الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِّنْهُمَا مِائَةَ جَلْدَةٍ ۖ وَلَا تَأْخُذْكُم بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ إِن كُنتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۖ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِّنَ الْمُؤْمِنِينَ (2)
(24:2) The woman and the man guilty of fornication, flog each one of them with a hundred stripes *2 - and let not any pity for them restrain you in regard to a matter prescribed by Allah, if you believe in Allah and the Last Day, *3 and let, some of the believers witness the punishment inflicted on them. *4
*2) There are various legal, moral and historical aspects of this problem which need explanation, for if these are not clarified in detail, the modern man will find it difficult to understand the Divine Law concerning it. Accordingly, we shall discuss the various aspects of the problem below:
(1) The common meaning of zinc which everyone knows is: "Sexual intercourse between a man and a woman without the legal relationship of husband and wife existing between them." There has been complete unanimity of view among all the social systems from the earliest times to this day that this act is morally wicked, religiously sinful and socially evil and objectionable, and there has been no dissenting voice except from those stray individuals who have subordinated their moral sense to their lust, or who in their misguided notions try to be "original" and "philosophical" in their approach. The universal unanimity of view in this respect is due to the fact that man by nature abhors zinc. In fact, the future of human race and civilization depends on this that the relationship between the husband and wife should be built upon the basis of an enduring and everlasting bond of fidelity, which should not only be fully recognized in the social life but should also be guaranteed by the existing social structure. Without this the human race cannot survive. This is because the human child requires years of tender care and training for as survival and development and a woman alone cannot bear the burden without the cooperation of the man who became the cause of the birth of the child. Similarly human civilization itself is the product of the corporate life of a man and a woman, their setting up a home, bringing up a family, and establishing mutual relationships and inter-connections between families. If men and women were to lose sight of this essential fact, that is, the establishment of a home and raising a family, and were to meet freely just for pleasure and lust, the entire structure of human society would crumble. In fact, the very foundations on which the structure of human civilization and culture has been built will topple down and the whole basis of the concept of a social life will disappear. It is for these reasons that free mixing of men and women, without any recognized and stable bonds of fidelity, is abhorrent to human nature, and it is for this reason that in every age zina has been considered as a moral evil and, in religious terminology, a grave sin. Accordingly, the social systems in every age recognised and adopted the institution of marriage and also adopted preventive measures against adultery or fornication. The forms of the measures adopted in this direction have, however, differed under different social, cultural and religious systems. This difference has been the result of the realization of the disastrous effects of adultery (or fornication) in varying degrees: some societies have considered it to be more heinous than others, and some have conceived it clearly and some others not so clearly and confused it with other problems.
(2) Though adultery (or fornication) has always been accepted as an evil, opinion has differed as to whether it is legally a punishable offense or not, and this is where Islam differs from other religions and systems of law. Social systems which have been akin to human nature have always considered illicit intercourse between man and woman a serious crime and prescribed severe punishments for it. But with the deterioration in moral standards, this morality grew weaker and weaker and the attitude towards this crime became more and more tolerant.
The tirst common lapse in this connection was caused by the invidious distinction between fornication and adultery. The former as such was taken as an ordinary offense while the latter only was held as a punishable crime.
Zina, as defined under various laws, means "sexual intercourse between a man (whether married or bachelor) and a woman, who is not the wife of anybody." This definition takes into account the position of the woman rather than of the man. If a woman is without a husband, the illicit intercourse with her amounts to fornication irrespective of the fact whether the man is married or not. The ancient laws of Egypt, Babylon, Assyria and India provided very light punishments for it, and the same were adopted by the Greeks and the Romans,which finally influenced the Jewish attitude. According to the Bible, only monetary compensation is payable for such an offense. The Commandment on the subject is as follows:
"And if a man entice a maid that is not betrothed, and lie with her, he shall surely endow her to be his wife. If her father utterly refuses to give her unto him, he shall pay money according to the dowry of virgins." (Exod. 22: 16,17)
The same Commandment is repeated in different words in Deuteronorny, which is as below:
"If a man finds a damsel that is a virgin, which is not betrothed, and lay hold on her, and lie with, and they be found; Then the man that lay with her shall give unto the damsel's father fifty shekels of silver (about fifty-five rupees), and she shall be his wife; because he hath humbled her." (Deut. 22: 28, 29).
Under the Jewish law, if a priest's daughter acts immorally, she is to be sentenced to burning and the man with whom she was alleged to have acted immorally was to suffer strangulation. (Everyman's Talmud, pp. 319, 320).
To judge the extent to which this conception resembles that of the Hindus, it will be worthwhile to compare it with the laws of Manu. According to him, "Anybody who commits illicit intercourse 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. But if the girl happens to belong to a higher caste and the man belongs to a lower caste, the girl should be turned out from her parents' house and the limbs of the man should be cut off." (Adhiai 8. Ashlok 365, 366). This punishment may be changed into burning him alive, if the girl happens to be a Brahman. (Ashlok 377).
Under all these laws, illicit intercourse with a married woman only was the real and major crime. The deciding factor for treating it as a crime was not the illicit relationship between the man and the woman but the likelihood of an awkward situation under which a child might have to be reared up by a man (the real husband of the woman), who was not its father. It was therefore not the act of zinc itself but the danger of the mixing up of progenies and the problem of rearing up somebody else's child at the expense of another and a possibility of its inheriting his property, that was the :eat basis of treating it as a crime and holding both the man and the woman as criminals. Under the Egyptian law, the man was to receive a severe beating with sticks and the nose of the woman was to be cut off. Similar punishments existed in Babylon, Assyria and Iran. According to the Hindus, the woman was to be thrown to the dogs to be torn apart and the man was to be put on a hot iron bed with fire all around him to burn him alive. At first the Greek and the Roman laws gave a man the right to kill his wife if he found her involved in adultery. He had also the option to demand monetary compensation. In the first century B.C. Augustus Caesar enacted that half the property of the man should be confiscated and he should be exiled. In case of the woman, half her dowry should be written off and one-third of her assets confiscated, and she should also be sent out to a distant part of the country. Constantine changed this law and imposed death penalty both for the tnan and for the woman. In the times of Leo and Marcian, this punishment was changed to imprisonment for life. Justinian further reduced the punishment and ordered that the woman should be flogged with stripes and sent to a monastery and the husband should be given the right to take her out within two years if he liked, otherwise she was to remain there for ever. Under the Jewish law, the orders for illicit intercourse with a married woman are as under:
"And whosoever lieth carnally with a woman, that is a bondmaid, betrothed to an husband, and not at all redeemed, nor freedom given her, she shall be scourged; they shall not be put to death, because she was not free." (Leviticus 19: 20).
"And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death." (Leviticus 20: 10).
"lf a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman: so shalt thou put away evil from Israel." (Deuteronorny 22: 22).
"If a damsel that is a virgin be betrothed unto an husband and a man fmd her in the city, and lie with her; Then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die; the damsel, because she cried not, being in the city, and the man, because he had humbled his neighbour's wife: so thou shalt put away evil from among you. But if a man find a betrothed damsel in the Held, and the tnan force her, and lie with her: then the matt only that lay with her shall die: But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death: for as when a man riseth against his neighbour, and slayeth him, even so is this matter." (Deuteronorny 22: 23-26).
However, long before the advent of Christ, the Jewish jurists and scholars, the rich and the poor, had practically ceased to observe these laws. Though it was written in the Old Testament, and it was considered as a Divine Commandment, nobody was inclined to apply it practically; in the entire Jewish history, there is not a single instance where this commandment was ever enforced. When Jesus Christ embarked upon his prophetic mission, and invited the people to the eternal truth, the learned Jews, seeing that there was no way to stop the tide, brought a woman guilty of adultery before him and asked him to decide her case. (John 8: 111). Their object was to create a dilemma for Christ and to tempt and embarrass him. If he decided in favour of any punishment other than stoning, they would vilify him saying, "Here comes a strange Prophet who has changed the Divine Law for the sake of worldly considerations." And if he were to give the verdict of stoning, this would, on the one hand, bring him in direct clash with the Ron Ziad law, and on the other, give them the opportunity to tell the people, "Look! What you believe in a Prophet who will expose you to all the severities of the Torah? But Jesus turned the tables on them with one sentence, saying: "He that is without sin among you, let him first cast a stone at her. " This put the jurists to shame and they departed one by one in humiliation, and the moral degeneration of the learned in law was totally exposed. When the woman was left alone, Jesus admonished her and after her repentance let her go. Jesus did this because he was neither a judge of any court competent to decide the case, nor any evidence had been produced against her, nor was there any government to enforce the Divine Law.
On the basis of this incident and some miscellaneous sayings of Jesus on different occasions, the Christians formed an utterly erroneous conception about the crime of zina. According to them, illicit intercourse between an unmarried man and an unmarried woman is a sin but not a punishable offence. But if either of them (or both) is married, adultery is treated as a crime. It is so not because of the illicit intercourse as such but because of the vow of fidelity taken by each of them before the priest at the altar. Nevertheless, there is no punishment even for this, except that the wife has the right to sue her adulterous husband and claim separation for having violated the vow of fidelity. On the other side, the husband of the adulterous woman can also sue his wife for separation and can also claim compensation from the man who had illicit intercourse with his wife. This is the punishment in the Christian law for adultery. The irony is that even this punishment is a double-edged sword, because a woman, though entitled to separation from her husband by proving his infidelity and getting rid of him cannot remarry under the Christian law. Similarly the husband who sues his wife for infidelity can obtain judicial separation, but cannot remarry. Both the man and the woman who accuse each other of infidelity in a Christian court, will be deprived of the right of remarriage for the rest of their lives.
The Western laws of the modem times, which have also been adopted by the Muslims in various countries, are based on such conceptions. According to them, zina may be an evil, and an immoral and sinful thing, but it is not a crime. It becomes a crime only when illicit intercourse is committed without the consent of the other party. As for adultery by a married man, this only provides a cause for complaint to his wife who may, if she likes, prove it and get a divorce. Similarly in the case of an adulteress, her husband can lodge a complaint against her and also against the man with whom adultery was committed and can sue both of them to claim divorce from the woman and monetary compensation from the man.
(3) The Islamic Law, in contrast to all these conceptions, holds zina as a punishable crime and its committal by the married person enhances the guilt all the more. This is not so because of the violation of the oath of fidelity taken by the man or the woman nor because of the encroachment on the conjugal rights of the other, but because the criminal resorted to an unlawful method when there existed a lawful method for satisfying his sex desires. The Islamic Law views zina as an act which, if allowed to be indulged in freely, will strike at the very roots of both human race and human civilization. In the interest of the preservation of the human race and the stability of human civilization, it is imperative that relationship between man and woman should be regulated only through lawful and reliable means. And it is not possible to restrain this relationship if opportunities for free mixing of the sexes are allowed to exist, for it cannot be expected from a man or a woman to be prepared to bear the onerous responsibilities of the family life if he or she has the opportunities for the gratification of the sex desires without this. For in that case it will be as meaningless as buying a ticket for a railway journey when people can travel without a ticket as well. A ticket is essential only when travelling without a ticket is declared to be an offence. If somebody is found travelling without a ticket because he cannot afford to buy it, he is a criminal though in a lesser degree. But if a rich man resorts to this, his guilt becomes all the more serious.
(4) Islam dces not rely on punitive law alone for saving humanity from the menace of zina. It employs both reformatory and prohibitory measures on a large scale. It has provided legal punishment only as a last resort. Islam dces not want that the people should go on committing this crime and getting flogged with stripes day and night. Its real aim is that the people should not commit this crime at all and there should be no occasion to resort to the extreme punishment. For this purpose Islam first of all purifies man: it imbues him with the fear of All-Powerful and All-Knowing Allah: it inculcates in him the sense of accountability for his actions in the Hereafter from which even death cannot release him. It fills him with obligation of obedience to Divine Law which is sure to follow true Faith. Then, it repeatedly warns him that zina and unchastity are heinous crimes, which Allah will call to account with a severe reckoning. This theme occurs again and again in the Qur'an. Moreover, Islam provides all possible facilities for a man to marry. if he is not satisfied with one wife, he is allowed to take up to four. If the husband and the wife cannot pull on amicably, there are provisions for separation. In case of a dispute between the two, provision exists for reconciliation through the intervention of the members of the family and failing that through the judicial courts so that they should either reconcile or separate and then remarry wherever they like. All this has been explained in Surahs AIBaqarah, An-Nisa and At-Talaq. In this Surah too, it is not considered good and right to remain unmarried and a clear Commandment has been given that marriages should be arranged between unmarried persons and even slaves (men and women) should not be allowed to remain unmarried. Then Islam puts an end to all those factors which allure a man to zina or provide occasions for it. A year before the punishment for zina was prescribed, women were commanded (in Surah Al-Ahzab) to cover themselves with sheets and lower their head-covers over their faces when going out of their houses. The wives of the Holy Prophet (Allah's peace be upon him), who were a model for every Muslim family, were ordered to restrict themselves to their houses with decorum and dignity and not to display their charms and adornments. Moreover, they were required to communicate with men from behind the curtain if there be any need for that. 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 offence and women were prohibited from going out openly in make-up.
After adopting such measures zina was declared to be a punishable offence 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 enables one to understand the entire scheme of reform, a constituent part of which is the prescribed punishment for zina. 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. This
. 1. Mahram relatives are those between whom marriage is not permissible under the Islamic Law, e.g. father and daughter, uncle and niece, nephew and aunt, and so on. Non-mahram are those between whom marriage is permissible e.g. cousins, etc. punishment is not merely a punishment for the criminal but is a declaration of the policy that the Islamic society has no room for debauchery and people cannot be allowed to live lives of indulgence and pleasures without restraint. 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.
(5) Zina was declared a culpable act in the third year of Hijrah, but, it was not a "legal" crime at that time; as such the police and the courts were not competent to initiate legal proceedings. 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. (See 1V: 15). After about two to three years the present Commandment was revealed which cancelled the previous Commandment and declared zina to be a cognizable offence.
(6) The punishment prescribed in this verse (2) is for sexual intercourse between unmarried persons; it dces not apply to illicit intercourse after marriage, which is a much graver offence under the Islamic Law. This thing is implied in verses 15 and 25 of An-Nisa (IV}that the punishment being prescribed is for the unmarried offenders:
"If any of your women are guilty of indecency, call four witnesses from among yourselves to testify this. 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." (IV: 15). "Whoso cannot afford to marry free Muslim women, he should marry one of the Muslim slave-girls in your possession; Allah has full knowledge of your Faith. 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." (IV: 25).
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: 15. Then in IV: 25 the punishment for a married slave-girl guilty of adultery has been prescribed. 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: "Whoso cannot afford to marry free Muslim women (muhsanat).... " Obviously a muhsanah cannot mean a married woman; it can only mean an unmarried woman of a free family. 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.e. an unmarried woman, who enjoys the protection of a free family. 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. 15 of An-Nisa and it prescribes punishment for sexual intercourse between unmarried persons. (Also see E. N. 46 of An-Nisa).
(7) As regards the punishment for adultery after marriage, the Qur'an does not mention it, but it has been prescribed in the Traditions. 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: "But whoso repents after his iniquity and reforms himself, Allah will surely turn towards him with His favour." (IV: 39).
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: "You should have witnesses whenever you buy or sell goods." Therefore, according to them, all sales and purchases taking place in the markets without witnesses should be unlawful.
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.
(8) There is a difference of opinion among the jurists about the legal definition of .zina. 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 Shafi`is, zina means insertion of the male sexual organ into the female sexual part, which though forbidden by law may be quite natural: 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 dces 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.
(9) Penetration of the glans of the penis is a sufficient legal ground for punishing the act of Zina. 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 dces 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: "Except in cases where a specific punishment has been prescribed by Allah, none should be flogged with more than ten stripes for any offence." (Bukhari, Muslim, Abu Da'ud). However, if a person is not caught red-handed but confesses his guilt himself, he should only be admonished to repent. According to a Tradition reported by `Abdullah bin Mas'ud, a man came to the Holy Prophet and said, "I did everything with a woman except the sexual intercourse, outside the city. Now you may give me any punishment you may deem fit." Hadrat `Umar said, "When Allah had concealed it, you also should have kept it concealed." The Holy Prophet, however, remained silent and the man went away. Then the Holy Prophet called him back and recited 'the following verse to him:
"Establish salat the two ends of the day and in early part of the night; indeed virtues remove evils." (XI: 114) At this a man asked, "Does the Commandment apply to him alone?" The Holy Prophet replied: " No, it is for all." (Muslim, Tirmizi, Abu Da'ud, Nasa`i).
Not only this: The Islamic Law does not permit that in cases where a man confesses his guilt without specifying his offence, any investigation be made to find out what the actual offence 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." The Holy Prophet did not ask him what punishment he deserved. After the man had offered his prayers, he again came and said, "I am guilty: please punish me." The Holy Prophet asked: "Have you not offered your prayer with us?" When he replied in the affirmative, the Holy Prophet said: "Well Allah has pardoned your sin." (Bukhari, Muslim, Ahmad).
(10) The mere fact that a person (man or woman) has committed zina, is not enough to declare him guilty of it. 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 dces not incur the punishment prescribed for zina. In the case of adultery, there are some additional conditions which are as under:
(a) There is unanimity of opinion that the offender must be a free person and not a slave. 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.
(b) The criminal must be a legally married person. 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.
(c) Such a person should not only have been legally married but must have had.sexual intercourse with his wife after marriage. The mere ceremony of marriage dces 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.
(d) The criminal should be a Muslim. But Imam Shafi`i, Imam Abu Yusuf and Imam Ahmad have disputed this. 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. This is supported by a Tradition related by Ibn `Umar and cited by Ishaq bin Rahaviah in his Musnad and Daraqutni in his Sunan: "Whoever is guilty of shirk, he is not muhsan (morally fortified)". There is, however, a difference of opinion whether Ibn `Umar has quoted this as a saying of the Holy Prophet or as his own verdict. 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: "What is the punishment for this offence in your Torah?" When it was confirmed that the Torah prescribed stoning, the Holy Prophet said: "I pass the same judgment as has been prescribed in the Torah." According to another Tradition, at the time of the judgment the Holy Prophet remarked: "O Allah, I am the first man to revive Thy Commandment which they (the Jews) had rendered null and void." (Muslim, Abu Da'ud, Ahmad).
(11) In order to hold a person guilty of Zina as punishable, it is necessary to prove that he committed the act of his own free will . 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. This is not only based on the general principle of the Shari`ah that a person cannot be held responsible for acts done under compulsion, but this is also in accordance with the Qur'anic Law. 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 Abu Yusuf, Imam Muhammad, Imam Shafi`i and Imam Hasan bin Salih express the opinion that the man too, who is forced to commit zina under pressure, will be pardoned. 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.
(12) The Islamic Law dces not confer on anybody the authority except the government to sit in judgment against the man or the woman accused of 'zina and none except an Islamic court has the authority to punish them. 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.
(13) Under the lslamic Law the punishment for Zina is a part of the law of the land. 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. As for the foreigner who has entered an Islamic State with due permission and is found guilty of Zina, he should also be stoned according to Imam Shafi`i and Imam Abu Yusuf, but according to Imam Abu Hanifah and Imam Muhammad he cannot be given the prescribed punishment.
(14) The Islamic Law does not make it obligatory that a person must confess his guilt of zina, or those who have knowledge of it must inform the authorities about it. 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: "If any of you is guilty of any immorality, he should better remain hidden under the curtain of Allah, but if he discloses it to us, we shall certainly enforce the Law of Allah on him." According to a Tradition of Abu Da'ud, when Ma'iz bin Malik Aslami; committed the crime of zina, he, on the advice of Hazzal bin Nu`aim, went before the Holy Prophet and confessed his guilt. The Holy Prophet ordered that he should be stoned to death, but at the same time he said to Hazzal: "Would that you had kept the matter hidden: this would have been better for you." In another Tradition cited in Abu Da'ud and ' Nasa'i, the Holy Prophet said: "Yeti should yourselves pardon the crimes which merit prescribed punishments because when a crime which calls for such a punishment comes to my notice, it will become obligatory on me to award the punishment."
(15) Under the Islamic Law Zina is not a compoundable crime. 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 100 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: "The goats and the slave-girl are yours and they are returned to you." Then he awarded the prescribed punishment to both the guilty ones. 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.
(16) The Islamic government shall not take action against anybody for zina unless it is fully proved. 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:
"lf I were to stone anybody to death without a proof, I would have certainly got this woman stoned. "
(17) The first possible proof of Zina is that proper evidence should be established against the criminal. The important components of the law are:
(a) The Qur'an explicitly ordains that there should at least be four eyewitnesses to prove the guilt. This has been stated in An-Nisa (IV): 15, and in this Surah An-Nur too, it has been reiterated twice (vv. 4, 13). 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.
(b) The witnesses should be reliable according to the Islamic Law of Evidence, which requires that they should not have been proved to be false witnesses on any previous occasion: they should not be dishonest, they should not be previous convicts, and there should be no proof of their having any personal grudge against the accused, etc. In short, no one can be stoned nor flogged with stripes on the basis of unreliable evidence.
(c) The witnesses should give evidence to the effect that they saw the man and the woman in the actual state of intercourse, i.e. the union was complete such as a piston in a cylinder, and a rope in a well.
(d) The witnesses should be unanimous in regard to the time, the place and the persons committing the crime. 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.
(18) There is a difference of opinion as to whether pregnancy by itself in a free woman, when she has no known husband, or in a slave-girl, when she has no known master, is a sufficient circumstantial evidence for the establishment of the crime of Zina. 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: "Avoid punishments wherever you find scope for it. " (Ibn Majah). In another Tradition, he said: "Try to avoid punishing the Muslims wherever possible and if there is a way for an accused to escape punishment, let him off. An error of judgment in letting off an accused is better than in punishing him." (Tirmizi) According to this principle, the existence of pregnancy is not a definite proof of zina, however strong it may be for doubt. 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.
(19) There is also a difference of opinion as to whether the witnesses will be punished for falsely accusing a person in,case their evidence differs from one another, or if they are not able to prove the guilt. 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 dces 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 offence. But this argument is incorrect because the Qur`an makes a distinction between the qazif (the slanderer) and the shahid (one who appears in a court as an eye-witness).