There are some very important matters in Islamic law regarding the capacity of a woman. It is generally believed that Islam makes a distinction between the evidence of a man and woman. It is assumed that the evidence of two women equal a man’ s and her evidence is not acceptable in the matters of ‘Hudood’ which include murder, robbery, theft and adultery. The argument advanced in its favour is that the Holy Quran has declared that the evidence of two women is equal to one man. The Holy Quran says:

Call in two male witness from among you, but if two men cannot be found. Then one man and two woman whom you judge fit to act as witnesses; so that if either of them forget, the other will remember’’ (Al –Baqara-2.282 (a portion)

     It indicates that a woman’s witness is, in fact half to that of a man in any matter. A narrative from the Bukhari; Kitab-ul-Hais supports this argument as well which declares woman with defective intellect and faulty approach towards religion. It is argued by some circles that due to her defective intellect, her evidence is not at all admissible. We disagree to the above argument.

 

1.     So far as this fact is concerned that man and woman are alike in according to Islam. The following Quranic verse are the strong and clear arguments in its favour:

‘’ For Muslim men and woman, for believing men and women; for devout men and women, for men and women who are patient; for men and women who humble themselves, for men and women who give charity; for men and women who fast; for men and women who guard their chastity; and for men and women who remember Allah much- for them all has God prepared forgiveness and a great reward’’. (Al-hzab-33.35)

 

              The Quran further says:

‘I will deny no man or woman among you the reward of their labours. You are the offspring of one another’’ Al-Imran-3:195)

              It further says:

‘’The true believers, both men and woman are friends to each other. They enjoin what is just and forbid what is evil; they attend to their prayers and pay the alm-tax and obey Allah and His Apostle. On these Allah will have mercy. He is ‘’Mighty, Wise,’’ (Al-Tawba-9:71)

          A careful reading of Islamic law regarding testimony in a court reveals that it is avsolutely gender blind and discrimination free. In dirrerent contexts, Quran has instructed its followers eight times about the law of evidence which are as follows:

          1        Surah Al-Baqarah (2; 282)           2        Surah Al-Nisa (4:6)

          3        Surah Al-Nisa (4:15)                   4        Surah Al-Maida (5:106)

          5        Surah Al-Maida (5:107)               6        Surah Al-Nur (24:4)

          7        Surah Al-Nur (24:6)                    8        Surah Al-Talaq (Talaq) (56:2)

          With the exception of Surah Al-Baqarah (2:282), no Quranic verse differentiates between the evidence rendered by a man or a woman. Interestingly enough, the particulare situation that upholds differentiation between the two sexes carries little significance as compared to other ones, which give equal weight to the evidence, whether given by a male or a female. Therefore, it would be quite pertinent to explore why the Quran has upheld the distinction between a man and a woman in this particular matter. The verse (282) of Surah Al-Baqarah primarily deals with the issue of transaction of money in the form of loan or debt in day-to-day life. Islam in such matters recommended its followers to keeping an account of the transactions made. For that, the right to dictate the terms lies with the lender, whereas the one whose services are solicited to pen it down is under divine obligation to do so. The Quran ordains that two reliable and close male friends be made witnesses over the deal. However, if only one man is available at such occasions, two women alongside him be also made witnesses to the agreement, with the objective that if one forgets, the other could remind her about the deal.

          For a good appreciation of the verse discussing a highly important  issue, one has to keep in view the particular context in which it has revealed. Firstly, the very first addressees of this verse belonged to a society where very few men knew how to read and write, let alone talk about women’s education. In addition to this, neither any official arrangement for business documentation nor any concept of stamp papers or professional scribes was known to the people. Given this, the literate people have been asked in the verse not to refuse if and when they are asked to write some document. With this in the mind, the Quran gives a privilege to uneducated womanfolk by allowing them to have another woman alongside her, so that if she forget about the details, the other could remind her.

          Secondly, the court has nowhere been addressed in the verse. In that case it should have started with the words like: “Oh you who believe if a debt case is brought before you.” Instead it guides the faithful about a social problem, which could be avoided if they follow a prescribed set of instructions. Otherwise it is needless to mention that in monetary cases, courts are expected and well advised to investigate a matter in a broader context, scrutinize all relevant documents, listen to the statements of the witnesses and analyze the circumstantial evidence to make the final judgment.

          One can maintain that the particular instructions given in the verse pertain to the documentary evidence alone and have got nothing to do with first hand and circumstantial evidence. Let it be explained in another way. Suppose a crime is committed at place where neither a man nor a woman is present but a video camera or surveillance equipment is there to record the events. In another situation, no other proof except circumstantial evidence such as fingerprints or blood stain ect, is available. The judgment of the court in such situations shall be guided by the available circumstantial evidence alone. Thus, precisely speaking, one can hold that this verse has nothing to do with the crimimal cases and the evidence required in them.

          Those who favor the woman’s half evidence in jucicial cased often refer to a Hadith narrated in Sahih Bukhari, Chapter Menstruation, reading as: women asked, “Oh Messenger of Allah, how do we lack in faith and wisdom? The Prophet (Peace be upon him) said “Don’t you have half evidence as against men? The women said yes. Then the Prophet (Peace be upon him) said: this is how they lack in wisdom. Then he inquired “Are you not exempted from prayer and fasting during menstruation? The women answered in affirmative. The Prophet (Peace be upon him) said this is how they lack in faith”. It might be mentioned here that the authenticity of a Prophetic tradition is to be adjudged in the context of other similar traditions besides exposing it to human reason and logic. The incident mentioned above is also stated in Musnid Ahmad Bin Hanbal through reliable narrators. According to that the dialogue took place not between the Prophet (PBUH) and a group of common women but between him and the wife of Abdulah Bin Masud. Strangely enough, Sunan Darmi also makes a mention of the text quoted above but calls it the saying of not any one else but Abdulah Bin Masud. This contradiction shows that it is not safe to claim that these words are the exact reproduction of what the Prophet (PBUH) said.

          When put to the scrutiny of reason and logic (commonly termed as ‘dariat’), it becomes further evident that such words are wrongly attributed to the Prophet (PBUH). To bring the point home, one has to refer to the theory of ‘cause and effect’. For instance, it sounds correct when one says that ‘X is an unintelligent fellow, therefore, he failed’. However, it shall be simply wrong if someone says ‘X got failed so he is an unintelligent fellow, since there be multiple reasons, besides being unintelligent, behind his failure.

          Seen in the backdrop of this example, the above-mentioned tradition fails to satisfy logic. In fact it gives precedence to cause over consequences whereas the logic dictates the quite other way round. It should have sounded logical if it were stated that women be given the right of half evidence against men as they were handicapped intellectually. Despite being logical, the argument in the final analysis does not come to measure for it is based on a mere assumption, not supported by any solid evidence to prove that women are less worthy than men in matters of knowledge and memory.

          Secondly, abandoning of prayers and fasting during menstrual cycle is given as yet another justification to regard a woman as ‘half in faith’. Weird and mistaken it must sound to any sane person on two grounds; first, it puts the cause on the backburner and becomes consequence oriented. Second, it is sharply at variance with the basic spirit of Islam besides being illogical and unfounded.

          The basic teachings of Islam with regard to fundamental beliefs, virtues and rewards are not gender specific. Instead they hold both men and women equally accountable for their deeds to God. Matters of prosecution and persecution are doubtlessly no exception to this principal therefore; one would be grossly mistaken to presume that women are intellectually handicapped on account of the exemption given to them from offering prayers and fasting during the menstrual period.

          Because of menstruation, a woman normally stays away from prayers and fasting for seven days each month. Calculated mathematically, it becomes almost one fourth, not half of the month, when she is spared from these two supreme obligations. If this be so, how come her faith be regarded as half than her male counterpart? Secondly, during menopausal period, she does perform all religious rituals in an identical fashion to men. This again proves the falsity of the claim that she is half in her faith than man.

          Thirdly, refraining from fasting and prayers during menstruation does not belittle the status of a woman in the sight of God, for her act is driven not by free personal will but by the commandment of her Creator. Therefore, she would be received not as someone with a lower degree of piety but as a true follower of Islam who would be rewarded duly against that in the world hereafter. Moreover, it should also be not forgotten that she is obligated to keep her missing fasting at the earliest when she is pure and clean. Resultantly, she happens to fast as many time as a man does, dismantling the very rationale of being taken as half in faith as compared to man.

          This said, one could maintain safely that the above-mentioned tradition fails to satisfy logic and common sense and needs be discarded in the light of ‘darait’.

          There is yet another dimension to this issue. Certain authentic traditions prove it beyond any doubt that a death penalty in the era of Prophet (PBHH) was enforced on the evidence of a single woman. For instance, an incident narrated in Sahih Bukhari tells us that a man was awarded had penalty by the Prophet (PBUH) for killing a woman who in her testimony at the eleventh hour of her life pointed him out as her murderer. In the same vein, one can also refer to the historical fact that the martyrdom of Hazrat Usman was witnessed by none but his wife Naila and the very campaign spearheaded by Hazrat Ayesha and other senior companions of the Prophet (PBHU) to avenge his blood was based on her evidence alone.

          The protagonists of no woman evidence in criminal cases at times offer arguments, which defy common sense and logic. For instance, they argue that if, given the frailty and intellectual shortcoming, a woman’s evidence is taken as half of that of a man is monetary cases, how come that be equated with that of man in a highly serious and crucial issue of a crime? In order to give credence to their viewpoint, they claim that a consensus existed among the jurists of past in the said matter. They often, in this regard, quote Ibn-e-Shahab Zehri saying: “since the era of Prophet (Peace be upon him) and the subsequent caliphs like Abu Bakar and Umar, the woman’s evidence in the matters of Hudood and Qisas has never been accepted. This tradition has never undergone any change”. (Nasb-ur-raia, Zeelai, volume 4, pp 79, chapter Evidence).

          This is absolutely wrong because, as stated above, Prophet (PBUH) himself once enforced death punishment on the sole testimony of a woman. Historically speaking, no incidence taking place either in the era of Abu Bakar or Umar vindicate, or otherwise, the claim that a woman can be a witness in criminal cases. Therefore, claiming any consensus on this issue is itself erroneous. Otherwise the very testimony rendered by Naila in the murder of caliph Usman would not have been granted. Furthermore, it is a well-established fact that at least two jurists namely Atta and Hamad favored women’s evidence in case of Hudood and Qisa.

          Having said that, one can safely maintain that declaring women’s evidence in Hudood and Qisas cases invalid is neither Quranic nor Prophetic. Common sense and logic also point to the same fact. Therefore, one cannot take it for granted.

           

The above discussion tells us that in the matters generally not dealt with by women in a society, Islam grants them relaxation in the context of documentary evidence that a woman can seek the assistance of another woman in the court of law. Other than this specific situation there is no distinction between the evidence of a man and a woman.

 

The law for slander in Islam

          Islam is very particular about the dignity of woman. The Quran declares it a great sin to calumniate an innocent woman. If someone does so, he is bound to present four-eye witness in support of his claim. A man, whose claim is proved to be false, is sentenced eighty lashes and is not allowed to present himself as evidence in any matter in future.

 

The Quran says:

          ‘’Those who defame honorable but unaware believing women shall be cursed in this world and in the next. Theirs shall be a woeful punishment on the day when their own tongues, hands and feet will testify to what they did (Al-Noor-24:23.24)

 

It further says:

          ‘’ Those that defame honorable women and cannot produce four witnesses shall be given eighty lashes. And do not accept their testimony ever after, for they are great transgressors’’ (Al-Noor-24:4).

The question arises why Islam has demanded four eye witnesses in order to prove calumny against a woman. It is so because it is better to conceal any such slip on the part of a man and a woman and not to make it public. It should rather be kept extra judicial affair so that the guilty couple remains careful in future. It is good for the society on the whole.

 

          Punishment against adultery in Islam

 

  • It is clear that Islam declares adultery as a major crime. There are some queries regarding the punishment of this crime.
  • What is the punishment against simple adultery and how can this crime be proved?
  • Can some criminals of adultery be relaxed under specific circumstances?
  • Is it obligation of an individual to report it to state if he witnesses the crime himself?
  • What is the punishment for married adulterers?
  • What is the penalty against the crimes of gang rape, rape and prostitution? How can these crimes be proved?
  • How would the case be proved if there is no other witness other than the affected woman who falls a victim to rape or gang rape?
  • Would the woman be declared guilty of false accusation if she fails to prove her claim?
  • If a woman gets pregnant and she sues someone for the rape but fails to prove the case, would she be tried on the crime of adultery?
  • If a case of adultery is dismissed by the court of law, would the court declare the appellants incapable of presenting themselves as evidence ever in future, using its special powers or the affectee will have to file a new petition for that

 

Now we shall discuss the above questions one by one:

The answer to the first question is that God issued these orders in Al-Noor and declared its instructions as quite clear in the start of the Surah. The Quran says:

‘’ This is a surah (chapter) which we have revealed and sanctioned, proclaiming in it clear revelations, so that you may take head’’. (Al-Noor-24-1)

         

Next has been declared the punishment for adultery.

The Quran says:

 

          ‘’The adulterer and the adulteress shall each be given a hundred lashes. Let no pity for them detain you from obedience to Allah, if you truly believe in Allah and the last Day, and let their punishment be witnessed by a number of believers. The adulterer may marry only an adulteress or and idolatress; and the adulteress may marry only an adulterer or an idolater. True believers are forbidden such (marriages).’’(Al Noor-24:2-3)

 

So far as proving of this crime is concerned, such an allegation can be raised against two types of people. First against a normal persons. in the society. The Quran instructs that such people should not be accused unless there are four eyewitnesses to support the charge. Second, whose professions, living styles and other circumstances indicate strongly that they are prostitutes. The charge against such people can be proved through all generally known and logically just methods like prospect, circumstances, medical examination, Post –mortem, finger prints, witnesses and all such evidences which can be a source for proving a case in the court of law. The Prophet says:

 

‘’It is the responsibility of the plaintiff to present the argument and the one who denies the charge will swear’’ (Tirmizi: kitab-ul-Ahkam)

 

Second question iswhether some guilty of adultery can be relaxed under specific circumstances.

 

The Quran uses the words of ‘adulterer’ and adulteress. This is why it is the extreme punishment of this crime and can be imposed on the individuals who happen to commit it in the last extreme and does not deserve any relaxation due to their circumstances. Therefore some people are exempted from this punishment. They include the insane, simpletons, constrained, non Muslims and the forced ones (who are deprived of offering resistance). They must be punished but less than the extreme punishment.

The Quran says about the women who were forced to become prostitutes by their masters:

 

“If any one compels such women for prostitution then surely after such compulsion, Allah will be Forgiving, Merciful’’ (Al-Noor-24-33)

Similarly, there was the matter of girl slaves during the period of the Holy Prophet. These women had been without the defence of their family at their back through their childhood and youth time and had passed through extremely immoral circumstances.

The Quran says that even if their parents, husbands or masters manage to keep them chast yet they happen to commit such crime, they should be granted half punishment simply because their moral foundation is weak. It says:

“And if they are kept chaste yet they commit adultery, they shall suffer half the penalty inflicted upon free adulteresses’’ (Al-=Nisa-4:25)

 

Under the present circumstances when there are all temptations to arouse sensuality, people have faulty moral education and innumerable people lack necessary family and social protection, the state should make laws in this regard and the court of law should also take this aspect into account. 

 

Third question is whether it is obligatory upon an individual to report to the state if he witnesses this crime.

 

The answer is that Islam dislikes it. The Quran declared the law for slander for the same reason. The Prophet, explaining this point said to a person:

‘’If you had covered that man’s crime, it would have been better for you ‘’ (Al-Mauta: Kitab-ul-Hudood)

 

It is also proper for the guilty noy to expose it and seek redemption of his sin from God. The Prophet says:

‘’Anyone among you who gets indulged in such a filthy crime should keep himself concealed under the covering granted by God. If he will expose himself, we shall impose the law of Allah upon him’’ (Al-Mauta Kitab-ul-Hudood)

 

Next question is about the punishment to a married adulterer or adulteress.

     It is the opinion of some circles that every such person should be stoned to death.The important question to be asked in this context is what is the basis of stoning to death penalty to a married man / woman involved in adultery? As a matter of fact, a good number of arguments for or against this issue are available in the literature. Given below is a brief description of some of them:

 

Those who favor the stoning to death as Had maintain that:

 

  • The penalty stated in Surah Al-Nur (24: 2) is meant for an unmarried man and woman involved in fornication, while the punishment for a married man and woman involved in this crime is death by stoning. To vindicate their point, they refer to the prophetic tradition stated by Ubadah bin Samit in Sahih Muslim reading as: Prophet (PBUH) once said: take from me, take from me. Allah ordained for them some (other) way. If who involved in this crime are unmarried, flog them with hundred stripes and if married, stone them until they are dead (Sahih Muslim, 1690).
  • Another saying reported in Sahih Bukhari is as follow: “Child is for whom on whose bed he is born and for adulterer are but stones’ (Chapter, Al-Maharbeen).
  • According to Sahih Muslim, Hadrat Umar narrated: “Allah sent to you the Prophet (PBUH) with truth (Haq) and revealed on him the book. In that book was one verse about stoning to death. We read it, we preserved it and comprehended it. (According to mauta Imam Malik the verse was “old adulterer man and woman, stone them to death. This is indeed a grevious punishment from Allah”. Although the recitation of the verse was prohibited, the commandment remains still valid). Thus the Messenger of Allah punished the culprit with stoning to death and we following him, did the same. Behold! Stoning to death is a penalty mandatory on every man and woman who after marriage and indulges in adultery”.
  • In Sunan Nisai it is narrated: ‘’the Prophet (PBUH) said, the blood of a Muslim is permissible only in three conditions. One, the married man and woman involved in adultery should be stoned to death, second, whosoever kills a man knowingly, be killed in return of the murder. And third, a man who recants Islam after embracing it and fights against Allah and His prophet, be killed or crucified or exiled from the land’’.
  • Almost all Books of Hadith narrate the incident of Maiz Aslami who was stoned to death following the confession of this crime.
  • Some Books of Hadith also talk about a woman named as Ghamdiya who was stoned to death after her confession.
  • Similarly, one laborer is reported to be involved in an extra marital relationship with the wife of his lord. After being persecuted with Lashes, he was later exiled while the woman was stoned to death.
  • According to Mussamag Abdul Razzaq, an adulteress woman was penalized by stoning in the era of Caliph Umar.
  • The Caliph Usman persecuted a woman by stoning who gave birth to an illegitimate child just after six month of her marriage.
  • Another similar tradition tells us that the same punishment was enforced upon an adulteress woman by the Caliph Ali.

 

The other group has criticized the above eight arguments and rejected on the following grounds:

 

  • In the very first verse of Surah Al-Nur, Allah says that this Surah has been revealed and ordained upon Muslims as it carries God’s Commandments in a clear and vivid manner. Then, in the second verse the penalty for adultery is mentioned and it makes no distinction between married and unmarried culprits Instead it talks in the general sense and makes no distinction between married and unmarried culprits. They further argue that what refrained Allah from prescribing two different kinds of penalties for both types if He so wished? He neither lacked words nor wanted to put its servants in undue trial by stating one thing verbally in the Scripture and suggesting another in practice. It is simply impossible. So, there is one and the same penalty with regard to fornication and adultery.
  • The penalty of stoning to death can be effectively used against all those who are or might be involved in ‘waging war against Allah and His Messenger and spread mischief and tumult in the land’, as stated in Al-Maida, 5:33-34. so, if a person is found guilty of any such crime as rape, prostitution, kidnapping, abduction and so forth he can be awarded a punishment ranging from painful death to exile. Stoning to death is just one way of persecution, which is obviously shuddering. Each Islamic State is free to penalize the culprit in any of the prescribed ways and perform legislation in this regard keeping in view the peculiar circumstances.
  • The very Hadith narrated by; Ubada bin Sabit further clarifies and explains what has been stated in Al-Nisa (4:15) about the institution of prostitution. At that time, there were a few women professionally involved in the business of flesh and the verse instructs about such women as follows:’’ if any of your women are guilty of lewdness, take the evidence of four (reliable) witness from amongst you against them, and if they testify, confine them to houses until death do claim them or Allah ordain for them some (other) way’’.

 

Thus, according to the Quranic decree, these women were detained in their homes. Following the reveling of Surah Al-Maida, 5, the prophet (PBUH) introduced legislation in the light of the verse vis-à-vis ‘spreading mischief and tumult in the land’ (fasad-fil-arz). According to it, the unmarried prostitutes were to be given the penalty of whipping and exile whereas the married ones were whipped and stoned to death. This is why we find almost the same verse stated in Al-Nisa, 4 also and the words as narrated by Ubada bin Sabit ‘Allah ordained for them some (other) way’. The legislation done by the prophet (PBUH) was based upon and derived from the verse of Surah Al-Maida, 5. the Islamic State, even in contemporary times, can perform such legislation if it is confronted with the challenge of prostitution and whoring..

 

  • The literal interpretation of the tradition narratied in Sahih Bukhari “ child is for whom on whose bed he is born and for adulterer are but stones’’, says that every adulterer or adultress should be stoned until death but this is not the right interpretation. In fact it is an Arabic proverb meaning that an adulterer or adultress is destined to be empty handed or has no the claim on child born.
  • The words attributed to Caliph Umar in Sahih Muslim and Mauta Imam Malik (‘old adulterer man’) is absolutely devastating and repugnant to the very teaching of Islam. If taken for granted, they are capable of shaking the whole monument of Islamic faith and beliefs. This tradition tells us that there are certain verses in the Quran, which have been either abrogated or omitted from the Scripture, yet they stand valid as a Divine Law. If it is so, the question is why after all they were abrogated or omitted from the Quran? This is but blasphemous to believe this way for the Quran is a clear unambiguous guidance from Allah Almighty and is beyond all doubts, distortions and deletions.

 

Secondly, the word used in the verse (‘old adulterer man and old adultress woman’) are also ambiguous, contradictory and controversial. It uses the word, “old man and old woman” for the culprit but they might be married or unmarried. Then how is it right to interpret it in favor of the stoning to death penalty for married men and women? The words and phrases used in this alleged Quranic verse are unbecoming of the great and glorious Quran and cannot be believed in.

 

  • The tradition stated in Sunan Nisi is not only incomplete but also self-contradictory. There are several other crimes in which the killing of a muslim man is permissible, for example to kill a robber in self defence, to kill a rapist in saving one’s chastity, to kill those who are involved any way in rebellion, drug trafficking, addiction, terrorism and like evils. In case of such kind, the state is sanctioned to legislate and grant even the death penalty to any of the culprit. A recent example of this is Saudi Arabian Law where death sentence is granted as a penalty for drug trafficking. Another noteworthy detail is that all the above four traditions are diparate and contradict each other. For example, in the words of Ubada bin Sabit only a married involved in adultery should be stoned to death or whipped. Whereas, according to Sahih Bukhari, whoever fornicates should be stoned to death. In the tradition of Hadrat Umar, the old adulterer and old adulteress, either married or unmarried should be killed by stoning. The tradition maintains the penalty of stoning to death but forgive the trial of whipping. What concerns a genuine person is the question whether a man or woman can be stoned until death, in the presence of such multiple and contradictory traditions? Can the penalty of stoning to death be imposed and promulgated in the presence of so many dissenting and disparate traditions?
  • There is no doubt that Maiz Aslmi was stoned to death in Prophet’s age. However, the incident has been narrated in different books with various contradictions and conclusions. One narrator describe him as simple and innocent fellow, who committed the sin, felt guilty by the prick of his conscience and confessed before the Prophet (PBUH). However, in another narration, he is described to be involved in such activity earlier also. The Prophet (PBUH) had prior information of his crime and he confessed it with the hope of being forgiven. Another source tells us that his case was the case of rape and not adultery, as the Prophet (PBUH) called for the affected woman too but did not persecute her as her involvement was not willful (Tabqaat Ibne Saad, Volume-IV, Page-321). On the same day, the messenger of Allah gave a sermon during ‘Asr’ prayer and without naming the fellow unveiled his conduct and character. Sahih Muslim states it as follows, “Did it not happen that whenever we came out of our home in Allah’s way, one among us remained there who was overwhelmed and restless by his lust. O believers! I am but obliged to award such fellow a grievous penalty whenever he is brought to me” (Sahih Muslim, chapter Al-Hadood). The above words prove that it was an offense of rape and the Prophet (PBUH) punished him accordingly.

 

Secondly, we have no clear and definite detail when did this incident take place. It is possible that it happened before revelation of Surra Al-Noor, 24. if it is true, then it seems safer to conclude that the Prophet (PBUH) might have punished him by following the Mosaic Law, as it was his common practice to do so before a clear Quranic commandment had been sent to him. Moreover, the Holy Book itself states that the Quranic injunctions are much lighter and benign than the Mosaic Law. A married man or woman are asked to be killed by stoning Torah but the Quran afterwards lightened the punishment in Sura Al-Noor (24:2), where the penalty for an adulterer is stated.

 

Thirdly, it might also be asked that did Maiz have any opportunity to escape from or evade the punishment? The answer we find in his last words as recorded in history, “take me to the Prophet (PBUH). My tribesmen ruined me. They deceived and lied to me. They kept on telling me that the Prophet would not kill me”. Afterwards when the prophet (PBUH) was informed about it, he said: why didn’t you spare him why didn’t you let him go, why didn’t you bring him before me”. (Abu Daud, Al-Hodood).

Tabqat Ibn-I-Saad adds to it “Why didn’t you leave him. May be he sought repentance and Allah granted him what he prayed for’.

 

This again confirms that in case of ‘spereading mischief and tumult in the land’ (fasad-fil-urz), the Islamic State is sanctioned to grant forgiveness to the culprit, whereas in other Had cases, the state has no authority to do so. The above details make it definite to think that it was a case of rape and the Prophet (Peace be upon him) granted him punishment in this offense.

 

  • The incident of Ghamdiya is also narrated in various books. However, it is punctuated with a number of contradiction and confusions that remain unresolved even today. One tradition narrates that she had been stoned to death immediately after the delivery of the child, whereas the other states that punishmeny took place when the child reached his weaning age. One narration says that during this time (of pregnancy and lactation), she stayed with an Ansari Companion Whereas according to other one, she had been given patronage of her guardian. Was she a harlot or a whore who vowed to refrain from Zina after embracing Islam? Did she involve in sin after her avowed claim of refraining from it in the future and then had to confess because of her pregnancy? Or was she a gentlewoman who committed the crime by a timely temptation? These and such questions have not been answers in any book. Was her husband alive at the time when she got punished? Where was he and his whole family during this time? Where were her tribesmen at the time of her funeral and burial? Such important yet minute details are missing in her account and give way to countless doubts and Confusions about the issue? Most of all, in any of these narrations, she has not been declared as a married woman, so they become quite unvalid and inauthentic to justify the penalty of stoning to death for a married culprit.
  • With regard to the case of the laborer and his alleged illicit relations with his lord’s wife, it seems as if it was a case of prostitution. When it became open, the lord made a deal (with the father of the laborer) by taking 100 goats and one concubine. Now is it fair to imagine or subscribe to the idea that a brave and gentle Arab lord would make a bargain over his own wife’s chastity? It can be asserted that the man and his whole family were involved in such clandestine activities by first trapping men and then making a deal over it. But it was all by chance that they met a fellow who wanted to take back his goats and concubine. The man did know that if reported, his son would be less punished whereas the woman would meet her ultimate end. Thus every thing got revealed in this conflict and the prophet (PBUH) punished the woman against her crime of working as a prostitute.

 

In any way, what we gather from this narrative is vague, unclear, and dubious. It does not contain satisfying answers to some vital questions, thus it can not be used and referred as a legal precedent for any other case. For example when did the incident take place? How did the crime get revealed? How was the culprit caught and who was the witness? Did the wife herself tell the husband that she was successful in her decision and could he ask for a material compensation from the laborers father by making a deal?

 

Therefore, from a legal perspective all the three incidents mentioned above are simply invalid, confusing, and contradictory. Therefore, neither can they be used as a precedent or argument for the resolution of other such cases, nor the method and mechanism to deciding the things in this incidents matched in any way to the sagacious and glorious Prophetic traditions.

 

  • The incident reported to have taken place in the era of four Caliphs are also fraught with contradictions and controversies. For example, according to Mauta Imam Malik, the woman who gave birth a child six months after her marriage was brought to Caliph Usman, whom ordered to kill her by stoning. Now, it is very obvious that the accused woman was involved in illicit sex prior to her marriage. Therefore, punishment meted out to her can not be used as a valid argument in favor of the penalty of stoning to death for a married fellow.