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Zinā or Zināʾ (Arabic: الزنا ) is generally defined by Islamic Law as unlawful sexual intercourse, i.e. intercourse between a man and a woman who are not married to one another or in a state of lawful concubinage based on ownership (the relationship between the owner and his female slave). This encompasses extramarital sex and premarital sex.
Zina falls under the Islamic sexual jurisprudence of Fiqh, which is an expansion of the Sharia code of conduct given in the Qur'an.
Across all four schools of Sunni practice, and the two schools of Shi'a practice, the term zina signifies voluntary sexual intercourse between a man and a woman not married to one another, regardless of whether one or both of them are married to other persons or not. It does not - in contrast with the usage prevalent in most Western languages - differentiate between the concepts of "adultery" (i.e., sexual intercourse of a married man with a woman other than his wife, or of a married woman with a man other than her husband) and "fornication" (i.e., sexual intercourse between two unmarried persons).
Islamic law prescribes punishments for both Muslim and non-Muslim men and women for the act of Zina as interpreted from the Qur'an and the Hadith.
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Islam considers zina a major sin. In this, Islam shares the same views as other Abrahamic religions, such as Judaism and Christianity. From the perspective of the Qur’an, the prophetic tradition, and Islamic law, sex uncoupled with a legally binding marital tie is considered zina, and is equally punishable for both women and men.
The Qur’an deals with zina in several places. First is the Qur’anic general rule that commands Muslims not to commit zina:
Most of the rules related to zina, adultery, and false accusations from a husband to his wife or from members of the community to chaste women, can be found in Surat an-Nur (the Light). The sura starts by giving very specific rules about punishment for zina:
It then turns to false accusations from members of the Muslim community to chaste righteous women:
Nearly all hadith collections include three hadiths that are central in the legal arguments about the punishment for zina:
The hadith related by Abu Hurairah has been the basis of the fiqh doctrine.
The most accepted collection of Hadith Sahih al Bukhari has 4 entries (under 3829, 8804, 8805 and 8824) which refer to death by stoning. One case involved Jews who were stoned to death in accordance with the Law of the Torah (not the Qur'an). Another says: "A married man from the tribe of Bani Aslam who had committed illegal sexual intercourse and bore witnesses four times against himself was ordered by Mohammed to be stoned to death". These two hadiths clearly conflict as to who or what actually ordered the stoning. And in both entries, the narrator acknowledges his ignorance of whether the stoning to death was carried out before or after the revelation of Quranic Verse 24-2.
Zina encompasses extramarital sex and premarital sex between a man and a woman who are not married to one another or in a state of lawful concubinage based on ownership.
This includes the Sunni definition of zina and also includes: heterosexual intercourse, a great variety of sexual behavior: buggery, both with men and women, lesbian intercourse and heavy petting. Furthermore, Shi'a legal doctrine defines muhsan as an adult, free Muslim who is in a position lawfully to have sexual intercourse and whose partner is actually available (e.g. imprisoned or absent on a journey).
Given the severity of punishment for the offense of zina, the Qur’an requires solid proof beyond the shadow of doubt before convicting an individual, be it a man or a woman, of zina. Muslim jurists have derived from the Sunnah of the Holy Prophet very strict requirements for proving zina. In fact, jurists unanimously agree on only two means of doing so:
It is pertinent to point out that the evidentiary requirement for zina was initially intended to protect men and women from frivolous charges. This intention derives directly from Asbab al-nuzul (reasons of revelation) relating to the Qur’anic verse that establishes the hadd of zina. Therefore it is believed that the requirement of four witnesses (with all its restrictions and specifications) is considered a merciful measure from God in order to not only avoid incriminating innocent people, but also to preserve the privacy of Muslims, which is one of the most valued principles in Islam.
It is worth noting that in the case of a confession, it is recommended that the judge ignore the first three iterations of such confession. The confession does not become legally binding unless it is repeated freely four different times.
All Sunni schools of jurisprudence agree that zina is to be punished with stoning if the offender is muhsan. The Hanafis and Hanbalis require that both partners in the act be muhsan for stoning to be applied. Persons who are not muhsan are punished with one hundred lashes if they are free and with fifty lashes if they are slaves, followed with banishment for the period of one year (six months for slaves). The offenders must have acted out of their free will; a woman who has been raped cannot be punished with the hadd penalty.
In relation to homosexual intercourse, there is difference of opinion within Sunni belief. The Shafi'is and Hanbalis regard it as zina. If the act has been testified to by four male eyewitnesses, the active partner, if he is muhsan, is to be punished with stoning, the passive partner with flogging and banishment. The Malikis do not require Ihsan for the imposition of stoning. According to the Hanafis, homosexual intercourse can only be punished on the strength of tazir. Minimal proof for zina is still the testimony of four male eyewitnesses, even in the case of homosexual intercourse.
Again, minimal proof for zina is the testimony of four male eyewitnesses. The Shi'is, however, also allow the testimony of women, if there is at least one male witness, testifying together with six women. All witnesses must have seen the act in its most intimate details, i.e. the penetration (like “a stick disappearing in a kohl container,” as the fiqh books specify). If their testimonies do not satisfy the requirements, they can be sentenced to eighty lashes for unfounded accusation of fornication (kadhf). If the accused freely admits the offense, the confession must be repeated four times, just as in Sunni practice.
Circumstantial evidence is not admitted, with one major exception: under Maliki law, pregnancy of an unmarried woman is regarded as evidence of fornication. However, even if the act has been proved, punishment can be averted by shubha which is a formal refutation to the legal limits of the law. For example, a woman could have become pregnant through intercourse between a marriage that is null and void, or through intercourse with her lawful master (as a female slave). Accusation of a extramarital pregnancy as zina, as well as claims of rape, have been the source of worldwide controversy in recent years.
Human rights groups say hundreds of women in Afghan jails are victims of rape or domestic violence. This practice has been criticized as leading to "hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of Zina" and incarcerated,[2] and defended as punishment ordained by God
The zina and rape laws of countries under Sharia law are the subjects of heated debate both inside and outside the Muslim world. Major Muslim scholars vastly disagree on whether extramarital pregnancy should be considered evidence for zina. Imam Abu Hanifa was firm in rejecting the use of extramarital pregnancy as an evidence of zina. Basing his judgment on clear injunctions from the Qur’an and sunnah, he considered pregnancy as mere circumstantial evidence that does not constitute sufficient proof of zina. In his view, the judge has to ask the woman being tried for such accusation to defend herself. If she claims that she was raped, or forced into a sexual relationship, or that she had intercourse with a man to whom she thought she was married, then she would not be liable for hadd punishment.
Abu Hanifa even went so far in his reasoning as to state that an unmarried pregnant woman who claims that she was raped or married does not have to provide clear evidence of her rape or marriage. Her word alone suffices.
However, Imam Malik had a different view on the matter. He stated that an unmarried woman who becomes pregnant is liable to zina punishment unless she proves that she was raped or that she is married. However, Malik did acknowledge the possibility that pregnancy can result from an unwilling sexual act. Therefore, he established a number of safeguards that aim to assure that no innocent is convicted unjustly. First, physical evidence is undeniable proof of rape. If a woman comes bleeding to the judge (or, today, the police) and claims that she was raped, her word is accepted because of her physical state. If somebody hears her asking for help, her testimony is accepted. From this perspective, even if the Pakistani legislators were influenced by the Maliki view, adopting it would allow women to rebut the pregnancy proof by physical/medical evidence that they did not consent to the intercourse.
In short, the Hanafa position states:
And the Maliki position states:
In all views, there still exists the fundamental Qur’anic principle of adalah (i.e. justice, balance, and equity). The law protects society, its morals and ideals, but without denying to individuals their rights, especially their basic right to life. As many Muslim scholars agree, it is better to let a guilty person get away with his/her sin and face God’s justice later, than to enforce the hadd on an innocent person.
Through these laws, opponents of the Shari’a law and Islamic belief have found it as an ideal opportunity to attack Islamic law as patriarchal and unjust to women. Many have even argued on this basis that Shari’a law, in its entirety, should be abolished. On the other hand, many serious Muslim scholars and activists are themselves troubled by these laws regarding zina and rape. They view them as incompatible and hypocritical with basic Qur’anic principles and the prophetic tradition. Either way, the tension surrounding the Sharia law and Islamic belief debates are evident in our everyday lives, be it through news media, academic discussion or worldwide communication.