Adultery and Fornication
This topic is covered in the following sections.
Definitions and Usage
The most direct Qurʾānic term for unlawful sexual intercourse, whether adultery or fornication (meaning intercourse between two persons not married to one another, irrespective of whether one or both are married to other people; see section on legal definition below), is zinā or zināʾ, infinitive form of the verb zanā/yaznī, from the triliteral root z-n-y (Azharī, Tahdhīb, sub z-n-y).
Al-Farrāʾ (144-207/761-822) held that zinā (without the glottal letter hamza at the end) is the infinitive of zanā, while zināʾ (with a hamza) is the infinitive of zannā (bāb al-tafʿīl, or form II) (al-Zamakhsharī, Asās al-balāgha 1:424). Ibn Sīda (d. 230/ca.845), quoting al-Liḥyānī, commented that the form zinā (as in Q 17:32, and come not near adultery (wa lā taqrabū l-zinā)) was more commonly used by the people of Ḥijāz, while zināʾ was the preferred usage of the tribe of Banū Tamīm (Muḥkam). The verbs zānā and zannā are synonymous, and denote accusing someone of fornication—one of the gravest forms of calumny if untrue. A child born out of wedlock is referred to as zanya, ibn zanya, or ibn zinya (Fayrūzābādī, Qāmūs; Ibn Sīda, Muḥkam; Ibn Manẓūr, Lisān). The root z-n-y appears in the Qurʾān nine times: twice in verbal form (yaznūn, yaznīn) (Q 25:68, 60:12), once in the infinitive al-zinā (Q 17:32), and six times as an active participle, thrice each in the masculine and feminine forms al-zānī and al-zāniya (Q 24:2, 3).
Four other more general terms may also denote unlawful sexual acts, including adultery and fornication: al-bighāʾ, al-fāḥisha, al-sifāḥ, and ittikhādh al-akhdān .
- Al-bighāʾ (infinitive form of the root b-gh-y) means ardent desire leading one to exceed the limits of moderation in a quest or a search. This may have positive or negative connotations, depending on whether the quest is in a cause of truth and virtue, or falsehood and iniquity. Used more specifically for prostitution, an impermissible transgression (Rāghib, Mufradāt, sub b-gh-y), al-bighāʾ occurs once in the Qurʾān: Do not compel your slave-girls to prostitution (ʿalā al-bighāʾ) when they desire to guard their chastity, so that [you] may seek some gain of this worldly life (Q 24:33). The feminine active participle refers to an adulteress or a prostitute, as in the reproving exclamation of the Israelites to Maryam when they saw her with her child, upon him peace (see ʿĪsā): “O sister of Hārūn, your father was no man of evil, nor was your mother unchaste (baghiyyā)…” (Q 19:28; cf. Rāzī, Tafsīr).
- The terms al-fāḥisha and faḥshāʾ (pl. fawāḥish, infinitives from the root f-ḥ-sh) refer to any act not conforming to truth and rectitude, that is, any despicable deed or speech and, more generally, any form of perversity (Ibn Sīda, Muḥkam). The word al-fāḥisha occurs thirteen times: twice referring generally to a mistake or sin (Q 3:135 and 7:28); six times referring to unlawful sexual intercourse as an abomination (fāḥisha) (in Q 4:22 describing marrying the wife of one’s father; in Q 4:25 adultery; in Q 17:32 general lewdness; and in Q 4:19, 33:30, and 65:1 all in the phrase “open adultery” (fāḥishatin mubayyinatin)); and in five instances as a proper noun referring to unlawful sexual acts, whether lewdness generally (Q 4:15 and 24:19 (or: slander)) or specifically the homosexual acts (Q 7:80, 27:54, and 29:28) (see Homosexuality) committed by the people of the Prophet Lūṭ, upon him peace. The plural fawāḥish occurs four times referring to acts of indecency (Q 6:151, 7:33, and 42:37) and enormities (Q 53:32) in general. A cognate of the same root, al-faḥshāʾ, occurs seven times: twice (Q 2:169, 268) referring to a range of wicked actions, including stinginess that leads to estrangement from one’s kin as well as adultery as per Ibn Kathīr (Tafsīr); in Q 7:28 referring to the pre-Islamic Arab practice (see Jāhiliyya) of circumambulating the Kaʿba unclothed—a practice first described as “lewdness” (fāḥisha) and then denounced in the same verse: Allah does not enjoin indecency (al-faḥshāʾ) (Ibn Kathīr, Tafsīr); once (Q 12:24) referring to the attempted seduction of the Prophet Yūsuf by the desirous wife of the ʿAzīz (Ibn Sīda, Muḥkam); and three times (Q 16:90; 24:21; 29:45) to indecency writ large (Ibn Kathīr, Tafsīr). Al-Rāghib al-Aṣfahānī (502/ca.1108) holds that Q 7:28, 7:33, and 16:90 all refer to unlawful sex (Mufradāt).
- The term al-sifāḥ (infinitive of the mufāʿala form of the root s-f-ḥ) means “spilling”, whether bloodshed or shedding tears, or, according to Abū Ḥayyān (d. 745/1344), the spilling of semen. The Qurʾān employs both masculine and feminine active participles of the verb sāfaḥa, literally meaning “mutual spilling.” After listing women that a man cannot marry (Q 4:22-24) (see Marriage and Divorce), the Qurʾān states: Lawful to you are all beyond those mentioned, to seek with your wealth [in marriage], binding yourself [in marriage] (muḥṣinīn) and not for [mere] fornication (ghayra musāfiḥīn) (Q 4:24). The next verse discusses the permissibility of marrying slave girls, provided that the marriage is a means by which to protect one’s modesty: So, marry them with the permission of their masters, and give them their dues/dowers as recognized, they being bound [in marriage] (muḥṣanāt), not for [mere] fornication (ghayra musāfiḥāt), nor having paramours (wa lā muttakhidhāti akhdān; see below). Q 5:5 employs a similar formulation in discussing the permissibility of marrying the virtuous women from [among] the believers, and the virtuous women from [among] who were given scripture before you (see People of the Book), provided you give them their dues/dowers, binding yourself in marriage (muḥṣinīn), not for [mere] fornication (ghayra musāfiḥīn), nor having paramours (wa lā muttakhī akhdān). Abū Ḥayyān notes that in the Qurʾān sifāḥ always occurs in contradistinction with the term iḥṣān, which denotes trying to be chaste and protected from sin. Thus the words musāfiḥīn (Q 4:24, 5:5) and musāfiḥāt (Q 4:25), he writes, refer to adulterers, specifically those who make a living through debauchery (al-zunāt al-mubtadhilīn/al-mubtadhilāt) (Baḥr).
- The phrase ittikhādh al-akhdān is used in construct form in Q 4:25 and 5:5 (see above), once in reference to men and once to women, both in the context of sexual injunctions. The phrase, literally “taking partners” (akhdān, sing. khidn, from the root kh-d-n, meaning amorous companions) denotes having clandestine sexual relations or taking secret lovers (Rāghib, Mufradāt, sub kh-d-n).
Jurists agree that the term zinā encompasses any copulation outside of a valid marriage (nikāḥ), in the absence of a justifiable (albeit erroneous) presumption of its validity (shubhat al-nikāḥ), or rightful possession of a female slave. However, legal schools vary regarding the technical parameters within which an unlawful sexual act fits the precise legal definition of zinā and thereby incurs the ḥadd punishment (see below; also see Legal Punishments). Because Islamic law admits discretionary judgments for most transgressions except in specific cases incurring the ḥadd punishments, jurists and exegetes elaborate the conditions, definitions, and categories involved in such punishments in great detail. The positions of the four Sunni schools regarding adultery are as follows:
For Ḥanafī scholars, zinā as legally defined (and thus technically incurring the ḥadd punishment) involves a man who has adopted Islamic law in a land where it is upheld (dār al-ʿadl) willingly committing vaginal intercourse with a consenting living woman with whom he does not have a marriage contract, whether valid or so presumed. This definition thus does not include circumstances involving prepubescent children, the insane, necrophilia, rape, anal intercourse (although all these are also unlawful, they do not incur the hadd punishment for zinā, and thus can receive discretionary sentences), or if the action was committed in a land where Islamic law is not upheld (dār al-ḥarb) (al-Kāsānī, Badāʾiʿ al-ṣanāʾiʿ 7:33; al-Jurjānī, al-Taʿrīfāt p. 115).
The Mālikī legal school defines zinā as an act of intercourse performed by a legally responsible individual (mukallaf) with another human being with whom he or she has contracted neither marriage nor (in the case of slaves) ownership. Thus homosexual intercourse, anal intercourse with a woman, intercourse with a cadaver, a young girl, a prostitute, an immediate blood-relative, a fifth wife when one has already married four, and such actions committed where Islamic law is not upheld (dār al-ḥarb) all do incur the ḥadd punishment (al-Gharnāṭī, al-Tāj wal-iklīl 8:387; al-Dasūqī, Ḥāshiya 4:313).
The Shāfiʿī school defines zinā as penile penetration of the vagina or anus of a woman or the anus of a man in a state of natural sexual arousal, where there is no doubt to the unlawfulness of such intercourse. Thus, sexual penetration committed with an animal, cadaver, or under coercion will not necessitate the ḥadd penalty, whereas homosexual intercourse and anal intercourse with an unlawful woman do (al-Haytamī, Tuḥfat al-muḥtāj 9:101; Rāzī, Tafsīr, sub Q 24:2).
The Ḥanbalī school’s definition has the lowest threshold of technical requirement, being simply unlawful penetration, “from the front or the rear, when there is no doubt of its unlawfulness.” It thus includes homosexual intercourse among acts incurring the ḥadd punishment (al-Baʿlī, al-Muṭliʿ 1:453; Ibn Qudāma, Mughnī 9:61). For more details of each of these legal schools’ opinions, see the section on “Repercussions” below.
Hadith texts analogically refer to the means and acts leading to zinā as zinā itself. For instance, one hadith states: “Every son of Ādam’s share of zinā has been decreed, and he is certain to acquire that share. The zinā of the eye is the [unlawful] glance, the zinā of the ear is to listen, the zinā of the tongue is to speak, the zinā of the hand is to hold, and the zinā of the feet is to walk. The heart bears unlawful desires, which the privates either confirm or refute” (Bukhārī, Istiʾdhān, zinā l-jawāriḥ dūn al-farj). The hadith explains that, while some people commit actual (ḥaqīqī) unlawful intercourse, others commit analogical (majāzī) forms. Casting a lustful glance, lending an ear to the act, touching or kissing a woman, walking with intention to commit adultery, or dwelling on it in one’s heart are all analogical forms of zinā itself (Nawawī, Sharḥ Muslim, Qadar, quddira ʿalā ibn Ādam ḥaẓẓuh min al-zinā wa ghayrih, 16:206; Ibn Ḥajar, Fatḥ al-bārī 11:504; Ḥākim, Mustadrak 2:430, hadith classed sound). In this sense the hadith echoes the wisdom of ʿĪsā, peace upon him, as reported in the Gospel of Matthew 5:27-28: “You have heard it was said by them of old, ‘Thou shalt not commit adultery!’ But I say unto you, that whosoever looks upon a woman to lust after her has committed adultery with her already in his heart.” A woman who wears perfume for the sake of enticing other men has also been called an adulteress (zāniya) in a hadith (Ḥākim, Mustadrak 2:430, hadith classed sound and affirmed by al-Dhahabī). Al-Ṭaḥāwī explains that the attractive perfume mentioned was worn with the intention to cause temptation to zinā (Sharḥ mushkil al-āthār 11:478). These hadiths resonate with the Qurʾānic injunction And do not [even] approach zinā (Q 17:32), warning against even its potential.
The Enormity of Zinā
The Prophet, blessings and peace be upon him, was asked which sin was most grave in the sight of Allah. He replied: “That you attribute a partner to Allah, when it is He who created you” (see Polytheism and Polytheists). He was then asked about the next greatest sin. He replied: “To kill your child for fear that he will eat with you (i.e., for fear of poverty).” He was then asked about the next greatest sin. He replied: “To commit adultery with your neighbor’s wife” (Bukhārī, Muḥāribīn, ithm al-zunāt). In the version reported by Aḥmad and al-Nasāʾī, the narrator, ʿAbd Allāh b. Masʿūd, added that the Qurʾān confirms these Prophetic answers (by mentioning zinā in the same vein as murder, thereby underscoring its heinousness) in Q 25:68: And those who do not call upon another god beside Allah, and do not kill a soul that Allah has sanctified except with due right, and do not commit adultery (wa lā yaznūn)—and whoso does that shall meet [its] penalty (Musnad 6:104 §3612; Taḥrīm al-dam, dhikr aʿẓam al-dhunb, 7:90 §4015; also see Ibn Kathīr, Tafsīr). A hadith states that a fornicator does not fornicate in a state of īmān (see Belief) (Bukhārī, Ḥudūd, mā yuḥdharu min al-ḥudūd). Ibn Ḥajar (d. 852/1449) interprets this to mean that one with perfect faith cannot commit such an act, or that the light of faith departs him when he commits it (Fatḥ al-bārī, bāb ithm al-zunāt, 12:115). Imam Aḥmad declared that there is no greater sin after polytheism (shirk) than adultery (Ibn Qayyim al-Jawziyya, al-Jawāb al-kāfī p. 190). Another hadith declares: “By Allah! No one has more intolerance for a breach of the inviolable (ghayra) than Almighty Allah, that His bondman or bondwoman commits adultery” (Bukhārī, Ṣalāt, bāb al-ṣalāt fī kusūf al-shams 2:34).
Zinā is, in all cases, an enormity (kabīra) (see Enormities). However, the degree of its severity may intensify under various circumstances (Ibn al-Jawzī, Dhamm al-hawā p. 204)—for instance, when one or both of the parties are married. ʿAlī, Allah be well-pleased with him, said: “Let me tell you the most deplorable form of zinā (aʿẓam al-zinā) in the sight of Allah: it is to fornicate with a Muslim’s wife. The perpetrator not only acquires the disgraceful title of adulterer, but also corrupts (afsada) the wife of that Muslim” (al-Kharāʾiṭī, Masāwiʾ al-akhlāq p. 219). The gravity of the act also intensifies if the married woman happens to be a neighbor’s wife, as in the above-cited narration of al-Bukhārī (194-256/810-870), given that it destroys the mutual relations between neighbors. Another hadith states that committing adultery with a neighbor’s wife is worse than fornicating with ten women (Aḥmad, Musnad 39:277 §23854, its narrators deemed reliable by al-Haythamī; Ibn Kathīr, Tafsīr, sub Q 4:36; Haythamī, Majmaʿ, Birr, adhā al-jār). If the neighbor is a relative, the sin is even more abhorrent, due to the additional consequence of severed family ties (qaṭīʿat al-raḥm). The gravity also increases if it is committed with the wife of a man away from home for a religious duty such as ṣalāt (see Prayer), seeking religious knowledge, or jihad. A hadith warns that anyone who extends his hand toward the wife of someone away on jihad will be summoned before that warrior on the Day of Judgment, and the warrior will be given the chance to take as many of the adulterer’s good deeds as he chooses. The Prophet, upon him blessings and peace, then asked: “Do you think he will leave any good deed [behind]?” (Muslim, Imāra, ḥurmat nisāʾ al-mujāhidīn wa ithm man khānahum fī-hinn). Based on hadiths prescribing capital punishment for incestuous fornication (i.e., sex with a maḥram; see Blood Relatives), al-Ālūsī (1217-1270/1803-1853) notes that some exegetes hold this form of zinā to be the most perverse of all (Rūḥ, sub Q 17:32; Aḥmad, Musnad 4:392, 1:269; Ḥākim, Mustadrak 4:355; Ibn Kathīr, Tafsīr, sub Q 4:22). Al-Ālūsī writes that zinā committed by a knowledgeable person is more abominable than that by an ignorant one, that by a free man more than that by a slave, and that by an older man of matured reason and discernment more than that by a younger man (Rūḥ, sub Q 17:32). Hadith texts include aged fornicators (shaykh zān) among those whom Allah will neither address, purify, nor glance toward on the Day of Judgment, and declare that theirs shall be a painful punishment (Muslim, Īmān, bayān ghilẓ taḥrīm isbāl al-izār; Qurṭubī, Tafsīr, sub Q 2:174; Ibn Qayyim, al-Jawāb al-kāfī p. 112).
Marrying a Fornicator
Q 24:3 declares: The [male] fornicator (al-zānī) does not marry (lā yankiḥu) any but a fornicator (zāniya) or a polytheist (mushrika), and the [female] fornicator (al-zāniya) does not marry any but a fornicator (zān) or a polytheist (mushrik); and that is forbidden the believers.
Abū Bakr al-Jaṣṣāṣ (d. 370/981) argues, on the basis of numerous exegetical reports and a close contextual analysis, that this verse is a general statement (khabar) of the norm by which fornicators marry and not an empirical ruling—since the opposite, a fornicator marrying a chaste spouse, is observed in many cases. Likewise, he posits, the verse does not indicate the preconditions by which a Muslim fornicator must marry; if that were the case, it would also imply the permissibility of a Muslim adulterer marrying a polytheist, a clearly incorrect conclusion. He suggests that the verse may have been abrogated, as per the position of the Successor Saʿīd b. al-Musayyib (13-94/634-713), who held that the verse was revealed prior to Q 24:32 (and marry off the spouseless among you, and the capable from among your bondmen and bondwomen) and was in effect abrogated by it (see Abrogation), since the general scope of the latter verse included all women (Aḥkām al-Qurʾān, sub Q 24:3, Ibn Sallām, al-Nāsikh wal-mansūkh p. 100). Imam al-Shāfiʿī (150-204/767-820) holds a similar opinion about this verse (Kitāb al-umm 5:158; Ibn Kathīr, Tafsīr, sub Q 24:32). Another interpretation, held by Ibn ʿAbbās, ʿIkrima, Ibrahīm al-Nakhaʿī, and ʿUrwa b. al-Zubayr, holds the term lā yankiḥu in the verse to rather denote its literal meaning (copulation, rather than marriage). By this interpretation, the verse means The fornicator (al-zānī) does not copulate (lā yankiḥu) except with a fornicator (zāniya) or a polytheist… The verse thus emphasizes the vileness of the act (Ibn ʿAṭiyya, Muḥarrar) and underscores that both the man and the woman are equal parties to its sin—and so deserve a similar retribution (Jaṣṣāṣ, Aḥkām al-Qurʾān, sub Q 24:3).
Other reports, such as those from Mujāhid (d. 104/722), indicate that Q 24:3 is specific in scope and alludes to certain men who had expressed an intention to marry polytheist women reputed to be prostitutes (Jaṣṣāṣ, Aḥkām al-Qurʾān 5:109; Ibn ʿAṭiyyā, Muḥarrar; Ṭabarī, Tafsīr). Al-Zamakhsharī (467-538/ca.1074-1143) interprets the verse as referring to the inner tendencies of such people, meaning that a man who has formed a habit of fornication will be disinclined to marry a pious believing woman; because of his own impiety, he would prefer a woman of similar character or even a polytheist. The same insight would hold for unchaste women. Thus, what is prohibited in the final line of the verse (that is forbidden the believers) is for a virtuous believer to declare such preference for fornicators and associate oneself with such open sinners (Zamakhsharī, Kashshāf; Abū Ḥayyān, Baḥr). ʿAbd Allāh b. ʿUmar stated that the verse referred to marrying a prostitute while allowing her to continue her profession in the expectation of gaining material benefit from her earnings (Jaṣṣāṣ, Aḥkām al-Qurʾān, sub Q 24:3).
Certain exegetes—among them Companions such as ʿĀʾisha (d. 58/678) and al-Barāʾ b. ʿĀzib (d. 72/691), Allah be well-pleased with them—interpreted the last section of this verse to mean that it is impermissible for a man and woman who had previously committed adultery to marry one another (Jaṣṣās, Aḥkām al-Qurʾān; Ibn ʿAṭiyya, Muḥarrar). However, al-Māwardī (364-450/974-1058) cites the opinion of al-Ḥasan al-Baṣrī (d. 110/728) that a convicted adulterer could only marry a woman of similar kind; any woman who had not been punished for the act of zinā was not lawfully marriageable by him. He held that the hadith “A punished adulterer may only marry his like” (Abū Dawūd, bāb qawlih taʿālā al-zānī lā yankiḥu) was sufficient to clarify the meaning of this verse (Nukat). This opinion notwithstanding, based on the aforementioned exegetical reports, some of which present a delimitated context, literal interpretation, or possibility of abrogation for the verse, and a general survey of the literature, it can be established that the vast majority of Companions and jurists agreed that a fornicator could marry a woman with whom he had fornicated, as could any other Muslim (Jaṣṣāṣ, Aḥkām al-Qurʾān). The four schools of Sunni law vary in their positions about the specific conditions and requisites of such marriage (see al-Zaylaʿī, Tabyīn al-ḥaqāʾiq 2:113-114; al-Māwardī, al-Ḥāwī al-kabīr 9:191; al-Qarāfī, al-Dhakhīra 4:259; Ibn Qudāma, Mughnī 7:141).
Social Harms of Zinā
The Qurʾān has termed zinā a perversity and an evil path (Q 17:32), which exegetes have variously explicated (Qurṭubī, Tafsīr). Certain scholars argue that it is universally prohibited by every religion, while its definition and conditions vary (al-ʿĪrāqī, Ṭarḥ al-tathrīb 8:21; Ibn Ḥajar, Fatḥ al-bārī, bāb al-zināʾ wa shurb al-khamr, 12:61). Ibn Qayyim al-Jawziyya extends this argument further: commenting on the verse, he first writes that such sexual congress is an innately perverse act of extreme repugnance (tanāhā qubḥuh). He then writes that it yields such a natural distaste that even certain animal species do not tolerate it, citing a report by the hadith narrator and Successor ʿAmr b. Maymūn (d. 74/693), who says that he saw, in his life before Islam, a group of monkeys stoning a female monkey that had mated with a male other than her partner (Bukhārī, Manāqib al-anṣār, al-qasāma fī-l-jāhiliyya; Ibn Qayyim al-Jawziyya, al-Jawāb al-kāfī p. 151). Al-Qushayrī (d. 465/1072) states that zinā overshadows other indecent acts (fawāḥish) because it disregards its prohibition by the Almighty (taḍyīʿ ḥurmat al-Ḥaqq), violates the sanctity of His creation (hatk ḥurmat al-khalq), disrupts children’s lineage, and ruins relationships (Tafsīr). Al-Rāzī (543-606/1148-1209) lists five major social harms of adultery: (i) the confused patrilineal lineage of children born of adultery, and the ensuing precarious situation of the child; (ii) the murderous violence that results, given that when the relationship between a man and woman is not based on a permanent commitment the result is anarchical competition; (iii) the estrangement it naturally produces between marriage-partners, resulting in the loss of the ties of mutual affection that are primary objectives of marriage; (iv) the social degradation that results when adultery is openly permitted, the distinctions between humans and beasts ultimately fading away as men increasingly target women for their physical gratification and women are pressured into succumbing; and (v) the reduction of women to a means by which the sexual urges of men are fulfilled (Tafsīr). Shāh Walī Allāh al-Dihlawī (1114-1176/1702-1763) adds that it is “not only a perversion of human nature for multiple men to contend (muzāḥama) for a single nubile woman (mawṭūʾa) [to sleep with her], but also a strong potential cause (maẓinna) of battles and bloodshed” (Ḥujjat Allāh al-bāligha 2:157).
The Prophetic teachings instruct those tempted to commit zinā to consider the social harm that fulfilling their own desires would yield, even atop the spiritual sin into which they would fall. When a young man sought the Prophet’s permission to commit adultery, he responded by gently asking him if he would welcome someone fornicating with his own mother. The man replied: “No, may Allah sacrifice me for you!” The Prophet, upon him blessings and peace, explained that other people too would react similarly, and repeated his question with respect to the man’s daughter, sister, and aunts. The man replied to each in the negative, and the Prophet reiterated that others would react similarly. The young man then requested the Prophet, upon him blessings and peace, to pray for him, whereupon he supplicated: “O Allah, forgive his sin, cleanse his heart, and make his loins chaste.” Thereafter the man never felt the urge to turn his gaze towards anything unlawful (al-Bayhaqī, Shuʿab al-īmān, al-Sābiʿ wal-thalāthūn: taḥrīm al-furūj).
Jurists unanimously agree that zinā must be legally proven by testimony or confession before its punishment is awarded. Some jurists also considered pregnancy sufficient proof of zinā. The Qurʾān stipulates that a valid testimony to prove zinā (i.e., without a confession) requires four witnesses: And as for those among your women who commit lewdness (yaʾtīna l-fāḥisha), call to witness four of you against them (Q 4:15); why did they not produce four witnesses? (Q 24:13); and those who accuse chaste women and do not bring four witnesses, flog them eighty lashes (Q 24:4) (Jaṣṣāṣ, Aḥkām al-Qurʾān, sub Q 4:16). For such testimony to be valid, moreover, four male eyewitnesses must testify to having witnessed the act of penetration itself (Ibn ʿAbd al-Barr, Bidāyat al-mujtahid 4:222). Al-Qurṭubī wrote that this strict threshold of proof follows that stipulated in the Torah and the Injīl (Evangel) , all to discourage accusations of infidelity (see Calumny) and to conceal the actions of Allah’s slaves and grant them confidentiality (Tafsīr, sub Q 4:15). Anyone who accused a person of zinā without being able to provide these four eyewitnesses would have their testimony discredited henceforth and would receive eighty lashes (cf. Q 24:4-5: And those who accuse chaste women and do not bring four witnesses, flog them eighty lashes and accept no testimony of theirs ever [after]. And those are the reprobate (fāsiqūn), save those who repent thereafter and make amends...; Rāzī, Tafsīr, sub Q 24:6-8).
In the case of a confession, Imams Mālik and al-Shāfiʿī held that a single confession in front of a judge is sufficient for awarding the ḥadd penalty, whereas Abū Ḥanīfa and Aḥmad b. Ḥanbal held that it was necessary to confess four times. The first view is based on the Prophet’s general directive to Unays that the woman who confessed should be stoned, while the latter is based on the confession of Māʿiz, which the Prophet rejected three times only to accept it and order the legal consequence after the fourth confession (see below for both cases). All jurists, however, agree that the ḥadd punishment should be waived if the confessor retracts his or her confession.
Mālikī jurists rule that pregnancy may also be used as proof that a woman has committed zinā, but the ḥadd punishment is not to be implemented if coercion can be established. Abū Ḥanīfa and al-Shāfiʿī maintained that if the woman claimed to have been married or raped, zinā could not be proven and thus that the ḥadd penalty would not be incurred (Ibn ʿAbd al-Barr, Bidāyat al-mujtahid 4:222).
Repercussions Divine Punishments
Islamic texts affirm that committing zinā leads to Divine punishment both in this world (see Life of this World) and in the Hereafter. Worldly punishments befall the fornicator when legal punishments are not administered (Ibn Qayyim, al-Jawāb al-kāfī p. 111), and include widespread and unprecedented diseases. In a hadith classed sound (ṣaḥīḥ) by the hadith master al-Ḥākim (321-405/933-1014), its classification corroborated by al-Dhahabī (673-748/1275-1347), the Prophet, upon him blessings and peace, said: “The town (qarya) where fornication and interest (see Usury) are rampant has brought upon itself the wrath of Allah” (Mustadrak 2:43 §2261). Other hadiths state: “Any people among whom zinā becomes so common that they begin to commit it openly are inflicted with plague and maladies unknown to previous generations” (Ibn Mājah, Fitan, al-ʿuqūbāt); “deaths indeed increase when zinā becomes widespread” (Mālik, Jihād, al-ghulūl); and “the proliferation of zinā is one of the signs of the Day of Judgment” (Bukhārī, ʿIlm, rafʿ al-ʿilm). Ibn Ḥajar quotes the hadith commentator al-Ṭībī (d. 743/1342), who said that zinā is the sin that results in the greatest number of calamities and difficulties (Ibn Ḥajar, Fatḥ al-bārī, bāb al-ṣadaqa fī l-kusūf, 2:531).
The Qurʾān declares that those who pursue their desires [unlawfully] will meet with destruction (ghayy) (Q 19:59) and that those who commit idolatry, murder, and zinā will meet with [their] penalties (athām) (Q 25:68). Al-Ṭabarī states that the words ghayy and athām here refer to the wells, valleys, or torments of Hell (Tafsīr). One part of a lengthy hadith, in which the Prophet described a dream he had seen the previous night (see Dreams and their Interpretation), states: “I then saw a [gigantic] fire-pit (thaqb mithl al-tannūr) with a wide bottom and narrow opening, a fierce fire blazing within it. In this pit were naked men and women. When the flames of the fire leapt upwards, they would toss these people up towards the opening, and when the flames receded the people would be thrown back down.” When he inquired about them, the angels informed him that they were Muslim fornicators (Bukhārī, Janāʾiz, bāb). Another hadith about such a dream-vision states: “I happened upon people whose bodies were bloated and as foul-smelling as a latrine. I asked who they were, and was told that these were fornicators” (Ibn Khuzayma, Ṣaḥīḥ, Ṣiyām, taʿlīq man afṭara qabl waqt al-ifṭār).
The initial punishment for fornication, by scholarly consensus, was as mentioned in Q 4:15-16: And as for those among your women who commit lewdness (yaʾtīna al-fāḥisha), call to witness four of you against them. If they testify [to the truth of the allegation], then confine them to [their] houses until death takes them or Allah makes for them [another] way. As for any two among you who commit it (yaʾtiyānihā), punish them both (ādhūhumā). But if they repent and amend, then let them be. Truly Allah is ever-forgiving, merciful. Married women guilty of adultery were to be detained in their homes, while unmarried women guilty of fornicating would be chastised (īdhāʾ). For men, in both cases, the penalty was chastisement only—variously understood as verbal or corporal. Early scholars agreed that this form of punishment was abrogated by the penalties of lashing and lapidation for fornication and adultery, respectively, as mentioned in Q 24:2 and numerous hadiths, as elaborated below (Jaṣṣāṣ, Aḥkām al-Qurʾān; Ṭabarī, Tafsīr, sub Q 4:15-16). Some later scholars argued that this is not a case of abrogation proper, for there is no irreconcilable difference between the two penalties: the first one limits its own term by the phrase [until] Allah makes for them [another] way (Qurṭubī, Tafsir; Rāzī, Tafsīr). Hence before detailing the final penalties for zinā when they were ordained, the Prophet declared: “Take from me; Allah has indeed made another way from them” (Muslim, Ḥudūd, ḥadd al-zinā).
The ḥadd punishments for zinā debated in the legal tradition are differentiated according to whether the accused is (i) married (muḥṣan), (ii) unmarried, or (iii) a slave. The legal definition of muḥṣan, by juridical consensus, requires that one be sane, mature, free, and party to a consummated and valid marriage. Jurists differ over whether being Muslim is also a condition. Abū Ḥanīfa (d. 150/767) and one of his two foremost students, Muḥammad b. al-Ḥasan al-Shaybānī (d. 189/804), as well as Imam Mālik (93-179/712-795) hold that it is; al-Shāfiʿī, Aḥmad b. Ḥanbal (164-241/780-855) and the other leading student of Abū Ḥanīfa, known as Abū Yūsuf (ca.113-182/731-798), hold that it is not a condition—and thus that non-Muslims living in an Islamic polity are also subject to the legal punishment for zinā (Jaṣṣāṣ, Aḥkām al-Qurʾān, sub Q 5:98; al-Zaylaʿī, Naṣb al-rāya 3:327). The punishment for this category of zinā (namely, adultery), according to juridical consensus (excepting the Khārijīs), is death by lapidation (rajm) (Jaṣṣāṣ, Aḥkām al-Qurʾān, sub Q 24:1). This is based on a verse of Sūrat al-Aḥzāb (Q 33), the recitation of which was abrogated while its injunction was maintained, as agreed by all exegetes (Ibn ʿAṭiyya, Muḥarrar, sub Q 24:2). Al-Samʿānī (d. 489/1095), quoting al-Naqqāsh (266-351/879-962), states that this verse used to be in the recitation of the Companion Ubayy b. Kaʿb (d. 39/659), who was an expert in Qurʾān recitation and a member of the committee appointed by the first of the four Rightly-Guided Caliphs, Abū Bakr (d. 13/634) , to compile the official codex (muṣḥaf) (Tafsīr, sub Q 24:2). ʿUmar b. al-Khaṭṭāb (r. 12-23/634-644), Allah be well-pleased with him, specifically discussed this verse in a sermon, saying:
Allah sent Muḥammad, upon him blessings and peace, with the truth and revealed the Book to him. Among the verses Allah revealed was the Verse of Lapidation (āyat al-rajm). We recited this verse, understood it, and preserved it. The Prophet, upon him blessings and peace, implemented the penalty of lapidation, and we followed this after him. I fear that, with the progression of time, someone will claim that “By Allah, we do not find the Verse of Lapidation in the Book of Allah,” and so people will go astray by discarding an obligation revealed by Allah. In the Book of Allah, lapidation has been imposed upon a man or woman committing adultery while married (in the state of iḥṣān), when sufficient witnesses testify, the woman gives birth, or one [of them] confesses.
Bukhārī, Muḥāribīn, rajm al-ḥublā min al-zinā idhā uḥṣinat
He also said: “Were it not for the apprehension that people would say, ‘ʿUmar has added to the Book of Allah,’ I would have written [in] the Verse of Lapidation by my own hand.” This punishment is also supported by the fully-documented case of the (married) Companion Māʿiz b. Mālik al-Aslamī, Allah be well-pleased with him, who came to the Prophet and said: “O Messenger of Allah, purify me,” whereupon the Prophet said:
“Woe unto you! Go back, ask forgiveness of Allah, and turn to Him in repentance.” [The narrator] said that he (Māʿiz) went back, but not far, then returned, and said: “O Messenger of Allah, purify me.” The Messenger of Allah, upon him blessings and peace, then said: “Woe unto you! Go back and ask forgiveness of Allah and turn to Him in repentance.” [The narrator] said that he went back, but not far, then returned, and said: “O Messenger of Allah, purify me.” The Messenger of Allah, upon him blessings and peace, said: “Woe unto you! Go back and ask forgiveness of Allah and turn to Him in repentance.” When it happened a fourth time, the Messenger of Allah, upon him blessings and peace, said: “From what am I to purify you?” He said: “From adultery.” The Messenger of Allah, upon him blessings and peace, asked if he had become mad. He was informed that he was not. He asked: “Has he drunk wine?” A person stood up and smelt his breath, but noticed no smell of wine. Thereupon the Messenger of Allah, upon him blessings and peace, asked him: “Have you committed adultery?” He said: “Yes.” [The Prophet] then issued the decree about him and he was stoned to death.
People are [divided] in two groups about him (Māʿiz). One of them said, he has been destroyed and his sins have enwrapped him; whereas the other said, there is no repentance more excellent than that of Māʿiz, for he came to the Messenger of Allah, upon him blessings and peace, and, placing his hand in his hand, said: Kill me with stones. This [controversy about Māʿiz] remained for two or three days. Then came the Messenger of Allah, upon him blessings and peace, to them (his Companions) as they were sitting. He greeted them with salutations, and then sat down and said: “Seek forgiveness for Māʿiz b. Mālik.” They said: “May Allah forgive Māʿiz b. Mālik.” Thereupon the Messenger of Allah, upon him blessings and peace, said: “He has made such a repentance that were it divided among a multitude, it would suffice them all.”
[The narrator] said: Then a [married] woman of Ghāmid, a branch of Azd, came to him and said: “O Messenger of Allah, purify me,” whereupon he said: “Woe unto you! Go back and seek forgiveness from Allah and turn to Him in repentance.” She said: “I find you intent on sending me back as you sent back Māʿiz. b. Mālik.” “What has happened to you?” he asked. She replied that she had become pregnant as a result of fornication. He asked, “Is it you [who have done that]?” “Yes,” she said. He told her: “[You will not be punished] until you deliver what is there in your womb.” One of the Anṣār took responsibility for her until she delivered [the child]. [The man of the Anṣār then] came to the Messenger of Allah, upon him blessings and peace, and informed him that the woman of Ghāmid had given birth. He said: “Given that, we shall not stone her [yet], leaving her infant with none to suckle him.” One of the Anṣār got up and said: “O Messenger of Allah, let the responsibility of his suckling be upon me.” She was then stoned to death.
Muslim, Ḥudūd, man iʿtaraf ʿalā nafsih bil-zinā
In the second narration, the hadith ends with the Prophet, upon him blessings and peace, saying: “By Him in Whose Hand is my life, she has made such a repentance that were even an unlawful tax-collector to repent [by it] he would have been forgiven.” He prayed over her before she was buried. In the similar case of a woman from the tribe of Juhayna—who came to the Prophet, confessed, and was stoned—when the Prophet, upon him blessings and peace, prayed over her dead body, ʿUmar b. al-Khaṭṭāb exclaimed: “O Messenger of Allah, you offer prayer for her, whereas she had committed adultery!” to which he said: “She has made such an excellent repentance that were it divided among seventy men of Medina, it would have sufficed. Do you find any repentance better than this: that she sacrificed her life for Allah the Majestic?” (Muslim, Ḥudūd, man iʿtaraf ʿalā nafsih bil-zinā).
In another instance, a Companion requested the Prophet to pass a verdict “according to the Book of Allah” regarding a case of zinā. The Prophet, upon him blessings and peace, after confirming that he would indeed pass a judgment based on the Qurʾān, commanded that the perpetrator be stoned (Bukhārī, Muḥāribīn, al-iʿtirāf bil-zinā). The hadiths affirming the injunction of lapidation are sufficiently numerous to qualify for the status of “mass-transmitted as regards their meaning” (tawātur maʿnawī) (al-Maẓharī, al-Tafsīr, sub Q 24:2). This penalty was also agreed on by the consensus of the Companions of the Prophet (Jaṣṣāṣ, Aḥkām al-Qurʾān, sub Q 24:2). ʿAbd Allāh b. ʿAbbās (3bh-68/619-688), may Allah be well-pleased with him, said that one who denies the punishment of lapidation has unknowingly denied the Qurʾān (Ḥākim, Mustadrak 4:400 §1869, classed ṣaḥīḥ and corroborated by al-Dhahabī).
Aḥmad b. Ḥanbal, Isḥāq b. Rāhawayh (161-238/778-853), and Dāwūd al-Ẓāhirī (255-297/868-909) held that a married adulterer should be given one hundred lashes before being stoned, in accordance with a Prophetic hadith declaring the punishment for a married adulterer to be “one hundred lashes and lapidation” (Muslim, Ḥudūd, ḥadd al-zinā; Rāzī, Tafsīr, sub Q 24:2). The vast majority of scholars however argue that the Prophetic practice was not to combine both punishments: for instance, he did not direct Unays, Allah be pleased with him, a Companion charged with stoning a married woman who had confessed to committing adultery (Bukhārī, Muḥāribīn, al-iʿtirāf bil-zinā) to precede it with lashing, indicating that the ruling for administering both punishments together was annulled (Ibn al-ʿArabī, Aḥkām 1:464).
Scholars agree that the punishment for an unmarried fornicator, man or woman, is one hundred lashes as per Q 24:2 (Qurṭubī, Tafsīr; Ibn ʿAbd al-Barr, Bidāyat al-mujtahid 4:219), but differ over whether they must also be exiled, as one solitary report (khabar al-wāḥid) suggests. The Ḥanafī school, in line with its general approach to such reports, holds that while not an integral part of the determined punishment (ḥadd) it may be imposed at the discretion of the ruler or judge (Jaṣṣāṣ, Aḥkām al-Qurʾān). Imam Mālik held that only the fornicating man should be exiled for a period of one year. Imam al-Shāfiʿī held that both should be exiled for a year, because the Prophet, upon him blessings and peace, ordered that both parties be exiled after receiving one hundred lashes (Muslim, Ḥudūd, ḥadd al-zinā; Rāzī, Tafsīr, sub Q 24:2).
The punishment for a slave found guilty of zinā, whether married or unmarried, male or female, is fifty lashes, half the penalty of a free person, since Q 4:25 states about slave girls that if they commit a perverse act (in atayna bi-fāḥisha), theirs is half the punishment imposed on free women. The ruling for slave men is deduced from the same principle (Ibn ʿAbd al-Barr, Bidāyat al-mujtahid 4:219).
Although zinā is included among the enormities
(kabāʾir), it may be pardoned by Allah following sincere repentance, in
keeping with the general rule regarding such sins. In Q 4:16, 19:60 and 25:70,
mention of zinā is followed by exhortations to repentance. The
possibility of Divine pardon specifically for zinā is also established
by cases that occurred in the Prophetic era, such as that of the Companion
Māʿiz al-Aslamī (see above).
Islamic law does not address zinā solely by the
deterring threat of severe punishment. Indeed, and as noted above, the
requisites for legal proof of zinā are rigorously stringent (Abū Ḥayyān,
Baḥr; Ālūsī, Rūḥ, sub Q 24:13) and leave a decidedly
narrow margin for conviction and awarding the ḥadd penalty (al-ʿUthmānī,
Takmilat Fatḥ al-mulhim 2:261). Instead, the Qurʾān and hadith texts lay
out broad teachings and values incorporating the ideals of modesty, respect,
chastity, and Godwariness (taqwā), which when generally adopted yield
social norms and inculcate sensibilities that turn individuals away from zinā.
Some injunctions are addressed specifically to women, including those to
observe a modest and unrevealing dress code (Ibn Kathīr, Tafsīr, sub
Q 24:31, 60 and 33:59; Jaṣṣāṣ, Aḥkām al-Qurʾān, sub Q 33:33), lower
their gaze (Q 24:31), encouragement to remain in their homes but for
genuine need (Ibn Kathīr, Tafsīr; Ibn ʿAṭiyya, Muḥarrar, sub
Q 33:33), conceal their beauty and adornments from unrelated men, and avoid
speaking to men in an enticing tone (Q 33:32). Men are separately instructed to
guard their gaze from the unlawful (Q 24:30) and maintain a respectful distance
from unrelated women (Ibn Kathīr, Tafsīr, sub Q 33:53).
Marriage is encouraged and deemed the appropriate venue
for expressing one’s natural physical desires, attaining protection from sin,
and gaining emotional fulfillment (Q 4:24; 5:5; 30:21; Bukhārī, Nikāḥ,
al-targhīb fī-l-nikāḥ; Tirmidhī, Faḍāʾil al-jihād, al-mujāhid wal-nākiḥ
wal-mukātab; Ālūsī, Rūḥ; Ibn Kathīr, Tafsīr; Jaṣṣāṣ, Aḥkām
al-Qurʾān, sub Q 24:32). Men are encouraged to get married as soon
as they are in a position to do so (Q 24:32-33; Bukhārī, Nikāḥ, man lam yastaṭiʿ
al-bāʾa), and are permitted to marry up to four wives—provided, crucially, that
they treat them with due fairness (Ibn Kathīr, Tafsīr, sub Q 4:3,
129; Jaṣṣāṣ, Aḥkām al-Qurʾān; cf. al-ʿUthmānī, Takmilat Fatḥ
al-mulhim 2:261). Parents are encouraged not to delay the marriage of their
mature daughters when an appropriate suitor is found (al-Bayhaqī, Shuʿab
al-īmān, Ḥuqūq al-awlād; Tirmidhī, Nikāḥ, idhā jāʾakum man tarḍawna
dīnah wa khuluqah); Islamic teachings also provide a minimal framework for
contracting a marriage, removing the burden of all expenses except the bride’s
dowry (Q 4:4, 20) and maintenance (Q 65:6-7). Formalities such as the presence
of a judge, a formal ceremony (Bukhārī, Nikāḥ, al-khuṭba; Ibn Ḥajar, Fatḥ
al-bārī 9:202) and burdensome gifts are not requisites.
Both the social norms of modesty and the facilitation of
marriage can be seen in part as efforts to preempt committing zinā. The
severe punishments for zinā are ordained, one modern scholar concludes,
to mitigate the social harm of those who utterly disdain these Islamic norms of
modesty and legitimate sexual expression. They fall on those who flagrantly
copulate outside the bounds of marriage in plain view of four witnesses, to
keep such behavior from spreading among the community and tearing it apart (see
section above on “Social Harms of Zinā”) (al-ʿUthmānī, Takmilat Fatḥ
Commenting on Verily the retribution for those who wage war against Allah and His Prophet, and endeavor to spread corruption on earth… (Q 5:33), al-Qurṭubī states that the coercion and terror involved make rape the most perverse form of aggression (afḥash al-muḥāraba). It is one of the crimes alluded to in the verse by the general term corruption, he writes, and thus incurs the severe repercussions noted in the verse: in this world, execution, crucifixion, the cutting off of opposite hands and feet, or exile; in the next life, an awful doom (Tafsīr). Further arguments establishing the unlawfulness of rape are drawn from Q 24:33, where the ruling regarding coerced slave-girls is interpreted to have general import. Sunni legal schools agree that a woman forced to have unlawful intercourse does not incur the ḥadd punishment, as established by Prophetic practice and that of ʿUmar b. al-Khaṭṭāb, Allah be well-pleased with him. If a man is forced, the Shāfiʿī school holds that the ḥadd penalty is not incurred by him, while the Ḥanbalī school holds that it is. Both opinions are documented in Mālikī texts. Abū Ḥanīfa held that the ḥadd punishment should be applied unless it was a ruler who forced the male victim, while his foremost students and authorities in the Ḥanafī school, Abū Yūsuf and Muḥammad, held that the ḥadd should not be applied to him whatever the conditions of his coercion (Ibn Qudāma, Mughnī 9:59; al-Sarakhsī, al-Mabsūṭ 9:59; Qurṭubī, Tafsīr, sub Q 24:34; al-Ramlī, Nihāyat al-muḥtāj 7:425).
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