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Media center Press releases Media spokespeople Downloads. Trading news MarketPulse launch Meet the analysts. Our culture Job openings Our offices. From tech start-up to a global corporation. This was a model which was followed by all the believing women who considered the Prophet's wives and daughters patterns of virtue and not the immodest women of the age of 'ignorance'. Similarly, the free mixing of the men and women was discouraged before it was declared as a criminal offense and women were prohibited from going out openly in make-up.
After adopting such measures zina was declared to be a punishable offense and spreading of indecency in any way was also prohibited. Prostitution was legally banned and severe punishment was prescribed for charging men and women with adultery and propagating it without proof. Men were enjoined to restrain their gaze so that unrestricted feasting of eyes should not lead to lust for beauty and further on to illicit love. At the same time women were also enjoined to differentiate between mahram and non-mahram relatives.
This extreme punishment is for those incorrigible persons who persist in resorting to the illegal course for the gratification of their sex desires in spite of all the treasures adopted to reform the individual and society. They certainly deserve to be flogged. Punishment of a wicked person serves as a, psychological deterrent for those who have similar tendencies. Mahram relatives are those between whom marriage is not permissible under the Islamic Law, e.
Non-mahram are those between whom marriage is permissible e. If one tries to understand the Islamic scheme of reform from this point bf view, one will realize that not a single part of the law can either be dispensed with or amended. Only a tool who assumes the role of a self-styled reformer, without understanding this Divine Law, will ever think of changing it, or a mischievous person, who deliberately wants to alter the very object of the social order designed by Allah, will try to tamper with it.
It was considered as a social crime against the institution of family. Accordingly the members of the family themselves were competent to punish the accused. The Commandment at that time was that if four men should bear witness to having seen a man and a woman committing zina, both the culprits should get a beating and the woman should be imprisoned in the house.
But at the same time there was a suggestion that this Commandment would apply till further orders and that the real law was yet to follow. After about two to three years the present Commandment was revealed which canceled the previous Commandment and declared zina to be a cognizable offense.
If they give evidence and prove the guilt, then confine them to their houses until death comes to them, or Allah opens some other way out for them. You all belong to one and the same Community; therefore you may marry them with the permission of their guardians and give them their dowries so that they may live a decent life in wedlock and not in licentiousness nor may have secret illicit relations. Then if they are guilty of indecency, after they have been fortified by wedlock, they shall be given half the punishment prescribed for free women.
Verse 15 held out a hope that Allah would open some other way out for those adulterous women who were to be imprisoned according to the Commandment contained in it. Thus, the Commandment in verse 2 of this Surah is the same which was promised in IV: The word muhsanat has been used twice in the same verse in the same context and one will have to concede that it has been used in the same sense at both the places.
Now let us consider the sentence: Then at the end of the verse it has been enjoined that if a slave woman commits adultery after her marriage, she should be given half the punishment prescribed for a free unmarried woman.
The context clearly indicates that in this sentence the word muhsanat has the same meaning as in the first sentence, i. Thus it is concluded from these two verses of An-Nisa that the Commandment contained in this verse of An-Nur is the same that was promised in v.
We learn from many authentic Traditions that not only did the Holy Prophet prescribe the punishment of stoning to death for it verbally but also enforced it practically in several cases. Then after him his successors not only enforced this punishment during their caliphates but also declared repeatedly that this was the legal punishment.
The Companions and their followers were unanimous on this point and there is not a single saying of anyone to suggest that anybody doubted the authenticity of this law during that period. After them the jurists of all ages and countries have been unanimous that this is the legal punishment prescribed by the Sunnah, for there have been so many strong and continuous proofs of its authenticity that no scholar can refute them.
In the entire history of the Muslims nobody ever denied this except the Kharijites and some Mu'tazilites and even they did not deny it on the ground that there was some weakness in the proof of its having been enjoined by the Holy Prophet, but because they considered it to be "against the Qur'an". This was, however, due to their lack of understanding the Qur'an. They argued that by using the words AZ zani waz-zaniyatu in their general sense the Qur'an has prescribed a punishment of one hundred stripes for this crime.
Therefore, according to them, the only punishment for adultery or fornication prescribed in the Qur'an was this, and to prescribe a different punishment for the married persons who committed adultery would be against the Divine Law. But they forgot that the explanation of the Qur'anic verses by the Holy Prophet carries the same weight and authority in law as the words of the Qur'an itself, provided that the explanation is proved to be from the Holy Prophet.
The Qur'an has used As-sariqu was-sariqatu in similar general terms and prescribed the punishment of amputation of hands for the thief, both male and female. Now if this Commandment were to be interpreted literally without the limitations authentically emanating from the Holy Prophet, the generality of the words used would demand that every man or woman, who steals a needle or a plum, should be declared to be a thief and his or her hand cut off from the shoulder.
On the other hand, if a thief, who has stolen a million rupees, declares on his arrest that he has reformed himself and has repented of theft, he should be let off in accordance with: Likewise the Qur'an forbids marriage only with a foster mother and a foster sister. According to their argument, such a ban should not apply to a foster daughter.
The Qur'an forbids a person to keep two sisters as wives at one and the same time; therefore if a person keeps the aunt paternal or maternal and her niece together as wives, he should not be charged with violating the Qur'anic injunction.
Again, the Qur'an forbids marriage with a step-daughter only when she has been brought up ' in the house of her step-father; therefore, according to their way of reasoning, the absolute prohibition of marriage with a step-daughter should be regarded as against the Qur'an. Similarly the Qur'an allows mortgage only when a man is on a journey and nobody is available to prepare the loan documents; therefore if a person is at home and a scribe is also available, mortgage should be regarded as un-Qur'anic.
Then, the Qur'an enjoins in general terms: These few instances should suffice to prove the error in the reasoning of those who hold the Commandment of stoning to death as against the Qur'an. Nobody can deny the position and authority of the Prophet in the legal system of Islam. It is he alone who can explain the underlying intention of a Divine Command, its procedures and in what cases it will be applicable and in what there is another injunction. To deny this position and authority of the Prophet is not only against the principles of Islam but it also entails innumerable complications in practice.
According to the Hanafis, it means frontal sexual intercourse of a man with a woman who is neither his wife nor his bondwoman, nor is there any valid reason to believe that the sexual act was committed under the misapprehension that the woman was his own wife or his own Bondwoman According to this definition, sexual act with a woman in the rectum, or sodomy, or sex gratification with animals, does not constitute zina.
It is confined only to the frontal sexual intercourse with a woman without any legal right or any doubt thereof. According to the Malikis, zina means the entry of the male sexual organ into the frontal sexual part, or in the rectum of a woman or man, without legal right or any doubt about its being legal.
According to these two definitions, sodomy also will be included in zina. The correct position, however, is that these definitions are removed from the common meaning of zina. The Qur'an always employs words in their ordinary meaning and according to their common usage, unless it uses a certain word as a term. In such a case the Qur'an itself makes plain the particular sense of the term. In the context in which the word zina occurs, there is no indication that it has been used in any particular sense.
Accordingly the word will have to be taken in the sense in which it is commonly understood. It is, therefore, confined to an illicit intercourse with a woman in the natural way and does not extend to other forms of sexual gratification. Besides, it is well known that there was a difference of opinion about the punishment for sodomy among the Companions of the Holy Prophet. Had sodomy been included in zina according to the Islamic terminology, there would have been no occasion for such a difference of opinion.
It is not essential that the penetration should be full or the sexual intercourse should be complete. On the other hand, if there is no penetration of the glans of the penis, mere lying of the couple in the same bed or their caressing each other or their being found naked, is not a sufficient ground for declaring them to be guilty of Zina; so much so that the Islamic Law does not bother to get the couple medically examined to establish their guilt of illicit sexual intercourse and then to get them punished according to the law.
Those who are found in such an indecent condition are offenders and punishable according to the circumstances. The competent authority to determine the nature of the punishment is either a court or the legislature of the Islamic State. If the punishment is to be given in the form of flogging with stripes, it should not exceed ten stripes as specified in a Tradition: However, if a person is not caught red-handed but confesses his guilt himself, he should only be admonished to repent.
Now you may give me any punishment you may deem fit. Then the Holy Prophet called him back and recited 'the following verse to him: The Islamic Law does not permit that in cases where a man confesses his guilt without specifying his offense, any investigation be made to find out what the actual offense was. A man came to the Holy Prophet and said, "O Messenger of Allah, I deserve the prescribed punishment, so enforce the punishment on me. After the man had offered his prayers, he again came and said, "I am guilty: For this there are certain conditions which must be satisfied.
These conditions are different for fornication and for adultery. In the case of fornication, the offender should be of age and possessing normal common sense. If a child or a lunatic is guilty of it he does not incur the punishment prescribed for zina.
In the case of adultery, there are some additional conditions which are as under: The Qur'an itself has indicated that a slave shall not be stoned to death on the charge of zina. As has already been stated, a slave-girl, if found guilty of adultery after marriage, shall get half the punishment prescribed for -a free unmarried woman. The jurists are agreed that the same Qur'anic Law will apply to a slave.
This condition has also the unanimous support of all the jurists. According to this condition, a man who has had sexual intercourse with a stave-girl, or whose marriage was performed in an illegal manner, will not be treated as married and shall not be stoned to death but will be flogged with stripes if he commits zina. The mere ceremony of marriage does not entitle a man or a woman to be regarded as a muhsin or a muhsanah and be stoned to death in case of zina. Most of the jurists are agreed on this condition.
However, Imam Abu Hanifah and Imam Muhammad have added a supplementary condition to the effect that a man or a woman will be treated as married only when he or she is a free person and is of age and possesses normal common sense at the time of marriage and sexual intercourse.
According to this supplementary condition, if a man is married to a slave-girl, or to a minor or mad girl, and even has had sexual intercourse with her, he will not be punishable by stoning to death if found guilty of zina. The same applies to the case of a woman who may have had intercourse with a slave or a mad or immature husband.
She will not be stoned to death if found guilty of zina. This is a very reasonable addition by these two far-sighted scholars. According to them, even if a non-Muslim married person, who is a protege of the Islamic State, is found guilty of zina, he will be stoned to death. But Imam Abu Hanifah and Imam Malik have concurred that the punishment of stoning to death for adultery after marriage, applies only to the Muslims.
The most weighty argument advanced in this connection is that a man, who is to be given the extreme punishment of stoning to death, should be the one who, in spite of enjoying the complete state of ihsan dces not refrain from committing adultery. The Arabic word ihsan means "moral fortification," which has three essential components. First, the man should be a believer in Allah and in the accountability after death and should owe allegiance to Divine Law. Second, he should be a free member of society and not a slave of somebody, which might hinder him from satisfying his desires in a lawful manner, and his helplessness and indigence should make him commit a sin when there is no family to help him in protecting his morality and honour.
Third, he should be married and should have the means of statisfying his sex desires lawfully. Where these three components exist, the moral fortification would be complete and anybody who breaks through these three fortifications for the sake of illicit sex gratification, would really deserve the extreme penalty of being stoned to death. But in a case where the very first and foremost component of belief in Allah, in the Hereafter and in Divine Law, dces not exist, the fortification is not complete, and accordingly, the gravity of the guilt is not such as to entail the extreme punishment.
In spite of this lacuna, the principle is very strong and sound in its theme. It will not be correct to counteract the above argument by a deduction from the case brought by the Jews to the Holy Prophet in which he ordered the stoning of a person guilty of zina.
This is because all the authentic reports about the case show that it was not the Islamic Law of the land which was applied, but the punishment was awarded on the basis of the Jewish personal law itself. According to a Tradition cited by both Bukhari and Muslim, when this case was brought before the Holy Prophet, he asked: If a person is forced to commit the act under compulsion or pressure, he or she is neither an offender nor liable to any punishment.
In the subsequent verses of this Surah the Qur'an proclaims pardon for those women who are forced into prostitution. It has also been made clear in the various Traditions that in a case of rape only the man was punished and the woman, who had been violated, was let off. According to a Tradition cited by Tirmizi and Abu Da'ud, a woman went out in darkness for prayers when on the way she was overpowered by a man and raped.
She raised a hue and cry and the adulterer was caught red-handed and stoned to death by the order of the Holy Prophet, but the woman was let off. According to a Tradition in Bukhari, a man raped a girl, during the Caliphate of Hadrat 'Umar, who had the man flogged with stripes and let the girl off. It is clear from these instances that there is unanimity of opinion about the law in regard to the case of a woman raped or forced into prostitution. However, there is a difference of opinion in respect of the man who commits the act under compulsion and coercion.
Imam Zufar is of the opinion that he will not be let off because the act of zina could not have been performed unless the male organ was fully excited, which means that his own lust and sex desire had urged him to commit the act. Imam Abu Hanifah says that if the act is done under coercion, of the government or any of its officials, the man will not be punished because when the government itself compels a man to commit it, it has no right to punish him. But if somebody else compels him to it, the adulterer will be punished because he could not have committed this without his own desire for it, as sexual lust cannot be aroused by coercion.
Of the three opinions, the first one is convincing. This is because even if erection of the male organ is a proof of the sexual urge of the man, it is not necessarily a proof of his willing participation- in the act. Suppose, for example, that a tyrant imprisons a simple God-fearing man and puts a beautiful young woman stripped naked in the same cell and does not want to release him until he commits zina and the tyrant brings four witnesses to prove it in the court, it will not be justice to stone them to death or flog them with stripes in utter disregard of the circumstances.
This is because there is a probability that circumstances may be created whereby sexual desire tray overpower a man even though he may not be a willing partner. Supposing a man were imprisoned and not given anything to drink except wine; then if he drinks it, will he be punished simply because not a single drop of wine could have gone down his throat if he did not intend it, even though he was forced by the circumstances to drink it?
For in order to establish a guilt, mere existence of intention is not enough, but it is also necessary to see that the person was in a position to exercise his free will. Therefore, if a person is placed in such circumstances that he is compelled to commit a crime, he will not be a real culprit in some cases, and in some his offence will be very light.
There is a complete consensus of all the jurists that in verse 2 the Commandment, "flog them with stripes", is not addressed to the common people but to the officials and judges of an Islamic government. There is, however, a difference of opinion whether the owner of a slave is competent to punish him or not.
According to the Hanafi scholars, he is not, but according to the Shafi is he is. The Malikis hold that the owner has no right to cut the hand in case of theft, but in case of zina, calumny and drinking of wine, he can enforce the prescribed punishments. Accordingly it will apply to all people in the Islamic State whether they are Muslims or non-Muslims. Probably none of the jurists except Imam Malik has differed with this opinion.
As regards the opinion of Imam Abu Hanifah that a non-Muslim guilty of zina should not be stoned to death, it is not based on the reason that a non-Muslim is not a complete muhsin, which is one of the conditions of stoning for Zina, for this condition is not satisfied unless one is a Muslim.
On the other hand, Imam Malik says that a non-Muslim should not be stoned to death because the Commandment is a part of the Muslim personal law and the addressees are the Muslims and not the non-Muslims.
But in case his guilt comes to the notice of the authorities, there is then no room for pardoning the guilt. This is based on a Tradition of the Holy Prophet: The Holy Prophet ordered that he should be stoned to death, but at the same time he said to Hazzal: This is based on a Tradition which has been cited in almost all the collection of Hadith.
A boy who was working as a labourer in a certain house committed Zina with the wife of his employer. The father of the boy gave goats and one slave-girl to the tnan and made a compromise with him. But when the case came before the Holy Prophet, he said: This shows that the crime of zina is not compoundable and that under the Islamic Law, an outraged chastity cannot be compensated in terms of money.
This shameless conception of monetary compensation for outraged modesty is a part of Western laws only. If the guilt is not proved, the authorities cannot pass orders for punishment even if they have the knowledge of the crime through many other sources. There was a woman in AI-Madinah who openly practised prostitution according to Traditions cited in Bukhari and Ibn Majah, but in spite of this no punishment was given to her as there was no proof of zina against her; so much so that the Holy Prophet once uttered the following words about her: The important components of the law are: This has been stated in An-Nisa IV: A judge is not authorized to decide the case on the basis of his own knowledge even if he has seen with his own eyes the couple committing the crime.
In short, no one can be stoned nor flogged with stripes on the basis of unreliable evidence. Any difference in these basic things will nullify their testimony. These conditions amply indicate that the Islamic Law does not intend to punish people as a matter of course. It inflicts severe punishment only when, in spite of all the measures to reform and eradicate the evil, there still exists a shameless couple in the Islamic society who commits the crime in a way as to be witnessed by as many as four men.
According to Hadrat 'Umar; this is a sufficient evidence, and the Malikis have adopted it. But the majority of the jurists are of the opinion that mere pregnancy is not a sufficient ground for stoning or flogging anybody with a hundred stripes.
It is imperative that such a serious punishment should be based either on the evidence or on the confession of guilt. One of the basic principles of the Islamic Law is that the benefit of doubt should go to the accused.
This is supported by a Tradition of the Holy Prophet: In another Tradition, he said: An error of judgment in letting off an accused is better than in punishing him. For there is a possibility that in one out of a million cases the semen of a man may enter the womb of a woman somehow or other without any sexual intercourse and make her pregnant. Even such a slight possibility of doubt should be enough to spare the accused of the horrible punishment for zina.
According to a section of the jurists they will be regarded as gazif one who makes a false accusation as a slanderer , and will be punished with 80 stripes each. Others say that they should not be punished because they came as witnesses and not as plaintiffs, Moreover, if the witnesses are to be punished like this, nobody will, come forward as a witness in cases involving zina.
This is because in that case no one will volunteer to appear as a witness at the risk of punishment, for nobody can be certain that all the four witnesses will be unanimous in their evidence We consider this second opinion as more rational, for the benefit of doubt should also accrue to the witnesses as it does to the accused.
Therefore, if lapse in their testimony cannot result in the extreme punishment to the accused, it should also not result in any punishment to the witnesses branding them as false witnesses, unless of course, their falsehood is clearly proved.
In support of the first opinion, two strong arguments are offered: First, the Qur'an holds false accusation about zina as a punishable offense. An eye-witness cannot be branded as a slanderer merely because the court did not hold his evidence as a sufficient proof of the crime.
A critical study of the entire case shows that this precedent is not applicable to every case where the crime is not proved by proper evidence. One day the windows of the two houses were opened by a strong current of wind. When 'Abu Bakrah got up to close his window, he saw through the opposite window across the street Mughirah in a state of actual sexual intercourse.
The friends asked him who was the woman. Mughirah along with the witnesses was called to AI-Madinah. When they were asked about the case, Abu Bakrah said that they had seen Mughirah actually committing sexual intercourse with umm Jamil, but Ziad said that the woman was not clearly visible and that he could not say definitely whether it was Umm Jamil or not. During the cross examination, Mughirah proved that they could not have seen the woman distinctly from the place where they were standing.
He also proved that there was a close resemblance between his wife and Umm Jamil. Thus the supposition of Abu Bakrah and his companions that Mughirah was having sexual intercourse with Umm Jamil, instead of his own wife, was nothing but a misplaced suspicion. It is obvious that this isolated decision was based on the specific circumstances of the case and not on the principle that the witnesses must be' punished when they are not able to prove the charge by their evidence.
This confession must be in clear and plain words and the guilty one must confess that he committed zina with a woman who was unlawful for him, He should also admit that the act of zina was complete in every respect, 'The court must satisfy itself that the guilty person is confessing his guilt voluntarily without any external pressure and that, at the time of confession, he is in his right senses.
Some jurists hold that one confession is not enough and that the guilty one must make four separate confessions. In cases where the conviction is based on the confession of the guilty person himself without the support of any other proof, the infliction of punishment should be suspended if during the course of punishment the guilty one retracts his confession.
It does not matter even if it is quite evident that he is retracting his confession in order to escape the torture of punishment. This entire law is based on the precedents which have been cited in the Traditions in the various cases of Zina. He committed zina with a freed slave-girl. Hazzal said to him, "Go to the Holy Prophet and inform him of your sin; may be he prays for your forgiveness.
The boy then repeated his offense for the third time and the Holy Prophet again turned his face away. Hadrat Abu Bakr warned the boy that if he confessed the crime for the fourth time, the Holy Prophet would get him stoned. But the boy persisted and repeated the same thing again. At this the Holy Prophet turned to him and said: The Holy Prophet again asked: The boy again replied in the affirmative. The Holy Prophet then inquired in the most explicit Arabic expression specifically used for this act.
Such a naked expression had never before been heard nor was ever heard afterwards from him. Had it not been the question of the life of an individual, the Holy Prophet would never have uttered such words. But the boy again replied in the affirmative to this explicit question. The Holy Prophet then asked: The boy again answered in the affirmative. Again he was asked whether he really understood what zina meant, and the boy said, "Yes, I have committed the same act with her illegitimately which a husband commits legitimately with his wife.
Again the Holy Prophet asked whether he had taken any wine. He said, "No", and one of the Companions smelt his mouth and continued that he had not. After this the Holy Prophet inquired of his neighbors whether he was suffering from insanity. They replied that he had not exhibited any sign of insanity. Then the Holy Prophet said to Hazzal: The people of my clan deluded me, assuring that the Holy Prophet would not condemn me to death.
Afterwards when this incident was reported to the Holy Prophet, he said: Had you brought him to me, he might have repented. The second incident is of Ghamidiyyah,who was a woman from the clan of Ghamid, a branch of Juhainah tribe. She also confessed four times that she had committed zina and had become pregnant as a result thereof. At her first confession, the Holy Prophet said: I am pregnant as a result of zina.
He said to her, "Well, if you do not accept my counsel, go back and come to me after the birth of the child. She fed the child with the piece of bread before the Holy Prophet and said, "O Messenger of Allah, now the child has been weaned and has started taking bread. In both these cases, four confessions have clearly been mentioned. In the third incident of this nature which has been mentioned in para 15 above , the only words used therein, as contained in other Traditions, were: If she confesses her guilt, stone her to death.
There is no mention of four confessions here and it is on the basis of this that some jurists have argued that only one confession is enough. This is because in that case two persons shall have to be punished instead of one. The Islamic Law is not anxious to punish people. But if the guilty person names the other party to the crime, then that party will be interrogated and also punished in case of confession.
But if the other party denies it, only the person confessing the guilt, will be punished. However, there is a difference of opinion among the jurists as to whether such a person will be punished for zina or for false accusation. According to Imam Abu Hanifah and Imam Auza'i, he shall be convicted as a false accuser, because the denial of the other party has made his crime of zina doubtful but his guilt of false accusation stands proved anyhow.
According to Imam Muhammad and it is supported by a saying of Imam Shafi'i also, he will be punished for zina as well as for slander. This is because he has confessed the guilt of zina himself and has not been able to prove his accusation against the other party. A similar case was brought before the Holy Prophet. Then he gave him the prescribed punishment but forgave the woman. This Tradition, however, does not specify the punishment that was awarded.
But when the woman denied it, the man was flogged with stripes for making a false accusation. But this Tradition is weak as regards its links, because one of its reporters, Qasim bin Fayyaz, is not considered as reliable by many scholars of Traditions.
Moreover, this Tradition appears to be opposed to reason because it cannot be expected of the Holy Prophet that he would first punish the man for zina and then make an inquiry from the woman. Common sense and justice, which the Holy Prophet could not have overlooked, demanded that his case should not have been decided before making an inquiry from the woman.
This is supported by a Tradition cited by Sahl bin Sa'd. Therefore, the second Tradition cannot be considered as reliable. The various opinions in this regard are as under: Punishment for married persons guilty of Zina: Punishment for unmarried persons: According to these jurists, "exile" means that the guilty one should be banished from his own habitation and sent to such a distant place where one has to shorten one's prayer.
If the judge feels that the guilty man is of immoral character, or that the illicit relations of the guilty ones are too intimate, he may exile or imprsion them as the occasion may demand. All the above different opinions have been based on various Traditions of the Holy Prophet, which are given below: Take it from me. Allah has prescribed the method for dealing with women guilty of zina. An unmarried man committing zina with an unmarried woman should get stripes and one year's exile.
The married man committing zina with a married woman, should get stripes and stoning to death. One of them said, "My son, who worked as a labourer in the house of this man, got involved with his wife. I compromised with him by giving him goats and one slave-girl, but I have been told by the scholars that this is against the Book of Allah. Please decide the case between us according to the Book of Allah.
The Holy Prophet said: You should take back your goats and the slave-girl. Your son shall get stripes and a year's exile. It should be noted that in this Tradition there is no mention of flogging the married woman before stoning her to death, whereas the unmarried man, guilty of zina with a married woman, was punished with flogging and exile.
There is no Tradition in any book of Traditions to the effect that the Holy Prophet, in any case, combined flogging with stoning to death.
In all the cases of zina by married persons, he awarded the punishment of stoning to death only. Imam Ahmad also has cited various Traditions regarding this but in none of these there is any mention of flogging before stoning to death.
There is no other case than this in which both the punishments were combined during the rightly-guided Caliphate. Afterwards when it came to be known that he was a married man, he ordered that he should be stoned to death. Besides this, we have already cited several other Traditions showing that the Holy Prophet awarded the punishment of flogging only to the unmarried persons guilty of zina.
For instance, the man who raped a woman while she was going out for prayers, and the man who confessed his crime of zina but the woman did not, were given the punishment of flogging. As regards "exile", the authority may use its own discretion. At this Hadrat 'Umar said that in future he would not exile a man and a woman guilty of zina, because he feared that there was a risk of mischief in it. In the light of these traditions and cases as a whole, it becomes quite plain that the view of Imam Abu Hanifah and his disciples is correct: As for combining flogging and exile, it was practised on some occasions while on others it was not.
This clearly establishes the correctness of the way of Imam Abu Hanifah. The word jald is derived from jild, which means "skin". Accordingly all lexicographers and commentators have taken it to mean that flogging should be carried out in such a way that its effect should be confined to the skin only and should not reach the flesh under it. The flogging that causes deep wounds into the flesh or tears it up into pieces is against the Qur'an.
The whip or the cane used for the purpose of flogging should be medium in all respects: According to a Tradition cited by Imam Malik in Mu'atta, the Holy Prophet asked for a whip for flogging but as it had worn out owing to long use, he said: A whip with knots or one having two or three prongs is also prohibited. Flogging should also be of average intensity. All the jurists are agreed that: The Holy Prophet has said: While flogging, a man should be made to stand and a woman to sit.
The Imam took a strong objection to it and openly declared it to be a wrong thing. Incidentally, this also throws light on Imam Abu Hanifah's stand with regard to the law of the contempt of court. At the time of flogging, the woman should be in her full dress: According to some jurists, he will be allowed to remain in his pyjamas only, and according to some others, the shirt will not be taken off.
The man said, "This sinful body should get a severe flogging. Flogging is prohibited in severe cold and in severe heat.
In winter it should be done when it is hot and in summer when it is cool. It is also not permissible to tie down a person at the time of flogging unless he tries to run away.
Jurists have permitted that at least twenty stripes may be given daily but it is better to inflict full punishment at one and the same time. If the guilty person is suffering from some disease and there is no hope of his recovery or is too old, it is enough to strike him once with a branch of twigs, or with a broom of twigs in order to meet the requirements of the law. During the time of the Holy Prophet, an old man, who was suffering from some disease, was found guilty of zina and the Holy Prophet awarded him the same kind of punishment.
In the case of a pregnant woman, the flogging will be postponed till the delivery and the complete discharge of blood after childbirth. But if she is to be stoned to death, the punishment will not be given till the child has been weaned. If zina is proved by evidence, the flogging will be initiated by the witnesses themselves. If the punishment is based on confession, the judge himself will initiate the punishment.
This is to make the witnesses and the judge realize the seriousness of the matter. After examining the above details of the law of flogging, just consider the audacity of those who hold this punishment as barbarous. This accusation becomes all the more ridiculous when the same people allow a harsher punishment in their jails. According to the existing law, not only the court but an ordinary superintendent of the jail also is authorized to award a punishment of 30 stripes to a prisoner for disobedience or insolence, and this flogging is carried out by a specialist who keeps himself ready and fit by regular practice and the canes are wetted beforehand so that they may cut through the body like a knife.
The convict is stripped off his clothes and nothing but a thin cloth wetted with tincture of iodine is left to cover his private parts. Then he is tied down to a tripod to prevent him from making any movement at the flogging and the flogger comes running from a distance and strikes him with full force.
Every time the same part buttocks is struck so hard that the flesh flies out like minced meat and often the bones become bare. Often it so happens that even the strongest man does not stand 30 canes and becomes unconscious and it takes a long time before his wounds are healed.
Then the horrible tortures which are inflicted by their police not only on proved criminals but on suspects, especially those suspected of criminal crimes, are well known to every one. Prayers for his forgiveness will be offered and it will be improper for anyone to talk ill of him.
According to Jabir bin 'Abdullah Ansari, as cited in Bukhari, when Ma'iz bin Malik was stoned to death, the Holy Prophet said good words about him and himself led his funeral prayer. When Khaid bin Walid talked ill of her, the Holy Prophet said: I swear by Him Who controls my life that her repentance was such that even if a cruel tax-collector had offered such a repentance, he would have been forgiven. When he had gone a few paces further, he saw the dead body of a donkey. He stopped there and asked the two men: Islam dces not punish even the biggest criminal with vindictiveness but with the intention to reform him.
That is why after the punishment, mercy and compassion are shown towards him. In contrast to this, the modern civilization adopts a very mean attitude towards those who are killed by the state military or police and whose death is upheld by a judicial inquiry. It is not tolerated that even somebody may carry his dead body to the graveyard or utter a good word about him.
In the face of this behaviour, they have the "moral courage" a euphemism for impudence to preach tolerance to the world. As regards the committal of this heinous act with animals, some jurists treat it as zina and hold that the guilty person deserves the prescribed punishment of this crime.
We have already stated that the discretionary punishment has been left to the judge, or if necessary the state legislature can devise some appropriate form of punishment for it. This shows that the "Way of Allah" does not merely consist in Salat, Fasting, Hajj and payment of Zakat dues, but the law of the land is also a part of the "Way of Allah".
The establishment of the "Way" does not mean the establishment of Salat alone but it also includes the establishment of the Divine Law and the system of law based on it. If these things are not established, the mere establishment of the system of Salat will be regarded as partial implementation of the "Way". But when instead of this an un-Islamic system of law is adopted, it amounts to the total rejection of the Divine Way itself. The second thing which deserves attention is the warning from Allah that no feeling of compassion or pity should restrain you from inflicting the prescribed punishment on the guilty person.
The same thing has been further elaborated by the Holy Prophet in the following Tradition: He will be asked: The above applies to the case when reduction or enhancement in the punishment was the result of compassion or some other factor. But if the quantum of punishments were to be changed according to the status of the culprit, it would constitute the worst type of crime.
Some commentators have interpreted this verse to mean that the culprit should neither be forgiven after his guilt has been proved nor his punishment reduced. He must be flogged with stripes. Some others have taken it to mean that the flogging should not be so light that the culprit may not feel its effect at all. The verse covers both the above interpretations and, in fact, both are plausible. It also means that the one guilty of fornication should get the same punishment which has been prescribed by Allah and no other type of punishment.
It is a sin to inflict any other type of punishment instead of flogging even for the sake of compassion or pity. To believe in the Divinity of Allah and then to call Him a barbarian, suits only those who are the meanest of hypocrites.
This throws light on the concept of punishment in Islam. And now here it is being enjoined that the adulterer should be given the punishment publicly. This shows that in Islamic Law punishment is awarded to meet three purposes: Another advantage of awarding the punishment publicly is that the officials concerned should not be able to reduce or enhance the punishment at will while executing it.
No believing, virtuous woman can be a match for hull. It is forbidden for the Believers that they should give their daughters in marriage to such wicked people knowing them to be so.
Similarly the tit match for adulterous women who have not repented can only be adulterous or idolatrous men; they are not fit for any righteous Believer.
It is forbidden for the Believers that they should marry women who are known to possess immoral character. This thing applies to those men and women who persist in their evil ways, and not to those who repent and reform themselves, for after repentance and reformation they will no longer be regarded as "adulterous.
According to Imam Ahmad bin Hanbal, the prohibition of marriage with an adulterous man implies that such a marriage, if contracted, will have no legal effect. But this view is not correct. Prohibition does not have any legal implications. It cannot mean that if a person violates this prohibition, the marriage will be void, and the parties concerned will be involved in zina in spite of marriage.
For the Holy Prophet has stated: In other words, an illegal act does not make a legal act also illegal. Therefore, if a person commits zina and then marries, his conjugal relations with his spouse cannot be considered as zina, because in that case the other party of the marriage contract who is not immoral, will also have to be considered as involved in zina.
As a rule, no illegal act except open rebellion can cause the one guilty of it to be declared an outlaw, so that no act of his can be regarded legal after that. If the verse is considered in this light the plain meaning would be this: It is a sin to select such persons for marriage as are known to be unmoral. The Believers should shun them, otherwise they will feel encouraged, whereas the Shari ah intends to segregate them as the undesirable and contemptible element of society.
Similarly this verse does not validate the marriage of an adulterous Muslim with an idolatrous woman and of an adulterous Muslim woman with an idolatrous man. The verse simply means to emphasize the act of zina, and declares that the person who commits it being a Muslim, makes himself unfit for contracting a marriage in the pure and pious Muslim society.
He should either stripes so that he does not utter such a slander in future. Even if the accuser is an eye-witness of an immoral act, he should keep the secret and let the filth remain where it is instead of causing it to spread. However, if he has witnesses, he should abstain from publicizing the matter in society but should bring the case to the notice of the authorities and get the criminals duly punished by the court of law.
Below we give the details of the law in serial order:. Then the demand from the accusers to produce four witnesses in support of their accusation also shows that it relates to zina, for in the entire Islamic Law producing four witnesses is the legal requirement only in a case zina and in no other matter. The scholars are, therefore, agreed that this verse describes the law relating to the accusation of zina, which has been termed qazf for convenience so that this law is not extended to cover cases of other accusations like that of theft, drinking, taking of interest, etc.
Apart from qazf, the question of determining punishments for other allegations can be left to the discretion of the judge, or to the consultative council of the Islamic state, who can make general laws to cover cases of contempt and defamation as and when required. Likewise, though the masculine gender has been used for the accusers, the law is not confined to male accusers only but extends to female accusers as well.
For as regards the gravity and wickedness of the crime, it does not make any difference whether the accuser or the accused is a man or a woman. Therefore in either case, the man or accuser or the woman accusing a virtuous and chaste man or woman of zina, will be dealt with under this law.
In case the accused is not "morally fortified", the law cannot be applied. As for the qazif, he should satisfy the following conditions:. According to the Hanafis, the fifth condition is that the accuser should not be drunk, because the person who only gesticulates cannot be held guilty of qazi.
He says that if the gesticulation of the drunk person is clear and unambiguous by which everybody can understand what he wants to say, he will be considered as a qazif, because his gesticulation is no less harmful to defame a person than the word of mouth. On the contrary, the Hanafis do not hold mere gesticulation as a strong enough ground for awarding the prescribed punishment of 80 stripes; they, therefore, recommend a discretionary punishment for it.
The conditions to be satisfied by maqzuf the accused are as follows:. However, according to Imam Malik, if a boy approaching the age of majority is accused of zina, the accuser will not deserve the prescribed punishment, but if a girl of that age is accused of having submitted herself for zina, when sexual intercourse with her is possible, her qazif will deserve the prescribed punishment, for the accusation defames not only the girl's family but ruins the girl's future as well.
Accusing a non-Muslim, or a Muslim that he committed zina when a non-Muslim, does not entail the prescribed punishment. The Qur'an itself has considered the state of slavery as excluded from the state of ihsan moral fortification. But Da'ud Dhahiri does not concede this argument; he holds that the qazif of the slave or slave-girl also deserves the prescribed punishment of qazf.
His day to day life should be such that nobody could accuse him of immorality, nor he should have been held guilty of lesser crimes than zina before. In all such cases the moral purity of the person falls into disrepute, and the accuser of such a person cannot deserve the prescribed punishment of 80 stripes. So much so that if the guilt of zina against an accused person is proved on the basis of evidence just before the enforcement of the prescribed punishment on an accuser, the latter will be forgiven; because the former is no longer chaste and morally pure.
Though the prescribed punishment cannot be enforced in any of these five cases it does not, however, mean that a person who accuses an insane person or a minor or a non-Muslim, or a slave, or an unchaste person of zina without proof, does not even deserve a discretionary punishment.
Now let us consider the conditions which must be found in the act of qazf itself An accusation will be considered as qazf, if either an accuser accuses a person of such a sexual act which, if proved to be correct by necessary evidence, would make the accused liable to the prescribed punishment, or the accuser holds the accused as of illegitimate birth. But in either case the accusation must be unambiguous and in clear terms; vague references in which the accusation of zina or illegitimacy depends upon the accuser's intention, are not reliable.
For instance, using words like adulterer, sinner, wicked, immoral, etc. Similarly, words which are used as an abuse like bastard, etc. There is, however, a difference of opinion among the jurists whether an allusion is also gazf or not. According to Imam Malik, if the allusion is clear and is meant to charge the addressee of zina or hold him as of illegitimate birth, it will be qazf, and the qazif will be liable to the prescribed punishment.
Imam Ahmad and Ishaq bin Rahaviyah maintain that if an allusion is made in the heat of a quarrel or fight, it is qazf, but if in sport and fun, it is not. He asked those present there what they understood by the remark. Some said that the man had only praised his parents and had notb imputed anything to the other man's parents. Others objected to the use of the words and said that by these he had clearly alluded that the other man's parents were adulterous.
There is also a difference of opinion as to whether accusing somebody of sodomy is qazf or not. Ibn Abi Laila says that this is the right of Allah; therefore, the qazif will be awarded the prescribed punishment whether maqzuf the accused demands it or not.