We have been hearing and reading alot about the Islamic punishment of Adultery. Many controversies surrounding it; should the adulterer be stoned or not, stoning is not part of legislated punishment in Islam and all sort.
The major refrence of this discourse is Suratu Nuur(Q:24). A surah unanimously agreed to have been revealed in Madeenah. This surah generally contains the rulings related to family and building of a community. The necessary needs and etiquettes to build a peaceful community, from lowering of the gaze towards opposite sex, preserving the private parts against illicit acts, prohibition of intermingling between opposite sex, how to build a peaceful and healthy family and others – are what this surah discusses generally.
And among what this surah discusses is the legal Islamic punishments which we call Hudood. This surah talks about the haddu of zina, haddu of defamation of one’s wife with zina(qadhfuقذف), rulings of each of the spouse cursing upon one another (Li’aan). All these rulings and punishments were legislated by the shari’ah to purify the community from illicit acts. While the Haddu of Zina(fornication and Adultery) was legislated for the protection of the offspring.
You should equally note that both fornication and Adultery are termed ZINA in shari’ah. The zina commited by a single person(who is not married) is hereby associated with the word البكر(Al bikru). While that committed by a married person is associated with the word المحصن(Al muhsan).
The major reason for this difference between a single and married person is that, a married person has a patner, why then should he or she commits zina? But a single person who is not yet married, his or her own case maybe minimal in a general term.
Allah revealed Verse 3 of Suratu Nuur when the Emigrants, some of whom without any means, arrived at Medina, they found there prostitutes who sold pleasure for a price. These prostitutes were, at that time, amongst the most well off people of Medina. Some poor Emigrants coveted their earnings, saying: ‘Why do we not marry them and live with them until Allah, exalted is He, suffices us from them?’ They asked permission from the Prophet to marry them, but then this verse was revealed which states that it is forbidden to marry an adulteress in order to exonerate the believers from such acts.
‘Ikrimah said:
“This verse was revealed about some prostitutes who worked openly in Mecca and Medina. There were so many of them. However, nine of them had banners like the banners of al-Baytar by means of which they were known.
These nine prostitutes were: Umm Mahzul, the slave girl of al-Sa’ib ibn Abi al-Sa’ib al-Makhzumi. Umm ‘Ulayt, the slave girl of Safwan ibn Umayyah. Hannah the Copt, the slave girl of al-‘As Ibn Wa’il. Muznah, the slave girl of Malik ibn ‘Amilah ibn al-Subaq. Jalalah, the slave girl of Suhayl ibn ‘Amr. Umm Suwayd, the slave girl of ‘Amr ibn ‘Uthman al-Makhzumi. Sharifah, the slave girl of Zum‘ah ibn al-Aswad. Farsah, the slave girl of Hisham ibn Rabi‘ah and Fartana, the slave girl of Hilal ibn Anas.
The houses of these prostitutes were called, in the pre-Islamic period, mawakhir and those who entered them to buy pleasure were either Muslim adulterers or idolaters.
So, you could see slaves were the ones known to zina. That is why the tradition says هل يزني الحر؟ Does a freed man commits zina? “omolabi amashe zina bi?”
Zina was well known to slaves who were not freed to get married and protect their pleasures.
Some Muslims wanted to marry prostitutes to gain a living from them, and so Allah, revealed this verse, warned the believers against it and made it forbidden unto them”.
A questioner may ask what the punishment of a fornicator and adulterer was before a law was prescribed?
The punishment then was a light punishment because people were still known with Jaahiliyyah and among the wisdoms of Allah in legislation is to legislate the laws bit by bit – so as not to make things difficult for the believers. Islam brings ease, a reason it forbids anything extremism.
This light punishment was narrated in Suratu Nisai verses 15 and 16. Which means the punishment of a female then was house arrest (confinement to the house). While the punishment of a male was التوبيخ scolding, condemnation and criticism.
Then, Allah abrogated these rulings and make a legislation of 100 lashes مئاة جلدة. As in verse 2 of Suratu Nuur.
As for the single person without marriage, apparently, Islam made the punishment of a fornicator 100 lashes of cane and there is no controversy about this.
Where lies the controversy is as regard the case of a married person who commits/commited Adultery(zina).
Does this verse 3 of Nuur also include a married person or not? Because the verse did not specify. The verse only says الزاني, And like we said earlier, Zaaniy comprises of both the single and married person.
What the sunnah established is that, a married person who committed Adultery should be stoned to death.
Here comes difference of opinions, some rejected the ahadeeth which mandated stoning to death and say Allah did not make a specification. He generalized the zina in the verse 3 of Suratu Nuur, while others accept these ahadeeth that affirm stoning to death.
You should know that, any Islamic legislated punishment will be considered and mandated in a shari’ah compliance state/country.
Those who generally argued against stoning to death brought the arguments that:
Allah the supreme Court did not pronounce a capital punishment and on what basis would the Prophet do otherwise? They claim that Allah would have stated it clearly if He wanted death penalty. That, harder punishment cannot come from a junior Judge, just like magistrate to high to appeal and supreme Court.
Before stating evidences of those who opine against stoning, take a glance at the evidences of those who opine stoning to death(Ar-rajmu) is established.
1: It is established in the sayings, actions, the consensus of the sahaabah and Taabi’een that Rajmu is the legal (Islamic) punishment for an adulterer.
2: The Prophet likewise stoned some sahaabah to death, the likes of Maa’iz and Ghaamidiyyah. So also the rightly guided sahaabah after the Prophet stoned adulterers to death as a legislation of Allah.
The evidences of those who opine against Rajmu can be summarized into 3 major points:
1: Rajmu is a bigger punishment, and Allah the supreme Court did not pronounce a capital punishment of Rajmu, He only made mention of 100 lashes which also comprises the adulterers. Allah not mentioning it means it is not legislated.
2: The legislated haddu for a slave who commited zina is half of what is on a freed person. Which means half of 100 lashes. Rajmu cannot be divided into half? Or how can you divide stoning to death to half? So it is not correct to be a haddu for a freed man because it won’t be divided for a slave.
3: The ruling of zina has stated in verse 2 of Suratu Nuur is in general form for all forms of zina. Specializing it is against the verse of Qur’an.
The responses to these 3 arguments, we may say:
Allah not mentioning Rajmu in the Qur’an does not mean it is not legislated. Many of the rulings of Islam are not legislated by the Qur’an, the sunnah of the Prophet affirmed and established them. And Allah has ordered us to obey and follow the Prophet’s divine path.
How will Rajmu not be legislated when the Prophet himself stoned, and his sahaabah, also stoned the adulterers? And there is no sign that denote on the weakness of these ahadeeth!
Also, Umar bn Khattab narrated that the verse which legislated Rajmu was in the Qur’an before, but Allah abrogated it. Umar said: we know this verse, we do read it, and we applied it. The verse reads
الشيخ و الشيخة إذا زنيا فارجموهما نكالا بتة…
Here comes an argument among scholars of Islam that, can a sunnah(hadeeth) abrogate a quranic verse? Or what are the wisdoms behind Allah abrogating a verse from the Qur’an and its ruling still remain intact?
We may say the Hikmah behind the abrogation of the verse in recitation(tilaawah) but its ruling still intact is to serve a test for the Muslim Ummah to believe in what they cannot find its recitation anymore in the Qur’an, and to make a believe in what Allah sent as legislations upon them; because Allah explicitly mentioned the verse/legislation of Rajmu in the Tawrah but the Yahood hide it. So, to be an opposite legislation for the Muslims.
You should know that there is an argument among the scholars of old and Madh-hab on the issue of هل ينسخ القرآن بالسنة Can the Qur’an be abrogated by the sunnah(ahaadith)?
The Scholars consensus is that Qur’an abrogates Qur’an and authentic sunnah abrogates sunnah and authentic reports abrogate its same. But, the point of differences is on the abrogation of Qur’an by what isn’t Qur’an and can authenticated reports be abrogated by what isn’t authenticated?
Summarily, the Shaafi’iyah are of the opinion that the Naasikh(Abrogating) of Qur’an must be same Qur’an. And it is not permissible for sunnah to abrogates the Qur’an. While the Jumhuur(Hanafiyyah, Maalikiyyah and Hanabillah) hold the view that, it is permissible for the Qur’an to be abrogated by Qur’an and by sunnah also; because both are sayings, rulings of Allah. و لكل وجهة هو موليها.
Note: The Shaafi’iyyah did not support Rajmu not being a legislation upon the adulterers.
Also, in response to those who go against Rajmu and say the half punishment of 100 lashes is to be given upon the slaves who fornicate, the verse itself did not abrogate Rajmu. The verse only mean that, what can be divided into half is what should be for the slaves. Which is jaldu(the 100 lashes). So, 50 goes to the slaves. Because the slave has no right over his/herself. Alhamdulillah, no slave in this century, so the ruling and argument of slave or no slave is no more of importance.
Should the 100 lashes and Rajmu(stoning) be combined for an adulterer?
This is another issue of differences:
The Zohiriyyah, and also a narration from Imam Ahmad says it is compulsory to combine 100 lashes and stoning to death for an adulterer. While the Jumhuur, the Sahaabah, Taabi’een and other jurists say only Rajmu is meant for an adulterer. Of what benefit do we flog the person who is to die?
Note: In a shari’ah abiding country, a married Muslim who commited zina(Adultery) and did not release his/herself for the punishment, we are not to force him. There will be no punishment of stoning on him. Unless it is also agreed by the constitution of that state that it is a must an adulterer be stoned to death while the adulterer is also aware of that.
The evidence of this is when they were stoning an adulterer to death during the time of the Prophet, the punishment became heavy on him, he started running and said he is no more doing, the sahaabah ran after him and stoned him till he die. When they gave account to the Prophet, he said هلا تركتموه يتوب الله عليه Perhaps you should have leave him, Allah would have forgiven him already.
The most correct view is that, the punishment will be based upon the agreed upon constitution of the state/country.
And generally, if an adulterer did not confess himself, there is no haddu on him. Unless caught by a CCTV camera or four physical people and he(the adulterer) did not deny it.
As for a dhimiyyذمي – a non-Muslim living in the shari’ah abiding county of the Muslims and paying taxes, will there be haddu of Rajmu on him?
There is 2 opinions on this:
The Hanafiyyah opine his haddu is jaldu(100 lashes) while the Shaafi’iyah and Hanabillah say his haddu is Rajmu(stonning to death).
IN CONCLUSION,
It is established and apparent from evidences sighted above that Rajmu is an established legislation of Islam that should be put in practice if that will solve our society menace.
But a person who belie Rajmu(and not general rulings of ahadeeth), are we to declare him kaafir or label him Khawarij?
Undoubtedly, the evidences that established Rajmu is ظني الثبوت قطعي الدلالة. Which is not a clearcut quranic evidence but distinctive enough on the subject matter.
This, we did not consider the differences on abrogation of Qur’an by sunnah(if that is the only evidence against Rajmu). If we consider it and take to the stance of the Jumhuur while neglecting the stance of the Shaafi’iyah, it means we may conclude that, evidences which legislated Rajmu are
قطعي الثبوت قطعي الدلالة
Clearcut Quranic distinctive evidences.
Without considering this, and giving a respect to the Shaafi’iyah argument, we can say the evidence which established Rajmu is zhaniyy and not qate’ee.
If it is zhoniyy, and the hadeeth are mutawaatirah(narrated by many sahaabah), and cannot be traced to weakness and lie, we conclude the legislation of Rajmu is valid. And anyone who still rejects it cannot be regarded as kaafir or accused of kufr. But the person can only be regarded as مضل a misguided person – IF WE ARE IN A COUNTRY THAT LEGALIZE THE RAJMU PUNISHMENT.
But, in a country that does not legalize the Rajmu punishment(and the person isn’t hitting hard on sound ahadeeth), what is the fuss all about? We won’t label the person who holds to that stance but regard his opinion as a wrong opinion. That is if the person is not casting doubt on the authencity of the entire ahadeeth of the Prophet.
So far the person did not belie ahadeeth, he remains a Muslim but have a wrong opinion as regard Rajmu.
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