Zina and Rajm

লিখেছেন লিখেছেন মহিউডীন ১৪ ফেব্রুয়ারি, ২০১৩, ০১:৩৩:১৮ দুপুর

Zina is Arabic word which means immorality and it has two meanings. One Zina carries a punishment and the other Zina does not carry a punishment.

Prophet (pbuh) said: "Allah has decreed for every son of Adam his share of Zina, and there is no way to escape from it. The Zina of the eye is a glance, the Zina of the tongue is speaking, and the Zina of the mind is wishing and hoping, then the private part either acts upon this or it does not" (Sohi Bukhari)

Zina according to the Qur'an is sexual intercourse outside marriage between consenting adults, whether they are married or not. Zina is one of the forbidden deeds, one of the most serious major sins (kabaa'ir) after shirk and killing. Surah, al-Furqan verse 68-70 The Qur'an says, " And come not near to unlawful sexual intercourse (Zina). Verily, it is a faahishah (anything that transgresses its limits-a great sin) and an evil way (that leads one to Hell unless Allah forgives him). Surah, al-Isra' verse 32. This means not doing any deed that may get close to Zina, or lead to it such as being alone with a member of the opposite sex, touching, looking, going to evil places, speaking a haraam manner to a woman to whom one is not related, thinking about and planning immoral acts, etc.

Raj'm is the punishment of stoning to death for adultery which is a Mosaic Law found in the Old Testament or Torah. Rajm was practiced by Prophet (pbuh) before the revelation of the verse of 100 lashes for adultery or fornication (Surah an Noor verse 2). Adultery in the English language is defined as illicit sexual intercourse by married men and women. Fornication in the English language is defined as illicit sexual intercourse by unmarried men and women.

In this article the topics of pedophilia, incest, rape, sodomy, oral sex, homosexuality, lesbianism, bestiality, necrophilia, and other deviations will not be covered.

Punishment for Zina

Allah swt has prescribed Hadd punishment for adultery. What is the punishment for adultery? According to the Qur'an, the punishment is Flogging with a 100 stripes (both for men and women) (Surah an Noor verse 2). The punishment for‘faahishah’ which means gross indecency (e.g. stripping naked or 'being lewd' in public), according to the Qur'an is "confine them to houses until death do claim them (lifelong house arrest - for the women) (Surah Nisa verse15). For men: "If they repent and amend, leave them alone" (Surah Nisa verse16).

Islam prevents crime rather than punish the criminal.Linguistically, hudud in Arabic means limits or preventions. Legally, they are limits, which prevent the crime from increasing in society, prevent the criminal from going back to similar crimes, and prevent those who think about the same crime from pursuing it. Hudud in this sense are not merely punishments, on the contrary, they are limits and preventive means placed within a larger framework of justice, related directly to the interests of people to serve the ultimate objectives of the Islamic law. The punishment system in Islam has concerns that Muslims need to be aware of. It concerns that are aimed toward the three dimensions of any crime: the criminal (the one who carried out the act), the society (where the crime took place) and the victim (the one who was subject to the criminal act). These objectives are:

1. To criminals, punishment is kaffara (purification) and reforming for the re-acceptance into the society.

2. To society, punishment is a preventive method to save the society from crimes.

3. To victims, punishment is a mean of retribution.

Also, this system is governed by a few key principles, which are:

1. Every Muslim is accountable for his/her deeds and for every crime there is a punishment that is enforceable by the Muslim State. This principle makes Muslims believe that it is better for them to get punished in their life than to be punished in the hereafter.

2. The punishment should be prevented as much as possible. A’isha ®narrated that the Prophet (pbuh) said: ‘Ward off punishment as much as you can. If you find any way out for a Muslim then set him free. If the Imam makes a mistake in granting forgiveness, it is better for him than that he should commit a mistake in imposing punishment.’ Thus any doubt about the evidence should prevent the punishment.

3. Punishments were set down to protect and secure the ultimate five elements of people’s interests: al-dharuriyat (necessities).These are: deen (belief), an-Nafis (life), al-‘aqil (intellect), al-mal (wealth) and an-nasil (family and lineage).

In addition, it is important to know that in Islam, punishments applied by the Muslim State should be the last resort in preventing crimes and saving the society. The Muslim State should insure the fulfillments of the citizens’ needs in every aspect of their life. Moreover, practicing al-amru bil ma’ruf wa an-nahiyu ‘an al-munkar (enjoining the good and forbidding the evil) in its proper way comes before the application of punishments.

The Performance of Zina:According to the majority of scholars, in its legal meaning Zina is ‘the voluntary sexual intercourse outside of marriage when the male sexual organ is inserted inside the female one, regardless of the number of times.’ The act of Zina is committed voluntarily, thus rape is not Zina and any sexual act under constraint is not Zina as well. Also, there should be no doubt that the two partners are not married to one another; any doubt in this sense makes the act not Zina.

Finally, the sexual organ must be inserted inside the female vagina, thus any other intimate act, even if it is haraam(prohibited), does not qualify for any specific fixed physical punishment set out in Islamic law (i.e. hudud). There are about 10 conditions of Zina one can refer to in books of fiqh (Islamic law).

Islam considers Zina a major sin, an indecent act, and an evil path. Therefore, protecting society from Zina is an evident aim of Islam. Since Zina is considered a great sin and a detestable social illness, Islam required doubtless proof for convicting an individual of Zina and severe punishment for those convicted. There are three clear means of proving Zina:

1. The person accused of Zina (zaani) makes a confession and does not retracts his/her confession. Once the person retracts his/her confession, they are not punishable because there is no proof of the act.

2. Four reliable and pious men testify that they witnessed the act and actually saw the male sexual organ inserted into the vagina. (actual penetration)

3. A woman without a husband found to be pregnant.

Scholars agreed on the first two methods of proving Zina, but disputed the third one.Some scholars rejected the third point as proof. Allah swt said in the Quran:"The woman and the man guilty of Zina (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." …(Surah An-Noor,Verse2).

Punishment for Adultery in Islam :Under Islamic law, the punishment for adultery is 100 lashes (of moderate intensity). This punishment will be carried out only in that state where Islamic laws are promulgated. No individual is authorized to execute the penalty. In addition, the punishment is executed only in case of accused being caught by the law. Even in that case, if it is proved beyond doubt that the accused had truly repented over his sin before being caught, the punishment is to be condoned. Allah swt accepts the repentance of those who do evil in ignorance and repent soon afterwards; to them will Allah swt turn in mercy; for Allah swt is full of knowledge and wisdom. (al-Tirmidhi,). It was narrated from Abu Dharr that the Prophet (pbuh) said that Allah says, "… O My slaves, you commit sin night and day, and I forgive all sins, so ask Me for forgiveness…" (Sohi Muslim)

Of no effect is the repentance of those who continue to do evil until death faces one of them and he says ‘Now have I repented indeed’; nor of those who die rejecting faith; for them have we prepared a punishment most grievous”.(Surah Aan Nisa verse 17-18)

It was asked of Imam Ibne Timiyah if a man was entitled to the punishment of unlawful sex and he atoned for the sin before the imposition of punishment, would the punishment be condoned by his atonement. He replied; “If one resolves to leave unlawful sex, theft or drinking before the case is produced before the Imam, then it is proper that the punishment will be condoned like it is condoned for the Maharibeen (the wagers of war against Allah and the Apostle and the seditionist) if they repent before coming under the grip of law”. Says Ibne Qayyim: “If this is true that Allah swt does not punish anyone who repents, then it is also true that no punishment should be implemented on a repentant. Allah has made clear that even the Maharibeen are forgiven if they repent before coming under grip. It is despite of the fact that their crime is extremely atrocious. Obviously the lesser offences will in the first place be pardoned if there is true repentance already.” The sinner, if repentant, is not required to voluntarily report his sin to law. Instead, he should ask forgiveness of Allah and resolve to stay away from the sin in future.

“Said Anas Bin Malik, ‘I was present beside the Prophet (Pbuh) when a man came and said; ‘O Prophet of Allah I have committed a punishable sin, so enact the punishment’. The Prophet (Pbuh) did not ask him any question till it was time for Salaat. After he had offered the prayer with the Prophet (Pbuh), he again approached him and said; “O Prophet of Allah I have committed a punishable sin, so judge me by the book of Allah”. The Prophet (Pbuh) asked him, ‘ Have you not offered prayer with me’? He replied, ‘Yes’. Then the Prophet (Pbuh) said, ‘Allah has pardoned your sin and your punishment.” (Sohi Bukhari).

The Prophet (Pbuh) did not even ask him what crime or sin he had committed. This is because the purpose of punishment in Islamic system is to punish the consistent and habitual criminal so that others should learn a lesson from this severe punishment and do not dare to follow in his/her footsteps. Al-Haafiz Ibn Hajar said: It may be understood from this case-when he confessed to having committed Zina-that it is mustahabb for the one who falls into a similar sin to repent to Allah swt and conceal his sin and not mention it to anyone, as Abu Bakr (RA) and Umar (RA) said to the confessor.

The Punishment for Adultery is 100 Lashes : The penalty for adultery is not stoning to death unless the convict is a hardened and habitual sinner who is a perpetual disturber of peace of the society. Qur’an clearly spells out the related law; “The woman and the man guilty of unlawful sex (adultery or fornication), flog each of them with a hundred stripes; let not compassion move you in their case in a matter prescribed by Allah if ye believe in Allah and the Last day; and let a party of the believers witness their punishment”. (Surah an Noor verse 2)

Few Islamic laws have been so misunderstood as the penalty of illicit sexual intercourse. It is generally believed by a majority including some renowned scholars that the above punishment is only for the unmarried offenders. It is therefore expedient that this issue be discussed in detail.

There are clear indications in Qur’an that punishment of 100 lashes is for all adult and sane persons making illicit sexual intercourse, be they married or unmarried, men or women. Surah an Noor Verse 8 should not be cut from the context. When we read ahead of the above Surah an Noor Verse 2, it becomes more manifest, if only the context of consecutive verses is not overlooked. Following is the translation of first eight verses of Surah an Noor verse 1-9:

1. A Surah which we have sent down and which we have ordained; in it have we sent down clear signs in order that ye may receive admonition.

2. The woman and the man guilty of adultery or fornication flog each of them with a hundred stripes; let not compassion move you in their case in a matter prescribed by Allah if ye believe in Allah and the last day; and let a party of the believers witness their punishment.

3. Let no man guilty of adultery or fornication marry any but a woman similarly guilty or an unbeliever nor let any but such a man or an unbeliever marry such a woman; to the believers such a thing is forbidden.

4. And those who launch a charge against chaste women and produce not four witnesses (to support their allegation) flog them with eighty stripes; and reject their evidence ever after; for such men are wicked transgressors.

5. Save those who afterward repent and make amends. (For such) lo! Allah is forgiving, merciful.

6. As for those who accuse their wives but have no witnesses except themselves; if they bear witness four times (with an oath) by Allah that they are solemnly telling the truth;

7. And the fifth (oath) (should be) that they solemnly invoke the curse of Allah on themselves if they tell a lie.

8. But it would avert the punishment from the wife if she bears witness four times (with an oath) by Allah that (her husband) is telling a lie;

9. And the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth.

Now which punishment is being referred to in the verse No.8 above? Reading from the first verse onwards makes it obvious that it is the same, which has been described in verse No.2, i.e. one hundred lashes. Many Fiqhscholars assume that the punishment mentioned in verse 8 is the woman’s confinement or stoning to death. From the context, it is obvious that there is no room for any assumption at all. The renowned scholar Ibne Qayyim, in his famous work ‘Zaadul Ma’ad has stressed upon this. He writes; ‘The punishment condoned for that woman through Li’aan (The procedure of oath described in the verses 6-9 above, is the same which is mentioned in this order of Allah - and let a party of the believers witness their punishment (that is flogging)’. Note that the woman in verse 8 is a married woman accused of adultery by her husband. It further proves that Qur’an prescribes a punishment of flogging for both, adulterer and fornicator irrespective of their marriage status.

Flogging replaced the confinement till death. Let us now come to Surah ‘Nisa’ of Qur’an, which also discusses the punishment of lewdness. Verse 15 of this Surah reads; "As for those of your women who are guilty of lewdness, call to witness four of you against them. And if they testify (to the truth of the allegation) then confine them to the houses until death take them or (until) Allah appoint for them a way (through new legislation). "

A majority of commentators agree that earlier, when a married woman was guilty of illicit sex, she was to be permanently confined to her house till the revelation of a new ordinance. The new ordinance came in the revelation of Surah an Noor verse 2. Up to this point there is near unanimity. The confusion arises when the new legislation recommends flogging but they insist that this will apply only to the unmarried. Strangely enough, the order was awaited in respect of married women.

There are indications in the above verse Surah an Nisa verse 15, itself that the ordeal of the erring married women shall be eased in the new law. There are three subtle points in the above verse that should not be missed.

1. The Arabic text for ‘or (until) Allah appoint for them a way (through new legislation)’ in this verse is auyaj’alalla-hu lahunna sabila. In normally spoken Arabic, this phrase will be taken as a consolation and a future promise for easing their ordeal. Elsewhere also, at a number of places, the word ‘sabil’ (Literal meaning; a way) is used in the sense of ‘a way out’ for example the following verse; “And no protectors have they to help them other than Allah; and for any whom Allah leaves to stray there is no way (out).” (Surah Shura verse 46). It is evident that stoning to death is not the “ way out of confinement in home.”

2. The Arabic equivalent of ‘your women’ in the text of this verse is ‘Nisa’ikum’ which is normally used in Arabic as well as in Qur’an to mean ‘your wives’. In fact in all the verses in Qur’an where the words ‘Nisa’ukum’/Nisa’ikum’ and ‘Nisa’ihim’ (literal meaning; your women and their women) have occurred, they mean ‘your wives’ and ‘their wives’. For example; “Permitted to you on the night of the fasts is the approach to your women”. (Surah Al Baqara verse 187)

It is obvious that by women, here it means wives. Similarly in the verse Surah an Nisa verse 15 above, the style of Qur’anic language indicates that wives or married women are being discussed and a way out was promised for them to end their predicament of confinement. Therefore the promised way out, vide Surah an nor verse:2 (100 lashes) is primarily for married women and hence the punishment of adultery is not stoning to death.

3. Reflect again on the following words of the relevant verse; “confine them to the houses until death taken them or (until) Allah appoint for them a way (through new legislation)”. (surah an Nisa verse 15)

The new legislation would be meaningless if it comes in the form of death sentence. She was already confined to the house until death.

The death sentence cannot be halved :Yet another clear cut proof of the punishment of unlawful sex being 100 lashes irrespective of marital status of the sinner, comes from surah an nisa verse 25, which reads; “If any of you have not the means wherewith to wed free believing women they may wed believing girls from among those whom your right hands possess; and Allah hath full knowledge about your faith. Ye are one from another; wed them with the leave of their owners and give them their dowers according to what is reasonable; they should be chaste not lustful nor taking paramours; when they are taken in wedlock, if they fall into shame their punishment is half that for free women...”

There is no half punishment of stoning to death. It is clear in the above verse that the punishment of free believing women for adultery or fornication is that which could be halved in case of same sin committed by the war captives after their marriage. Furthermore, Allah swt, says:"The adulterer marries not but an adulteress or a mushrikah (female polytheist) and the adulteress none marries her except an adulterer or a mushrik (male polytheist). Such a thing is forbidden to the believers."(Surah an nor verse 3).If the adulterer and adulteress were stoned to death, then how is it possible for an adulterer to marry an adulteress or vice versa?

Unmarried were Stoned to death:Another ahadith reports Maa’iz Bin Maalik having sex with another maid. “Naeem Bin Huzal reports that his father, Huzal had employed Maa’iz Bin Maalik. There was a maid in their house who was a divorcee and she used to feed the sheep. Maa’iz had sex with her”. (Musnad Ahmad). Two facts filter out of the above cituations. One, Maa’iz was not a casual sinner but a habitual offender. Two, he was not a married man but a bachelor. The word orphan, in Arabic, is applicable to a person till he or she is married.

Following is another famous incident in which an unmarried woman was stoned to death. “Imam Sha’fi has recorded that a woman of Hamdan tribe was brought before Hazrat Imam Ali (ra). She was pregnant. Her name was Sharaha and she had committed ‘Zina’. Hazrat Imam Ali (ra) enquired of her, ‘May be the man had raped you’. She said, no. Ali asked, ‘Possibly, you were fast asleep and the man rode over you in your sleep’. She replied, ‘No’. Ali interrogated, ‘Maybe you have a husband who is an accomplice of our enemies and you are hiding him’. She replied in the negative. Hazrat Ali sent her to the prison and after the baby was born she was stoned to death’. It is clear from the woman’s answers that she was unmarried. We also know that she would not have been subjected to such a punishment even if she were married, had she been a chance sinner.

Stoning to death for other crimes :There also are incidents when the criminals were stoned to death for some other heinous crimes. A Jew murdered a virgin of Ansaar tribe. After stripping her of her jewellery, he threw the body into a well. He had also smashed her head. The man was caught and produced before the Prophet (Pbuh), who ordered that the criminal be stoned to death”. (Sohi Muslim) Following is a typical case to prove that habitual thieves were also eliminated to cleanse the society.

A thief stole four times and he lost both hands and two feet as punishment by the Prophet (pbuh). When he was brought for the fifth time, the Prophet ordered him to be killed. Says Jabir, ‘then we carried him and killed him and threw him into a well and threw stones from above’. (Abu Dawood). Nisai, referring to the same event, corroborates that the man was killed by stoning. “ We killed him by stoning. Then we threw him into a well. Then we threw stones over him”. (Nisai).

Married sexual offenders were flogged :We know that not only sexual savages but unreformable thieves and dacoits were also stoned to death. On the other hand, there are many incidents when married sexual offenders were punished with flogging. “Hashsham bin Urvah, quoting his father reports; A woman from Yemen came to Madinah with the Hajj pilgrims. The caravan stayed in Harrah. When they departed they left the woman behind and a man came to Hazrat Umar (ra) and informed him that the woman had committed adultery. Umar (ra) called her and enquired about her. She said that she became an orphan in the childhood. She was a destitute and possessed nothing. There was nobody to take care of her.Urvah also said that the woman was married. Umar (ra) sent a man to call back the caravan. The people confirmed the statement of the woman. Umar (ra) ordered to inflict her with 100 lashes. He then gave her clothes and conveyance and asked the people of the caravan to take her with them.

Misinterpretation and Misunderstanding:The widespread misunderstanding even among scholars is due to misinterpretation of some traditions and the wrong order of our priorities. Our priorities were clearly spelled out by the Qur’an and the Prophet (Pbuh). We should be guided by only Qur’an in the first place. If the order of Qur’an is not very clear, then we should refer to the Sunnah for the exposition. Lastly, if doubts persist, the Tafaqquh or Fiqh should be resorted to. Reversal of this order of priorities has caused the misunderstandings and the differences in a number of problems. It is not that the Sunnah in any case can be contradictory to Qur’an but the possibility of error in reaching the Sunnah to us through the traditions cannot be ruled out while the Qur’an is safe and preserved to every letter. In case of the present problem, there are a number of contradictory traditions. When we try to interpret Qur’an in their light we are bound to be stuck with something that does not appeal to the common sense. Conversely, we have in this case explicit directions of Qur’an, which should be used to verify the authenticity of the traditions.

Conclusion

The above discussion is probably sufficient to prove that:

The punishment for adultery or fornication in Islam is administering 100 lashes.

Stoning to death is announced only in case of proclaimed offenders or those who are beyond reform, upon whose extinction the society heaves a sigh of relief.

Other situations may also be quoted from the traditions where an offender does not seem to be a habitual criminal but it is better to assume in those cases that full facts may not have reached us

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