| Contents
1. ADULTERY AND FORNICATION Punishment for adultery and fornication The law of evidence in adultery cases Punishment for defamation of character (al-Qadhf) 2. SODOMY AND BESTIALITY Punishment for sodomy and bestiality 3. INTERCOURSE DURING MENSTRUATION 4. INTERCOURSE DURING RAMADAN GLOSSARY BIBLIOGRAPHY Words: 2, 500 |
| Unlawful sexual intercourse (Zina) R McDowell |
| Islamic Review |
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| 1. Adultery and fornication
The present penal systems around the world do not prohibit voluntary sexual relationships outside of marriage. However, according to Islamic Law, sexual intercourse is permitted only between a husband and his wife. Zina is the term used to denote the illicit sexual intercourse between two parties other than a husband and his wife. Adultery (where one or both participants are married to someone other than the one involved in the act) and fornication (where both participants are unmarried) are strictly prohibited and viewed as one of the most heinous sins. �Nor come nigh to adultery: for it is a shameful (deed) and an evil opening the road (to other evils)� (Qur�an 17: 32). A. Yusuf Ali explains that in �opening the road (to other evils)�; adultery weakens the foundation of the family, causes murders and disputes, causes loss of reputation and property and eventually it would bring on the collapse of civilized society. Punishment for adultery and fornication When asked which were the most grievous crimes, the Prophet replied that worshipping something other than God, the killing of one�s child, and adultery (Bukhari 6: 4, 6: 284, 9: 1). There are three very different punishments laid down in the Shari�ah for infidelity. The first and most lenient was abrogated by a second revelation, which came later on, but this too was subsequently abrogated by a third revelation contained within the ahadith. The jurists explain that the abrogation is due to the fact that the Shari�ah Law was passed down from God to mankind progressively, piece by piece, in order to make it easier to follow particularly in this case as the new converts were at the time used to living within a polluted pre-Islamic, Arab culture. �If any of your women are guilty of lewdness take the evidence of four (reliable) witnesses from amongst you against them; and if they testify confine them to houses until death do claim them or Allah ordain for them some (other) way� (Qur�an 4: 15). Jurists consider that the penalty stated here in the above verse of seclusion is superseded and altered by the one affirmed later in Qur�an 24: 2 (below). The abrogation is understood to be based on the expression �some other way� or, in practice; the culpable woman would be placed into seclusion until death or pending a further revelation on the matter. �The woman and the man guilty of adultery or fornication flog each of them with a hundred stripes: let not compassion move you in their case in a matter prescribed by Allah if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment� (Qur�an 24: 2). Despite the fact that the crime of Zina includes both adultery and fornication jurists apply the above verse and its punishment only to fornicators (or unmarried persons). So, the punishment for fornication (only) is flogging (one hundred stripes) and this would be carried out in a public place to serve as a deterrent to others. The punishment for adultery is taken from the third revelation contained within the ahadith, not the Qur�an, and this advocates the stoning to death of the guilty parties. Narrated Ubadah ibn as-Samit: �Allah's Messenger (peace be upon him) said: �Receive (teaching) from me, receive (teaching) from me. Allah has ordained a way for those (women). When an unmarried male commits adultery with an unmarried female (they should receive) one hundred lashes and banishment for one year. And in case of married male committing adultery with a married female, they shall receive one hundred lashes and be stoned to death�� (Muslim 4191). Narrated Ibn Abbas: �Umar said: �Allah sent Muhammad with the Truth and revealed the Holy Book to him, and among what Allah revealed, was the Verse of the Rajam (the stoning of married person (male & female) who commits illegal sexual intercourse, and we did recite this Verse and understood and memorized it. Allah's Apostle did carry out the punishment of stoning and so did we after him. I am afraid that after a long time has passed, somebody will say, 'By Allah, we do not find the Verse of the Rajam in Allah's Book,' and thus they will go astray by leaving an obligation, which Allah has revealed. And the punishment of the Rajam is to be inflicted to any married person (male & female), who commits illegal sexual intercourse, if the required evidence is available or there is conception or confession� (Bukhari 8: 817). The law of evidence in adultery cases A strict criterion has been set up to safeguard against any miscarriages of justice. The carrying out of the death penalty for adultery would only be carried out if the guilt of the accused has been absolutely verified and if there remains no uncertainty over the conviction. The guilt is established either by the declaration (shahada) of four dependable and honourable witnesses, or by confession (iqrar), or by circumstantial evidence (al-qara�in) for example by the signs of pregnancy (Bukhari 8: 817). Normally for criminal cases the oral testimony of two adult, male, Muslim witnesses is sufficient to determine the guilt or otherwise of the accused. For cases of adultery, a minimum of four witnesses (and these also must be adult, male and Muslim), who must be well known for their integrity as well, must bear witness to the deed. M. S. El-Awa states: �Women�s testimony is not accepted in cases of adultery or in any hadd offence� (Punishment in Islamic Law p. 126). The jurists consider that if four people witness such a serious offence then public order has been gravely offended. When the accuser and the accused are husband and wife, then the accuser may forward his or her own testimony alone (but repeated four times followed by invoking the wrath of God on his or her self if they are not telling the truth) as evidence. However, the accused may counter the charge by testifying that the accusation is false. He or she must repeat the testimony four times and follow this by invoking the wrath of God on his or her self if they are not telling the truth (Qur�an 24: 4-9). In this case the charge would be dropped and the marriage annulled. A guilty verdict would also be passed if the offender confessed to his/her crime (four times). This occurred during the lifetime of the Prophet (at least four times) and he sentenced the offender to face the death penalty by stoning (See Bukhari 2: 413, Dawood 4364). A detailed and explicit admission is required. However, if the confession is withdrawn afterwards then the hadd punishment would not implemented as this raises doubt. A ta�azir punishment would then apply in its place. The punishment carries over into the Hereafter if not avenged in this life and for this reason the offender is encouraged to confess the crime, receive the penalty, thereby foregoing a more stringent punishment in the next life. The death penalty would be waived under the following circumstances: 1. If the offender is of unfit mind. 2. If he is a non-Muslim. 3. If he is unmarried. 4. If he has not yet reached maturity. 5. If he is a slave. 6. If the court is not certain of its verdict. The severity of the punishment is considered necessary in order to safeguard against the crime becoming widespread. It is designed to act as a deterrent so should be carried out with the widest of publicity. Also, during the period when the guidance was conveyed to the Prophet, sexual promiscuity was prevalent in Arabia, so the new law was meant to improve the morality of society. It is remarkable that not a single case of adultery was determined by evidence of four witnesses during the lifetime of the Prophet. A. R. I. Doi states: Fourteen centuries have elapsed since that most severe penalty was edicted, and we can strongly affirm that fourteen cases of stoning could hardly be numbered in all that time. In this way, punishment by stoning has remained what it always was, cruel in principle, but extremely rare in practice� (Shari�ah: the Islamic Law p. 245). Punishment for defamation of character (al-Qadhf) A Muslim�s honour is one of his/her most precious possessions. This is especially true for women. Therefore, any false accusation of immorality is regarded as a very grave crime in itself. �And those who launch a charge against chaste women and produce not four witnesses (to support their allegation) flog them with eighty stripes: and reject their evidence ever after: for such men are wicked transgressors unless they repent thereafter and mend (their conduct): for Allah is Oft-Forgiving Most Merciful� (Qur�an 24: 4-5). Thus if a Muslim accuses another of lewdness but fails to produce the required number of witnesses, the accuser would be punished with eighty lashes and his evidence would from then on be viewed as worthless in the eyes of the courts. He or she would also be considered a sinner and also punished in the Hereafter. �Those who slander chaste women indiscreet but believing are cursed in this life and in the Hereafter: for them is a grievous Penalty on the Day when their tongues their hands and their feet will bear witness against them as to their actions. On that Day Allah will pay them back (all) their just dues and they will realize that Allah is the (very) Truth that makes all things manifest� (Qur�an 24: 23-25). 2. Sodomy and bestiality Sodomy or homosexuality is considered an unnatural act performed by those who are unable to control their passions. �We also (sent) Lut: he said to his people: �Do ye commit lewdness such as no people in creation (ever) committed before you? For ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond bounds. And his people gave no answer but this: they said �drive them out of your city: these are indeed men who want to be clean and pure!� But We saved him and his family except his wife: she was of those who lagged behind. And We rained down on them a shower (of brimstone): then see what was the end of those who indulged in sin and crime!� (Qur�an 7: 80-84. See also Qur�an 26: 165-166, 27: 54-55). It is also forbidden for a husband to have sexual intercourse with his wife through the anus. Narrated Abdullah ibn Abbas: �Allah's Messenger (peace be upon him) said, "Allah will not look at a man who has intercourse with a man or a woman through the anus."� (Tirmidhi 3195). Narrated Abu Hurayrah: �The Prophet (peace be upon him) said: He who has intercourse with his wife through her anus is accursed� (Dawood 2157). Punishment for sodomy and bestiality Imam Abu Hanifa did not view the act of sodomy as amounting to adultery and therefore charged offenders with the lesser ta�azir punishment. Imam Malik viewed the crime as serious as adultery and prescribed the hadd punishment whether the offender was married or not (Shari�ah: the Islamic Law p. 242). Narrated Abdullah ibn Abbas: �If a man who is not married is seized committing sodomy, he will be stoned to death� (Dawood 4448). Narrated Abdullah ibn Abbas: �The Prophet (peace be upon him) said: If you find anyone doing as Lot's people did, kill the one who does it, and the one to whom it is done� (Dawood 4447). According to Imams Malik and Abu Hanifa, the lesser ta�azir punishment should be given to the offender found guilty of bestiality. Imams Hanbal and Shafi�i opined that he be stoned to death. Narrated Abdullah ibn Abbas: �The Prophet (peace be upon him) said: If anyone has sexual intercourse with an animal, kill him and kill it along with him. I (Ikrimah) said: I asked him (Ibn Abbas): What offence can be attributed to the animal? He replied: I think he (the Prophet) disapproved of its flesh being eaten when such a thing had been done to it� (Dawood 4449). 3. Intercourse during menstruation A husband is not allowed to have sexual intercourse with his wife during her menstrual period. �They ask thee concerning women's courses. Say: They are a hurt and a pollution; so keep away from women in their courses and do not approach them until they are clean. But when they have purified themselves ye may approach them in any manner time or place ordained for you by Allah. For Allah loves those who turn to Him constantly and He loves those who keep themselves pure and clean� Qur�an 2: 222). Narrated Abdullah ibn Abbas: �Allah's Messenger (peace be upon him) received the revelation, "Your wives are a tilth to you, so come to your tilth.....", that means from in front or behind, but avoid the anus and intercourse during menstruation� (Tirmidhi 3191. See also Dawood 3895). 4. Intercourse during Ramadan The marriage partners are also prohibited from sexual contact during the daylight hours of Ramadan. This is the fasting month and Muslims must refrain from eating and drinking as well as from sexual relations. �Permitted to you on the night of the fasts is the approach to your wives. They are your garments. And ye are their garments. Allah knoweth what ye used to do secretly among yourselves; but He turned to you and forgave you; so now associate with them and seek what Allah hath ordained for you and eat and drink until the white thread of dawn appear to you distinct from its black thread; then complete your fast till the night appears; but do not associate with your wives while ye are in retreat in the mosques� (Qur�an 2: 187). Glossary Ahadith: Recorded sayings of the Prophet. Including his words, deeds and silent approval of other people�s actions. Al-qara�in: Circumstantial evidence. Hadd: Punishment which is prescribed in the Qur�an or Sunnah to be inflicted on the offender. Iqrar: Confession (of guilt). Shari�ah: Islamic Law. Shahada: Testimony. Ta�azir: Punishment not specified in law and fixed by Qadi (Judge). Zina: Unlawful sexual intercourse. Bibliography Ali, Abdullah Yusuf, THE HOLY QUR�AN (translation and commentary). The Holy Koran Publishing House (Pakistan), 1934. Bukhari, SAHIH AL-BUKHARI. Maktaba Dar-us-Salam Publishers & Distributers (Saudi Arabia), 1994. Dawood, Imam Abu, SUNAN ABU DAWOOD. Kitab Bhavan (India),1993. Johnson-Davies, Denys (Abdul Wadud), and Ibrahim, Ezzedin. AN-NAWAWI�S FORTY HADITH: AN ANTHOLOGY OF THE SAYINGS OF THE PROPHET MUHAMMAD. (Lebanon), 1409. Muslim, SAHIH MUSLIM. SH. Muhammad Ashraf Publishers & Booksellers (Pakistan), 1980. Sabiq, al Sayyid, FIQH US-SUNNAH. Dar el Fateh for Arab information. Tirmidhi, SHAMAA-IL TIRMIDHI. New Era Publishers (India), 1992. El-Awa, Mohamed S. PUNISHMENT IN ISLAMIC LAW. American Trust Publications (U. S. A.), 1993. Doi, Abdur Rahman I. SHARI�AH: THE ISLAMIC LAW. Ta-ha Publishers (England), 1984. |