الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِنْهُمَا مِائَةَ جَلْدَةٍ وَلَا تَأْخُذْكُمْ بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ إِنْ كُنتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِنْ الْمُؤْمِنِينَ الزَّانِيلَا يَنكِحُ إلَّا زَانِيَةً أَوْ مُشْرِكَةً وَالزَّانِيَةُ لَا يَنكِحُهَا إِلَّا زَانٍ أَوْ مُشْرِكٌ وَحُرِّمَ ذَلِكَ عَلَى الْمُؤْمِنِينَ (24 :2-3)

The man and the woman guilty of fornication, flog each of them with a hundred stripes and let not compassion move you in their case in the enforcement of the law of God, if you truly believe in Allah and the Last Day. And let a party of the believers witness their punishment. The man guilty of fornication may only marry a woman similarly guilty or an idolatress and the woman guilty of fornication may only marry such a man or an idolater. The believers are forbidden such marriages. (24:2-3)

 

The initial directive of the Qur’anregarding the punishment of fornication[1] is mentioned in Surah Nisa’. No definite punishment is mentioned there; it is only said that until some directive is revealed about women who as prostitutes habitually commit fornication, they should be confined to their homes, and the common perpetrators of this crime should be chastised until they repent and mend their ways. This chastisement may range from exhorting and reprimanding, scolding and censuring, humiliating and disgracing the criminal to beating him up for the purpose of reforming him.

 

وَاللَّاتِي يَأْتِينَ الْفَاحِشَةَ مِنْ نِسَائِكُمْ فَاسْتَشْهِدُوا عَلَيْهِنَّ أَرْبَعَةً مِنْكُمْ فَإِنْ شَهِدُوا فَأَمْسِكُوهُنَّ فِي الْبُيُوتِ حَتَّى يَتَوَفَّاهُنَّ الْمَوْتُ أَوْ يَجْعَلَ اللَّهُ لَهُنَّ سَبِيلًا وَاللَّذَانِ يَأْتِيَانِهَا مِنْكُمْ فَآذُوهُمَا فَإِنْ تَابَا وَأَصْلَحَا فَأَعْرِضُوا عَنْهُمَا إِنَّ اللَّهَ كَانَ تَوَّابًا رَحِيمًا (4 :15-16)

And upon those of your women who commit fornication, call in four people among yourselves to testify over them; if they testify [to their ill-ways], confine them to their homes till death overtakes them or God formulates another way for them. And the man and woman among you who commit fornication, chastise them. If they repent and mend their ways, leave them alone. For God is Ever-Forgiving and Most Merciful. (4:15-16)

 

This was the punishment of fornication in the shari‘ahbefore a definite directive was revealed in Surah Nur. Once this was revealed, it repealed the previous directive permanently.

The directives mentioned in these verses can be explained thus:

1. The man or woman who have committed fornication, both shall receive a hundred stripes. According to the methodology adopted by the Prophet (sws) and the Rightly Guided Caliphs and according to case precedents reported in our books of Hadith and fiqh in this regard:

i) Whether a cane is used to flog a criminal or a lash, in both cases it should neither be very thick and hard nor very thin and soft.[2]

ii) The criminal should not be beaten bare-bodied or while tied to a tripod.[3]

iii) The criminal should not be flogged in a manner that wounds him nor should he be flogged on one part of the body: the flogging should be made to spread all over the body except for his face and private parts.[4]

iv) A pregnant woman should be flogged only after she has given birth and the period of puerperal discharge has passed.[5]

2. The criminal should be given this punishment publicly to humiliate him in front of the people, and to make him a lesson for those present. The verse directs the government or the court of justice to not show any lenience in this regard. This harsh treatment given to the criminal is necessary because the stability of a society relies on the sanctity of the relationships in a family and on their protection from every type of disorder. Fornication, a little deliberation shows, makes a society unstable and turns it into a herd of animals. It, therefore, deprives a society of its well-being and prosperity. Hence, such criminals should be dealt with without showing them any compassion. The words used by the Qur’an are: وَلَا تَأْخُذْكُمْ بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ (and let not compassion move you in their case in the enforcement of the law of God).

Writes Imam Amin Ahsan Islahi in his celebrated commentary of the Qur’an:

 

… ie. no lenience should be shown in the implementation of this punishment; softness should be shown to neither a woman nor a man, to neither the rich nor the poor. The limits set by Allah should be observed without granting any alleviation or showing partiality, for this is a requirement of belief in Allah and in the Hereafter. The faith in Allah and in the Hereafter of those who show weakness in this regard cannot be trusted. A noteworthy point in the statement of this punishment is that the woman is mentioned before the man. One reason for this is that without a woman’s consent fornication cannot take place; secondly, there is a strong possibility that being the weaker sex, feelings of compassion may arise for her; the Qur’an, therefore, has mentioned her before the man so that it becomes evident from the style of the verse that in the Almighty’s eyes no lenience should be shown to either the woman or the man.[6]

 

It is with these sentiments of impartiality in the observance of the limits of Allah that the Prophet (sws) is reported to have said:

 

وَايْمُ اللَّهِ لَوْ أَنَّ فَاطِمَةَ بِنْتَ مُحَمَّدٍ سَرَقَتْ لَقَطَعْتُ يَدَهَا

By God! If Fatimah the daughter of Muhammad had committed this theft, I would definitely have cut off her hand.[7]

 

3. After this punishment has been carried out, no chaste man or woman should marry men and women who commit fornication. According to the Qur’an, such people can only marry among their own sort or among the idolaters. It does not allow the marriage of a pious woman with a man guilty of committing fornication nor does it permit a pious man to bring home such a woman in his house. Consequently, every such marriage is not considered legal in Islam. The words لَا يَنْكِحْ (he should not marry) denote prohibition of such marriages, and to explain this very aspect, the Almighty says: وَ حُرِّمَ ذَالِكَ عَلَى المُؤْمِنِيْن (the believers are forbidden such marriages).

However, as stated earlier, this directive pertains only to the fornicators (both male and female) who have become liable to punishment once their crime has been proven. This is what grammatical rules dictate; ie. the words الزَّانِى لَا يَنْكِح (the male fornicator should not marry) and الزَّانِيَة لَا يَنْكِحُهَا (the female fornicator should not be married) of the third verse refer to الزَّانى وَالزَّانِيَةُ (the female fornicator and the male fornicator) mentioned in the previous one.

4. While stating this punishment, adjectives are used to qualify the men and women who commit fornication. This is similar to the statement in which the punishment for theft is mentioned. It is evident therefore that this punishment is the utmost punishment, which should be given only when the crime has been committed in its ultimate form and the criminal does not deserve any lenience as far as the circumstances of the crime are concerned. Consequently, criminals who are foolish, insane, have been compelled by circumstances, are without the necessary protection required to abstain from committing a crime, or cannot bear the punishment are all exempt from this punishment.

About those women whom their masters force to take to prostitution, the Qur’ansays:

 

وَمَنْ يُكْرِهُهُّنَّ فَإِنَّ اللَّهَ مِنْ بَعْدِ إِكْرَاهِهِنَّ غَفُورٌ رَحِيمٌ (33:24)

And if anyone compels them, Allah will be Forgiving and Merciful to them after their being compelled to it. (24:33)

 

Similarly, about the slave women who were present in the Prophet’s times, it says that they also cannot be administered this punishment because of improper upbringing and education and because of lack of family protection – so much so that if their husbands and masters have done all they can to keep them chaste and in spite of this they commit the crime, they shall be given only half this punishment ie. fifty stripes instead of hundred. The Qur’an says:

 

فَإِذَا أُحْصِنَّ فَإِنْ أَتَيْنَ بِفَاحِشَةٍ فَعَلَيْهِنَّ نِصْفُ مَا عَلَى الْمُحْصَنَاتِ مِنْ الْعَذَابِ (25:4)

Then when they are kept chaste [in this manner] and they commit fornication, their punishment is half that of free women. (4:25)

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[1]. Here it may be noted that the term “fornication” has been used to connote the crime regardless of the fact that its perpetrators are married or not. (Translator)

[2]. Al-Jassas,Ahkam al-Qur’an, vol. 3, 262-263; Abu Bakr Muhammad ibn ‘Abdullah ibn al-‘Arabi, Ahkam al-Qur’an, 3rd ed., vol. 3 (Beirut: Dar al-ma‘arifah, 1972), 1327.

[3]. Al-Jassas, Ahkam al-Qur’an, vol. 3, 261-262.

[4]. Al-Jassas,Ahkam al-Qur’an, vol. 3, 260; Ibn al-‘Arabi,Ahkam al-Qur’an, vol. 3, 1327; Abu Da’ud, Sunan, vol. 4, 166, (no. 4493); Ahmad ibn Hanbal, Musnad, vol. 2, 483, (no. 7279).

[5]. Ibn al-‘Arabi,Ahkam al-Qur’an, vol. 1, 406.

[6]. Amin Ahsan Islahi,Tadabbur-i Qur’an, vol. 5, 362.

[7]. Al-Bukhari, Al-Jami‘ al-sahih, 728, (no. 4304).