibn ‘Amr ibn al-‘As that there was a woman called Umm Mahzil who was a prostitute. A Muslim intended to marry her and sought the Prophet’s permission to do so. The Prophet (peace be on him) remained silent at his questioning twice, but when he was questioned for the third time he responded in the negative and recited this verse. (See Ahmad ibn Hanbal, Musnad and Nasa’i.) According to another tradition, there was a companion named Marthad ibn Abi Marthad who had unlawful sexual relations with a Makkan prostitute before the advent of Islam. Later on, he intended to marry her and sought the Prophet’s permission. He asked the Prophet (peace be on him) twice, but he remained silent on this issue. When he put the same question to him for the third time, the Prophet (peace be on him) recited this verse, saying: ‘Therefore, do not marry her.’ (See Abu Da’ud, K. al-Hudud, ‘Bab al-Nikah, ‘Bab fi Qawlihi Ta‘ala: al-Zani la yankihu illa zaniyah’ and Tirmidhi, K. Tafsir al-Qur’an, ‘Bab wa min Surah al-Nur’ — Ed.)
There are also several other traditions on the authority of ‘Abd Allah ibn ‘Umar and ‘Ammar ibn Yasir to the effect that the Prophet (peace be on him) said: ‘A cuckold can never enter Paradise.’ (See Ahmad ibn Hanbal, Musnad, vol. 2, p. 134 and Nasa’i, K. al-Zakah, ‘Bab al-Mannan bi ma a‘ta’ — Ed.) Both Abu Bakr and ‘Umar used to flog unmarried men and women who were guilty of unlawful sex and would then have them married to each other. It is narrated by ‘Abd Allah ibn ‘Umar that someone approached Abu Bakr in a state of panic. He was in such a state that he could not speak properly. Abu Bakr directed Umar to talk to him in private. On being gently questioned he said that someone had been staying with him as a guest and had developed sexual relations with his daughter. ‘Umar exclaimed: ‘Fie upon you! Why did you not cover up your daughter?’ Eventually a case was brought against the two. Both were punished, then married to each other, and Abu Bakr sent them into exile for one year. Some other traditions of similar import are found in Qurtubi’s Ahkam al-Qur’an, vol. 2, p. 86. (See Ibn al-‘Arabi, Ahkam al-Qur’an, vol. 2, p. 1331 — Ed.)
6. This directive aims at putting an end to salacious talk and gossip in society about illicit sexual relations between people. People are required to abstain from -the same because it leads to numerous other evils. The worst effect is that it creates an atmosphere conducive to illicit sex. A person relates to another person the illicit sexual adventures of another person. These tales naturally circulate and in due course a lot of exciting material is added to the original stories. This arouses sexual passions all round. Those inclined to evil ways thus come to know through whom their sexual passions can be gratified.
The Shari‘ah, however, aims to nip this evil in the bud. Therefore, on me one hand, it prescribes that a person convicted of unlawful sexual intercourse be subjected to the most severe punishment to which any criminal would be subjected. On the other hand, it also ensures that the person who accuses others of this grave offence be able to conclusively prove it, and if he fails to do so that he be severely punished with 80 lashes.
This so as deter people from irresponsibly slandering others. Even if one observes someone actually indulging in unlawful sex before one’s own eyes, _ one should not publicize it, this to prevent corruption from spreading. If one can secure the required number of witnesses one may report the matter to the authorities concerned, but one should certainly not go about publicizing it. Only in this manner can one duly prove the person concerned to be guilty and thereby have the authorities punish him.
For a fuller understanding of this provision of Islamic Law, one should take note of the following rulings which pertain to the question: (i) The words used in the verse are: wa al-ladhina yarmuna (and those who accuse). The context, however, makes it clear that not all but only a special kind of accusation is meant here, i.e. that of unlawful sexual intercourse. If we examine the verses from the very beginning of this surah, we note that the punishment for unlawful sexual intercourse was first laid down. A little later, we come across injunctions pertaining to li‘an, The mention of accusation in between the statements about the two matters mentioned above, makes the nature of the accusation quite clear. Moreover, since the verse speaks of accusing chaste women, it implies that the accusation is one that pertains to their chastity. Moreover, the accusers are asked to produce four witnesses in support of their charge. It is common knowledge that this type of evidence is required only in the case of unlawful sexual intercourse. In view of this, there is a consensus among scholars that the above verse aims specifically at enunciating the rules that ought to be followed when someone accuses the other of having committed unlawful sexual intercourse. A special term, gadhf, was used to signify this kind of accusation. Thanks to this term, it became possible to distinguish between accusations to do with sexual conduct and accusations regarding other offences such as theft, drinking alcohol, usury, or disbelief in Islam.
Accusations other than gadhf could be decided upon by the judge at his discretion, or a suitable penalty could be fixed by the consultative assembly of the Islamic State by promulgating a law dealing with cases of libel and contempt. (ii). Although the verse speaks only of accusing chaste and honorable women, jurists are agreed that it also covers accusations against chaste and honorable men. By the same token, although the statement yarmun almuhsanat would ordinarily suggest that the accusers are male, women too can be accusers. Women who are guilty of such an accusation will also be dealt with according to the same Law; gender being of no consequence in gadhf offences. As a matter of Law, whoever slanders a chaste and honorable person will be prosecuted.
It is also worth clarifying that the word muhsanat used here signifies chaste and honorable women rather than just married women although the term is quite often used in this sense. The emphasis here is on the chastity and purity of people subjected to, accusations of sexual misconduct. rather than any women with their marital status. (iii) This penal injunction will be executed only when the accusation is directed at either men or women who are muhsan, that is chaste and honorable, but not otherwise. If a non-muhsan, one notorious for sexual misconduct charged with such unlawful conduct, this cannot be considered an act slander (gadhf). But-if someone who is of good moral character is accuse of sexual misconduct, the judge may punish the accuser who is unable to duly substantiate it. The consultative assembly of the Islamic State may also enact a suitable law on this question. (iv). If someone simply accuses a person of committing unlawful sexual intercourse, without providing any evidence for the accusation, this in itself does not necessarily warrant that the accuser be awarded the i t laid down for qadhf
In order that this punishment be awarded, certain conditions must be fulfilled. These conditions relate to (a) the accuser, (b) the accused, and (c) the offence of which someone has been accused.
As for the conditions which must be found in the accuser in order that he be punished for gadhf, they are as follows: First, the accuser, should be an adult. If a minor is guilty of this offence, he may be punished but not subjected to the hadd (prescribed) punishment. Second, the accuser show be a sane person. An insane person may not be subjected to ha punishment. Likewise, anyone who is under the effect of intoxication by any agent other than wine, for example a person, under the influence anesthetic etc, may not be held guilty. Third, the accuser should have made the accusation of his own free-will. If someone compelled him into unjustifiably accusing someone else of unlawful sexual intercourse, he cannot be held guilty. Fourth, the accuser should neither be the father nor the grandfather of the accused since in such a case he cannot be awarded the hadd punishment for qadhf
The Hanafis add one more condition to these, namely that the accuser be capable of speech. A dumb person who accuses another of unlawful sexual intercourse by gesture is not liable to the hadd punishment for qadhf Shafi‘i, however, disagrees on this point. In his opinion, M gestures of the accuser are clear enough to make everyone fully understand what he means, he will be considered to have committed qadhf This because accusing someone by gesture is as damaging to his reputation as accusing him by word of mouth. On the contrary, the Hanafis believe that gestures are an insufficient means of communicating the accusation and so they lay down a ta‘zir rather than a hadd punishment for such people.
As for the conditions which pertain to the person at whom the accusation is directed, these are as follows: First, that he be sane, i.e. he should be charged with unlawful sexual intercourse at a time when he is in a state of sanity. A person cannot be convicted of gadhf if he accuses an insane person of committing unlawful sexual intercourse, not even if the person accused becomes sane at some later date. For an insane person cannot be expected to guard his chastity. Hence, if it is established by evidence that he committed unlawful sexual intercourse, he will not be awarded the hadd punishment prescribed for zina. Nor will the accusation of unchastity damage that person’s reputation owing to his insanity. The accuser will, therefore, not be punished for qadhf Malik and Layth ibn Sa‘d, however, are of the opinion that anyone who accuses an insane person of unlawful sexual intercourse should also be punished for qadhf because - he brought a grave charge against someone without providing due evidence.
Second, that the accusation is directed at a person who has attained his majority. If the accusation is directed at a minor, or at someone who later comes of age but who was subjected to a charge of unlawful sexual intercourse at a time when he was still a minor, the accuser will not be liable for the punishment laid down for qadhf. The reason being that like the insane person, a minor too cannot guard his chastity, nor is he liable to the punishment for zina if he committed this offence when he was a minor, nor is the reputation of a minor damaged by this accusation. However, Malik is of the opinion that if a boy who is Close to the age of majority is accused of unlawful sexual intercourse, the accuser will not be punished for qadhf. But, if a girl who is close to the age of maturity is accused of having had unlawful sexual intercourse, the accuser will be subjected to the qadhf punishment. The reason for this being that such an accusation seriously damages the girl’s reputation. In fact, it damages the honor of the whole family, and furthermore the girl’s future is jeopardized.
Third, that the accused be a Muslim. That is, the accuser will be convicted of qadhf if he lays a charge of zina against a person who is a Muslim. If the charge is brought against a non-Muslim, or against a Muslim who was charged with the offence whilst not being a Muslim, the accuser will not be convicted of qadhf.
Fourth, that the accused should be a free person. If a charge of zina is laid against a slave, whether male or female, or if a free person is charged with zina before acquiring their freedom, the accuser will not be convicted of qadhf. This because the helplessness associated with slavery makes it difficult for the person concerned to guard his chastity. It is also significant that the Qur’an uses the expression muhsanat in contrast to slave-girls in Surah al-Nisa’ (4: 24-5). This is, however, contested by Da’ud al-Zahiri who is of the opinion that the person who accuses a slave, whether male or female, should also be punished for qadhf
Fifth, that the accused be a chaste person. That is, he should neither have been convicted of the act of zina, nor acts which might be considered to create a suspicion of zina such as follows: that he contracted a defective marriage, or that he married someone secretly, or that he had sexual intercourse with some slave-girl under the misunderstanding that he had ownership rights over her, or that he had sexual intercourse with someone on the wrong assumption that he had contracted marriage with her. Nor should his lifestyle be such that a charge of sexual misconduct could, with some justification, apply to him. Nor should he ever have been convicted of acts of sexual misconduct, even if they be of a lesser order than fully-fledged zina. For if any of these circumstances exist, his chastity no longer remains above board. As a consequence, if anyone accuses a person of such doubtful sexual conduct, he cannot be subjected to the Punishment of 80 lashes. For even if evidence for zina is brought against the accused any time prior to his having received the punishment for gadhf, the latter will be exempted from the punishment. This because the person against whom he no longer be considered a chaste person.
To say that the accuser in the five instances cited above is not liable for the hadd punishment for gadhf does not mean, however, that the person who charges, an insane person or a minor, or a non-Muslim, or a slave, or a person not known to be of chaste character with sexual misconduct, cannot be subjected to any kind of punishment. For such persons may indeed he awarded a ta‘zir Punishment.
Let us now turn to the conditions which should obtain in the act of gadhf itself. If a person accuses someone of committing unlawful sexual intercourse, he is liable to a gadhf conviction if either of the following conditions obtain: (a) that the accused is charged with the kind of sexual act which, if substantiated, renders him liable for the hadd punishment for zina: or (b) that the accused is described as an illegitimate child.
In either case, the accusation should be couched in clear and explicit terms. An accusation which is expressed in metaphorical terms or in allusions will be disregarded. Likewise, the charge should not be expressed in a phraseology which can be construed to mean unlawful sex or illegitimate birth only if it is assumed that the accuser intended those words to mean so. For instance, if a person identifies a person as sinful and dissolute, or calls a woman a prostitute, or calls a sayyid [i.e. descendent of the Prophet] a Pathan [implying that he was not so descended] such statements not regarded as qadhf. Likewise, those words and expressions which people resort to by way of abuse, for example bastard, etc., cannot be considered clear statements which amount to qadhf.
There is however, disagreement, among jurists with regard to innuendoes. For example, a person may say: “Yes, but I am not an Adulterer; or that; But my mother did not give birth to me by adultery. In such cases Malik is of the opinion that if the statement clearly means that the person concerned is accused of having committed zina or of being an illegitimate child then this amounts to gadhf entails hadd punishment. However, Abu Hanifah and his disciples as also Shafi’i, sufyan al-Thawri, Ibn Shubrumah and Hasan ibn Salih grant the benefit of doubt to the accuser on the grounds that the statement is in the nature of a veiled attack rather than a clear accusation. As there is some room for doubt, hadd punishment cannot be awarded in such cases.
Abmad ibn Hanbal and Isbaq ibn Rahawayh are of the opinion that if such a statement is made in the course of a quarrel, it amounts to qadhf while if such a remark is made in jest, it does not constitute qadhf. However, among the Rightly- Guided Caliphs, ‘Umar and ‘Ali enforced hadd punishment in such cases. In the days of ‘Umar there ensued a fight between two people whereby one said to the other: ‘Neither my father was an adulterer nor my mother an adulteress.’ The matter was brought before ‘Umar. He asked the audience what they made of the comment. Some said that the person concerned had paid a compliment to his own parents, without necessarily calling into question the character of the adversary's parents. Others, however, disagreed and took strong exception to the words in which the statement was made. For them, the statement implied that the parents of his adversary were guilty of adultery. ‘Umar concurred with the latter view and awarded the hadd punishment for qadhf to the accuser. (See Jassas, Ahkam al-Qur’an, vol. 3.)
There is a difference of opinion about whether one becomes guilty of qadhf when one accuses someone of sodomy. Abu Hanifah does not consider this accusation to be qadhf whereas Abu Yusuf, Muhammad ibn al-Hasan al-Shaybani and Shafi‘i do so. (v) There is disagreement among jurists about whether qadhf is a cognizable offence or not. Ibn Abu Layla is of the opinion that a person guilty of qadhf should be punished regardless of whether the victim of the accusation makes the plea for the accuser's punishment or not. However, Abu Hanifah and others of his school are of the opinion that once someone is convicted of qadhf, he will be awarded the same punishment. The initiation of judicial proceedings against the accuser, However, is contingent upon the wish of the victim. The same view is held by Shafi‘i, Ahmad ibn Hanbal and Awza‘i. As for Malik, he considers it a cognizable offence if it is committed in the presence of the judge; otherwise the prosecution of the accuser depends upon the victim's claim. (vi) qadhf is not a compoundable offence. If the victim does not ask for the initiation of legal proceedings, then such proceedings will not be initiated. However, once the complaint is admitted, the accuser will be required to substantiate his charge by providing due evidence. If he fails to do so, he will be punished for qadhf. But once legal proceedings start, neither the court nor the accused may pardon the accuser. Nor will the payment of damages be admissible. Nor will the culprit be spared hadd punishment by his repenting or tendering an apology for his offence. We have already mentioned the ruling of the Prophet (peace be on him) in this respect: ‘Settle cognizable offences among yourselves. However, if a case involving hadd is brought to my attention, [a decision on the matter] becomes obligatory.’ (See Aba Daud, K. al-Hudud, ‘Bab al-‘Afw ‘an al- Hudud ma lam tabligh al-Sultan’ — Ed.) (vii) According to the Hanafis, the plea to enforce hadd punishment for qadhf may either be made by the victim himself, or in his absence by those whose descent and lineage are adversely affected, for example by his parents, children or grandchildren. Muhammad ibn al-Hasan al-Shaybani and Shafi'i, however, consider it a hereditary right. Hence, if the victim dies, any of his heirs may plead that the prescribed punishment be awarded the offender. It is somewhat strange that Shafi’i excludes husband and wife from his category of legitimate claimants on the grounds that death severs the matrimonial tie and that if any of the spouses is subjected to qadhf, the other's descent is not damaged.
Both these points are hardly convincing. Once this claim is recognized as a hereditary right, the contention that death brings the relationship between husband and wife to an end is contrary to the Qur'an itself. For the Qur’an considers each of the two spouses to inherit the other. It is contended that if a spouse is slandered, this does not damage the descent of the other spouse. This may be correct in the case of the husband, but it is certainly not correct in the case of the wife. For if a woman is slandered, the descent of all her children becomes doubtful. Moreover, it is inappropriate to think that the punishment for qadhf prescribed only in consideration of the adverse impact it has on some people. An accusation of unlawful sexual intercourse damages the descent, honor and reputation of the victims to the accusation. It is indeed absolutely dishonorable for a decent person to find that his/her life-partner be branded as morally dissolute and profligate. In short, since the claim for qadhf punishment is a hereditary right, there seems no valid ground to exclude spouses thorn the category of its legitimate claimants. (viii) Once someone is convicted of qadhf, the only thing which can redeem and save him from the hadd punishment is that he be able to produce four witnesses who testify that they saw the person accused of unchastity actually commit unlawful sexual intercourse with such and such a person. According to the Hanafi school, these four witnesses should appear in court together and testify to the same. If they appear one by one, each would be guilty of qadhf, and the acquittal of each would again require a set of four witnesses.
This, however, does not seem that persuasive. The correct legal position is the one held by Shafi‘i and ‘Uthman aI-Batti who state that all that is required of the four witnesses is that they should corroborate the accusation that has been made. Whether these witnesses testify together or separately does not make any material difference. In fact, they are of the opinion that it is even preferable if the witnesses appear and testify separately, one after the other as is usual in other cases. The Hanafis are of the opinion that in order for the accuser not to be punished for qadhf, he is required to produce four witnesses, but it is not essential that they be upright. As long as the accuser is able to produce four witnesses, even four fasiq witnesses, he will be acquitted of qadhf. Similarly, a victim of an unchastity charge will also not be subjected to hadd punishment for zina just because the witnesses were not adil (upright). However, he who is guilty of qadhf may not escape hadd punishment if he produces as witnesses those who are either non-Muslims, blind, slaves, or are of those who have been convicted of qadhf in the past.
Shaf’i is of the opinion that if a person accuses someone of committing unlawful sexual intercourse and produces only fasiq persons as witnesses, both the accuser and his witnesses should be awarded the hadd punishment for qadhf. This opinion is also shared by Malik.
The Hanafi position on this question, however, seems more plausible: if the witnesses are upright (adil) the accuser will be acquitted of the qadhf charge and the charge of unlawful sexual intercourse will be established against the person so accused. But if the witnesses are not upright, their testimonthes become doubtful. Hence, it is no longer certain that the accuser committed qadhf, that the person accused of unchastity committed zina, or that the statements made by the witnesses are necessarily true or false. Because of this element of doubt none will be considered liable to hadd punishments. (ix) If the accuser fails to produce the evidence required to bring about his acquittal from qadhf, the Qur’an lays down three penalties: (a) that he who is guilty of qadhf be flogged 80 lashes; (b) that his testimony not be accepted ever after; and (c) that he be branded as a transgressor fasiq). This mention of the punishment is followed by the statement: ‘Except those of them that repent thereafter and mend their behavior. For surely Allah is Most-Forgiving, Ever Compassionate.’
This naturally raises the question which of the three above-mentioned punishments will be waived if the person convicted of qadhf repents and mends his ways? Jurists are agreed that if a person repents and reforms himself, the first consequence of qadhf definitely applies; that is, the hadd punishment of 80 lashes will not be voided by the culprit's repentance and self-reform. There is also a consensus among jurists that the exception mentioned in the verse pertains to the last-mentioned consequence of qadhf. In other words, he who repents and mends his behavior will no longer be considered a fasiq (transgressor), and that God will indeed pardon him.
The only difference of opinion on this question among jurists relates to whether a person becomes guilty of qadhf as soon as he commits that offence or when the charge of qadhf is established against him. Shafi‘i and Layth ibn Sa‘d are of the opinion that by the mere commitment of qadhf a person renders himself unfit to testify. On the other hand, Abu Hanifah and the jurists of his school as well as Malik believe that a person is to be regarded as a transgressor fasiq) only after he is convicted. Before such a conviction, he may testify. It seems more plausible that one becomes a transgressor fasiq) in the sight of God as a result of indulging in qadhf, but only after being convicted of qadhf does a person become a transgressor in the eyes of the general public.
Now we come to the injunction whereby the testimony of the person found guilty of qadhf should ever, in the future, be accepted. There is considerable disagreement among jurists on whether this applies even to those who repented and reformed themselves after being convicted of qadhf. Some hold the view that while such persons no longer remain transgressors fasiq) in the sight of God and men, nevertheless the first two commandments mentioned here will be applied to them: namely that they will be awarded the hadd punishment for qadhf and their testimony will, henceforth, never be accepted.
This opinion is held by Shurayh, Sa‘id ibn al-Musayyab, Hasan al-Basri, Ibrahim al-Nakha‘i, Muhammad ibn Sirin, Makhul, ‘Abd al-Rahman ibn Zayd, Abu Hanifah, Abu Yusuf, Zufar, Mubammad ibn al-Hasan at-Shaybani, Sufyan al Thawri and Hasan ibn Salih.
Another group of jurists, however, take a different view. According to them, the person guilty of qadhf will be subjected to hadd punishment despite his repenting and reforming himself. However, because of his repentance and self- reform, he will neither be regarded as a fasiq, nor will his testimony be rejected. Those who subscribe to this opinion include ‘Ata’, Taus, Mujahid, Sha‘bi, Qasim ibn Muhammad, Salim, Zuhri, ‘Ikrimah, ‘Umar ibn ‘Abd al-‘Aziz, Ibn Abi Nujayh , Sulayman ibn Yasar, Masruq, Dahhuk, Malik ibn Anas, ‘Uthman al- Batti, Layth ibn Sa‘d, Shafi‘i, Abmad ibn Hanbal and Ibn Jarir al-Tabari.
In substantiating their viewpoint the latter group adduce, apart from other arguments, the judgement pronounced by ‘Umar ibn al-Khattab in the case of Mughirah ibn Shu‘bah. There are some traditions which mention that after the hadd punishment was meted out to the guilty, ‘Umar said to Abu Bakrah and his two associates: ‘If you repent [or, in a variant version, if you admit that you had levelled a false charge], I will accept your testimony in the future; but if you do not, I will not accept your testimony.’ The other two confessed that they had indeed levelled a false charge, but Abu Bakrah stuck to his original position.
Apparently this is a weighty argument in favor of this legal opinion. However, when we carefully consider the available account of this particular case, it becomes quite clear that it is not appropriate to cite the above precedent on the question under discussion. For in this particular case there was no disagreement with regard to the incident concerned and even Mughirah ibn Shu‘bah did not deny it.
The matter under dispute concerned the identity of the woman involved in the incident. Mughirah mistook her for Umm Jamil. It was well established that there was a great deal of resemblance between the two women, i.e. Mughirah’s wife and Umm Jamil, and since the person observed them from some distance and at a time when the light was poor, it was difficult for him to make out who the woman concerned was. Hence, there was some ground to believe that the person concerned was Umm Jamil.
As for the circumstantial evidence, this supposed Mughirah's contention. One of the prosecution witnesses also acknowledged that it was difficult to clearly make out the identity of the woman in question. It was on this basis that ‘Umar decided the case in favor of Mughirah ibn Shu‘bah and not Abu Bakrah. In these circumstances, it can be appreciated that ‘Umar's intention was to impress upon the accusers that they had levelled a serious charge on the basis of a misperception. He also wanted to drive home to them that they should repent for their actions and come forth with the assurance that they would desist from such acts in the future, or their testimony would never again be admitted.
This does not justify the conclusion that even the testimony of the person who is proved to be lying in his charge of unchastity against others will be accepted if he repents. The tact is that on this question the opinion of the former group of jurists seems to carry greater weight. For the truth of a person's repentance is known only to God. Hence, if a person publicly repents, all that we can do is not call him a fasiq in the future. It would be inappropriate though to start trusting the word of the person who proved himself to be untrustworthy simply on the grounds that he publicly uttered the words: ‘I repent.’ Moreover, if we consider the manner in which the relevant Qur'anic verse is phrased, the exception expressed by the words ‘except those of them that repent thereafter’ only pertains to them being called fasiq. We are led to this conclusion by the fact that the command to flog those convicted of qadhf with 80 lashes, and not to admit their testimony thereafter have been expressed in the imperative form. On the other hand, the statement that those who repent of falsely accusing people of sexual misconduct is given as a piece of information: namely that they are ‘transgressors except those of them that repent and mend their behavior.
The sequence of these statements clearly indicates that the exception that is made relates to their being transgressors. That is, had they not repented they would be considered as transgressors. But since they did repent, they cease to be transgressors. Even if we concede that the exception is not strictly confined to the last part of the verse, we can find no reasonable grounds to believe that the exception should apply only to the command to ‘never admit their testimony’ but not to the command to flog them. (x) Here one may ask: why should the exception expressed by the words ‘those who repent and mend their behavior’ not apply to all three things mentioned in the verse: namely, meting out the punishment of flogging, not accepting the testimony of the person guilty of qadhf, and regarding him as fasiq? It may be argued that since qad6famounts to defaming someone, why should the false accuser not be fully acquitted after (a) he confesses his guilt, (b) he tenders an apology to the victim of qadhf, (c) he repents of the wrong that he has done and assures everyone that he will never do the same again? This line of argument is apparently strengthened by the following words of the Qur’an: ‘They are indeed transgressors except those of them that repent thereafter and mend their behavior. For surely Allah is Most Forgiving, Ever Compassionate.’ One may say to this that it would be strange indeed for God to pardon such persons while His creatures should refuse to do so.
In response, it should be pointed out that repentance does not simply consist of uttering a few words of remorse. Instead, it consists of a man's sincere feelings of grief at his fault, combined with a resolve to adopt righteous conduct in the future. Hence, repentance does not enable a man to escape worldly punishments; it may, however, lead him to escape the punishment of the Hereafter. Hence God does not say (in the Qur’an] that if a criminal repents, he need not be punished. What is said instead is that in respect of those who repent, God will be ‘Most Forgiving, Ever Compassionate.’ (xi) It is pertinent to point out that if someone fails to substantiate his charge by due evidence, this does not necessarily mean that he was lying. For it is possible that even though his charge is correct he might be unable to furnish the evidence required to establish it. Is it fair that such a person be held as a transgressor psig) not only in the sight of men but also in the sight of God simply because he was unable to back up his charge, one which might have been true, with the evidence required? The explanation for this is that even if a person saw an act of moral corruption being committed, he is still sinful if he goes about publicizing it or if he accuses the person concerned of the offence without being able to establish it with due evidence. If some act of corruption is confined to a little corner of life, the Shari’ah does not approve of someone embarking on a campaign to bring that knowledge to everyone's attention. If a person knows that such corruption exists, two options are available to him. First, he should let it remain where it is; and second, he should establish with due evidence to the rulers of the Islamic State that corruption exists so that they may be able to root it out. There are, however, only these two options, no more. If someone were to start publicizing such things, he would be guilty of spreading that corruption all around. Furthermore, if he charges someone with an offence as grave as zina without providing due evidence his failure to establish the charge leads to further spread of corruption and it also emboldens the corrupt to engage in acts of corruption. Hence, he who charges someone with unchastity without providing due evidence is certainly a fasiq even though in point of fact he may be telling the truth. (xii) As regards the punishment for qadhf, Hanafi jurists are of the opinion that a person so convicted be flogged more lightly than the person convicted for limit. The number of lashes though should remain 80. This is understandable since it is hot absolutely certain that the accuser was a liar. (XIII) What should the punishment be for the person who commits qadhf more than once? The Hanafis and the majority of jurists are of the opinion that he should only be punished once, regardless of the number of times that he levels the charge against the person concerned before he is punished or during the time that he is punished. Not only that, if he persists in his charge even after the execution of the sentence of punishment against him, the hadd once meted out is deemed enough. However, if he levels the charge of another act of unlawful sexual intercourse against the same person after the punishment has been meted out, a new case will be instituted against him. After being subjected to hadd punishment in Mughirah's case, Abu Bakrah continued to say publicly: ‘I affirm that Mughirah had committed unlawful sexual intercourse.’ ‘Umar considered prosecuting him again. However, since Abu Bakrah was reiterating the same charge he had levelled earlier, ‘Ali expressed the view that a new case could not be instituted against him. ‘Umar accepted this advice of ‘Ali’s. Subsequently, there developed a near consensus among jurists that a qadhf, who had been punished for failing to prove his charge of unchastity could not be prosecuted for repeating the charge for which he had been punished. He may be prosecuted afresh only if he levelled a new charge. (xiv) There is disagreement among jurists about what punishment ought to be awarded to the person who, instead of accusing just one other, accuses a group of people of zina. According to the Hanafis, if someone charges several people with unchastity, regardless of where he uses one word or several words to level that charge, he should be punished only once. This providing he does not come forward with a new charge to the same effect. This accords with the following words of the verse: ‘Those who accuse chaste, honorable women [of unchastity] , . .’ {al-Nur 24: 4). We, thus, learn that he who slanders a whole group of people will be punished only once. This is significant in vthew of the fact that unlawful sexual intercourse involves at least two people. Despite the involvement of those two people, the Shari'ah prescribes no more than a single Hadd punishment rather than one Hadd for accusing a man and another Hadd for accusing a woman. Nonetheless, Shafi‘i is of the opinion that anyone who is guilty of slandering a group of people, either in one or several words, should be punished separately for each and every accusation against all those who comprise that group. The same opinion is held by ‘Uthman al-Batti. However, Ibn Abi Layla holds the same vthew as Sha‘bi and ‘Awza‘i, namely that if someone charges in a single statement a group of people with unlawful sexual intercourse he will be subjected to a single punishment. However, anyone who makes separate statements regarding each member of the group, accusing each of them of committing unlawful sexual intercourse, will be liable to a punishment in respect of each person whom he has accused.
7. There is a time lapse between the revelation of the preceding verses and the present ones. After the punishment for qadhf was laid down in the Qur’an the minds of the people were vexed by a question. They said fat when someone observes that a man and a woman unrelated to him are engaged in acts of immorality, it is not difficult for him to be patient. In other words, someone can easily restrain himself from speaking about the whole incident, indeed disregard it entirely, when no witnesses are available to testify to it. Yet what should be done if this person were to see his own wife engaged in unlawful sex? If he killed her, he would be liable to punishment. If he decided to go and find four witnesses to observe the offence, it is inconceivable that the culprit would stay around long enough to enable this observation to occur. It is not easy, though, for someone to observe such a thing with regard to his wife and still remain patient. True, in such a case, the husband certainly can exercise his option to divorce his wife. But were he to do so neither that perverse woman nor her partner in the adultery would have suffered any punishment whether moral or material. Additionally, if the woman becomes pregnant as a result of that unlawful act, the husband would have to assume responsibility for bringing up that child. This hypothesis was first put forward by Sa‘d ibn ‘Ubadah, i.e. what would he do if he were placed in such an unenviable position? He said that if he so found his wife involved in an act of adultery he would not go about finding witnesses to the act. He would rather bring the matter to an end by having recourse to his sword. (Bukhari, K. al-Hudud, ‘Bab man ra'a ma’ Imra'tih Rajulan fa qatalah’ — Ed.)
Shortly after this, several cases arose whereby husbands found themselves in such a position and these instances were reported to the Prophet (peace be on him). It is narrated on the authority of ‘Abd Allah ibn Mas‘ud and ‘Abd Allah ibn ’Umar that one of the Ansar, perhaps ‘Uwaymir al-‘Ajlani, came to the Prophet (peace be on him) and said: ‘O Messenger of God! If someone finds another person with his wife and reports it, you will subject him to the punishment for qadhf. If he kills her, you will put him to death. If he remains silent, he will be consumed by rage. What should he do then?’ There upon the Prophet (peace be on him) prayed to God for guidance. (Bukhari, K. al-Tafsir, Surah al-Nur, ‘Bab wa aI-Khamisah anna la‘nat Allah ‘alayh in kana min al-Kidhibin’ and Muslim, k. al-Li'an — Ed.) It is narrated by ‘Abd Allah ibn Abbas that Hilal ibn Umayyah reposed that he had personally seen his wife commit adultery. Upon this the Prophet (peace be on him) said: ‘Bring witnesses or else you will be prosecuted for qadhf.’ This agitated the Companions. Hilal said: ‘By God Who has sent you as a Messenger to us, I am telling the truth. I saw this incident with my own eyes, and heard it with my ears. I am sure that God will reveal an injunction in my ease that will save my back [from flogging].' The present verse was revealed on this particular occasion, (Bukhari, K. al-Tafsir al-Qur’ân, Surah al-Nur, ‘Bib wa yudra’ ‘anha aI-‘Adhab an-tashhad Araba‘a’h Shahadat bi Allah innahu la-min al-Kidhibin’ — Ed.) The method of dealing with this problem is known as Lian. After revelation of this rule the Prophet (peace be on him) dealt with similar cases in accordance with it and detailed reports about the same can be found in works of Hadith. The Hadtih, in any case, are the best source of information on the detailed rules and procedures pertaining to li’an.
The details of Hilal ibn Umayyah's case are available in Hadith works and Tabari's Tafsi‘r. It is related on the authority of ‘Abd Allah ibn ‘Abbas and Anas ibn Malik that after this verse was revealed both Hilal and his wife were brought to the Prophet (peace be on him). The Prophet (peace be on him) first mentioned God's command which had been revealed, adding: ‘Do you realize that the punishment in the Hereafter is much more grievous than the one in this life?’ Hilal said: ‘My charge against her is absolutely true.’ Hilal's wife, however, totally denied it. The Prophet (peace be on him) then said that the two should take an oath. Accordingly, Hilal rose first, taking the oath in accordance with the Qur’anic rule. While he was so doing the Prophet (peace be on him) repeatedly said: ‘God knows that one of you is certainly a liar. Then will either of you repent?’ Before Hilal took the oath for the fifth time, those present said to him: ‘Fear God. Punishment in this life is lighter than the one in the Next. This fifth oath will incur God's punishment on you.’ Yet Hilal said: ‘God Who has saved me here will not punish me in the Hereafter’, and so saying, he took the final oath.
It was then his wife's turn. Just as she was about to take the final oath, she was interrupted with the following words: ‘Fear God. It is easier to bear punishment in this life than in the Next. This final oath will incur God's punishment on you.’ On hearing this, she paused, hesitating a little. The audience at this point thought that she was about to confess her sin but instead she said: ‘I will not bring abiding dishonor to my tribe.’ So saying, she took the final oath. The Prophet (peace be on him) then effected a separation between them and resolved that her child, whom she had recently conceived, would be known as her child, and not as the child of her husband. Yet no one would be able to accuse her of not being chaste or her child of being illegitimate. If anyone were to do so they would be awarded the punishment for qadhf. Hilal's wife would not be entitled to maintenance or the right of residence in her husband's house during the period of ‘iddah for she was now separated from her husband without this being caused by either divorce or his death. The Prophet (peace be on him) then told people to closely observe the features of the child after its delivery. If it resembled Hilal, it would thus be his child. Conversely, if it resembled the person accused of adultery, it would be his. After the child's birth, it was found that it resembled the person accused of adultery. On learning this, the Prophet (peace be on him) exclaimed: ‘But for these oaths [or the Qur’anic command which has already decided the matter], I would have dealt very differently with this woman.’ (See Bukhari, K. Tafsir al-Qur’an, Surah aI-Nur, ‘Bab wa yudra’ ‘anha al-‘Adhab an-tashhad Araba‘a’h Shahadat bi Allah innahu la-min al- Kadhibin’ - Ed.)
Detailed proceedings of another case which relates to Uwaymir al-‘Ajlani ara recorded in Bukhari, Muslim, Abu Da'ud, Nasa'i, Ibn Majah and Ahmad ibn Hanbal on the authority of Sahl ibn Sa‘d al-Sa‘idi and ‘Abd Allah ibn ‘Umar. According to these traditions, ‘Uwaymir al-‘Ajlani and his wife were both called to the Prophet's Mosque. Before they were asked to take an oath against each other, the Prophet (peace be on him) warned them three times: ‘God knows full well that one of you is certainly a liar. Will then either of you repent?’ men neither did so, both were made to take oaths and ‘Uwaymir further said: ‘O Messenger of God, if I ever keep this woman I will be lying.’ Saying this he divorced her even before the Prophet (peace be on him) had effected a separation between them. As reported by Sahl ibn Sa‘d, the Prophet (peace be on him) then said: ‘This separation is for each such couple that resorts to li‘an (mutual cursing).’ Since then it has been the practice that couples who resort to Li‘an are separated with the stipulation that they may never remarry. ‘Abd Allah ibn ‘Umar, however, says only that the Prophet (peace be on him) effected a separation between the two. There is an additional piece of information in Sahl ibn Sa‘d’s account that the woman was pregnant and ‘Uwaymir claimed that the conception was not a result of any act of his. (See Bukhari, K. Tafsir al-Qur’an, Surah al-Nur, ‘Bab wa al-Khamisah anna La‘nat Allah ‘alayh in kana min al-Kadhibin’ and ‘Bab Qawlih ‘azza wa jalla: Wa al-Iadhina yarmuna Azwajahum wa lam yakun lahum Shuhada’ ...'Ed.) Accordingly, the child was ascribed to the mother alone. The legal doctrine since them has been that such a child, to wit, a child whose mother's husband disowns being the father of that child, inherits only his mother and that she alone inherits him (i.e. to the exclusion of the woman's husband).
Several other such cases are reported in works of Hadith. These traditions, however, do not specify the names of the parties concerned. Possibly some are related to the two cases already cited. Some traditions, however, mention additional cases and shed light on important points pertaining to li‘an.
In reporting one case, ‘Abd Allah ibn ‘Umar adds that after the couple had resorted to Ii‘an, the Prophet (peace be on him) effected a separation between them. (See Bukhari, K. al-Tafsir al-Qur’an, Surah al-Nur, ‘Bab Qawlih ta‘ala anna Ghadab Allah ‘alayha in kana min al-Sadiqin’ — Ed.) There is another tradition from the same authority, ‘Abd Allah ibn ‘Umar, to the effect that a husband and wife took the oaths of li‘an. The husband contended that his wife's pregnancy was not by him. Here, too, the Prophet (peace be on him) effected a separation between them, declaring that the child would be ascribed to the mother alone.
There is yet another tradition on the authority of 'Abd Allah ibn ‘Umar whereby after the li’an proceedings, the Prophet (peace be on him) said: ‘Both of you an accountable to God, and one of you is certainly a liar.’ He then said.to the husband: ‘She is not yours any longer. You have no [conjugal rights with respect to her. Nor may you commit any excesses nor take any vindictive action against her.’ The husband said: ‘O Messenger of God! Help me get back my money [i.e. the bridal- due which he paid her].’ The Prophet replied: ‘You have no right to reclaim your money. If you are true in your charge, then that money is the recompense for the pleasure you legitimately derived from her. On the other hand, if you have lied against her, you are even farther removed from your money; that money is now farther from you than it is from her.’ (Bukhari, K. al-Talaq, ‘Qawl al-Imim li al- Mutala‘inayn inna Ahadakuma Kidhib fa hal minkuma Ta'ib min’ — Ed.)
Daraqutni has quoted the following opinion of ‘Ali ibn Abi Talib and ‘Abd Allah ibn Mas‘ud: ‘The principle that has been established is that spouses who resort to li’an may never come together again [i.e. they may never remarry].’ Daraqutni also narrates a tradition from ‘Abd Allah ibn ‘Abbas that the Prophet (peace be on him) himself said: ‘Such a couple may- never come together again [that is they may never remarry].’ It is reported by Qabisah ibn Dhuwayb that someone declared that his wife's pregnancy was not by him. Later he retracted his statement. After the child was born he again claimed that the child was not his. The case was put before ‘Umar ibn al-Khattab who prosecuted him for qadhf and then issued a judgement that the child would be ascribed to him (Daraqutni and Bayhaqi). ‘Abd Allah ibn ‘Abbas reported that someone came to the Prophet (peace be on him) and submitted: ‘I have a wife whom I love very much but she does not shrug away anyone's hand.’ It is noteworthy that this was a metaphorical expression meaning either adultery on the part of the wife or something rather less. The Prophet (peace be on him) asked him to divorce her. In response, he said that he could not live without her. The Prophet (peace be on him) then told him to keep her and did not ask him to elaborate upon the implication of his earlier statement. Thus, the Prophet (peace be on him) did not necessarily accept the statement to mean that the person concerned charged his wife with adultery, nor did he order li’an in this case.
Abu Hurayrah reports that a Bedouin came to the Prophet (peace be on him) saying: ‘My wife has given birth to a child of dark complexion. I do not think it is my child.’ The Bedouin’s suspicion was based merely on the child's complexion. He did not have any other grounds to suspect his wife of adultery. The Prophet (peace be on him) asked him: ‘Do you have any camels?’ He replied in the affirmative. The Prophet then asked him to specify the color of his camels. He said that they were of a reddish color. The Prophet then further asked him if he also had any brown camels, and the Bedouin replied in the affirmative. The Prophet (peace be on him) then asked him to explain how the color of the camels had become different from one another. To this the man replied that it might be an hereditary consequence. The Prophet (peace be on him) responded that the dark complexion of his child could also be an hereditary factor. The Prophet (peace be on him) thus, did not allow the Bedouin to disown the paternity of the child. (See Bukhari, K. al-Hudud, ‘Bab ma ja fi al-Tawlid’ — Ed.)
There is another tradition on the authority of Abu Hurayrah that the Prophet (peace be on him) while commenting on the Qur’anic verse relating to li’an, said: ‘God has nothing to do with a woman who conceives an unlawful child and makes him part of the family though he does not belong to it. God will nor admit her to Paradise. In like manner, the husband who disowns the paternity of his child, the while the child looks on at him, God will conceal Himself from such a person on the Day of Judgement and will humiliate him before the creatures of all times.’ (See Abu Da’ud, K. al-Talaq, ‘Bab al-Taghliz fi al-Intifa — Ed.)
The Islamic Law of li'an is based on the present verse along, with the above- mentioned statements of the Prophet (peace be on him) and the general principles of the Shari’ah. In light of the above, jurists have elaborated a set of laws on this question, the most mentionable of which are as follows: (i) There is disagreement among jurists with regard to the husband who personally observes his wife commit adultery and kills her rather than taking recourse to li’an oaths. One group says that capital punishment will be meted out to him because he was not authorized to execute the punishment of his own accord. Another group, however, say that he is not to be awarded capital punishment. Nor will he be blamed providing his charge is proved to be true. In other words, if it is established that the person concerned murdered his wife and he was provoked into so doing by having observed his wife commit adultery. Ahmad ibn Hanbal and Ishaq ibn Rahawayh are of the opinion that the person concerned will have to produce two witnesses to testify that the reason for killing his wife was her act of adultery. Among the Malikis, Ibn al-Qasim and Ibn Habib mention another condition as well, namely that the person so murdered should be married. If an unmarried person is so killed, the murderer will be subjected to qisas. However, the majority of jurists are of the view that he would be spared qisas only if he produces four witnesses who testify to the adultery. The accuser may also be spared qisas if the person whom the accused had killed after observing him commit adultery with his wife admits committing adultery with the accuser's wife or that the person so killed, provided they are unmarried, confessed during their life-time that they had been guilty of unlawful sexual intercourse with that person's wife. (ii) Li'an is only effective when it is made under the aegis of the court rather than by the parties concerned via their mutual consent. (iii) If a husband accuses his wife of unlawful sex or disowns the paternity of the child, she has the right to seek the intervention of the court and have her husband take the li’an oath. In this respect her right is the same as her husband's. (iv) Can there be li‘an between every couple, or is it subject to certain conditions? Jurists have different opinions on this question. According to Shafi fi, anyone whose oath is legally admissible and who has the right to pronounce divorce may proceed with Ii’an. In other words, in order to initiate li’an proceedings it is enough that the person concerned be sane and adult. This irrespective of whether the husband and wife are Muslims or non-Muslims, whether they are tree or slave, whether their testimony is trustworthy or not, and whether the wife of a Muslim husband is herself a Muslim or a dhimmi. The views of Malik and Ahmad ibn Hanbal on this question are more or less the same. The Hanafis, however, contend that recourse to li’an may be made only in cases of those free Muslim couples who have not been convicted of qadhf. If both the husband and the wide are unbelievers, slaves, or have been convicted of qadhf, then recourse to li’an may not be made. Moreover, if the wife was previously involved in a relationship which was either clearly of a prohibited nature, or if she is of a doubtful character, then recourse to li‘an is not available.
Hanafi jurists prescribe these conditions in view of the difference between li‘an and qadhf. That is that if any person other than the husband commits qadhf, he is liable to hadd punishment, but if the husband makes the same accusation, he may save himself from the hadd punishment for qadhf by having recourse to li’an. In all other respects, the laws relating to li’an and qadhf are exactly alike. Moreover, the Hanafis believe that since the oaths in li’an have the same status as evidence then those who are not eligible to testify are also ineligible to take the li’an oaths. On this question the Hanafi position seems weak whereas the Shafi‘i position appears sound. The first reason for this is that the Qur’an does not make the question of slandering one’s wife a part of the verse which lays down the law of qadhf. Instead, the Qur’an lays down a separate rule for this. Hence, it is not appropriate to treat li ’ân as a part of the law of qadhf and subject it to the conditions pertaining to qadhf. The words of the verse dealing with li‘an differ from those used in the verse on qadhf. The legal rules of the two also vary. Hence, the provisions relating to li’ân should only be derived from that verse which deals with li’ân. For example, the verse on qadhf r Yes that all those who charge chaste and honorable women with unlawful sex deserve to be punished. Per contra, there is no reference to a chaste wife in the verse about li’ân.
Let us suppose that some woman had at one time been guilty of sexual misconduct after which she repented and married another man. Now, if her husband makes a false charge of sexual misconduct against her, the Qur’an does not grant him the license to accuse his wife of unchasteness, nor to deny the paternity of the child borne by that woman on the grounds that she had once been guilty of unlawful sex. The other highly important reason is that there is a vast difference between one's own wife and any other woman as far as levelling a charge of unlawful sex is concerned. It is natural, therefore, that the spirit of the law with regard to both is bound to vary. For, if a person accuses an unrelated woman with unchasteness, the case is pretty simple because the person has no emotional involvement or emotional ties with her. Furthermore, the charge that he makes against her in no way damages his honor. Nor is there any question of social ties, mutuality of rights and obligations, nor of lineage and descent between him and that woman. If a man is concerned with the moral conduct of such a woman, he is at best moved by the desire to see society free of moral condition.
On the contrary, a man's relations with his wife exist on a variety of levels and are if a very profound nature. For his wife is a repository of his pedigree and honor, of his property and his home. Being his life partner, his wife is well aware of many of his secrets. This in addition to the fact that the two are bound together by some very profound and fine emotional ties. Were a wife to commit an act of sexual misconduct, this injures her husband's honor and dignity, hurts his most vital interests, and jeopardizes the future of his coming generations. Since the two cases are poles apart, they cannot be governed by the same law. IR fact, a person's relationship with his wife is such that even his religious, social and legal status hardly make any difference.
There seems no justification, therefore to distinguish between Muslims and dhimmis, between the free person and the slave, between those whose testimonies are accepted by the court and those whose testimonies are not accepted.
Now, if a dhimmi, a slave or anyone who has previously been convicted of qadhf observes his wife engages in the sexual act with someone else, or if he comes to believe that his wife has become pregnant as a result of sexual intercourse with some other man. is there any reasonable ground to deny him the right to initiate li‘an proceedings? If this right is denied him, what legal remedy exists for such people for the redress of their grievance? The intent of the Qur’an is clear enough: it seeks to provide a way out for a couple who have landed themselves in a highly unenviable state. This might either consist of the husband being tormented by belief that his wife is guilty of adultery and/or that she is pregnant as a result of her illicit relations with someone else. Alternatively, the wife might be agonized by her husband's charge of unchasteness against her, or his denial, without justification, of the paternity of her child fathered by him. Such a situation calls for a way out for all those concerned and not only for those who are free, Muslims, and whose evidence is admissible in court. Now, can we find ’any indication in the Qur'an that restricts the application of the li’ân law to any particular group of people to the exclusion of others? It is also argued that the Qur’an has characterized the oath of li‘an as testimony (see verses 6—9). It is contended, therefore, that the conditions of testimony have to be fulfilled in the case of li’ân as well. In view of the above, if an ’âdil (trustworthy) husband whose testimony is admissible in court were to take the oath of li'an while his wife failed to do so, the woman should be lapidated since due evidence has been provided that she was guilty of adultery. It is astonishing that the Hanafis do not believe that in such a case lapidation should be carried out. This goes to show that the Hanafis do not regard the li’ân oath as equivalent to testimony. The fact is that the Qur’an, notwithstanding its use of the word shah0dah for these oaths (see verses 6—9), does not regard them as evidence in the strict sense of the word or else it would have asked the woman to take the oath eight rather than four times. (v) Li’ân is not required, in cases where a charge is made only in a figurative sense, or when it is expressed as something that one suspects rather than something which one is fully sure about. It is required only if the husband clearly and unambiguously charges his wife with adultery, or unequivocally disowns the child borne by his wife to be his. Malik and Layth ibn Sa‘d suggest an additional condition: that at the time of taking the oath the husband should say that he himself saw his wife commit adultery. This addition, however, has no sound basis. Moreover, it is supported neither by the Qur’an nor any hadith. (vi) According to Abu Hanifah and other jurists of his school, if the husband who has charged his wife with adultery refrains from taking the li’ân oaths, he should be imprisoned until he confesses that he has levelled a false charge. He should not be released unless he does so, and once he has he will be awarded the hadd punishment for qadhf. On the other hand, Malik, Shafi’i , Hasan ibn Salih and Layth ibn Sa‘d are of the opinion that his refraining from taking the oath amounts to his admitting that he was lying, and this requires that the person concerned be subjected to the hadd punishment for qadhf. (vii) According to the Hanafis, if the wife declines to take the li’ân oaths after her husband has done so, she should be imprisoned and not released until she either takes the required oaths or confesses that she committed adultery. In the latter case, she should be lapidated. The Hanafis justify this on the basis of the Qur'anic statement that the woman will be spared punishment only if she takes an oath (see verses 7—9). However, since she declines to take the oath, she must of necessity be punished.
This view though is flawed since the Qur’an does not specify any particular punishment. It only speaks of punishment as such. As for the opinion that it can only mean hadd punishment ’for zinâ, it should be pointed out that the Qur’an lays down the condition of four witnesses for such a punishment to be awarded. This condition is not met by the oaths taken by a single person even if they be taken four times. The husband's oaths suffice to save him from the hadd punishment for qadhf and that the laws of li’ân be applied to his wife. Yet, these oaths are not sufficient in themselves to establish that the wife was guilty of adultery. Were she to take counter oaths, this would cast serious doubt on the whole case. Now, as we know, whenever there is any doubt, hadd punishment cannot be awarded.
Such a case should not be considered analogous to the qadhf committed by the husband, for that qadhf is fully established. It is precisely because there is no doubt about his having committed qadhf that he is required to take li’an oaths. However, the oaths of the husband are not sufficient to prove that the wife committed adultery. Such a case can only be conclusively established try her own confession or by the testimony of four witnesses. (viii) According to Ahmad ibn Hanbal, if the wife is pregnant at the time of li’ân, the act of li’ân itself suffices to release the husband from the responsibility of the pregnancy and the child subsequently borne by his wife will not be reckoned as his child, regardless of whether the husband explicitly denied his role in his wife's pregnancy or not. Shafi‘i, however, is of the opinion that the husband's charge of adultery against his wife and his disowning responsibility for his wife's pregnancy are not one and the same. Unless the husband disowns the pregnancy, the child will be reckoned as his notwithstanding the charge of adultery he levelled against his wife. For even if the wide is found to have committed adultery, this does not prove ipso facto that she conceived the child as a result of that adultery. (ix) Malik, Shafi‘i and Ahmad ibn Hanbal grant the husband the right to disown his responsibility from pregnancy during the period of that pregnancy, and permit li’ân on that basis. Abu Hanifah, however, believes that if the husband does not specifically accuse his wife of adultery, but simply claims that he found his wife pregnant in such circumstances that the pregnancy could not have been via him, then li‘an proceedings should be deferred until the child is born. For occasionally eases of false or phantom pregnancy arise. ) In case a father disowns paternity of the child, this is unanimously considered to warrant li’ân. Likewise, there is a consensus among jurists that if a father accepts paternity of the child, even once, whether explicitly or implicitly, he forfeits the right to disown the child later on. If he does so, he incurs the punishment prescribed for qadhf. How long the father has the right to do so, however, is a disputed matter. According to Malik, if the father was present during the period of his wife's pregnancy, he has the right to disown the child during this period. Thereafter, he ceases to have such a right. However, if he was away from his wife and the baby was born during his absence, he may disown the child on learning about its birth. In Abu Hanifah’s view, if he disowns the child a day or two after its birth and initiates li ’ân proceedings, the husband will be exempt from the responsibility of bringing up the child. However, if he disowns the child after some considerable period, for example one year after the child's birth, the responsibility of bringing up that child remains his. In Abu Yusuf's opinion, the father has the right to disown the child up until 40 days after ‘its birth, or up until 40 days after his knowing about its birth. But he loses ‘that right thereafter. The specific limit of 40 days that has been fixed in this connection, however, is pointless. The sound position on this question seems to be Abu Hanifah's, namely that the father should disown the child within a day or two after its birth or after receiving such news. This period may be extended on grounds that are plausible. (xi) If after divorcing his wife the ex-husband still accuses her of adultery, this does not warrant li’ân. Instead he will be prosecuted for qadhf. Since li'ân is a provision for spouses and the divorced wife has ceased to be a spouse, li’an rules do not apply to her. The only exception that can be allowed in this connection is in the case of a revocable divorce, provided that such a charge was levelled within the period during which the husband had the right to revoke the divorce. According to Malik, qadhf only arises if the question of pregnancy or parentage is not at issue. For, in such a case, the husband retains the right to initiate li’an proceedings even after (Talaq ba’in (divorce that nullifies the marriage). He may have recourse to Ii’an not to bring his divorced wife into disrepute, but only in order to be relieved from the responsibility of bringing up a child which he does not consider his own. Almost the same view is held by Shafi‘i. (xii) There is consensus among jurists in the cases of li’an that the spouses become immune from any punishment. They also concur that if the husband disowns the paternity of the child then the child is ascribed to the wife alone. In such a case, it will not be regarded as its father's child. nor will it inherit him. It will inherit Its mother and its mother will inherit it. Jurists also agree that no one will be allowed to call that woman an adulteress, or the child illegitimate even though the circumstances obtaining at the time of li’an might indicate that the woman was indeed guilty of adultery.
Other areas of agreement among jurists are as follows. First, if anyone reiterates the old charge of adultery against the woman, or brands the child as illegitimate after li‘an, he will receive the hadd punishment for qadhf. Second, the wife does not forfeit her bridal-money as a result of li’ân. She is, however, not entitled to maintenance and accommodation which are prerequisites during her iddah. Third, the wife is no longer lawful for her husband; i.e. he no longer has any right to conjugal relations with her.
As regards areas where jurists disagree with one another, the first is as to how the separation between husband and wife comes into effect after li’ân. The next disputed question is whether the couple can remarry after having been separated as a result of li ’ân.
As regards the former question, namely how the separation between the spouses comes into effect after li’an, Shafi‘i is of the opinion that once the husband completes the li’ân proceedings, the wife stands separated from him regardless of whether she has taken the counter oaths or not. According to Malik, Layth ibn Sa‘d and Zufar, however, the separation comes into effect after both the husband and wife have completed the li'ân procedures. Abu Hanifah, Abu Yusuf and Muhammad ibn al-Hasan al-Shaybani believe that li'ân does not in itself bring about separation. It is rather the courts that effect separation. lt is better if the husband himself divorces his wife or else the judge will announce such a separation.
Let us consider the question as to whether the spouses who are separated as a result of li’ân can ever remarry. Malik, Abu Yusuf, Zufar, Sufyan al-Thawri, Isbaq ibn Rahawayh, Shafi‘i, Ahmad ibn Hanbal and Hasan ibn Ziyad are of the opinion that they stand forbidden for each other for ever. Even if they mutually agree on remarriage, they are not entitled to do so. ‘Umar, ‘Ali and ‘Abd Allah ibn Mas‘ud also share the same opinion. On the contrary, Sa‘id ibn al-Musayyab, Ibrahi m al-Nakha‘i, Sa‘id ibn Jubayr, Abu Hanifah and Muhammad ibn al-Hasan al-Shaybani argue that if the husband subsequently admitted that his earlther statement was false, and if he received the hadd punishment for qadhf, then they could remarry. In their opinion, what makes the former husband and wife forbidden is li’an. Hence, they remain forbidden for each other as long as the li’ân lasts. However, once the husband admits that he made a false statement and receives his due punishment for the same, the li’ân is voided, and, thus, the restriction on their remarrying ends.