Zina

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This article is about adultery in Islam. For extramarital affairs in general, see Adultery.
For other uses, see Zina (disambiguation)
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Zināʾ (زِنَاء) or zina (زِنًى) or (زِنًا) is generally defined by Islamic Law as unlawful sexual intercourse, i.e. intercourse between individuals who are not married to one another. This encompasses extramarital sex and premarital sex.

Zināʾ 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 zināʾ 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 zināʾ as interpreted from the Qur'an and the Hadith. In principle it is an extremely difficult offense to prove, requiring four respectable witnesses to the actual act of penetration.

The name 'Zina' or 'Zeina', which is an Arabic name, is different from this. It is spelled differently (زينة), pronounced differently (either Zīnah or Zaynah) and also has a different meaning.

Islamic

Qur'an

Islam considers zināʾ 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 zināʾ, and is equally punishable for both women and men.

The Qur'an deals with zināʾ in several places. First is the Qur'anic general rule that commands Muslims not to commit zināʾ:

“Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils).”
— Qur'an, Sura 17 (Al-Isra), ayat 32[1]

Most of the rules related to zināʾ, 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 zināʾ:

"The woman and the man guilty of adultery or fornication,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment."
— Qur'an, Sura 24 (An-Nur), ayat 2[2]
“And those who accuse free women then do not bring four witnesses, flog them, (giving) eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgressors. Except those who repent after this and act aright, for surely Allah is Forgiving, Merciful.”
— Qur'an, Sura 24 (An-Nur), ayat 4-5[3]

Hadith

Nearly all hadith collections include three hadiths that are central in the legal arguments about the punishment for zināʾ:

  • One to the effect that the Prophet has enforced this punishment in a case of unlawful intercourse among Jews on the basis of the Torah;
  • a second one, transmitted by Abu Hurairah states that the Prophet, in a case of intercourse between a young man and a married woman, sentenced the woman to stoning[4] and the young man to flogging and banishment for a year;
  • and a third one in which Umar al-Khattab asserts that there was a revelation to the effect that those who are muhsan (i.e. an adult, free, Muslim who has previously enjoyed legitimate sexual relations in matrimony regardless of whether the marriage still exists) and have unlawful intercourse are to be punished with stoning.

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.[citation needed] However according to Jamila Hussain, "the majority of the jurists agree that, on the authority of the hadith [case involved Jews who were stoned to death in accordance with the Torah], ... the proper punishment for married adulterers is stoning to death, and the unmarried should be awarded 100 lashes." [5]

Inclusions of the zināʾ definition

Sunni

Zināʾ encompasses extramarital sex (between a man and a woman who are not married to one another), premarital sex and in a state of lawful concubinage based on ownership.

Shi'a

This includes the Sunni definition of zināʾ and also includes: homosexual 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. not imprisoned or absent on a journey).

Accusation process and punishment

Given the severity of punishment for the offense of zināʾ, the Qur'an requires solid proof beyond a shadow of a doubt before convicting an individual, be it a man or a woman, of zināʾ. Muslim jurists have derived from the Sunnah of Muhammad very strict requirements for proving zināʾ. In fact, jurists unanimously agree on only two means of doing so:

  1. A clear, free, and willful confession by the person guilty of the act of zināʾ. However, if that person retracts his/her confession, he/she is not punishable (barring the presence of witnesses, as indicated below), because there would no longer be any proof of the occurrence of the prohibited act, and alternatively,
  2. The testimony of four reliable Muslim male eye-witnesses[citation needed], all of whom must have witnessed the actual intercourse at the same time.

It is pertinent to point out that the evidentiary requirement for zināʾ 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 zināʾ. 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.

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.

Sunni practice

All Sunni schools of jurisprudence agree that zināʾ 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.

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 zināʾ is still the testimony of four male eyewitnesses, even in the case of homosexual intercourse.

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 in a marriage that is null and void, or through intercourse with her lawful master (as a female slave). Accusation of an extramarital pregnancy as zināʾ, as well as claims of rape, have been the source of worldwide controversy in recent years.

Shi'a practice

Again, minimal proof for zināʾ 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.

Worldwide controversy

Human rights groups say hundreds of women in Afghan jails are victims of rape or domestic violence. This has been criticized as leading to "hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of zināʾ" and incarcerated,[6] which is defended as punishment ordained by God.

The zināʾ 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 zināʾ. Imam Abu Hanifa was firm in rejecting the use of extramarital pregnancy as an evidence of zināʾ. 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 zināʾ. 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 zināʾ 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 Hanafi position states:

  • Extramarital pregnancy should not be considered as proof of zināʾ since it could result from the woman’s wrong belief that she is married to the other party, or rape, or artificial insemination, and so on;
  • If a woman claims that she was raped, either to justify her extramarital pregnancy or just to report the assault, she should not be required to prove her accusation. Her word is sufficient evidence.

And the Maliki position states:

  • Extramarital pregnancy due to rape or sexual intercourse without consent requires physical or medical evidence as proof.

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.

See also

References

  1. ↑ Quran 17:32
  2. ↑ Quran 24:2
  3. ↑ Quran 24:4–5
  4. ↑ Understanding Islamic Law By Raj Bhala, LexisNexis, May 24, 2011
  5. ↑ Jamila Hussain, Islamic Law and Society — an Introduction quoted in Understanding Islamic Law By Raj Bhala, LexisNexis, May 24, 2011
  6. ↑ National Commission on the status of women's report on Hudood Ordinance 1979

External links

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