Praise be to Allah,
An-Nur, verse: 2 Allah says:
ٱلزَّانِيَةُ وَٱلزَّانِى فَٱجْلِدُوا۟ كُلَّ وَٰحِدٍ مِّنْهُمَا مِا۟ئَةَ جَلْدَةٍ وَلَا تَأْخُذْكُم بِهِمَا رَأْفَةٌ فِى دِينِ ٱللَّهِ إِن كُنتُمْ تُؤْمِنُونَ بِٱللَّهِ وَٱلْيَوْمِ ٱلْءَاخِرِ وَلْيَشْهَدْ عَذَابَهُمَا طَآئِفَةٌ مِّنَ ٱلْمُؤْمِنِينَ
The [unmarried] woman or [unmarried] man found guilty of sexual intercourse lash each one of them with a hundred lashes,2 and do not be taken by pity for them in the religion [i.e., law] of Allah, if you should believe in Allah and the Last Day. And let a group of believers witness their punishment[i].
Punishment in the Hereafter for Zina
Islam has always viewed unlawful sexual intercourse as an abominable act and thus legislated many laws to prevent such crimes.
In the lengthy hadith of Samurah ibn Jundub concerning the vision of the Prophet (PBUH), the Prophet (PBUH) said, ” We proceeded until we came to a baking oven. — Samurah said, ‘I think the Prophet (PBUH) said that there were noises and voices therein.’ — We looked into and found naked men and women, and then there was a flame of tire reaching them from underneath. When the flame reached them, they cried out loud. I said, ‘Who are they?’… (Later the Prophet recounted that he was told,) ‘As for those naked men and women you saw in a building like an oven, they were male and female fornicators[ii].
ٱلزَّانِيَةُ وَٱلزَّانِى
The Zaniyah and the Zani
The term, zinā, includes both fornication and adultery. In Islam, every kind of unlawful sexual intercourse is Zina, whether the partners are married or not married. However, when it comes to the punishment, a Zaani could be a virgin or non-virgin(with proper Nikaah).
The Categories of Zina
The distinction between a virgin and a non-virgin is clearly defined in the following hadith narrated by Abu Huraira and Zaid bin Khalid Al-Juhani:
A Bedouin came and said, “O Allah’s Messenger (ﷺ)! Judge between us according to Allah’s Laws.” His opponent got up and said, “He is right. Judge between us according to Allah’s Laws.” The Bedouin said, “My son was a laborer working for this man, and he committed illegal sexual intercourse with his wife. The people told me that my son should be stoned to death; so, in lieu of that, I paid a ransom of one hundred sheep and a slave girl to save my son. Then I asked the learned scholars who said, “Your son has to be lashed one-hundred lashes and has to be exiled for one year.” The Prophet (ﷺ) said, “No doubt I will judge between you according to Allah’s Laws. The slave-girl and the sheep are to go back to you, and your son will get a hundred lashes and one year exile.” He then addressed somebody, “O Unais! go to the wife of this (man) and stone her to death” So, Unais went and stoned her to death[iii].
The process of proving the crime
The conditions to prove the crime of Zina are confession or witnesses or pregnancy resulting from the crime. If there is any doubt, then the punishment will be exempted[iv].
Establishing the crime Via Witnesses
Allah says,
And those who accuse chaste women, and produce not four witnesses, flog them with eighty stripes, and reject their testimony forever, they indeed are the evildoers” [ Quran Translation chapter 24:4]
Example of four witnesses testifying
Abū Dāwūd reports from Jābir ibn ‘Abdullāh: ‘The Jews brought a man and woman of theirs who had committed fornication. The Prophet (PBUH) said, “Fetch me the most knowledgeable two men among you.” They brought him the sons of Ṣūriyā and he asked, “What do you find in the Torah about the business of these two?” They said, “We find in the Torah that if four testify that they saw his penis in her vagina like a stick in a kohl bottle, then they are stoned.” He asked, “What keeps you from stoning them?” They replied, “Our authority has gone and we dislike killing.” So, the Messenger of Allah summoned the witnesses, and they came and testified that they saw his penis in her vagina like a stick in a kohl bottle, and the Messenger of Allah (PBUH) commanded that they be stoned.’[v]
If three bear witness and the fourth refuses, then the three are to be given the punishment for slander, according to the above qur’anic verse.
Establishing the crime via confession
Sulayman ibn Buraydah narrated from his father who said. “A woman from the Tribe of Ghamid of the Azd came to the Prophet (PBUH) and said, ‘O’ Messenger of Allah, purify me!’ He said, ‘Woe to you. Go and seek Allah’s forgiveness and repent to Him. She said, ‘Perhaps you are going to try to turn me back as you did with Ma’iz ibn Malik.’ He said, ‘What has happened to you?’ She said, “1 am pregnant from Zina.’ He said, ‘Was it you?’ She said, ‘Yes.’ He then told her, ‘(You will not be punished) until you deliver what is in your womb.’ One of the Ansar was responsible for her until she delivered. He later came to the Prophet (PBUH) and said, ‘The woman from the Ghamdi tribe has delivered (her baby).’ The Prophet (PBUH) then said, ‘Thus, we shall not stone her and leave her child small with no one to suckle him. One of the Ansar got up and said, ‘The responsibility for its suckling shall be upon me, 0 ‘ Prophet of Allah.’ So then he had her stoned.”[vi]
If the person withdraws their confession, they are to be let free. This is based on:
…. While he was being stoned, he could not bear the pain of the stones and fled. ‘Abdullah ibn Unays came across him when those who were throwing the stones and could not catch him threw a camel’s foreleg at him. This struck him and killed him. They then went to the Prophet (PBUH) and informed him about that. In response, he stated, ‘Why didn’t you leave him? Perhaps he would have repented, and Allah would have turned to him with forgiveness.'”[vii]
An interesting point is that the Quranic commands are addressed towards men in most instances, and women are included in that. However, in this verse, Allah not only mentions women first but also separately. The scholars give two reasons for this.
“First, the women are regarded weaker sex and compassion able for their physique; if they were not mentioned specifically, one could have had the misgiving that perhaps the women are exempt from this punishment. The mention of a woman is preceded because the act of adultery is so impudent that its commitment from her side could be carried out only by extreme fearlessness and carelessness. After all, nature has bestowed in her character instinctive shyness and an urge to guard her chastity. Hence commitment of fornication from her side is graver than from man.”[viii]
فَٱجۡلِدُواْ كُلَّ وَٲحِدٍ۬ مِّنۡہُمَا مِاْئَةَ جَلۡدَةٍ۬ۖ
flog each of them with a hundred stripes
At the beginning of Islam, the punishment for unlawful sexual intercourse was confinement at their homes until they repent.
Allah says,
“As for those of your women who are guilty of grossly immoral conduct, call upon four from among you to bear witness against them. If they so testify, then confine the guilty women to their houses until death takes them or God opens another way for them.”[ Quran Translation 4: 15]
The Ayah of the verse of An-Noor abrogated this and legislated a strict punishment for this crime[ix].
وَلَا تَأۡخُذۡكُم بِہِمَا رَأۡفَةٌ۬ فِى دِينِ ٱللَّهِ إِن كُنتُمۡ تُؤۡمِنُونَ بِٱللَّهِ وَٱلۡيَوۡمِ ٱلۡأَخِرِۖ
Let not pity withhold you in their case, in a punishment prescribed by Allah, if you believe in Allah and the Last Day.
It is natural to feel pity when carrying out the punishment. What is prohibited is the kind of pity that prevents from carrying out the punishment. Imam Ibn Katheer (May Allah have mercy on him) mentions the hadith of the prophet (PBUH) in this context,
“Compromise with the matter of prescribed punishment mutually sorting it out among yourselves, for once a matter where the prescribed punishment is required reaches me, I am obliged to carry it out.”[x]
In addition, the Angels curse those who try to prevent the rulings of Allah from being implemented.
It was narrated from Ibn ‘Abbas, who attributed it to the Prophet (ﷺ):
“Whoever kills out of folly or for tribal motives, using a rock, a whip, or a stick; he must pay the blood money for killing by mistake. Whoever kills deliberately, is to be killed in retaliation. Whoever tries to prevent that, upon him is the curse of Allah, the angels, and all the people, and no change nor equitable exchange will be accepted from him.”[xi]
وَلۡيَشۡہَدۡ عَذَابَہُمَا طَآٮِٕفَةٌ۬ مِّنَ ٱلۡمُؤۡمِنِينَ
And let a party of the believers witness their punishment.
The punishment should be carried out in public with several believers present so that those who see it take a warning. This will put fear in the hearts of the offenders and act as a deterrent for the criminals[xii].
O Allah send peace and blessings upon the Messenger of Allah, have mercy upon the companions and the righteous Muslims.
Refrences:
[i] [i] Saheeh international
[ii] Reference: Sahih al-Bukhari 7047
[iii] Sahih al-Bukhari 2695
[iv] The Concise Presentation of the FIQH Of the Sunnah and the Noble Book. Author: Dr. Abdul-Azeem Badawi. English Edition 2 (2007). Translator: Jamaal al-Din M. Zarabozo. Page 585
[v] Grade: Sahih (Al-Albani) : Sunan Abi Dawud 4452
[vi] Grade: Sahih (Al-Albani) Reference: Sunan Abi Dawud 4442
[vii] Reference: Sunan Abi Dawud 4419 Saheeh (Albani)
[viii] MA’ARIFUL- QUR’AN BY MAUlANA MUFTI MUHAMMAD SHAFI
Translated By Muhammad Ishrat Husain Revised By Maulana Muhammad Taqi ‘Usmani. Vol 6 Page 346
[ix] The Evolution of Fiqh (Islamic Law & The Madh-habs)
By Abu Ameenah Bilal Philips INTERNATIONAL ISLAMIC PUBLISHING HOUSE. Page 33
[x] Tafseer Ibn Kathir (Abridged) Vol- 7 Darussalam, Chapter Surah Al-Kahf, Page 21
[xi] Grade: Sahih (Darussalam) Sunan Ibn Majah 2635
[xii] In the shade of the Quran, Sayed Qutub Vol 12 page 207