By S. Abdullah Tariq
Q. Suppose a married man who has no physical relation with his wife for more than six months because of refusal of his wife due to disobedience or quarrelling commits intercourse with other woman illegally, then is the punishment stoning to death for the man?
Zubayer Ahammed; Calcutta.
Ans. The repenters are not punished; No! Under Islamic law, the punishment for adultery is 100 lashes (of moderate intensity). If the wife was denying him his right of matrimonial relations and there was no possibility of mending ways, he was free to divorce her and marry another girl. He had no right to commit adultery because of being so aggrieved and he will be subjected to punishment according to Islamic code in an Islamic society. This punishment will be applicable only in that state where Islamic laws are recognised. No individual is authorised 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 accepts the repentance of those who do evil in ignorance and repent soon afterwards; to them will Allah turn in mercy; for Allah is full of knowledge and wisdom.
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”. (4:17-18)
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”. (Majmoo’-ul-Fatawa Sheikh-ul-Islam) Says Ibne Qayyim: “If this is true that Allah 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.”
(A’alaam-ul-Muqi’een quoted in Haqeeqat-e-Raj’m P.217).
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. ‘The Prophet of Allah said; “Stay away from those loathsome evils, which Allah has forbidden you from. If someone through a slip indulges in any such act then he should remain concealed behind the veil of Allah and ask forgiveness of Him. But if someone will produce his neck before us (i.e. stick to the sinful activities unashamedly and boldly) then we shall enforce the code over him.”
(Bulughul Maraam; Kitabul Hudood; Ibne Haj’r Asqalani)
“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 Namaz. 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.” (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 from his severe punishment and do not dare to follow in his footsteps.
The Punishment for Adultery is 100 Lashes
The penalty for adultery is not stoning to death unless he 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”. (24:2)
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 is nothing to prove the contention of stoning to death being the punishment for adultery in the book of God. On the contrary 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 for unmarried, men or women.
Verse 24:8 should not be cut from the context
When we read ahead of the above verse (24:2), it becomes more manifest, if only the context of consecutive verses is not overlooked. Following is the translation of first eight verses of the Surah;
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. (24:1-9)
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. a hundred lashes. Many Fiqh scholars assume that the punishment mentioned in verse 8 is the woman’s confinement or stoning to death. From the context, it is apparent 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 24:; 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 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’ (Ch.4) 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). (4:15)
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 new ordinance. The new ordinance came vide 24:2. Upto this point there is near unanimity. The confusion arises when the new legislation vide 24:2 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 (4:15) 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).” (42:46)
It is evident that stoning to death is no 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”. (2:187)
It is obvious that by women, here means wives. Similarly in the verse 4:15 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 24:2 (100 lashes) is primarily for married women and hence the punishment of adultery is not stoning to death. Maulana Sagheer Ahsan, the Sheikhul Hadith of Jameatul Falah Bilaria Ganj Azamgarh, quoting his mentor Maulana Aktar Ahsan Islahi, a great scholar, writes; “After a particular order for wives, the Qur’an had said, ‘or (until) Allah appoint for them a way (through new legislation)’. It means a new legislation was promised. In the light of this (assurance), the verse of lashes was revealed. How is it possible that the main promise was for married women and the legislation should come for the unmarried, with no mention altogether of married women”!?
(P,229; Haqeeqat-e-Raj’m by Mohd. Inayatullah Asad Subhani)
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)”. (4:15)
The new legislation would be meaningless if it comes in the form of death sentence. She was already confined to house till 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 verse 4:25, 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…” (4:25)
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. Allama Rasheed Raza in his famous Qur’an commentary ‘Almanar’, writes; “As for free women, the apparent words of the verses manifest that she will be inflicted with a hundred lashes, be she married or unmarried. The words of the verse are general. Were there no traditions, one would have a right to say about the verse that by free sinning women here means free married women. It is because in this verse married maid captives are compared with married free women. (P.49, Haqeeqat-e-Raj’m)
Married cannot be excluded from verse 4:25
It may be mentioned that the Arabic word ‘Muhsanaat’, used in the verse can represent only married status. Unless it is apparent or specifically mentioned the word can not exclusively refer to the unmarried women. Maulana Inayatullah Subhani, in his book Haqeeqat-e- Raj’m, has quoted in detail the scholars of language and dictionary to prove this.
Bukhari did not record the cases of stoning under ‘Hudood’
It is well known among scholars that the headings of the sections in Sahih Bukahri is a reliable way of knowing Imam Bukhari’s Fiqh opinion about the traditions under those heads. Now we observe that no tradition citing stoning to death is put by the Imam under the section ‘Kitabul-Hudood’ (the book of penal code), in his Sahih Bukahri. He has put the incidents of stoning to death under another section ‘Kitabu Maharibeen Min Ahlil Kufri warraddah’ which means the book about those who wage a war against Allah and the Prophet (Pbuh).
Let me now quote from a few of the famous incidents in which the criminals were stoned to death and analyse the nature and their crimes.
Stoning to death for unmarried
One of the most famous case was that of Maa’iz Aslami. After he was stoned to death, the Prophet (Pbuh) declared;
“Whenever we go out of the city to fight in the cause to Allah, one of you stays behind. He bleats (in lust) like a goat and gives (his) milk to one of the women. If anyone of them is handed over to me by Allah, I shall give him a horrifying punishment.”
The narrator says when he related the event to Saeed Bin Jubair, he said the Prophet (Pbuh) had turned him back (from punishment) four times. (Muslim; Kitabul Hudood)
“Reported Naeem Bin Huzal; Maa’iz Bin Maalik was an orphan under the guardianship of my father. He had sex with a maid of our neighbourhood” (Abu Dawood)
“Maa’iz told Huzal; I had relations with a woman named Muhairah. I was after her till today I made with her which I intended”. (Tabqat Ibne Sadd)
“Reported Naeem Bin Huzal; Huzal had employed Maa’iz Bin Maalik. There was a maid in their house and who was a divorcee and she used to feed his sheep. Maa’iz sex with her”. (Musnad Ahmad)
Two facts filter out of the above citations. 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 a bachelor was stoned to death. “Imam Sha’fi has recorded that a woman of hamdan tribe was brought before Hazrat Ali. She was pregnant. Her name was Sharaha and she had committed ‘Zina’. Hazrat Ali 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’. (Musnaf Abdur Razaaq quoted in Haqeeqat-e-Raj’m P.191-92)
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. “Narrated Anas that 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). He ordered that the criminal be stoned to death”. (Muslim)
Following is a typical case to prove that habitual thieves were also eliminated to cleanse the society.
“Reported Jabir Bin Abdullah that a thief was produced before the Prophet (Pbuh). He decreed a death sentence. The companions said, ‘O Prophet (Pbuh), he has only committed theft’. He said, ‘All right, cut his hand off’. The narrator says that his right hand was chopped off. Then (after some time) he was brought again. Again when the Prophet (Pbuh) ordered to execute him the companions pointed out that he had only committed theft. He said, ‘then cut (his foot)’. His left foot was cut off. When He was again brought to him and the Prophet (Pbuh) again ordered to execute and the companions again told him that he had committed only theft, the Prophet (Pbuh) said, ‘ok’, then cut (his other hand). His left hand was also cut off. He was produced for the fourth time and again the order of execution was modified to cutting his other foot. (Somehow he again stole and was caught). 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)
In Nisai, in the same event, it is also mentioned 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”. (Surah Nisai)
Apparently, the Prophet (Pbuh) knew the very first time he was caught that the man is a habitual and compulsive thief. That is why he ordered his execution. On each consecutive turn he ordered the execution but the companions could not understand and knowing well that he will ultimately be executed, the Prophet (Pbuh) changed the ruling for the satisfaction of the companions. Finally, he was given the same punishment, which the Prophet (Pbuh) had pronounced the first time. What is worth mentioning here, is that a criminal, apparently only a thief and caught for the first time, was also condemned to death.
Married sexual offenders sent to flogging
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 and informed him that the woman had committed adultery. Umar called her. (Telling her background) she said that she became orphan in the childhood. She was destitute and had nothing. Nobody cared for her.
Urvah also said that the woman was married. Umar sent a man to call back the caravan. The people verified the statement of the woman. Umar ordered to inflict her with 100 lashes. He then gave her clothes and conveyance and asked the people of caravan to take her with them. (Musnaf Abdur Razzaq quoted in Haqeeqat-e-Raj’m P.107)