A Brief Description of the Question:
What is Fornication (ZINA)?
The Answer:
To fornicate means to have sexual intercourse with a woman that one is not married to. The Arabic root of the word fornication (zina) is zana. The lexical meaning and term meaning of the word zina are the same. It means the sexual intercourse of a man and woman who are not married to each other from the front part of their bodies. The man who fornicates is called “zani” and the woman is called “zaniyah”.
Hanafis describe zina as a fiqh term as follows: the sexual intercourse of a man who is mukallaf (responsible) with religious decrees with a woman who is mature enough to be desired for sexual intercourse and who is not his wife or female slave in an Islamic country from the front part of their bodies.
It is necessary for the glans of the penis to enter the vagina for the punishment of hadd to be carried out. The intercourse less than it, for instance, kissing, hugging, rubbing the penis between the thighs, etc do not necessitate the punishment of hadd (punishment fixed by the Quran) although they are haram. Since small children and insane people are not mukallaf, their fornication does not necessitate the punishment of hadd. On the other hand, according to Abu Hanifa, anal intercourse with a man or woman (liwata) is not decreed as zina because it cannot be defined as zina. Abu Yusuf, Imam Muhammad, Shafii, Hanbalis and Malikis hold the opposite view. Intercourse with a dead woman and an animal is not decreed as zina, either, because that kind of intercourse is not regarded as normal by healthy people. In addition, it is necessary that the man or the woman be not forced to commit fornication. The Messenger of Allah (pbuh) said: "My umma (community) will not be accounted for the things that they do by mistake, forgetting and being forced." (Bukhari, Hudud, 22; Talaq, II; Abu Dawud, Hudud, 17; Tirmidhi, Hudud, 1; Ibn Majah, Talaq, 15).
Islamic scholars agree unanimously that the punishment of hadd is not needed for a woman who is forced to fornicate. As for the man who is forced, according to the preferred view of Shafiis and Malikis, it is not necessary to carry out the punishment of hadd or tazir (any punishment other than hadd) for such a man. Their evidence is the hadith above and the excuse of being forced. According to the first view of Abu Hanifa, if the enforcement is from the head of the state, the punishment of hadd is not necessary. If somebody other than the head of the state has forced a man to fornicate, the punishment of hadd is carried out in accordance with istihsan (deciding in favor of the public interest in a matter that is not otherwise prohibited) because only the head of the state can force someone to do it. The view of Abu Hanifa that settled is that the punishment of hadd is not carried out for someone who is forced because sometimes, a man can commit involuntary sexual intercourse. According to Abu Yusuf and Imam Muhammad, the punishment of hadd for the forced man is not carried out in either case. Imam Zufar holds the opposite view (al-Qasani, Badayiu's-Sanayi', 2nd impression, Beirut 1394/1974, VII, 34,180; ash-Shirazi, al-Muhadhdhab, Egypt n.d., II, 267; Ibn Rushd, Bidayatu'l-Mujtahid, II, 267; Ibn Rushd, Bidayatu'l-Mujtahid, II, 431; Ibn Qudama al-Mughni, 3rd impression, Cairo,1970, VIII,187, 205; Wahba az-Zuhayli, al-Fiqhu'l-Islami wa Adillatuh, 2nd impression, Damascus 1405/1985, VI, 27 et al; Ömer Nasuhi Bilmen, Hukuk-ı İslâmiyye ve İstilâhat-ı Fıkhıyye Kamusu, İstanbul 1968, III,197 et al).
Zina is regarded as a haram and ugly act in both Islam and the previous heavenly religions. It is one of the greatest sins. Its punishment is the most severe hadd punishment because it is a crime against honor and generations.
The following is stated in the Quran:
"Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils)." (al-Isra, 17/32). "Those who invoke not, with Allah, any other god, nor slay such life as Allah has made sacred, except for just cause, not commit fornication― and any that does this (not only) meets punishment (But) the Penalty on the Day of Judgment will be doubled to him, and he will dwell therein in ignominy " (al Furqan, 25/68).
The punishment of the fornication of a single man and a single woman is one hundred stripes; the punishment of the fornication of a married man is rajm (stoning to death). Allah, the Exalted, states the following: "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 " (an-Nur, 34/2). The Arabic word “jaldah” (stripe) means hitting on the skin without penetrating the flesh. While flogging, thick clothes like the coat, jacket, etc of the person is taken off; the other clothes are not taken off.
The application of rajm for married, chaste man or woman is definite by the sunnah because the Messenger of Allah (pbuh) applied the punishment of rajm for Maiz and a woman from Bani Ghamid. The companions agree unanimously that rajm is legitimate.
The hadd for zina is a right of Allah. It is regarded as one of the rights of the society because it is a crime committed against the family, generation and the order of the community.
The madhhab imams agree unanimously that the hadd for zina is not necessary for children and insane people. The following is stated in the hadith: "Three people are not accounted for: a child until he becomes mature, a sleeping person until he gets up, insane person until he recovers.” (Abu Dawud Hudûd, 17).
Conditions of applying the hadd for zina
First of all, it is necessary to state the following: the fact that there are some conditions for the situations like fornication and slandering someone that he/she has fornicated dos not mean that no punishment is applied if those conditions are not present. It means the punishment of hadd determined by our religion is not applied. However, there are punishments that the head of the state or the judges that he has appointed will give. They are named the punishment of tazir; punishments like imprisonment, beating and killing can be given based on the type of the crime. As a matter of fact, according to Hanafis and Malikis, the Islamic state can decide for capital punishment for the repetition of the crime, committing crimes as a habit and homosexual intercourse. It is called “al qatl siyasatan” ('killing as an act of punishment for the sake of upholding public order). (Ibn Abidin, Raddu'l-Mukhtar, III, 196; az-Zuhayli, ibid, VI, 200).
There are some conditions for the punishment of fornication to be applied to the man or woman:
1- The adulterer must be over the age of puberty. A child who has not reached the age of puberty cannot be given the punishment of hadd. If a man fornicates with a small girl, the punishment of hadd is not necessary for the girl but it is necessary for the man. The girl is not mukallaf but the man is and he is responsible for what he does. (Bilmen, Ömer Nasuhi, Hukuku İslamiye, 3/203, Zina Bölümü)
2- They must be sane. An insane person cannot be given the punishment of hadd. If a sane man fornicates with an insane woman or if a sane woman fornicates with an insane man, the sane one is given the punishment of hadd.
3- According to most of the scholars, the punishment of hadd is given to both a Muslim and an unbeliever. However, according to Hanafis, a married unbeliever man is not stoned to death, he is flogged with stripes. According to Malikis, if an unbelieving man fornicates with an unbeliever woman, they are not given the hadd punishment. However, if they reveal it, they are given a different punishment. If an unbeliever man forces a Muslim woman for fornication, he is killed. According to Shafiis and Hanbalis, non-Muslims with passports of another country cannot be punished for fornication or drinking alcohol. They are the rights that interest Allah and the foreigners are not responsible for them.
4- Fornication must be carried out willfully. According to the majority of scholars, a person who is forced to fornicate cannot be given the punishment of hadd. Hanbalis hold the opposite view.
5- Fornication must take place between human beings. According to the three madhhabas and the sound view among Shafiis, a person who fornicates with an animal is not given the punishment of hadd; he is given the punishment of tazir. The animal is not killed. According to the view of the majority of the scholars, there is no drawback to eating the meat of that animal. According to Hanbalis, the animal is killed with the witnessing of two men; the meat of that animal becomes haram and the price of the animal is paid to its owner.
6- Fornication must not be based on a suspicion. According to the majority of the scholars, if someone fornicates with a woman who is a stranger thinking that she is his wife or slave, the punishment of hadd is not necessary. According to Abu Hanifa and Abu Yusuf, the punishment of hadd is necessary. Here, there is suspicion about the doer. There is a unanimous agreement that the punishment of hadd is not necessary for a sexual intercourse after an invalid marriage, which is controversial in terms of madhhabs. The same thing is valid for the marriage of a girl without the permission of her parents or relatives or a marriage without witnesses. If the marriage is regarded invalid unanimously, then the punishment of hadd is carried out. Being married with two sisters at the same time, marrying a fifth woman while one is married with four women, marrying someone that is haram to marry in terms of relation or breastfeeding, marrying a woman who is waiting for iddah (the period of waiting by a woman who is divorced or whose husband has died) and marrying a woman that one has divorced three times before that woman marries someone else are invalid marriages, and the punishment of hadd are carried out for them after sexual intercourse. However, if the person claims that he did not know that it was haram, then sexual intercourse for the cases mentioned above does not necessitate the punishment of hadd.
7- The fornication must be in dar al-Islam (in an Islamic country). The head of the Islamic state have no authority or power over dar al-harb (a country of non-Muslims) or dar al-baghi (a country that has rebelled). That is, he cannot apply the punishment of hadd there.
8- The woman must be alive. According to the majority of the scholars, a person who has sexual intercourse with a dead woman is not given the punishment of hadd. In Malikis, the common view is just the opposite.
9- The sexual intercourse must be through the vagina and the glans of the penis must enter the vagina. Sexual intercourse through anus, according to Abu Hanifa, necessitates the punishment of tazir only. According to Abu Yusuf, Imam Muhammad and other three madhhabs, sexual intercourse through anus necessitates the punishment of hadd. Sexual contact with the thigh, abdomen, etc of the woman other than her sexual organ necessitates the punishment of tazir because it is a haram act for which a punishment has not been stated definitely by Shariah...
Punishment for fornication
The punishment for fornication varies based on the marital status of the man and woman: whether they are married or single. Among the punishments are flogging with stripes, stoning to death, banishment and a punishment of tazir defined by the Islamic state.
1- Punishment of a hundred stripes
The punishment of hadd for a single man or woman is one hundred stripes, which is defined in the Quran.
"Flog each of them with a hundred stripes" (an-Nur, 24/2).
The criminal of fornication to whom the punishment of one hundred stripes was applied used to be banished from the place where the crime was committed in the first years of Islam. Hazrat Prophet said the following: "The punishment for the fornication of a single man and woman is one hundred stripes and a banishment of a year." (Ibn Majah, Hudud, 7). However, that application was before the Chapter of an-Nur was sent down. When that chapter was sent down the punishment of stripes for the single criminals and the punishment of stoning to death for the married criminals were determined. (as-Sarakhsi, al-Mabsut, 3. impression, Beirut 1398/1978, IX, 36 et al).
According to Hanafis, the punishment of banishment is not added to the punishment of stripes because the verse states the whole punishment. However, the punishment of banishment is not a punishment of hadd; it is included in the punishment of tazir, which is left to the view of the head of the Islamic state. If he thinks that banishment will be useful, he will apply it. As a matter of fact, the imprisonment of the adulterer until he/she repents is like that.
According to Shafiis and Hanbalis, the punishment of stripes and banishment of a year are applied together. The place of banishment must be further than the distance of being a musafir (about 80 or 90 kilometers). The evidence that they base their view on is the banishment hadith mentioned above. However, a woman is sent to banishment together with her husband or a relative because Hazrat Prophet said, "A woman cannot go on a journey without her husband or a mahram person." (Bukhari, Taqsir, 4, Masjidu Makkah, 6, Sayd, 26, Sawm, 67; Abu Dawud, Manasik, 3; Muslim, Hajj, 413-434; Tirmidhi, Rada', 15).
According to Malikis, only the man is banished, that is, he is imprisoned in a place away from where he lives. The woman is not banished so that she will not commit fornication in the place where she is sent to.
On the other hand, the application of the punishment of stripes together with stoning to death stated for the widow at the end of the hadith of banishment is a principle that is not carried out according to four madhhabs because the hadiths that state only the punishment of stoning to death for the married adulterer are sounder than that hadith. As a matter of fact, the narration reported by a group of people from Abu Hurayra and Zayd bin Hillit states it. In the case of the fornication between a married woman and her worker, Hazrat Prophet decreed the punishment of a hundred stripes and a banishment of a year for the single worker and stoning to death for the woman. (as-Sarakhsi, ibid, IX, 37; az-Zuhayli, ibid, VI, 39). According to Zahiris, the punishment of stripes and stoning to death are carried out together. They base their views on the apparent meaning at the end of the banishment hadith: "...a hundred stripes and stoning to death as a punishment for the fornication of a married man and married woman."
2- Punishment of stoning to death:
Islamic scholars agree unanimously on the punishment of stoning to death for the fornication of a married man and married woman. The evidence comes from the sunnah and ijma (consensus).
The fact that Hazrat Prophet applied the punishment of stoning to death to married people who fornicated is definite by the hadiths that were reported by a large number of people.
The following is stated in a hadith: "The blood of a Muslim (killing a Muslim) becomes halal in three situations. Killing a married person who fornicated, killing a person in return for a person he killed and killing a person who apostatized from Islam" (Bukhari, Diyat, 6; Muslim, Qasama, 25, 26; Abu Dawud Hudud, 1; Tirmidhi, Hudud, 15, Diyat, 10; Nasai, Tahrim, 5, Qasama, 6; Ibn Majah, Hudud, Darimi, Hudud 2, Siyar, II).
The incidences when Hazrat Prophet applied the punishment of stoning to death.
a- He applied the punishment of a hundred stripes and a banishment of a year for a single man who fornicated with a married woman. The Messenger of Allah sent one of his companions to the woman and said to him: "Go to that woman; if she confesses that she has fornicated, stone her to death." (Bukhari, Hudud, 3, 38, 46, Wakalah,13; Tirmidhi, Hudud, 5, 8).
b- The incidence of Maiz, which was definite from various aspects. Maiz confessed that he had fornicated and the Messenger of Allah (pbuh) ordered him to be stoned to death. (ash-Shawkani, Naylu'l-Awtar, VII, 95, 109; Zaylai, Nasbu'r-Raya, III, 314 et al).
c- The woman from Ghamidiya confessed that she had fornicated and she was stoned to death after she gave birth to her child. (Ibn Majah, Diyat, 36; Malik, Muwatta ; Hudud II; ash-Shawkani, Naylu'l-Awtar, VII, 109).
The umma of Islam agreed unanimously that stoning to death is legitimate. However, the school of Kharijites denied stoning to death because they do not accept the reports that do not reach the level of tawatur (report by a large group of people) (as-Sarakhsi, ibid, IX, 36).
The term Ihsan and and its coverage
As an Islamic legal term, ihsan means the qualities that need to be present in a man or woman for the punishment of hadd to be applied to them. A man having those qualities is called “muhsan” and a woman “muhsanah”. The plural form is “muhsanat”.
Ihsan is divided into two as slander of fornication (qazf) and ihsan of rajm (stoning to death).
To be regarded as muhsan, a person who is slandered that he has fornicated must be sane, baligh (of age; mature), free, Muslim and not to have committed fornication before. If he/she has those qualities, the following punishment is applied for the slanderer: And those who launch a charge against chaste women, and produce not four witnesses (to support their allegation)― flog them with eighty stripes: and reject their evidence ever after: for such men are wicked transgressors " (an-Nur, 24/4).
However, if the woman confesses the fornication or if the slanderer proves the fornication through four witnesses, the punishment of hadd is annulled (see item "Qazf")
In order to be regarded as muhsan for stoning to death, a woman or man needs to have seven qualifications. Those qualifications are as follows: To be sane, to be baligh, to be free and a Muslim, to be married with a valid marriage, to have had a sexual intercourse that necessitates ghusl even if no sperm comes with his wife after the contract of marriage. If one of those conditions is not present, the punishment is transformed to a hundred stripes. Therefore, being muhsan is not in question for an insane person, a slave, an unbeliever, a person married with an invalid contract of marriage, and a person who is married but has not had a sexual intercourse with his/her spouse. On the other hand, if the man has the qualifications of being muhsan but if his wife is not muhsan due to a reason like being too young, insane or a female slave, the husband will not be regarded muhsan after those reasons are eliminated unless they do not have a sexual intercourse under equal conditions. Those seven qualifications need to be present in both spouses at the same time.
According to Abu Yusuf, a Muslim man becomes muhsan when he has a sexual intercourse with his non-Muslim wife, to whom he is married with a valid contract of marriage. Shafiis hold that opinion too. (ash-Shirazi, al-Muhazzab, II, 268). Accordingly, if one of the spouses is too young and the other is of age, if one of them is asleep and the other is awake or if one of them is sane and the other is insane and if they have a sexual intercourse, the one who is qualified is regarded muhsan; if that one fornicates later, only he/she is given the punishment of hadd.
The continuation of marriage is not necessary for the state of being muhsan to continue. Therefore, a person who has married only once and has had a sexual intercourse with his/her spouse and then has become a widow/widower can be muhsan. (Bilmen, ibid, III, 201).
