In the name of Allah, Most Compassionate, Most Merciful,
Fornication (zina) and that which leads to fornication is completely unlawful and considered a major sin. The Qur’an and Sunnah are quite clear about this.
Allah Most High says:
“Do not come (even) near to adultery, for it is a shameful (deed) and an evil, opening the road to other evils.” (Surah al-Isra, 32)
Thus, fornication and whatever that leads to it, such as touching, kissing, embracing, informal interaction are all considered to be major sins, hence must be avoided at all times.
As far as the Islamic legal punishment for fornication is concerned, the Hanafi jurist (faqih), Imam al-Mawsili (Allah have mercy on him) states:
“It (legal punishment) is established by evidence and confession. Evidence is that four people give testimony against a man and woman that they committed fornication. When they testify (in the courts), the judge (qadhi) will inquire from the witnesses the particulars and details of what took place, the place of incident, the time of incident, and the identity of the woman involved. When they give details of all of this and they state that the woman was unlawful upon the man in every way, and that they testify the observing of sexual intercourse taking place like they see a Kohl needle entering the Kohl bottle, and the four witnesses are considered upright both privately and publicly, then the judge will give the order for the legal punishment to be enforced upon the perpetrators.” (See: al-Ikhtiyar li ta’lil al-Mukhtar, 2/312-313)
We can see from the above text (and other such texts in the books of Fiqh) that there are detailed and stringent conditions for the legal punishment of fornication and adultery to be enforced upon an individual. If these conditions are not met, the punishment will not be enforced.
One should always keep in mind the objective and spirit of Shariah concerning the various legal punishments. The idea is not to enforce the punishment and make people suffer; rather the objective is to prevent harm, corruption and immorality in the society. Thus, legal punishments act as deterrents more than actually get people punished.
Allah Most High says:
“In the law of retaliation there is (saving of) life to you, O you men of understanding.” (Surah al-Baqarah, V: 179)
An example of this which comes to mind is that we see speed cameras being placed on many roads and streets (especially here in the UK!) in order to deter people from speeding in their vehicles. The idea behind these speed cameras is not to catch people speeding, rather to prevent people from speeding and causing accidents. If the aim was to catch people speeding, there would be no warning signs indicating that a camera is present. However, we see that whenever a speed camera is placed, many warnings are given that “beware this road has a speed camera”. Many of the times, the camera is not even in operation, hence, the idea is to stop people speeding rather than catch and punish them.
The same is with the various legal punishments prescribed by Shariah, in that they are prescribed to prevent people from committing unlawful actions and corrupting the society, yet the rules and conditions for a legal punishment to be enforced are so stringent that very rarely would an individual be punished. The legal punishment is considered a deterrent, but if an individual did involve him/herself in some unlawful activity, the objective now is not to get the individual punished rather to save him/her from the punishment.
This will become more evident with the following incident that took place in the time of the Messenger of Allah (Allah bless him & give him peace):
Sayyiduna Abu Hurayra (Allah be pleased with him) narrates: “A man from amongst the people came to the Messenger of Allah (Allah bless him & give him peace) while he (the Messenger of Allah) was sitting in the Masjid, and addressed him, saying: “O Messenger of Allah! I have committed illegal sexual intercourse.” The Messenger of Allah (Allah bless him & give him peace) turned his face away from him. The man came to that side to which the Messenger of Allah (Allah bless him & give him peace) had turned his face, and said: “O Messenger of Allah! I have committed illegal intercourse.” The Messenger of Allah (Allah bless him & give him peace) turned his face to the other side, and the man came to that side. When he confessed four times, the Messenger of Allah (Allah bless him & give him peace) called him and said: “Are you insane?” He said: “No, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace) said: “Are you married?” He said: “Yes, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace) said (to the people): “Take him away and stone him to death.” (Sahih al-Bukhari, no: 6439)
The above incident shows the importance of trying to avert a legal punishment as much as possible. The man came and confessed to the Messenger of Allah (Allah bless him & give him peace) that he had committed unlawful sexual intercourse, yet the Messenger of Allah (Allah bless him & give him peace) ignored him, in order that he may change his mind.
Similarly, Sayyiduna Abd Allah ibn Abbas (Allah be pleased with him) narrates that When Ma’iz ibn Malik came to the Messenger of Allah (and confessed that he had committed adultery), the Messenger of Allah (Allah bless him & give him peace) said to him: “Probably you have only kissed (the woman), or touched, or looked at her?” He said: “No, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace), using no euphemism, said: “Did you have sexual intercourse with her?” The narrator said: At that moment, (i.e. after he confessed that he had sexual intercourse), the Messenger of Allah (Allah bless him & give him peace) ordered that he be stoned.” (Sahih al-Bukhari, no: 6438)
This famous incident of Ma’iz ibn Malik also gives the same message, in that the Imam should try his best to avoid the legal punishment. This is the reason why it is recommended to say to the one who confesses committing fornication that “You may only have touched, you may only have kissed, are you sure you had sex, think again properly of what you are saying and think of the consequences of your confession, and other such things.
This (trying to avert a legal punishment) has been explicitly mentioned in one Hadith. Sayyida A’isha (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.” (Sunan Tirmidhi, no: 1424)
Due to the forgoing, the Fuqaha have laid down (based on the guidelines of the Qur’an and Sunnah) certain strict rules and conditions in order for a punishment to be established or enforced. These strict conditions can be seen in all of the various penalties that have been imposed. The following are certain rules and conditions for the punishment of committing adultery to be enforced, as mentioned in the books of Hanafi jurisprudence:
1) It is actual vaginal sexual intercourse (and not anal or oral intercourse) that takes place between a man and a woman.
2) The man and woman involved in this unlawful sexual intercourse are not married; neither is the woman a slave-girl of the man.
3) It is proven by four people testifying that they clearly observed the couple engaged in unlawful sexual intercourse without any doubt or ambiguity. They are able to say that they saw their private parts meet like the Kohl needle entering the Kohl bottle. The judge would ask them all the various details concerning the time and location of the incident, and who were the people involved and other such matters, in order to remove any doubt.
4) If the four witnesses take back their testimony before the actual punishment is enforced, then the punishment will be abandoned, and they (witnesses) will be punished for the crime of false accusation.
5) The witnesses are not allowed to delay their testimony from the time of the incident to the time of testifying. If they delayed testifying in the courts, the punishment will not be enforced, unless they were very distant from the Imam hence the delay was due to them travelling to the Imam.
6) The punishment of adultery is also proven if the perpetrator him/herself confesses to be guilty of the crime. He/she must be sane, mature (baligh) and must confess four separate times in four separate sessions that the crime was committed. The Imam will try to wave away the punishment as much as possible by saying to the confessor that “you may have only touched or kissed” and other such statements. The Imam will also inquire about the various details of the incident, and when the confessor explains everything without leaving any doubt or ambiguity, the punishment will be enforced.
7) If the confessor takes back his words before the punishment is enforced or during the punishment, he/she will be released and set free. (See: al-Ikhtiyar li ta’lil al-Mukhtar, 2/311-316 & other major Hanafi Fiqh references)
The legal punishment:
If the crime of fornication is carried out by an individual who is sane, mature, Muslim and is married to a spouse who is also sane, mature, Muslim, and that their marriage is consummated, then the legal punishment is that he/she will be stoned to death (rajm). The Imam, witnesses and other Muslims would take part in the stoning. If the witnesses refuse to take part in stoning the perpetrator, the punishment will be dropped, as this would be considered a sign of them taking back their testimony.
If the crime of fornication is carried out by an individual who does not qualify to be in the above category, then the punishment is that he/she will be given 100 lashes. These whips and lashes will be spread out over the body, avoiding the head, face and the private parts. A pregnant woman will not be whipped until she gives birth to her child and after her post natal bleeding (nifas). However, if she is to be stoned, then this may be carried out straight after giving birth.
Finally, one should remember that it is not necessary in order for one’s sin to be forgiven that he/she receives the legal punishment (hadd) for the sin committed. The reason being is that one is not obliged to confess that he/she committed adultery; hence one may keep the sin hidden and not inform the Islamic judge about it. Also the various Islamic legal punishments (hudud) are only carried out in an Islamic state (dar al-Islam) by the Imam, thus repenting to Allah Almighty will be sufficient.
The above are just some of the necessary elements concerning the legal punishment of fornication and adultery. There are other details also, but time does not allow me to discuss them, hence the above should be sufficient for now, Insha Allah.
And Allah knows best
Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK