The Penal Law of Islam (Part 2/2)
3. Fornication
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 idolateress 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’an regarding the punishment of fornication is mentioned in Surah Nisa. No definite punishment is mentioned there; it is only said that 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 tortured until they repent and mend their ways. This torture 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 :15-6)
And upon those of your women who commit fornication, call in four people among yourselves to testify over them16; 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, punish them. If they repent and mend their ways, leave them alone. For God is Ever-Forgiving and Most Merciful. (4:15-6)
This was the punishment of fornication in the Shari‘ah before 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 Once this was revealed, it repealed the previous directive permanently.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 H~adith 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.17
ii) The criminal should not be beaten bare-bodied or while tied to a tripod.18
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.19
iv) A pregnant woman should be flogged only after she has given birth and the period of puerperal discharge has passed.20
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: ‘لاتاخذكم بهما رافة فى دين الله’ (la ta’khuzkum bihima ra’fatun fi dinillah: 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:
No lenience should be shown in the implementation of this punishment; softness should be shown to neither a woman nor a man, to neither rich nor 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.21
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 (مسلم: رقم 1688)
By God! If Fatimah the daughter of Muhammad had committed this theft, I would definitely have cut off her hand. (Muslim: No. 1688)
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 ‘لا ينكح’ (la yankih: he should not marry) denote prohibition of such marriages, and to explain this very aspect, the Almighty says: ‘و حرم ذالك على المؤمنين’ (wa hurrima dhalika ‘ala’l-mu’minin: 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 principles dictate; ie the words ‘الزانى لا ينكح’ (al-zani la yankih: the male fornicator should not marry) and ‘الزانية لا ينكحها’ (al-zaniyah la yankihuha: the female fornicator should not marry) of the second verse refer to ‘الزانىوالزانية’ ( al-zaniyah wa al-zani: 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’an says:
وَمَنْ يُكْرِهُّنَّ فَإِنَّ اللَّهَ مِنْ بَعْدِ إِكْرَاهِهِنَّ غَفُورٌ رَحِيمٌ (33:24)
But 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)
And then when they are kept chaste and they commit fornication, their punishment is half that of free women. (4:25)
5. The law of accusing someone of fornication, as explained below also indicates that the Almighty does not like that a criminal confess to his crime himself or that those who are aware of his crime report this matter to the authorities. The Prophet (sws) has said:
مَنْ أَصَابَ مِنْ هَذِهِ الْقَاذُورَاتِ شَيْئًا فَلْيَسْتَتِرْ بِسِتْرِ اللَّهِ فَإِنَّهُ مَنْ يُبْدِي لَنَا صَفْحَتَهُ نُقِمْ عَلَيْهِ كِتَابَ اللَّهِ (مؤطا: رقم1562)
He among you who gets involved in such filth, should hide behind the veil stretched out for him by Allah, but if he unfolds the veil, we shall implement the law of Allah upon him. (Mu’atta: No. 1562)
Similarly, he once told a person:
لَوْ سَتَرْتَهُ بِرِدَائِكَ لَكَانَ خَيْرًا لَكَ (مؤطا : رقم1553)
If you had hidden the crime of this [person], it would have been better for you. (Mu’atta: No. 1553)
4.Qadhf
وَالَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ ثُمَّ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِدُوهُمْ ثَمَانِينَ جَلْدَةً وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا وَأُوْلَئِكَ هُمْ الْفَاسِقُونَ إِلَّا الَّذِينَ تَابُوا مِنْ بَعْدِ ذَلِكَ وَأَصْلَحُوا فَإِنَّ اللَّهَ غَفُورٌ رَحِيمٌ وَالَّذِينَ يَرْمُونَ أَزْوَاجَهُمْ وَلَمْ يَكُنْ لَهُمْ شُهَدَاءُ إِلَّا أَنفُسُهُمْ فَشَهَادَةُ أَحَدِهِمْ أَرْبَعُ شَهَادَاتٍ بِاللَّهِ إِنَّهُ لَمِنْ الصَّادِقِينَ وَالْخَامِسَةُ أَنَّ لَعْنَةَ اللَّهِ عَلَيْهِ إِنْ كَانَ مِنْ الْكَاذِبِينَ وَيَدْرَأُ عَنْهَا الْعَذَابَ أَنْ تَشْهَدَ أَرْبَعَ شَهَادَاتٍ بِاللَّهِ إِنَّهُ لَمِنْ الْكَاذِبِينَ وَالْخَامِسَةَ أَنَّ غَضَبَ اللَّهِ عَلَيْهَا إِنْ كَانَ مِنْ الصَّادِقِينَ (24 :4-9)
Those who accuse honourable women and bring not four witnesses as an evidence [for their accusation], inflict eighty stripes upon them, and never accept their testimony in future. They indeed are transgressors. But those who repent and mend their ways, Allah is Ever-Forgiving and Most-Merciful. And those who accuse their wives but have no witnesses except themselves shall swear four times by Allah that they are telling the truth and the fifth time that the curse of Allah be on them if they are lying. But this shall avert the punishment from the wife if she swears four times by Allah and says that this person is a liar and the fifth time she says that the curse of Allah be on her if he is telling the truth. (24:4-9)
This is the directive for Qadhf, ie accusing someone of fornication. Although in these verses only the accusation of women is mentioned, yet in the Arabic language this style which can be termed as ‘على سبيل التغليب’ (‘ala sabil al-taghlib:addressing the dominant element) is adopted because normally in a society only women become targets of such allegations, and the society is also sensitive about them. Consequently, there is no doubt that on the ground of ‘similarity of basis’ this directive pertains to both men and women and cannot be restricted to women only.
In the above quoted verses, two forms of Qadhf are stated:
Firstly, if a person accuses a chaste and righteous woman or man of fornication.
Secondly, if such an accusation takes place between a husband and wife.
In the first case, the law of Islam is that the accuser shall have to produce four witnesses. Anything less than this will not prove his accusation. Mere circumstantial evidence or mere medical examination in this case are absolutely of no importance. If a person is of lewd and loose character, such things have a very important role, but if he has a morally sound reputation, Islam wants that even if he has faltered, his crime should be concealed and he should not be disgraced in the society. Consequently, in this case, it wants four eye-witnesses for the testimony to initiate the hearing, and if the accuser fails to produce them, it regards him as guilty of Qadhf.
According to the Qur’an, the details of the punishment of Qadhf are:
1. The criminal shall be administered eighty stripes.
2. His testimony shall never be accepted in future in any matter, and as such he shall stand defamed in the society.
Administering eighty stripes and not considering a person eligible to bear witness are punishments of the Herein, while in the Hereafter he shall be counted among the transgressors except if he repents and mends his ways.
In the second case, ie if such an instance takes place between a husband and wife, then according to the Qur’an, if there are no witnesses, the matter shall be decided by pledging oaths. In Islamic law, this case is termed as ‘لعان’ (Li‘an). The husband shall swear four times by Allah that he is truthful in his accusation and the fifth time he shall swear that the curse of Allah be on him if he is lying. In reply, if the wife does not defend herself in anyway, she shall be punished for fornication22. If she refutes the allegations, she shall only be acquitted from the punishment if she swears four times by Allah that the person is lying and the fifth time she says that the wrath of Allah be on her if he is telling the truth.
The same procedure shall be adopted if the wife accuses the husband.
If such an incident takes place between a husband and wife, they shall no longer remain in wedlock according to the verse ‘The man guilty of fornication may only marry a woman similarly guilty or an idolateress and the woman guilty of fornication may only marry such a man or an idolater. The believers are forbidden such marriages’ (24:3), and it is essential that a court legally separate them.
5. Theft
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِنْ اللَّهِ وَاللَّهُ عَزِيزٌ حَكِيمٌ فَمَنْ تَابَ مِنْ بَعْدِ ظُلْمِهِ وَأَصْلَحَ فَإِنَّ اللَّهَ يَتُوبُ عَلَيْهِ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ (5 :38-9)
As to the thief, male or female, cut off their hands as a reward of their own deeds, and as an exemplary punishment from God. For God is Mighty and Wise. But whoever repents and mends his ways after committing this crime shall be pardoned by Allah. Allah is Forgiving and Merciful. (5:38-9)
The law which has been stated in the above mentioned verses is based on the following clauses:
1. The punishment of amputating the hands is prescribed for a thief, both male (Sariq) or female (Sariqah). According to linguistic principles, the words Sariq and Sariqah are adjectives and denote thoroughness and completeness in the characteristics of the verb they qualify. Consequently, they can only be used for the type of Sarqah which can be called a theft and the one who commits it is called a thief. In other words, if a child steals a few rupees from his father’s pocket, or a wife pinches some money from her husband, or if a person steals something very ordinary, or plucks some fruit from his neighbour’s orchard, or carries away something valuable which has been left unprotected, or drives away an unattended grazing animal, or commits this ignoble offence owing to some need or compulsion, then, no doubt all these are unworthy acts and should be punished, but, certainly, they cannot be classified as acts of theft which the above given verse qualifies. Consequently, the Prophet (sws) is reported to have said:
لَا قَطْعَ فِي ثَمَرٍ مُعَلَّقٍ وَلَا فِي حَرِيسَةِ جَبَلٍ فَإِذَا آوَاهُ الْمُرَاحُ أَوْ الْجَرِينُ فَالْقَطْعُ فِيمَا يَبْلُغُ ثَمَنَ الْمِجَنِّ (مؤطا: رقم1573)
If a fruit is hanging from a tree or a goat is grazing on a mountain side and someone steals them, then hands should not be amputated for this. But if the fruit is stacked in a field and the goat is in a pen fold, then hands should be amputated on the condition that the goat is at least the price of a shield. (Mu’atta: No. 1573)
This shows that the amputation of hands is the utmost punishment and should only be administered when the criminal does not deserve any lenience as far as the nature and circumstances of his crime are concerned.
2. This punishment, according to the Qur’an, should be exemplary in nature. Furthermore, the words of the verse entail the severing of the right hand, which is actually the instrument of the crime. Although the words ‘جزاء بما كسب’ (jaza an bima kasaba: as a reward of their deeds) make a subtle indication to this, the profound intellect of the Prophet (sws) inferred this result and made it a permanent principle; according to it, always the right hand shall be amputated and the word ‘hand’ on account of definite linguistic denotation means that part of the arm which is below the wrist.
3. The objective of this punishment is stated in the words ‘جزاء بما كسب نكالا من الله’ (jaza an bima kasaba nakalan minallah: as a reward of their deeds and as an exemplary punishment). Imam Amin Ahsan Islahi explains this in the following way:
[In this verse], two reasons are stated for the amputation of hands: firstly, it is the punishment of the crime, and secondly, the punishment has to be given in an exemplary way which is a means of a severe warning to others. The Qur’an uses the word ‘نكال’(nakal) for such a punishment. Since both these reasons are stated adjacently without any conjunction between them, they must be regarded as essentials in carrying out the punishment ie, a means of retribution of the crime and as a means of a severe warning for the society. Those who do not simultaneously take into consideration both these aspects often end up thinking that the punishment is severer than the crime itself. The actual fact is that this punishment is not only the retribution of the criminal act, but it is also a means to putting an end to many such crimes which may be triggered as a result if the criminals are not totally discouraged by treating them harshly. Like the craving for sex, the lust for wealth is also intense in a person. If this lust is allowed to thrive and prosper, the consequences which arise may well be observed in our own society by any keen eye. If a list of crimes committed in the most civilized of countries in one year only because of theft is prepared, it will be enough to open the eyes. The faint hearts of these civilized societies are deeply moved if hands are amputated because of theft, yet the horrendous crimes which result directly or indirectly through theft fail to rouse any feelings of concern in them. Theft is not a simple crime: it is a source of many crimes. If this crime is eliminated, these crimes shall automatically be taken care of. Consequently, it is a matter of experience that the amputation of hands on account of theft has not only reduced instances of this crimes, but has also gone a long way in reducing other crimes as well. If by amputating a few hands, the life, wealth and honour of thousands of people are safeguarded, then this is not a bad deal at all; in fact, it is a very lucrative one. Regrettably the intelligentsia of this modern age fail to appreciate this.23
4. This is merely a punishment in this world. As far as the Hereafter is concerned, a person can only attain salvation if he repents and mends his ways. Repentance and the punishment of this world are not mutually exchangeable. Consequently, this punishment shall be administered even if a person repents and reforms himself, and after receiving this punishment in this world, he shall only be forgiven in the Hereafter if he repents and reforms himself.