Penalty for committing adultery and fornication.

Q. While browsing on the internet I came across an article about how people are stoned to death for committing adultery and fornication. It was by a Muslim human rights lawyer from the USA. Basically, he was stating that in the Quran, Allah refers to those who commit zina, the punishment is by lashes. I know that zina refers to both adultery and fornication.

He goes on further to suggest that the penalty of death is a primitive law and he is trying to gather support (internationally), to eradicate this practice.

Can you give reasons why there is the death penalty (by stoning) for those who commit adultery? Even if there is the death penalty can it be by any other means?

What are the conditions that must be fulfilled before the death penalty is pronounced? Are you aware of any countries that carry out this ruling but it may not be carried out in the correct manner?

A. The act of Zina (fornication or adultery) is a very heinous one and hence, the punishment has been given as a harsh one.

The ill effects and consequences of Zina are so immense in their destruction of the human values that no other crime can perhaps compete with it.

Molestation of someone’s wife, daughter or sister is nothing but his destruction. For a noble man it is not as bad to lose all his material wealth and belongings as to lose the chastity of his women folk. It is for this reason that often we come across such incidents that people whose women folk are molested get after the life of the molester without caring for their own lives.

Zina (fornication and adultery) seizes from man, the honour, dignity and respect which he has been given and degrades him to the level of animals. It loots from a person his chastity and modesty and opens the door to many evils, for certainly when a person loses his shame and modesty he is prone to commit many evils. Lies, deceit, immorality and indecency and the eventual wreckage of the family unit are the outcome of Zina.

Zina, being a big crime in itself, also brings along with it many other crimes, the result of which is destruction of the entire social order. It is for this reason that in order to eliminate completely this heinous crime, its Islamic punishment has been made very severe and harsh.

With respect to Zina, the laws concerning it were revealed gradually and moved from a lighter punishment to a more severe one. The very first injunction on Zina (adultery) was given in Sura Nisa verses 15 and 16 which states:

‘And those of your women who commit the shameful act, then have four witnesses against them from among you. So, if they do testify, then confine those women to their homes until death overcomes them or Allah prescribes a way for them’.

‘And those two of you who commit it, punish them both. But if they repent and amend, turn away from them. Surely, Allah is Most-Relenting, Very Merciful’.

In these verses, the proof for establishing Zina is described with a specific condition of having four male witnesses. Secondly, punishment for the woman is prescribed as to confine her within the home and for both of them, the inflicting of punishment. At the same time it was also indicated that this was not the final injunction on Zina and that some more directives will follow, as the Quran itself said, ‘Or Allah prescribes a way for them’.

In the above mentioned punishment, confinement of the women within the homes was regarded sufficient at that time, and causing harm to both as enough punishment. But the limit and the form of harm to be inflicted was not defined.

Later on, on a subsequent occasion the verses of Sura An-Nur were revealed in which the punishment for Zina was again highlighted. This time it was fixed. The verse was, ‘The woman who commits Zina and the man who commits Zina, flog each of them with one hundred stripes (lashes)’ (Sura Nur verse 2)

When the above verse was revealed the great companion, Abdullah bin Abbas (R.A) said, ‘This is what was promised by Allah in the verse of Sura Nisa where it was stated, ‘or Allah prescribes a way for them’.

What he meant is that Allah has now issued a fixed punishment for one who commits Zina. However, seeing that the word ‘Zina’ referred both to the act of ‘fornication’ and ‘adultery’, it was not very clear from the verse itself as to what this punishment was issued for. Howbeit, authentic traditions make it abundantly clear that the punishment of inflicting one hundred lashes was fixed for the act of fornication, while a more severe punishment was given for adultery. This is highlighted in Saheeh Al Bukhari in which it states that Abdullah bin Abbas (R.A) said, ‘It is prescribed that if the married man and woman commit this crime then they be stoned to death, and the punishment for the unmarried one is a hundred stripes. (Saheeh Bukhari)

The Prophet Muhammad (S.A) had acted upon this rule in the presence of many companions. He issued the punishment of stoning (to death) to Ma’iz and Ghamidiyyah who were married adults. This is recorded in all the books of Ahadith in an authentic and sound manner.

It is also narrated by Abu Hurairah (R.A) and Zaid bin Khalid Juhani (R.A) that an unmarried young man committed Zina with a married woman. Upon this, the father of the unmarried young man brought him to the Prophet (S.A) for judgement. Having heard the case, the Prophet (S.A) said to them, ‘I will certainly judge your case according to the Book of Allah’. Saying this, he ruled that the unmarried young man should be given a hundred stripes and that the married woman be stoned. He then directed Unais (R.A) to execute the punishment, who took the confessional statement of the woman, and then the punishment was carried out on the orders of the Holy Prophet (S.A). (Tafseer Ibn Katheer)

According to the above tradition, the Holy Prophet (S.A) awarded the punishment of one hundred stripes to the fornicator and that of stoning to death to the adulterer and described both as being the judgement according to the Book of Allah, although in Sura An-Nur only the punishment of one hundred stripes is indicated and there is no mention of stoning. The reason for this is that Allah had revealed to the Prophet (S.A), the complete explanation and details of the injunction which all fall within the purview of the Book of Allah, although some of its recitation is not included.

In this regard, Imam Muslim (A.R) has recorded an address of Umar (R.A) on the authority of Abdullah bin Abbas (R.A). It states: ‘While sitting on the mimbar (pulpit) of the Prophet (S.A), Umar (R.A) said, ‘Certainly Allah has sent Muhammad (S.A) with the truth and has revealed to him the Book. So, from what has been revealed to him is the verse of ‘stoning’. We read it, we learnt it and we understood it. The Messenger of Allah (S.A) stoned (the adulterers) and we stoned (the adulterers) after him. Now, I fear that with the passage of time over man one may say, ‘we do not find the law of stoning in the Book of Allah’. Hence, they may go astray leaving out an injunction which Allah has revealed. And certainly the law of stoning in the Book of Allah is the truth upon that person who commits zina and is married, from the men and women when the evidence of adultery is established or when there is pregnancy or through confession. (Saheeh Muslim)

The same narration has been recorded by Imam Bukhari in his Saheeh with greater details and in Nasaa’i it is narrated in the following words, (Umar said), ‘Verily, we find it necessary to implement the law of stoning, for it is certainly a Hadd (a penalty) from the Hudood (penalties) of Allah. Behold! The Messenger of Allah (S.A) himself implemented the (law of) stoning (to death) and we too have implemented it after him. And had it not been that people may say that Umar has added in the Book of Allah that which is not part of it, I would have written this (i.e. the law of stoning) in a corner of it (the Quran). And Umar bin Al Khattab bears witness, and Abdur Rahman bin Auf and so and so are all witnesses that the Messenger of Allah (S.A) implemented the law of stoning and we have done so after him’.

The gist of the matter is that the punishment of one hundred stripes described in Sura An-Nur for Zina is exclusive to unmarried men and women as explained. Although this is not clear in the verse, the Messenger of Allah (S.A) to whom the verse was revealed has himself elaborated the subject without the slightest doubt of any confusion. It is not that the Prophet (S.A) explained this only through his words, in fact, he also executed this punishment several times in the presence of many companions, and the proof of this has reached the different generations of Muslims with sound, authentic and unbroken chain of narrators. Therefore, the punishment of stoning for a married man and a woman is in fact an injunction of the Book of Allah itself, in the sense that it is as certain as any other injunction of the Holy Quran. This fact may be mentioned either by saying that ‘stoning’ is a provision of the Quran itself, or by saying that it is established by the unbroken chain of traditions (i.e. Ahadith Al Mutawatir).

The following conditions must be fulfilled before the punishment of stoning to death is applied:

1) The offender must be sane
2) Must be a Muslim
3) Must be married
4) Must have reached the age of puberty

This form of punishment is only accorded when it is proved beyond any doubt through the testimony of four reliable and truthful Muslim male witnesses given at the same time, that they saw the guilty person actually committing the offence. These testimonies must be given without a slightest doubt or confusion. The benefit of the slightest doubt in the statement of testimony of the witnesses should go in favour of the accused. If the evidence of a witness in a case of adultery is rejected, then the witness himself may suffer badly, because in that case, he may be charged for false accusation of adultery and may be inflicted with the punishment of eighty stripes. Therefore, one will dare to testify regarding adultery when there is the slightest degree of doubt.

The other proof of the guilt of the accused (for adultery) may come in the form of four confessions which such accused makes completely voluntarily in one sitting. If he confesses three times but retracts his confession the fourth time, he would not be stoned. The man or woman confessing the crime must be sane, mature and married.

With respect to the death penalty being by other means, the evidences are very clear that the injunction of stoning was instructed and it was also implemented. Although there were other means through which a person’s life can be taken, as it is established in the law of Qisas (equal retaliation), the Prophet (S.A) made it very clear that ‘Rajm’, stoning must be implemented. Obviously, this manner of inflicting the punishment is filled with great wisdom and significance and hence it continues to be the established injunction for the crime of adultery.

Until present, this law continues to exist in some Muslim countries. However, I am not aware if it is carried out in the correct manner or not.

And Allah knows best.

Mufti Waseem Khan