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Laws of Religion

Laws of Islam Concerning Women and Men

 

12.  Accusation and Confession of Forbidden Sexual Acts

from the Qur’an,

major hadith collections

and Islamic jurisprudence

 

 

Accusation and Confession of Forbidden Sexual Acts

From the Qur’an

 

The Qur’an says that those who accuse a married woman of adultery without producing four witnesses are to be flogged with eighty stripes and never again have their testimony accepted.  It is they who are the transgressors, except for those who repent and make amends, for Allah is forgiving and merciful.[1]

 

If a man accuses his own wife of adultery and he has no witnesses, the Qur’an says that it is then sufficient for him to testify to her adultery four times, and then one more time calling the curse of Allah down upon himself if he is lying.[2] However, the accused wife will avert punishment if she testifies four times that her accusing husband is lying, and then one more time calling the curse of Allah down upon herself if her husband is telling the truth.[3]

 

A long passage in the Qur’an speaks against slander, specifically falsely accusing a married woman of adultery.[4] Those who make such false accusations will suffer greatly.[5] People who hear such accusations should begin with the assumption that the charges are false.[6] Such accusations should not be repeated as if they are something unimportant; Allah considers them to be most serious.[7] Those who love to have scandalous accusations against believers repeated will suffer grievous punishment both in this life and after death.[8] Those who make such accusations against married women who are believers but careless, will be accursed in this world and suffer Allah’s wrath in the world to come.[9]

 

Accusation and Confession of Forbidden Sexual Acts

From the hadith compilations of al-Bukhari and Muslim

 

Contents

 

Aisha accused – need for four witnesses revealed (hadith)

 

False accusation of zina (hadith)

 

Confession of zina (hadith)

 

Divorce following accusation of zina/adultery – lian (mula’ana) (hadith)

 

 

Aisha accused – need for four witnesses revealed (hadith). As stated above, the Qur’an says that four witnesses are required to prove a case of adultery against an accused woman.[10]  The story of the occasion of the revelation of this requirement is told in the hadiths.

 

During one journey, Muhammad’s wife Aisha was inadvertently left behind at place where Muhammad and his army had stopped. A man found her and led her, mounted on a camel, back to Muhammad.[11] People raised accusations against Aisha for having been alone with this man.[12] Muhammad initially did not know whether the accusations were true.[13] He gave Aisha permission, as she requested, to return to the home of her parents.[14] Then, after more than a month had passed,[15] Muhammad came to understand that Aisha was innocent of any wrongdoing.[16] The verses of Qur’an[17] attacking those who slander others without having four witnesses were then revealed.[18]

 

 

False accusation of zina^* (hadith). As stated above, the Qur’an says that one who accuses a woman of adultery without producing four witnesses is to be flogged with eighty stripes and never again have his testimony accepted.  It is they who are the transgressors, except for those who repent and make amends, for Allah is forgiving and merciful.[19]

 

Hadiths report that Muhammad said that falsely accusing a woman in this way is one of the seven great destructive sins.[20] He also said that a person who falsely accuses a slave of unlawful sexual intercourse will be punished on the Day of Resurrection.[21]

 

 

Confession of zina (hadith). Hadiths tell of the time when a married man came to Muhammad and confessed four times to committing zina^* and Muhammad ordered him to be stoned to death.[22] In some hadiths, only three confessions were made before the order for stoning was given by Muhammad.[23] In other reported hadiths, the number of confessions is not stated[24] including a case in which the person confessing was a female slave.[25] In one report, the man who was executed after four confessions had committed unlawful sexual intercourse with another man’s female slave.[26]

 

Muhammad confirmed that the person confessing to zina was sane before he ordered punishment[27] even inquiring of other people about the confessing man’s sanity[28] or having someone else smell the man’s breath to make sure he was not drunk when confessing.[29]

 

In hadiths reporting that women confessed to zina, Muhammad had them stoned to death though there is no mention of more than one confession by the women.[30] In some of these reports the woman was pregnant[31] but in at least one case, that of a female slave, pregnancy is not mentioned.[32] Umar (the second successor to Muhammad as leader of the community of Muslims) said that pregnancy is sufficient for establishing guilt in cases of zina.[33]

 

Hadiths say that when a woman who came to Muhammad and confessed to zina was pregnant, Muhammad directed that she not be punished until her baby was born.[34] In one report, Muhammad had such a woman stoned to death as soon as her baby was born.[35] In other hadiths, Muhammad said that the woman should not be punished since her baby needed her for suckling. When another woman volunteered to suckle the baby,[36] or when the baby was weaned and eating solid food,[37] Muhammad ordered that the woman who had confessed to zina be stoned to death, and she was.

 

One of Muhammad’s female slaves committed unlawful sexual intercourse. The man Muhammad turned her over to for flogging refrained from inflicting that punishment on her because she had only recently given birth and he was afraid the lashes might kill her.  The hadith reports that Muhammad praised the man for this, so her flogging was delayed until she was able to withstand the punishment.[38]

 

Muhammad said that if he were to have a woman stoned to death without evidence, it would be a woman who aroused suspicion by her open misbehavior.[39] (Editor’s note: This was just an expression of his anger, not an assertion that he actually imposed punishment without evidence.)

 

 

Divorce following accusation of zina/adultery – lian (mula’ana) (hadith). Divorce can result from the process of lian (mula’ana) following an accusation of adultery.

 

As stated above, the Qur’an (24:6-9) says that when a man accuses his wife of adultery but has no witnesses, he is to swear four times that what he says is true and then a fifth time by invoking the curse of Allah (God) upon himself if he is lying.[40] But the accused wife can then avert punishment by similarly swearing four times that her husband is lying and then a fifth time by invoking the curse of Allah upon herself if he is telling the truth.[41]

 

Hadiths report that when a man came to Muhammad and accused his wife of having unlawful sexual intercourse with another man, Muhammad told him to bring forward four witnesses or else be punished with lashes for making a false accusation against his wife. Then the verses of the Qur’an (24:6-9) were revealed concerning lian – the swearing of the husband and wife that they were telling the truth.[42] When both a man and his wife had given the five oaths required by the process of lian in front of Muhammad, the man divorced his wife. Divorce following lian became a tradition after that.[43]

 

Hadiths say that Muhammad continued to require the process of lian even when a woman gave birth to a child that resembled the man she was accused of being with rather than resembling her husband.[44] Muhammad said that he would have punished the woman severely in such cases if the law did not require the process of lian rather than punishment.[45] After a case of lian and divorce, a child born to the woman belongs to the woman and inherits only from her, not from her former husband.[46]

 

When a case of lian results in divorce, the divorced woman retains the bridal payment (mahr). Muhammad said that this is because, even if the unproved accusation against the wife was correct, the mahr was payment to the wife for the sexual relations that consummated the marriage.[47]

 

Hadiths report that Muhammad said that a husband who finds his wife with another man is not to kill that man.[48] Those who brought such cases to Muhammad were put through the process of lian.[49]

 

Accusation and Confession of Forbidden Sexual Acts

From Islamic Jurisprudence (fiqh/sharia^§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

Contents

 

Unproven accusation of unlawful sexual intercourse (jurisprudence/fiqh/sharia)

 

Accusing one’s wife of adultery – li’an (jurisprudence/fiqh/sharia)

 

 

Unproven accusation of unlawful sexual intercourse (jurisprudence/fiqh/sharia). The scholars^** agree that a sane person past puberty who accuses another of unlawful sexual intercourse which is not proven by the testimony of four witnesses is to be punished by flogging.[50] The punishment of the accuser applies only if the accused person is a free, Muslim above the age of puberty with a functioning sex organ and chaste,[51] which Reliance of the Traveller defines as not having committed unlawful sexual intercourse.[52] Reliance of the Traveller also says that the penalty for false accusation of unlawful sexual intercourse does not apply if the accused is the offspring of the accuser.[53]

 

Malik says that witnesses are also to be punished similarly to the accuser if there are fewer than four witnesses to establish guilt of the accused person.[54]

 

The punishment is eighty lashes for a free man[55] and most scholars say it is forty lashes for a slave.[56] Also, the testimony of the accuser is never again to be accepted.[57] A husband who accuses his wife of unlawful sexual intercourse without the requisite four witnesses is not punished, as discussed below.[58]

 

Al-Shafiʽi and the Shafiʽi school say that punishment for a false accusation of unlawful sexual intercourse can only be applied when there is an Islamic judge present and the accused person requests the punishment.[59] Also, al-Shafi’i holds that there is no punishment if the accuser is forgiven by the accused.[60] Abu Hanifa, however, says that such forgiveness does not eliminate the requirement for punishment.[61]

 

The scholars agree that repentance cannot remove the punishment of lashing. However, Malik and al-Shafiʽi say that repentance can eliminate the prohibition on accepting testimony from the accuser at a later time, while Abu Hanifa disagrees with this.[62]

 

Imam Dhahabi, an important 13th-14th century Shafi‛i scholar quoted in the English translation of Reliance of the Traveller, says that accusing a woman of unlawful sexual intercourse without the requisite four witnesses is an enormity^§§.[63]

 

 

Accusing one’s wife of adultery – li’an (jurisprudence/fiqh/sharia). If a man accuses his wife of adultery, or says that the baby she carries in her womb is not his, he has to swear it five times in a specified way according to Malik. Both al-Shafiʽi and Abu Hanifa say that this swearing is required only if his wife denies the accusation.[64] The procedure, li’an, is to swear four times that the accusation is true and then one time that Allah should curse him if the accusation is false.[65] Reliance of the Traveller explains that the multiple required swearings are to be performed before an Islamic judge and the person accused is to be specifically identified each time. If there is a child involved, the husband must identify the child and swear that the child is not his.[66]

 

A man who makes such an accusation but refuses to swear in this specified way after making the accusation is to be punished as one who accuses another of adultery without proof.  Most scholars agree that he is to receive the specified punishment, which is 80 lashes plus never having his testimony accepted again (as discussed above). Abu Hanifa says, however, that he should be imprisoned rather than flogged.[67]

    

The wife may then deny the accusation by swearing four times that the accusation is false and then one time calling on Allah to inflict his wrath on her if she is lying.[68] Reliance of the Traveller explains that this swearing is to be done publicly under the direction of an Islamic judge.[69]

 

If she refuses to swear in the prescribed manner, Abu Hanifa says she is to be imprisoned until she does so. Al-Shafiʽi, the Shafiʽi school and Malik say she is to be punished for adultery by being stoned to death if her marriage had been previously consummated or, if it has not, then she is to be flogged.[70]

 

If husband and wife both swear the proper oaths, their marriage ends. Al-Shafiʽi, the Shafiʽi school and Malik say that the two may never remarry. Abu Hanifa says that if husband recants his accusation, he is punished for making the false accusation and then the couple may remarry.[71]

 

A nineteenth century Shafiʽi scholar quoted in Reliance of the Traveller says that these rules apply to accusations not only of adultery during the marriage but also of the wife’s not having been a virgin when the marriage occurred.[72] Reliance of the Traveller says that a husband who accuses his wife of adultery after such adultery has already been legally established is to be punished by a court. This also applies if he has accused a person of adultery who is an infant.[73]

 

According to Imam Dhahabi, an important 13th-14th century Shafi‛i scholar quoted in the English translation of Reliance of the Traveller, a man who suspects his wife of having sexual intercourse with someone else but takes no action against her also commits an enormity^§§.[74]

 

________________

 

^*Zina, unlawful sexual intercourse, includes both adultery involving a married person and sexual intercourse between two people who are not married to anyone (though sexual intercourse with one’s female slave is permitted and so is not zina.)

 

^**Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

^§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia.

 

^§§Enormity:  In Keller’s English translation of Reliance of the Traveller, Imam Dhahabi (an important 13^th-14^th century Shafi‛i scholar) is quoted as listing certain sins as “enormities,” meaning that there is a threat of punishment after death mentioned in the Qur’an or hadiths, a legal penalty is prescribed or the transgressor is accursed by Allah (God) or Muhammad.[75] These “enormities” are the most serious sins and, according to the Qur’an[76]; if they are avoided then a person will be caused by Allah to enter an honorable gate (meaning reward in Paradise after death). According to Imam Dhahabi, committing an “enormity” without knowing that it is unlawful eliminates the guilt, except for denying those religious tenets that are universally known by Muslims.[77]

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Abbreviations used in footnotes:

QR:   Qur’an, with surahs (chapters) and ayahs (verses) numbered as in most modern translations, including those found here, here and here.

BK:    Hadith collection of al-Bukhari as found here (USC/CMJE website) and here (ebook download). In a few instances, the hadiths on the USC website differ from those in the ebook download, either by having slightly different numbering of the hadiths or because the hadith appears only on the USC site and not in the ebook download. Such cases are noted in the footnotes by putting either “(USC)” or “(ebook)” after the relevant hadith number when it applies to only one of these two sources. Part or all of the hadith collections of al-Bukhari, with somewhat different numbering systems, can also be found here, here and here.

ML:    Hadith collection of Muslim as found here and here. Part or all of the hadith collection of Muslim, with somewhat different numbering systems, can also be found here and here.

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Full text online and download for Volume 1 are here and here and for Volume 2 are here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA.  Reliance of the Traveller can be found here and here.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.