Chapter 2 - Adultery (Zina) PDF

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Chapter 2: Adultery (Zina)Issue: Whether can be held liable for adultery, which is also known as zinaFormat Elements Parties Proof Defences Punishment Conclusion Definition of Zina Zina would be when sexual intercourse occurs willingly between a man and a woman not validly married to each other. Zin...

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Chapter 2: Adultery (Zina) Issue: Whether can be held liable for adultery, which is also known as zina Format 1. 2. 3. 4. 5. 6.

Elements Parties Proof Defences Punishment Conclusion

Definition of Zina •

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Zina would be when sexual intercourse occurs willingly between a man and a woman not validly married to each other. Zina is defined by modern jurists as when there is sexual intercourse between a man and a woman but they are not, or they are not suspected to be in a valid marriage with each other. Zina is forbidden in Islam, as can be seen by the authority in Chapter 17, verse 32 of the al-Quran which states, “And come not near to adultery: For it is a shameful (deed) and an evil, opening the road (to other evil).” This means that adultery is considered a shameful act that may affect the self-respect of a person or make others lose respect towards such person. Furthermore, zina is regarded as being able to lead to many evils. These evils include women getting pregnant out if wedlock, children being born illegitimate, and there being a rise in baby dumping. Zina can also be harmful to the bond of a family, and would be harmful against the interests of children. Furthermore, murders and feuds can occur as a result of zina, which can then result in the permanent bonds of society, reputation, and property to be affected in turn. Zina in the perspective of Islam has to do with actual intercourse, which refers to physical penetration. This means if there is no physical penetration, there shall not be zina. Furthermore, all ways which would lead to zina are forbidden in the eyes of Islam. Therefore, acts that may encourage indecency and obscenity, which in turn may lead to zina are considered prohibited.

Elements of Zina 1. Legal Element (authorities from AQ) • Chapter 17, verse 32 of the al-Quran states, “And come not near to adultery: For it is a shameful(deed) and an evil, opening the road (to other evil).” This means adultery is something that is prohibited in Islam and is considered shameful as it may lead to evils. 2. Actus reus of zina is the act of penetration. • When it comes to the act of penetration, it must occur in such a way that the man’s penis entered into the woman’s vagina. It is necessary for the act of penetration to occur in order for there to be zina punishable by hadd punishment. If there is no act of

penetration, and there are only acts like kissing, hugging, touching without any marriage ties, these acts would not fall under zina. On the other hand, if there is only an act might lead to zina, taazir punishment will be imposed instead. 3. Mens rea of zina is the intention • In order for illicit or illegal intercourse to be committed, the parties involved in zina need to have done it willingly without any force or coercion. 4. The parties of zina must be unmarried or married persons • Married persons refer to a man and a woman having marriage ties with another man or woman, but they still have sexual intercourse with people other than their spouses during a valid marriage. These parties need to be adults. Proof of Zina •

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When it comes to imposing the hadd punishment on persons for committing zina, only two types of proof can allow for this to happen, and that is either a confession from the accused or testimony of four eyewitnesses. Other types of proof can also be accepted, such as circumstantial evidence, but in such circumstances, only a taazir punishment can be imposed since evidences other than confession and testimony of four eyewitnesses are considered to harbour doubts and hadd can only be imposed if there are no doubts. To summarize, in order to impose a hadd punishment for zina, there must be either confession from the accused or four eyewitnesses to give testimony. Other such proof like circumstantial evidence or only three eyewitnesses to give testimony would only be able to warrant a taazir punishment and not hadd.

1. Confession When it comes to confession from the accused, there are several conditions that have to be fulfilled before such a confession can be deemed acceptable. a) Confession must be a clear, free, and willful confession by the accused of the act of zina • Confession can be said to be the statement of an individual that is made before the court to state that the individual had indeed committed the offence he has been accused of. When it comes to zina, it can be proven by such a confession and it would even warrant hadd punishment if this occurs. • However, before a confession can be deemed valid, the accused must expressly state the facts of how zina, or adultery, or illicit sex is done. He must state this in an accurate manner. The words that are used by him to describe such act must be clear and not metaphoric so that all doubt can be removed and prove that the accused does indeed know the meaning of zina and how it is performed. • One such instance where making sure the accused must know the meaning of the act of zina and how it is done can be seen in the Hadith reported by Ibn Abbas. • Ibn Abbas reported that the Prophet said to Ma’iz, “Maybe you just kissed, maybe you touched her, or looked…” and the man said: “No!” He (the Messenger) said, “So, did you penetrate her? (using no metaphors), and the man said: “Yes!”. The Prophet

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then ordered his punishment. In another version of the same hadith, the Prophet asked the man: “Till that of yours disappeared in that of hers?” the man said, “Yes”, the Prophet asked, “Like a stick disappears in a kohl canister and a rope in a well?” The man said, “yes!” He then asked him, “Do you know the meaning of zina?” The man said, “Yes! I did with her illegally what a husband does with his wife legally.” Therefore, it can be seen in this Hadith that the Prophet made sure of the fact that Ma’iz knew exactly what the act of zina was and how it was committed before accepting such confession and pronouncing punishment. Thus, we can conclude that it is important for there to be a clear, free and wilful confession from the accused when it comes to zina. A clear confession is said to demonstrate wilfulness as if an individual is not clear on something, it is likely he does not know the exact meaning of what he is saying and might be unwilling on it. This can lead to doubts, and there should be no doubts when it comes to a confession.

b) Confessor must be adult and a good mental condition • The individual who makes the confession must he capable of self-expression. Furthermore, such individual must be an adult and be in good mental condition. • Due to such a requirement, an issue arises as to whether a confession from the deaf and dumb can be accepted. • There are two such views pertaining to this issue. • The first view is from Imam Abu Hanifa where he is of the opinion that the confession of the deaf and dumb is not acceptable in a case of zina even though the deaf and dumb individual is capable of writing his confession or making signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is not acceptable according to this view. • The second view is from Imam Malik, Imam Shafie, and Imam Ahmad. According to them, they are of the opinion that the confession of the deaf and dumb can be accepted in a case of zina only if the deaf and dumb individual is able to write his confession or make signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is acceptable only if a confession in writing or intelligible signs can be made by such an individual, according to this view. c) Confession must be voluntary • When it comes to such confession, it must be voluntary. • It is said to be voluntary if it had been made with the free consent of the confessor, who did not face any pressure, force, temptation, or coercion. If he had made a confession under such circumstances, the confession made by him is said to not be valid. d) Confessor must explicit as to committing of the offence • This means that the confessor has to make a clear and direct confession in order to be considered explicit. The standard of explicit has two different views on how it can be achieved. • The first view is from Imam Abu Hanifah and Imam Ahmad who are of the opinion that the confessor has to make four separate confessions before the court in order for

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it to count as the confessor being explicit, and only then can such confession become sufficient proof of zina. The second view is from Imam Malik and Imam Shafie who are of the opinion that the confessor only has to make a one-time confession in order for the confessor to be considered explicit and such one-time confession is enough to be considered as sufficient proof for zina.

2. Retraction from Confession • When there is a retraction from confession in a case of zina that warrants hadd punishment, such retraction is considered to be admissible according to Islamic law, and it can be done at any stage as long as it is done before the punishment is performed. As an effect, such retraction would nullify the hadd punishment. • The retraction from confession would nullify the hadd punishment as such retraction is seen as doubt, and when it comes to hadd punishment, there can be no doubts. However, if there is a retraction of confession but there are other evidences available, the accused can still be liable for taazir punishment. On the other hand, if there is a retraction of confession and confession had been the only evidence available at the time, the accused will go free. Therefore, the evidence in the case must be looked at. • However, there comes an issue as to what can be considered a retraction from confession, and there are several views regarding this. • The first view is from Imam Abu Hanifah, Imam Malik and Imam Ahmad. They are of the opinion that retraction can be done through mere running away or turning away from the punishment. This would be sufficient enough to be considered a retraction and hadd punishment would be nullified. Therefore, this view states that such retraction does not need to be a formal or proper retraction in order to be considered a retraction. Mere running away or turning away will do. • The second view is from Imam Shafie. This view is of the opinion that mere running away is not enough to be considered as retraction. Only a proper retraction can be considered as retraction sufficient enough to nullify hadd punishment. 3. Circumstantial Evidence • Circumstantial evidence means evidence that relies on reasoning in order to reach a conclusion. An example of circumstantial evidence relevant to zina would be pregnancy out of wedlock. This is because reasoning would be used to conclude that the pregnancy out of wedlock had been a result of zina. • An issue arises when it comes to circumstantial evidence, as to whether circumstantial evidence allows for hadd punishment. There are two views on this issue. • The first view is from the Maliki school of thought where they are of the opinion that circumstantial evidence is enough to warrant hadd punishment. • The second view is from the majority, which refers to the other school of thoughts such as the Shafie and Hanbali schools of thought. They are of the opinion that circumstantial evidence is not enough to warrant hadd punishment. This is because they are of the belief that hadd is a serious punishment and it should only be imposed when there is strong evidence or confession of guilt. 4. A Denial of One Party in Zina

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Zina is an offence which involves two parties, or a joint offence, and when there exists a situation in which one party denies the commission of zina, there arises a situation as to whether hadd punishment should only be imposed on the party who confessed and not on the party who has denied the zina, or if it should still be imposed on both. There are two views on this issue. The first view is from Hanafi jurists. They are of the view that if one party denies that the zina happened, and the other confesses it, hadd punishment shall not be imposed on either one of them. This is because denial creates doubt in the committing of zina by the other party who has confessed as zina is considered a joint liability, and hadd can only be imposed when there is no doubt whatsoever. Therefore, they are of the opinion that denial creates doubt, and since hadd can only be imposed without any doubt, hadd would not be imposed in such a situation when one party denies. Instead, both will be liable for taazir punishment. The second view is from the majority of jurists. They are of the opinion that hadd punishment should be imposed on the person who has confessed despite there being a refusal of the other party involved. This is because they believe the refusal of the other party does not affect the confession of the confessor and the confession stands on its own as conclusive proof that the confessor has committed zina.

5. Shahadah/Testimony of Four Eyewitnesses When it comes to testimony of four eyewitnesses, the four witnesses must have seen sexual intercourse, and not just seen the parties of the alleged zina embrace each other. Furthermore, it must be proven that the four eyewitnesses fulfil all the requirements that have to be fulfilled for witnesses in a case of zina. Other types of hudud only require two witnesses but zina requires four witnesses. a) He should be a credible, free, sane, adult Muslim male • In a case of zina, the witness must be adult and sane at the time of witnessing the occurrence of zina as well as when giving their testimony to the court. Therefore, a minor would not be able to be considered a witness and is not allowed to provide a testimony to the court. • Furthermore, the witness in a case of zina has to be a Muslim. It is agreed by all jurists that evidence of a non-Muslim is not acceptable in an offence of zina liable for hudud against a Muslim. • Also, according to the majority of the jurists, the four witnesses must be male in a case of zina liable for hudud. They believed that a woman is not allowed to provide evidence when it comes to matters of hudud and that such evidence is not acceptable. As such, a woman cannot act as a witness in hudud matters. It should be noted though, that this is a juristic view and not based on the al-Quran or the Sunnah. • In addition, a witness in the offence of zina liable for hadd must be adil. The definition of adil is a Muslim who refrains himself from major sins, does not commit any minor sins, has visible good deeds which are more than his evil deeds, and is moderate in his works and sayings. Generally, the jurists have agreed that adil is a Muslim who is considered as reliable in the society and does not behave notoriously. However, there are two views pertaining to the credibility of witness.

o The first view comes from Imam Abu Hanifah. He is of the opinion that every witness is to be considered credible and should not have their credibility questioned unless there is a challenge by the opposite party on such credibility. Therefore, there is to be an assumption that every witness is credible unless challenged otherwise. o The second view comes from Imam Shafie and Imam Ahmad. They are of the opinion that a witness has to fulfil the condition of credibility of witness as laid down in the al-Quran regardless of whether or not such credibility has been challenged by the other party. This means the witness must not have committed small sins or big sins as stated accordingly in the al-Quran. b) He should have capacity of speaking and seeing • A witness in a case of zina must have the power to speak and see. • However, when it comes to a deaf and dumb person as a witness, there are differing opinions on the matter. o The first view is from Imam Abu Hanifah who is of the opinion that evidence from a deaf and dumb person cannot be accepted as proof for zina liable to hadd punishment even though he is able to make intelligible signs. However, his evidence can be considered for zina liable for taazir punishment if it is in line with other evidences. o The second view is from Imam Malik and Imam Ahmad, who are of the opinion that if a deaf and dumb person is able to write before the court, his evidence is acceptable for zina liable for hadd. When it comes to Imam Malik, there is an extra acceptance for evidence from a deaf and dumb person in the form of intelligible signs. • On the other hand, when it comes to the issue of evidence from a blind person, all jurists are agreed upon the fact that such evidence is not acceptable. This is because it would be impossible for the blind person to witness the actus reus of the act of zina which is the penetration. c) He should have eye-witnessed the actual act of intercourse • For this requirement, the witness must have witnessed the act of zina by himself through his own eyes. It cannot be through a CCTV or other means. It must be with the use of his own eyes. d) There should be at least four witnesses • When it comes to an offence of zina liable to hadd, there must be at least four witnesses. If such number is failed to be achieved and the number of witnesses is less than four, then the hadd punishment cannot be imposed. Instead, there would be a taazir punishment imposed. • According to Imam Hanifah and Imam Malik, if there are less than four witnesses in an offence of zina liable for hadd punishment, the accuser would be punished for the offence of false accusation of adultery or qazf, and such punishment is 80 stripes. e) The witnesses should testify in the same hearing, about the same zina act

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All witnesses must say the same thing. If they contradict each other, it would be counted as doubt. Furthermore, such evidence must not be delayed. There are two differing views pertaining to the delaying of evidence. o The first view comes from Abu Hanifah who is of the opinion that evidence in an offence of zina liable for hadd must not be delayed for a considerable amount of time. In his opinion, when evidence is delayed, it creates doubt. Since hadd cannot be imposed when there is doubt, such delay causing doubt would then remove the hadd punishment. o The second view comes from Imam Malik and Imam Shafie, who are of the opinion that delayed evidence does not affect the authenticity or permissibility of it, and is acceptable for an offence of zina liable for hadd punishment.

The reason why such strict requirements are imposed for testimony of eyewitnesses in establishing guilt when it comes to the offence of zina is in order to protect women from false charges. In other words, falsely incriminating innocent people can be avoided, including preventing the invasion of privacy of Muslims which is one of the most important principles in Islam. Furthermore, it is agreed among Muslim scholars that the offence of zina contains two principles. The first principle is the right of God. This means when such act is done in secret, it would mean the right of God has been violated. The second principle is the right of society. This means when the act of zina becomes public, the right of society would be transgressed and society has to take steps to protect its morals through form of earthly punishment. It focuses not on the act itself as this is mainly for Allah to judge, but instead focuses on the fact that such an act has become known to the community and has caused disturbance of public order and morality, and this, in the right of society, has to be punished. Possible Defences for Zina There are several possible defences available to be used against hadd punishment. 1. Minor & Unsound Mind/Insane • The defences of minor and unsound mind or insane are based upon a specific Hadith. • The Hadith states, “Three persons are exempted from any liability, namely, minor until he attains puberty, the sleeping person until he awakes; and insane until he attains sanity.” • Therefore, according to the Hadith it can be seen that a minor should be exempted from liability as well as an insane person or a person of unsound mind. Thus, if it can be proven that the accused is of a minor or u...