The Consequences of Adultery/Formication in Islamic Shari'ah
Are they really Cruel?
ABSTRACT
Are they really Cruel?
ABSTRACT
“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 God, if ye believe in God and the Last Day: and let a party of the Believers witness their punishment.”
The modern in us is shocked and resentful to the point of rejection of this verdict. The ferocity of the punishment is a reflection of the grisly and revolting nature of the crime. And this appears to be the only wisdom behind this harsh punishment. The shari’ah and the attitude of the Holy Prophet on this punishment make it very clear that it is not meant to be implemented. It stands solely as a deterrent.
If the punishment sounds very harsh, the requirements of the proof are still harsher. Presence of four witnesses with intimate details is Sina qua non to uphold this crime. Is it not next to impossible to produce such an evidence?
There is a strong and popular opinion in the Islamic scholarship that this ayah only covers unmarried couples. The article quotes three reputable scholars that both "adultery" and "fornication" in the English senses of these terms are covered. It sounds impertinent to suggest that Allah Ta'aala Subhaanahoo will remain silent about the married ones after he has prescribed a harsh treatment for the unmarried. There appears to be a dangerous and dreadful trend in the thinking of an important segment of Islamic scholarship i.e. pronouncing strong judgement about an important issue when the Quran is silent on it. This practice is based on some evidence in the hadith literature or an example in the previous revelations. I feel (and I propose you also think about it) this attitude seriously dents our Eemaan in Allah Ta'aala Subhaanahoo, HIS Book and HIS Messenger. The article proceeds to discuss this issue.
Please recall that the Holy Quran constantly exhorts us all over in the Holy Quran to think and ponder in the matter of Deen. It persistently and repeatedly insists and cajoles us that we use our reason and knowledge to understand our Deem. Please be reminded that Allah Ta'aala Subhaanahoo has declared in no uncertain terms4
“…….but none will grasp the Message but men of understanding”
and again please call to mind that we will be absolutely alone on the Day of Judgment with the Holy Text and the Sunnah of our beloved Prophet as the only valid currency; Bukhari/Muslim will not be admissible. Uncritical conformity to the valuable hadith literature therefore appears to be an un-Islamic practice. It is tantamount to “riwayat parasty” i.e. total submission to “riwayaat”, antithetical to the practice of “inkare hadith”, rejection of Hadith.
Punishment for zina, in our Shari’ah is the last resort. Islam has many pre-emptive methods in place to anticipate and prevent the chances for this crime. As against the apparent ferocity of the punishment, Shari’ah goes out of the way to avoid the implementation of this retribution. That Shari’ah wants to sound tough but means to be kind is reflected in the many restrictions advised while performing the act of flogging. Pain and torture is not the objective; humiliation and indignity is the real motive.
Maulana Maudoodi has declared very clearly, confidently and dogmatically that Stoning to Death is the Shari’ah treatment for Zina by married couple. However there are strong differences in the Islamic scholarship from this point of view. Let us consult a few additional scholars before we make up our minds. Yes I also agree; at the next session.
November 25, 2016
Read ONLY, IF AND WHEN you have time and mood for:
“An Ayah of the Quran for 30 Days” -- November 2016
Choose the section you have time, in the next 30 days to read this ayah:-
Prelude: Recurrent Primary Message 1st. Page
Starting Dua, a note & The Ayah 2nd. Page
A Short Summary: For the Busy Bee Two + Pages
The Main Story: Recommended Five Pages
Footnotes: For the Perfectionist Two Pages
PRELUDE
From the Pen and Perspective of a self-styled PPK Muslim (Proud, Practicing, Knowledgeable) with a humble submission that Islam totally rejects Blind Following BUT vigorously focusses on the Limitations of Pure Human Reasoning..............and clearly and comprehensively AlLAH knows best.
In the beginning of the seventh century C.E., the folks of Mecca and Medina had a fascinatingly unique window: they had direct access to the Heavens through one of their own. They were blessed with a regular stream of Divine counseling and guidelines. Question and answer sessions were part of the program. Even individual questioner was graced by an answer. In the short Introduction to this scheme they were assured that at the end of this twenty-two year project, Divine Directions and Admonitions will continue through the agency of the PEN. The whole discourse has been preserved and archived till eternity under the guarantee of our Lord and Creator. This record in known as the Quran.
It should sound unbelievable but factually appears to be true: Many of our prevalent, widespread and important concepts and opinions about religious matters do not have a basis in the Quran and sometimes even appear to be in obvious conflict with the teachings of the Quran. It would be very educative and helpful to discuss an Ayah once a month to see if it supports or rejects our views and actions in our daily life. I wish and hope this email generates a fruitful interactive discussion.
DUAA’
بِسمِ اللَّهِ الرَّحمٰنِ الرَّحيمِ
In the name of Allah, we praise HIM, seek HIS help and ask for HIS forgiveness. Whosoever Allah guideth none can misguide; whosoever HE allows to fall astray, none can guide him right. We bear witness that there is none worthy of worship but Allah alone and we bear witness that Mohammed, SAW is HIS slave-servant and the Seal of HIS Messengers.
Further, we recall that Allah Ta’aala has declared in HIS Book1
“He granteth wisdom to whom He pleaseth; and he to whom wisdom is granted receiveth indeed a benefit overflowing; but none will grasp the Message (or remember or receive admonition) but men of understanding (or intellect)”
and we also recollect that he has warned us about the day of judgement2
“Then on that day you shall most certainly be questioned about the boons (joy, pleasure).”
We realise, that there cannot be a greater boon or blessing or benefit than wisdom and we wonder if this should be a timely reminder to very many of us sincere and practicing Muslims who use our critical thinking to enhance the mundane for ourselves and our families but resort to compulsory following -- taqleed, doctrine of classical Sunni Islamic Fiqh -- in matters religion.
(NOTE: I have filtered out the proofs and details into the Footnotes for those who have the time and interest for them. The main email will then be reasonable length, hopefully for the busy majority. What follows is not a sermon; I do not feel qualified to give one, anyhow. I wish, it may provide a food for thought. A caveat seems in order: If the ayah selected pertains to issues we face in our daily life with our family, friends, neighbours or peers it may affect us personally and lead to some self analysis and soul searching which in turn could be divisive and distressing. If taken in the right spirit, it can be a humble attempt towards finding the “straight path”.)
THE AYAH
Surah Al-Isra No. 17, Ayah 31
وَلا تَقتُلوا أَولادَكُم خَشيَةَ إِملاقٍ ۖ نَحنُ نَرزُقُهُم وَإِيّاكُم ۚ إِنَّ قَتلَهُم كانَ خِطئًا كَبيرًا
“Hence, do not kill your children for fear of poverty:1 it is We who shall provide sustenance for them as well as for you. Verily, killing them is a great sin.”
A SHORT VERSION
CONTINUED FROM PREVIOUS
We had decided at the end of last session to defer the consequences of Zina since it required due deliberations. ………… ……….(See the Main Story)
Let us discuss it now. We will have to leave for the time being surah Al Isra and move to Surah Al Noor for the Quranic punishment for zina:
The Quran declares:3
“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 God, if ye believe in God and the Last Day: and let a party of the Believers witness their punishment.”
The Divine injunction is direct and clear: flog — hundred — no compassion — prescribed by God — demanded by our Faith in God and the hereafter —should be open to public in order to be deterrent. The number of those to be present has been deliberately left unspecified, thus indicating that while the punishment must be given publicity, it need not be made a "public spectacle”. The modern in us is shocked and resentful to the point of rejection of this verdict………………………………….
The ferocity of the punishment is a reflection of the grisly and revolting nature of the crime. Islam regards “an enduring and everlasting bond of fidelity” as the basis for a healthy family, the unit of an Islamic society which in turn ensures the future of human race and civilisation. Allah Ta'aala Subhaanahoo wants to make it clear in no uncertain terms that HIS deen has zero tolerance for any extra marital sexual activity. Hence the permissive society of the “liberal” West has to be totally and summarily rejected by all of us, the Western Muslims included . And this appears to be the only wisdom behind this harsh punishment. The shari’ah and the attitude of the Holy Prophet on this punishment make it very clear that it is not meant to be implemented. It stands solely as a deterrent.
This crime between two individuals has first to be proved. Without a proof there is no punishment. If the punishment sounds very harsh, the requirements of the proof are still harsher. Four eye witnesses are required who have seen the actual and final stage of the act……………………………..
Is it not next to impossible to produce such an evidence? And this is done on purpose. As I have stated earlier, it is not the intention of the Shari’ah to implement this harsh treatment. It is meant to emphasize the degradation of the act of extra-marital relationship……………………………
A very important issue about this treatment must be dealt with in the honest pursuit of this problem. There is a strong and popular opinion in the Islamic scholarship that this ayah only covers unmarried couples. According to them, our Holy Book is silent about the married sinners of this crime. The hadith literature, according to them tells us that the Holy Prophet used to prescribe and practice Stoning to Death for the married sinners of this crime. Please recall my reference to this controversy in our last session when I quoted Dr. Asad as saying “the term zina signifies all sexual intercourse between a man and a woman who are not husband and wife, irrespective of whether either of them is married to another partner or not; hence, it denotes both "adultery" and "fornication" in the English senses of these terms.” The editor of “In the Shade of The Quran”, the tafseer of Sayyid Qutb also endorses this opinion “The Arabic word zinā, translated here as ‘adultery’, refers to sexual intercourse outside wedlock, regardless of whether the man or the woman is married. Thus, it includes fornication.” Allaamaa Yousuf Ali has similar opinion “It therefore applies both to adultery (which implies that one or both of the parties are married to a person or persons other than the ones concerned) and to fornication, which, in its strict signification, implies that both parties are unmarried”. Thus there is no premise and basis, in the first place to exclude married persons from purview of this ayah.
It sounds impertinent to suggest that Allah Ta'aala Subhaanahoo will remain silent about the married ones after he has prescribed a harsh treatment for the unmarried. These scholars are really too confident of themselves and too reliant on the valuable Hadith literature when they are ready to prescribe very harsh and ruthless treatment which goes against the gut of every human being despite the complete silence of the Holy Text on this issue. Even a large section Muslims are reluctant to accept it unless they are sure that it is a Divine verdict. I doubt if any Muslim will be ready to throw stones at a woman standing and half buried in the ground, bleeding from the face and head, shouting and crying and continue to hurl them at each takbeer of Allah-o-Akbar by another Muslim in the crowd of Muslims gathered for this purpose till she is dead. I have not tried to dramatize it. This is the exact procedure in the Fiqh of these scholars: the perpetrator has to be half buried standing, it has to be public, carried out by the prominent Muslims, no special force for it, the stone should not be big to kill quickly and not small enough never to kill, each takbeer from the crowd should be followed by a volley of stones from the crowd.
Let us pause and think at our level, yours and mine and that of other PPK (proud, practicing, knowledgable) Muslims. We shall over look our scholars for a while. This appears to be a dangerous and dreadful trend in the thinking of an important segment of Islamic scholarship i.e. pronouncing strong judgement about an important issue when the Quran is silent on it or worst still making decisions in contradiction to a quranic injunction. This practice is based on some evidence in the hadith literature or an example in the previous revelations. I feel (and I propose you also think) this attitude seriously dents our Eemaan in Allah Ta'aala Subhaanahoo, HIS Book and HIS Messenger. Hadith is a totally human effort - albeit a phenomenal effort, but a human one — to collect, report and codify all the actions and sayings of the Messenger of Allah — both religious and mundane — two centuries after his demise. The modus operandi…………….. To summarise, at one end we have the Divine word itself with the Divine guarantee of its eternal safekeeping and preservation. On the other hand we have the hadith literature produced completely by humans, transmitted by the word of mouth — very unreliable and elementary method as we understand today, albeit a state of art procedure in those days) — collected and compiled two centuries after the demise of our Holy Prophet. Imam Bukhari had to reject nine hundred and ninety five ahaadith for every five that he has selected. This is a reflection how large and contaminated this pool of information was even in the ninth century. Hence the credibility of the Hadith literature is not strong enough to pass judgement on a grave and far-reaching issue when Allah Ta'aala Subhaanahoo has decided to remain silent on it and certainly it cannot stand against HIS clear injunctions.
Please recall that the Holy Quran constantly exhorts us all over in the Holy Quran to think and ponder in the matter of Deen. It persistently and repeatedly insists and cajoles us that we use our reason and knowledge to understand our Deem. Please be reminded that Allah Ta'aala Subhaanahoo has declared in no uncertain terms4
“…….but none will grasp the Message but men of understanding”
and again please call to mind that we will be absolutely alone on the Day of Judgment with the Holy Text and the Sunnah of our beloved Prophet as the only valid currency; Bukhari/Muslim will not be admissible. Uncritical conformity to the valuable hadith literature therefore appears to be an un-Islamic practice. It is tantamount to “riwayat parasty” i.e. total submission to “riwayaat”, antithetical to the practice of “inkare hadith”, rejection of Hadith.
Coming to the ayah itself. The first thing that deserves attention in this verse is that the criminal law is being termed as the "Way of Allah". This shows that the "Way of Allah" does not merely consist of Salat, Fasting, Hajj and payment of Zakat dues, but the law of the land is also a part of the "Way of Allah”.
What is zina? Does it include other forms of un-natural sex gratification like sodomy? ………….
Islamic law insists on four witnesses to uphold this crime; we have already discussed the intimate observation required to be a witness. ……………………………..
The crime of Zina cannot be settled against a compensation. The prescribed punishment is compulsory ……………………………………..
Maulana Maudoodi informs us that according to Imam Ahmad, Da'ud Zahiris and Ishaq bin Rahaviah they shall have double punishment;…………………………….
The punishment should be awarded publicly so that, on the one hand, the guilty one may feel disgraced and, on the other, it may serve as a deterrent for the other people. ……………………………..
Punishment for zina, in our Shari’ah is the last resort. Islam has many preemptive methods in place to anticipate and prevent the chances for this crime…………………………………
As against the apparent ferocity of the punishment, please note the ways Shari’ah wants to avoid the implementation of this retribution:……………………………………..
That Shari’ah wants to sound tough but means to be kind is reflected in the many restrictions advised while performing the act of flogging. Pain and torture is not the objective; humiliation and indignity is the real motive:……………………………..
Maulana Maudoodi has declared very clearly, confidently and dogmatically that Stoning to Death is the Shari’ah treatment for Zina by married couple.6 He maintains………….. However there are strong differences in the Islamic scholarship from this point of view. We have already read above the opinions of three reputable scholars that the relevant Quranic ayah covers both the married and unmarried couples. Hence there is no need for a different treatment for married couples. Let us consult a few additional scholars before we make up our minds. Yes I also agree; at the next session.
........and Allah knows best.
May Allah Ta’aala bless us with true understanding--“fahm”--of our Deen, Aameen.
Dr. Khalid Mitha
THE MAIN STORY
“I am convinced about the veracity of my opinions, but I do consider it likely that they may turn out to be incorrect. Likewise, I am convinced about the incorrectness of the views different from mine, but I do concede the possibility that they may turn out to be correct.” — Imam Shafa’i
CONTINUED FROM PREVIOUS
We had decided at the end of last session to defer the consequences of Zina since it required due deliberation. As stated then, the punishment for zina is well known and much talked about because it is regarded as too harsh and in direct conflict with the modern ideas and sentiments on retribution. Enters another great and far reaching controversy: the ultimate in severe and harsh treatment, which appears to be cruel and ruthless and feels like savage and brutal to the modern mind namely Stoning to Death. The debate and strife gets intense and compulsory as there is by consensus not even a mention of Stoning to Death in entire Holy Quran.
Let us discuss it now. We will have to leave for the time being surah Al Isra and move to Surah Al Noor for the Quranic punishment for zina:
The Quran declares:3
“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 God, if ye believe in God and the Last Day: and let a party of the Believers witness their punishment.”
The Divine injunction is direct and clear: flog — hundred — no compassion — prescribed by God — demanded by our Faith in God and the hereafter —should be open to public in order to be deterrent. The number of those to be present has been deliberately left unspecified, thus indicating that while the punishment must be given publicity, it need not be made a "public spectacle”. The modern in us is shocked and resentful to the point of rejection of this verdict. Let us relax and think about it. In a way it is a test of the integrity of our Eemaan, as the ayah itself points out: إِن كُنتُم تُؤمِنونَ بِاللَّهِ وَاليَومِ الآخِرِ. It is from Allah Ta'aala Subhaanahoo stated in HIS Holy Book in HIS OWN words, so it HAS to be authentic and meaningful to each and every Muslim. The challenge to all of us is to interpret and comprehend correctly the Will of Allah Ta'aala Subhaanahoo on this issue.
The ferocity of the punishment is a reflection of the grisly and revolting nature of the crime. Islam regards “an enduring and everlasting bond of fidelity” as the basis for a healthy family, the unit of an Islamic society which in turn ensures the future of human race and civilisation. Allah Ta'aala Subhaanahoo wants to make it clear in no uncertain terms that HIS deen has zero tolerance for any extra marital sexual activity. Hence the permissive society of the “liberal” West has to be totally and summarily rejected by all of us, the Western Muslims included . And this appears to be the only wisdom behind this harsh punishment. The shari’ah and the attitude of the Holy Prophet on this punishment make it very clear that it is not meant to be implemented. It stands solely as a deterrent.
This crime between two individuals has first to be proved. Without a proof there is no punishment. If the punishment sounds very harsh, the requirements of the proof are still harsher. Four eye witnesses are required who have seen the actual and final stage of the act. Merely seeing a couple kissing and caressing naked on the bed is not valid for the indictment. Maudoodi, thorough as he is states in his tafseer of the Quran “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"
Is it not next to impossible to produce such an evidence? And this is done on purpose. As I have stated earlier, it is not the intention of the Shari’ah to implement this harsh treatment. It is meant to emphasize the degradation of the act of extra-marital relationship. This is clearly borne out by the approach of our Holy Prophet is such cases. He would try his utmost to ignore any reports of such a crime. Apart from one questionable instance, the Messenger of Allah never ordered this treatment during the twenty two years of his prophethood, not withstanding the strong opinion of Maulana Maudoodi (to follow later).
A very important issue about this treatment must be dealt with in the honest pursuit of this problem. There is a strong and popular opinion in the Islamic scholarship that this ayah only covers unmarried couples. According to them, our Holy Book is silent about the married sinners of this crime. The hadith literature, according to them tells us that the Holy Prophet used to prescribe and practice Stoning to Death for the married sinners of this crime. Please recall my reference to this controversy in our last session when I quoted Dr. Asad as saying “the term zina signifies all sexual intercourse between a man and a woman who are not husband and wife, irrespective of whether either of them is married to another partner or not; hence, it denotes both "adultery" and "fornication" in the English senses of these terms.” The editor of “In the Shade of The Quran”, the tafseer of Sayyid Qutb also endorses this opinion “The Arabic word zinā, translated here as ‘adultery’, refers to sexual intercourse outside wedlock, regardless of whether the man or the woman is married. Thus, it includes fornication.” Allaamaa Yousuf Ali has similar opinion “It therefore applies both to adultery (which implies that one or both of the parties are married to a person or persons other than the ones concerned) and to fornication, which, in its strict signification, implies that both parties are unmarried”. Thus there is no premise and basis, in the first place to exclude married persons from purview of this ayah.
It sounds impertinent to suggest that Allah Ta'aala Subhaanahoo will remain silent about the married ones after he has prescribed a harsh treatment for the unmarried. These scholars are really too confident of themselves and too reliant on the valuable Hadith literature when they are ready to prescribe very harsh and ruthless treatment which goes against the gut of every human being despite the complete silence of the Holy Text on this issue. Even a large section Muslims are reluctant to accept it unless they are sure that it is a Divine verdict. I doubt if any Muslim will be ready to throw stones at a woman standing and half buried in the ground, bleeding from the face and head, shouting and crying and continue to hurl them at each takbeer of Allah-o-Akbar by another Muslim in the crowd of Muslims gathered for this purpose till she is dead. I have not tried to dramatize it. This is the exact procedure in the Fiqh of these scholars: the perpetrator has to be half buried standing, it has to be public, carried out by the prominent Muslims, no special force for it, the stone should not be big to kill quickly and not small enough never to kill, each takbeer from the crowd should be followed by a volley of stones from the crowd.
Let us pause and think at our level, yours and mine and that of other PPK (proud, practicing, knowledgable) Muslims. We shall over look our scholars for a while. This appears to be a dangerous and dreadful trend in the thinking of an important segment of Islamic scholarship i.e. pronouncing strong judgement about an important issue when the Quran is silent on it or worst still making decisions in contradiction to a quranic injunction. This practice is based on some evidence in the hadith literature or an example in the previous revelations. I feel (and I propose you also think) this attitude seriously dents our Eemaan in Allah Ta'aala Subhaanahoo, HIS Book and HIS Messenger. Hadith is a totally human effort - albeit a phenomenal effort, but a human one — to collect, report and codify all the actions and sayings of the Messenger of Allah — both religious and mundane — two centuries after his demise. The modus operandi was by word of mouth going back two hundred years; written evidence was actively discouraged at least in the initial phase. This material collected in the ninth century has been transmitted to us by word of mouth till we Muslims were mature enough to accept the printing machine in the fifteen century. After that the transmission was fairly reliable. To summarise, at one end we have the Divine word itself with the Divine guarantee of its eternal safekeeping and preservation. On the other hand we have the hadith literature produced completely by humans, transmitted by the word of mouth — very unreliable and elementary method as we understand today, albeit a state of art procedure in those days) — collected and compiled two centuries after the demise of our Holy Prophet. Imam Bukhari had to reject nine hundred and ninety five ahaadith for every five that he has selected. This is a reflection how large and contaminated this pool of information was even in the ninth century. Hence the credibility of the Hadith literature is not strong enough to pass judgement on a grave and far-reaching issue when Allah Ta'aala Subhaanahoo has decided to remain silent on it and certainly it cannot stand against HIS clear injunctions.
Please recall that the Holy Quran constantly exhorts us all over in the Holy Quran to think and ponder in the matter of Deen. It persistently and repeatedly insists and cajoles us that we use our reason and knowledge to understand our Deem. Please be reminded that Allah Ta'aala Subhaanahoo has declared in no uncertain terms4
“…….but none will grasp the Message but men of understanding”
and again please call to mind that we will be absolutely alone on the Day of Judgment with the Holy Text and the Sunnah of our beloved Prophet as the only valid currency; Bukhari/Muslim will not be admissible. Uncritical conformity to the valuable hadith literature therefore appears to be an un-Islamic practice. It is tantamount to “riwayat parasty” i.e. total submission to “riwayaat”, antithetical to the practice of “inkare hadith”, rejection of Hadith.
Coming to the ayah itself. The first thing that deserves attention in this verse is that the criminal law is being termed as the "Way of Allah". This shows that the "Way of Allah" does not merely consist of Salat, Fasting, Hajj and payment of Zakat dues, but the law of the land is also a part of the "Way of Allah”.
What is zina? Does it include other forms of un-natural sex gratification like sodomy? The fuqahaa (jurists) come out with various views. The majority, though include only the natural frontal form of intercourse in the definition of zina.
Islamic law insists on four witnesses to uphold this crime; we have already discussed the intimate observation required to be a witness. The statute does not approve or rely on a medical examination to prove this crime. It has to be implemented by a court or other competent authority; individuals do not have any jurisdiction in this matter. Any basic and significant differences among the four witnesses will nullify their testimony.
The crime of Zina cannot be settled against a compensation. The prescribed punishment is compulsory based on a strong hadith: “A boy who was working as a laborer 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 man 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 committing the crime.
Maulana Maudoodi informs us that according to Imam Ahmad, Da'ud Zahiris and Ishaq bin Rahaviah they shall have double punishment; flogged with 100 stripes and then stoned to death. With all due respect to the Imams, I am amazed at this thinking; probably based on some legal oddity. Thankfully most jurists are content with one i.e. stoning.
The punishment should be awarded publicly so that, on the one hand, the guilty one may feel disgraced and, on the other, it may serve as a deterrent for the other people. This throws light, according to Maulana Maudoodi on the concept of punishment in Islam. According to him, Islamic Law punishment is awarded to meet three purposes:
To inflict pain on the criminal for the excesses he committed against the other person or society.
To stop him from repeating the crime.
To serve as a deterrent for others, so that the people having evil inclinations in society may be deterred and dare not commit such crimes again.
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.
Punishment for zina, in our Shari’ah is the last resort. Islam has many preemptive methods in place to anticipate and prevent the chances for this crime.
(1) Very clear and valuable guidance is provided for inter-gender social interactions.
Both man and woman are advised not to look at each other with eyes of sexual admiration and analysis. Looking at each other otherwise is certainly not forbidden.
Each gender is instructed to cover their private parts, both literally and practically.
Women are reminded that their chest, being a private part also needs proper covering,
If women are ‘fully loaded” with ornaments and adornments, then they should restrict themselves to the Mehram.
One to one meeting between man and woman specially behind closed doors is strictly prohibited.
All inter-gender activities at all levels have to be public, purposeful and for the duration of the purpose.
Any physical contact between man and woman are prohibited.
(2) A large section of Muslims follow the Madarasah (the traditional Islamic school) curriculum and it’s approach of Taqleed. Maulana Maudoodi has described it in his Tefheemul Quran5
They stipulate additional and stricter steps to achieve this goal:
Women to stay indoors as full time housewives
Total segregation of sexes at all levels
If a woman has to leave her house only for strong reasons, she must be covered from head to foot. The Hanafis consider the veil as optional; rest of the schools regard it as compulsory.
The modern trend of women in full burqua appearing at mixed conventions, music concerts and TV screen appears a caricature of this rule
Similarly the so-called “hijab” entailing only a scarf on the head does not meet the standards required. It is a product of late twentieth century driven more by cultural and political needs than the needs of Shariah.
(3) Marriage is greatly stressed and encouraged and made easy.
(4) Prostitutions is banned
As against the apparent ferocity of the punishment, please note the ways Shari’ah wants to avoid the implementation of this retribution:
If a person confesses his guilt himself, he is warned and asked to repent; no punishment as
per the following hadith 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." (Surah 11/114) 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)
What do you make of the following hadith?: “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). It proves that Shari’ah does not want us to investigate the nature of the crime if the person admits the guilt but does not specify the nature of the crime.
It is required to establish that the crime was done of his free will.
The injunction to "flog them with stripes” is addressed to the governing authority of the land. The people cannot claim this right. There is consensus of the juries on this.
A person is not obliged to confess his crime of zina. Nor are those who know about it are required to inform the authorities. The whole stress is to leave the matter to God Almighty to deal on the Day of Judgement. There is a basis in a hadith for this view: "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."
That Shari’ah wants to sound tough but means to be kind is reflected in the restrictions advised while performing the act of flogging. Pain and torture is not the objective; humiliation and indignity is the real motive:
The Arabic word “fajlidu” used for flogging is is derived from “jild” which as all of us know means skin. Hence “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: it should neither be thick and hard nor thin and soft. A whip with knots or one having two or three prongs is also prohibited.
Flogging should also be of average intensity. Hadrat Umar used to instruct the flogger, "Strike in such a way that your armpit should not become visible during flogging," i.e., Do not stretch your arm fully to strike with full force.
The stripe should not be such as may cause a wound.
The flogging should not be confined to one and the same place but should be spread over the whole body.
The face and the private parts, and, according to the Hanafis, the head also should be spared but all other parts should get some flogging. Hadrat Ali once said to the flogger, "Let every part of the body get its due share except the face and the private parts.
"While flogging, a man should be made to stand and a woman to sit.
At the time of flogging, the woman should be in her full dress: but in regard to a man, there is some difference of opinion. According to some jurists, he will be allowed to remain in his pyjamas only, while some others maintain that the shirt will not be taken off.
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.
Flogging should not be entrusted to uncouth, uncultured executioners, but it should be done by men of deep insight who understand how the flogging should be carried out in order to meet the requirements of the Shari`ah. Ibn Qayyim has cited in zad al-Ma’ad that the Holy Prophet employed the services of such pious and respectable people as Ali, Zubair, Miqdad bin Amr, Muhammad bin Maslamah, Asim bin Thabit and Dahak bin Sufyan for this purpose. (Vol. I, pp. 44, 45)
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 100 twigs, or with a broom of 100 twigs in order to meet the requirements of the law.
In the case of a pregnant woman, the flogging will be postponed till the delivery and the complete discharge of blood after childbirth.
Maulana Maudoodi has declared very clearly, confidently and dogmatically that Stoning to Death is the Shari’ah treatment for Zina by married couple.6 He maintains it was advocated and enforced by the Holy Prophet, the right guided Caliphs, the sahaabaa, tabe’een, the later jurist of all ages and all countries and that this has never been denied in the entire history of Muslims except by the Kharijites and some Mu’tazilites. Does not leave any room for doubt, does it? However there are strong differences in the Islamic scholarship from this point of view. We have already read above the opinions of three reputable scholars that the relevant Quranic ayah covers both the married and unmarried couples. Hence there is no need for a different treatment for married couples. Let us consult a few additional scholars before we make up our minds. Yes I also agree; at the next session.
........and Allah knows best.
May Allah Ta’aala bless us with true understanding--“fahm”--of our Deen, Aameen.
Dr. Khalid Mitha
FOOTNOTES
(1) Surah 2/269
يُؤتِي الحِكمَةَ مَن يَشاءُ ۚ وَمَن يُؤتَ الحِكمَةَ فَقَد أوتِيَ خَيرًا كَثيرًا ۗ وَما يَذَّكَّرُ إِلّا أُولُو الأَلبابِ
(2) Surah 102/8
ثُمَّ لَتُسأَلُنَّ يَومَئِذٍ عَنِ النَّعيمِ
(3) Surah 24/2
لزّانِيَةُ وَالزّاني فَاجلِدوا كُلَّ واحِدٍ مِنهُما مِائَةَ جَلدَةٍ ۖ وَلا تَأخُذكُم بِهِما رَأفَةٌ في دينِ اللَّهِ إِن كُنتُم تُؤمِنونَ بِاللَّهِ وَاليَومِ الآخِرِ ۖ وَليَشهَد عَذابَهُما طائِفَةٌ مِنَ المُؤمِنينَ
(4) Surah 2/269
يُؤتِي الحِكمَةَ مَن يَشاءُ ۚ وَمَن يُؤتَ الحِكمَةَ فَقَد أوتِيَ خَيرًا كَثيرًا ۗ وَما يَذَّكَّرُ إِلّا أُولُو الأَلبابِ
“He granteth wisdom to whom He pleaseth; and he to whom wisdom is granted receiveth indeed a benefit overflowing; but none will grasp the Message but men of understanding.”
(5) 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.
(6) 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”.
