3. Fornication and Adultery
This is defined as any case where a man has coitus with a woman who is unlawful to him. Any relationship between a man and a woman that does not contain coitus does not fall under this category and does not mandate the prescribed, fixed punishment. The prescribed punishment is different depending on the marital status of the perpetrator.
A single person who has never been previously married receives one hundred lashes as stated by Allah: "The man and the woman guilty of fornication, flog each of them with a hundred stripes and let not compassion move you in their case in the enforcement of the law of God, if you truly believe in Allah and the Last Day. And let a party of the believers witness their punishment. The man guilty of fornication may only marry a woman similarly guilty or an idolateress and the woman guilty of fornication may only marry such a man or an idolater. The believers are forbidden such marriages." (24:2-3)
If the person is married or has previously been married, then the punishment is stoning until death. This punishment has been established by a number of hadîth of the Prophet Muhammad (peace be upon him).
"Ma'iz ibn Malik came to Allah's Apostle (peace be upon him) and said to him: Messenger of Allah, purify me. Thereupon he said: Woe to you, go back, ask forgiveness of Allah and turn to Him in repentance. He (the narrator) said that he went off a little way, then came and said: Messenger of Allah purify me. The Messenger of Allah said: Woe be upon you, go back and ask forgiveness of Allah and turn to Him in repentance. He (the narrator) said that he went off a little way, then he came and said: Allah's Messenger, purify me. Allah's Apostle (peace be upon him) said as he had said before. When it was the fourth time, Allah's Messenger (peace be upon him) said: From what am I to purify you?
"He said: From adultery. Allah's Messenger (peace be upon him) asked if he had been mad. He was informed that he was not mad. He said: Has he drunk wine? someone stood up and smelt his breath but noticed no smell of wine. Thereupon Allah's Messenger (may peace) be upon him) said: Have you committed adultery? He said: Yes. He made a pronouncement about him and he was stoned to death. The people had been (divided) into two groups about him (Ma'iz). One of them said: He has been undone for his sins have encompassed him, whereas another said: There is no repentance more excellent than the repentance of Ma'iz, for he came to Allah's Apostle (peace be upon him) and placing his hand in his (in the Holy Prophet's) hand said: Kill me with stones. (This controversy about Ma'is) remained for two or three days.
"Then came Allah's Messenger (peace be upon him) to them (his companions) as they were sitting. He greeted them with a salutation and then sat down and said: Ask forgiveness for Ma'iz ibn Malik. They said: May Allah forgive Ma'iz ibn Malik. Thereupon Allah's Messenger (peace be upon him) said: He (Ma'iz) has made such a repentance that if that were to be divided among a people, it would have been enough for all of them. He (the narrator) said: Then a woman of Ghamid, a branch of Azd, came to him and said: Messenger of Allah, purify me. Thereupon he said: Woe to you; go back and beg forgiveness from Allah and turn to Him in repentance. She said: I find that you intend to send me back as you sent back Ma'iz ibn Malik. He (the Holy Prophet) said: What has happened to you? She said that she had become pregnant as a result of fornication. He (the Holy Prophet) said: Is it you (who has done that)? She said: Yes.
"He (the Holy Prophet) said to her: (You will not be punished) until you give birth to that which is there in your womb. One of the Ansar became responsible for her until she was delivered (of the child). He (that Ansar) came to Allah's Apostle (peace be upon him) and said: The woman of Ghamid has given birth to a child. He (the Holy Prophet) said: In that case we shall not stone her and so leave her infant with none to breast-feed him. One of the Ansar got up and said: Allah's Apostle, let the responsibility of his nursing be upon me.
"She was then stoned to death."
The following conditions must be met before either of these two punishments can be carried out:
1. Four trustworthy witnesses must give testimony that they have witnessed the act take place with absolute certainty. They must be in complete agreement about all the details of the act, and about its place, time, and circumstances. If their stories do not coincide, their testimony will be considered false. In this case, instead of the punishment for fornication being carried out on the accused, the prescribed punishment for bearing false witness will be carried out against the witnesses.
Allah says: "Why did they not produce four witnesses? Since they did not produce witnesses, then with Allah they are the liars." [24:13] "Those who accuse chaste women then do not come with four witnesses, flog them eighty lashes and never accept their testimony. They are the sinful ones." [24:4]
It is obvious that the one who commits fornication in the plain sight of four witnesses whereby they can see every detail of his crime is a person who is flagrant in his behavior, who has little regard for religion or for social values, and if he is married, has little regard for his relationship with his wife.
This person may deserve a severe punishment. At the same time, it must be known that there is no documented case in Muslim history where the prescribed punishment for fornication was carried out on the testimony of witnesses. In most cases, this punishment was carried out at the wish of the perpetrator in order that he may purify himself of the sin and as a means of repentance.
2. There must be no cause for doubt that can make the punishment fall away. If any doubt is present, or any way out is found for the accused, the punishment is not to be carried out, because Allah’s Messenger (peace be upon him) said: “Do not carry out the prescribed punishments when there is doubt.”
Some things should be made clear at this point. The first is that if a person becomes weak and falls into this sin, it is preferable for him to conceal it from others and not speak about it or admit to it. Instead, he should repent, seek Allah’s forgiveness, and try to make up for it by doing righteous deeds. He should not despair of Allah’s mercy.
This is because Allah’s Messenger has said: "Whoever comes with one of these filthy acts should conceal it as Allah has concealed it.”
Allah says: "Those who, if they commit an indecency or wrong themselves, remember Allah and seek His forgiveness – and whoever forgives save Allah? – and do not persist in committing it, their reward is forgiveness from their Lord and gardens beneath which rivers flow. [3:135] "O my servants who have transgressed against themselves, do not despair of Allah’s mercy. Verily, Allah forgives all sins." [39:53]
It should also be observed that, likewise, if someone is to see another Muslim commit this act, then he should conceal it from the public. Allah’s Messenger has said: “Whoever conceals the fault of a Muslim, Allah will conceal his fault.”
It must also be noted that Islam has made the home completely inviolable. It is not permissible to enter someone else’s home except with the permission of its occupants. Spying is likewise prohibited. Allah says: "O you who believe, do not enter homes other than your own until you have asked permission and greeted their inhabitants. This is better for you, in order that you may remember." [24:27]
Also, if a person confesses to this sin of his own accord, it is necessary to determine if he is of sound mind and in possession of all of his faculties. It must also be certain that he is under no compulsion or coercion. Beyond that, he is afforded the opportunity to retract his confession and he is encouraged to do so. If he retracts his statement, the prescribed punishment will not be carried out.
The directives mentioned in these verses can be explained thus: 1. The man or woman who have committed fornication, both shall receive a hundred stripes. According to the methodology adopted by the Prophet (sws) and the Rightly Guided Caliphs and according to case precedents reported in books of Hadith in this regard:
- Whether a cane is used to flog a criminal or a lash, in both cases it should neither be very thick and hard nor very thin and soft.
- The criminal should not be beaten bare-bodied or while tied to a tripod.
- The criminal should not be flogged in a manner that wounds him nor should he be flogged on one part of the body: the flogging should be made to spread all over the body except for his face and private parts.
- A pregnant woman should be flogged only after she has given birth and the period of puerperal discharge has passed.
2. The criminal should be given this punishment publicly to humiliate him in front of the people, and to make him a lesson for those present. The verse directs the government or the court of justice to not show any lenience in this regard. This harsh treatment given to the criminal is necessary because the stability of a society relies on the sanctity of the relationships in a family and on their protection from every type of disorder. Fornication, a little deliberation shows, makes a society unstable and turns it into a herd of animals. It, therefore, deprives a society of its well-being and prosperity. Hence, such criminals should be dealt with without showing them any compassion.
It is with these sentiments of impartiality in the observance of the limits of Allah that the Prophet (sws) is reported to have said: "By God! If Fatimah the daughter of Muhammad had committed this theft, I would definitely have cut off her hand." (Muslim: No. 1688)
3. After this punishment has been carried out, no chaste man or woman should marry men and women who commit fornication. According to the Qur’an, such people can only marry among their own sort or among the idolaters. It does not allow the marriage of a pious woman with a man guilty of committing fornication nor does it permit a pious man to bring home such a woman in his house. Consequently, every such marriage is not considered legal in Islam.
However, this directive pertains only to the fornicators (both male and female) who have become liable to punishment once their crime has been proven.
4. While stating this punishment, adjectives are used to qualify the men and women who commit fornication. This is similar to the statement in which the punishment for theft is mentioned. It is evident therefore that this punishment is the utmost punishment, which should be given only when the crime has been committed in its ultimate form and the criminal does not deserve any lenience as far as the circumstances of the crime are concerned. Consequently, criminals who are foolish, insane, have been compelled by circumstances, are without the necessary protection required to abstain from committing a crime, or cannot bear the punishment are all exempt from this punishment. About those women whom their masters force to take to prostitution, the Qur’an says:" But if anyone compels them, Allah will be Forgiving and Merciful to them after their being compelled to it." (24:33)
Similarly, about the slave women who were present in the Prophet’s times, it says that they also cannot be administered this punishment because of improper upbringing and education and because of lack of family protection – so much so that if their husbands and masters have done all they can to keep them chaste and in spite of this they commit the crime, they shall be given only half this punishment ie, fifty stripes instead of hundred. The Qur’an says:" And then when they are kept chaste and they commit fornication, their punishment is half that of free women." (4:25)
5. The law of accusing someone of fornication also indicates that the Almighty does not like that a criminal confess to his crime himself or that those who are aware of his crime report this matter to the authorities. The Prophet (sws) has said: "He among you who gets involved in such filth, should hide behind the veil stretched out for him by Allah, but if he unfolds the veil, we shall implement the law of Allah upon him." (Mu’atta: No. 1562) Similarly, he once told a person:"If you had hidden the crime of this [person], it would have been better for you." (Mu’atta: No. 1553)
The wisdom behind the prescribed punishment for fornication and adultery all have two inseparable qualities. First, excessive recourse to caution for the benefit of the accused and the large number of provisions that must be met before a punishment can be carried out.
The harshness and severity of the punishments guarantees two things. First of all, it preserves the general security of society and reduces crime, due to the harshness of the punishments. The potential murderer who knows he will be killed, the potential thief who knows he will have his hand cut off, and the potential sexual offender who knows that he will be stoned or given a hundred lashes will think twice before going out and committing the crime. If, on the other hand, he knows that he will only be imprisoned for a few months or a few years, then he might not pay heed to the punishment and might not be discouraged from committing the crime.
Secondly, it safeguards the life of the accused and guarantees him that no punishment will be carried out until every excuse is exhausted and every reason for discarding the punishment is looked into.
Fornication and adultery is dealt with in this manner. The condition for establishing it – four reliable witnesses – is a very strict one, and the punishment is decisive. Aspects of the wisdom in the application of this punishment:
1. It preserves general peace and security, because one of the most important motives for murder is the violation of someone’s honor. Applying the punishment against fornication causes a decrease in one of the major causes of violating people’s honor, which in turn, reduces the frequency of murder. This has a direct, positive effect on public safety.
2. It protects the family. The family enjoys a special esteem in Islam. The widespread practice of extramarital sex is destructive to the family, undermines its integrity, and destabilizes the relationships between its members. The severe punishment for fornication and adultery has the effect of reducing its occurrence, which has a direct, positive effect on the family in two ways. Firstly, the family of the one who commits adultery share in the experience of his punishment, so they are discouraged from committing the act themselves, which brings stability to the family. Likewise, the family who had been harmed by the act of adultery benefits by the reduced opportunity for this crime afforded by this punishment, so its stability is increased.
|
NEWSLETTER
|
| Join the GlobalSecurity.org mailing list |
|
|
|
