Explanation of hadith 14 from the arbaeen an nawawi
ميحرلا نمحرلا هللا بسمحدٌث14لالمام االربعٌن منالنوويPART ONEADULTERY IN ISLAM
Text of the hadith"قال عنه هللا ًرض مسعود ًأب عن:صلى هللا رسول قالوسلم علٌه هللا" :ثالث بإحدى إال مسلم ٍامرئ دم ٌحل ال:المفارق لدٌنه والتارك ،بالنفس والنفس ،ًالزان الثٌبللجماعة"ومسلم البخاري رواه".It is not permissible to spill the blood of a Muslim except in three [instances] : themarried person who commits adultery, a life for a life, and the one who forsakes hisreligion and separates from the community.On the authority of Ibn Masood (radiAllaahu anhu) who said : The Messenger ofAllaah (sallAllaahu alayhi wa sallam) said :
Adultery a historical surveyThe Code of HammurabiHammurabi was the ruler who chiefly established the greatness ofBabylon, the worlds first metropolis. Many relics of Hammurabis reign([1795-1750 BC]) have been preserved, and today we can study thisremarkable King....as a wise law-giver in his celebrated code. . .By far the most remarkable of the Hammurabi records is his code oflaws, the earliest-known example of a ruler proclaiming publicly to hispeople an entire body of laws, arranged in orderly groups, so that allmen might read and know what was required of them. The code wascarved upon a black stone monument, eight feet high, and clearlyintended to be reared in public view. This noted stone was found in theyear 1901, not in Babylon, but in a city of the Persian mountains, towhich some later conqueror must have carried it in triumph. It beginsand ends with addresses to the gods. Even a law code was in thosedays regarded as a subject for prayer, though the prayers here arechiefly cursings of whoever shall neglect or destroy the law.
Adultery in the Code of HammurabiAdultery was punished with the death of bothparties by drowning, but if the husband was willingto pardon his wife, the king might intervene topardon the paramour. For incest with his ownmother, both were burned to death; with astepmother, the man was disinherited; with adaughter, the man was exiled; with a daughter-in-law, he was drowned; with a sons betrothed, hewas fined. A wife who for her lovers sake procuredher husbands death was gibbeted.
Adultery in the BibleThou shalt not commit adultery• The Hebrew Bible (the Tanakh or Old Testament) prohibitsadultery in the sixth of the Ten Commandments (Exodus20:14). Adultery in traditional Judaism applies unequally toboth parties.• For instance, the Old Testament prescribes capitalpunishment for adultery between a man and marriedwoman, though not for adultery between a woman and amarried man.• And the man that committeth adultery with another manswife, even he that committeth adultery with hisneighbours wife, the adulterer and the adulteress shallsurely be put to death. (Lev. 20:10).
Adultery in Bible• Furthermore, the Bible prescribes stoning not only forfemale extramarital sex, but also for female premaritalsex in the case where the woman lies about hervirginity.• If any man take a wife, and go in unto her, … and say, / Itook this woman, and when I came to her, I found hernot a maid. / … But if this thing be true, and the tokensof virginity be not found for the damsel: / Then theyshall bring out the damsel to the door of her fathershouse, and the men of her city shall stone her withstones that she die. (Deut. 22:13-21).
Adultery in Bible• The Bible even prescribes the same for engagedwomen who lay with another man, under thepremise that if she allows the action withoutprotesting, this indicates willingness.• If a damsel that is a virgin be betrothed unto anhusband, and a man find her in the city, and liewith her; / Then ye shall bring them both outunto the gate of that city, and ye shall stone themwith stones that they die; the damsel, becauseshe cried not, being in the city. (Deut. 22:23-24).
Rabbinic Judaism• Adultery in traditional Judaism applies to both parties, but depends on themarital status of the woman (Lev. 20:10). Though the Torah prescribes thedeath penalty for adultery, the legal procedural requirements were veryexacting and required the testimony of two eye-witnesses of goodcharacter for conviction. The defendant also must have been warnedimmediately before performing the act. A death sentence could be issuedonly during the period when the Holy Temple stood, and only so long asthe Supreme Torah Court convened in its chamber within the Templecomplex.Today, therefore, no death penalty applies.• At the civil level, however, Jewish law (halakha) forbids a man to continueliving with an adulterous wife, and he is obliged to divorce her. Also, anadulteress is not permitted to marry the adulterer, but, to avoid any doubtas to her status as being free to marry another or that of her children,many authorities say he must give her a divorce as if they were married.]• According to Judaism, the Seven laws of Noah apply to all of humankind;these laws prohibit adultery with another mans wife
ADULTERY IN INJEELJohn 8:11• Jesus returned to the Mount of Olives, 2 but early the next morning he was back again at theTemple. A crowd soon gathered, and he sat down and taught them. 3 As he was speaking, theteachers of religious law and the Pharisees brought a woman who had been caught in the actof adultery. They put her in front of the crowd.• 4 “Teacher,” they said to Jesus, “this woman was caught in the act of adultery. 5 The law ofMoses says to stone her. What do you say?”• 6 They were trying to trap him into saying something they could use against him, but Jesusstooped down and wrote in the dust with his finger. 7 They kept demanding an answer, so hestood up again and said, “All right, but let the one who has never sinned throw the firststone!” 8 Then he stooped down again and wrote in the dust.• 9 When the accusers heard this, they slipped away one by one, beginning with the oldest,until only Jesus was left in the middle of the crowd with the woman. 10 Then Jesus stood upagain and said to the woman, “Where are your accusers? Didn’t even one of them condemnyou?”• 11 “No, Lord,” she said.• And Jesus said, “Neither do I. Go and sin no more.”
Other historical practices• In Native American cultures, severe penalties could be imposed onan adulterous wife by her husband. In many instances she wasmade to endure a bodily mutilation which would, in the mind of theaggrieved husband, prevent her from ever being a temptation toother men again.Among the Aztecs, wives caught in adultery wereoccasionally impaled, although the more usual punishment was tobe stoned to death.• The Laws of Manu of ancient India, for example, said: "thoughdestitute of virtue or seeking pleasure elsewhere, or devoid of goodqualities, yet a husband must be constantly worshiped as a god by afaithful wife"; on the other, hand, "if a wife, proud of the greatnessof her relatives or [her own] excellence, violates the duty which sheowes to her lord, the king shall cause her to be devoured by dogs ina place frequented by many."
Definition of Zina in IslamSexual intercourse outside of marriage, semblanceof marriage or lawful ownership.Bestiality: NO PRESCRIBED PUNISHMENT BUTDISCRETIONARY PUNISHMENT WILL BEPRESCRIBED.THE ANIMAL WILL NOT BE KILLED AND ITS MEATCAN BE EATEN.ACCORDING TO HANBALIS ITS MEAT IS FORBIDDEN.Homosexuality
Initial punishment of adulteryIf any of your women are guilty of lewdness, Takethe evidence of four (Reliable) witnesses fromamongst you against them; and if they testify,confine them to houses until death do claim them,or Allah ordain for them some (other) way.If two men among you are guilty of lewdness,punish them both. If they repent and amend, Leavethem alone; for Allah is Oft-returning, MostMerciful.
Three types of prescribed punishmentsfor Adulteryثالثة االسالمٌة والحدود:وتغرٌب ،وجلد ،رجم.Stoning, Whipping, ExileConditions for implementing the prescribed punishment:AGE OF MATURITYSANITYMUSLIMNO STONING IN THE CASE OF A MARRIED DISBELIEVER IN THE HANAFIMADHAB. WHIPPING IS PRESCRIBED.NO PRESCRIBED PUNISHMENT FOR DISBELIEVERS IN THE CASE OF ADULTERYAND DRINKING ALCOHOL IN THE SHAFAI AND HANBALI MADAHIBMALIKI: ONLY DISCRETIONARY PUNISHMENT IF BOTH PARTIES AREDISBELIEVERIF A DISBELIEVER RAPES A MUSLIM WOMAN THEN HE SHOULD BE KILLED.IF CONSENSUAL ACT OCCURS BETWEEN A DISBELIEVING MAN AND AMUSLIM WOMAN THEN BOTH SHOULD BE GIVEN A SEVERE PUNISHMENT.
Classification of offender• Unmarried• Married• Definition of حصنMarried person who has consummatedthe marriage, sane, free (not a slave)
Punishment of an unmarried offender(جلدة مائة منهما واحد كل فاجلدوا ًوالزان الزانٌة* )ًف واختلفواوأصحابه حنٌفة أبو فقال ،الجلد مع التغرٌب:أصال تغرٌب ال.ًالشافع وقال:حرا ،أنثى أو كان ذكرا زان لكل الجلد مع التغرٌب من بد المالك وقال ،عبدا أو كان:قال وبه ،المرأة تغرب وال الرجل ٌغربالعبٌد على مالك عند تغرٌب وال ،ًاالوزاع.The Holy Quran does not prescribe exile for one year.Hanafis go with the Quranic commandment and explainexile as a discretionary punishment.Shafais: exile as well as lashesMalikis: Man should be exiled but not the womanSlaves are not to be exiled.
BASIS OF HANAFI APPROACH IF THERE IS ACONTRADICTION BETWEEN QURN AND HADITHالحنفٌة عمدة وأما:أن رأٌهم على ًمبن وهو الكتاب فظاهربأخبار الكتاب ٌنسخ لٌس وأنه النسخ النص على الزٌادةاْلحادThe holy Quran mentions only lashesA commandment given in the Holy Qurancannot be abrogated by single reports.
STRENGTH OF AHADITH OF RAJM• NARRATED BY 53 COMPANIONS RA• PRACTICE OF THE RIGHTLY GUIDED CALIPHS• CONSENSUS OF UMMA
Proof of adultery• FOUR WITNESSES• CONFESSION• PREGNANCYTHE HOLY PROPHET, PEACE BE UPON HIM SAID:بالشبهات الحدود ادرأوا“Avert punishments if suspicions arise”. Suspicionmeans that for any offence that cannot proved100%, so to speak, punishments should be averted.
Proof of adulterywitnesses(شهداء بأربعة ٌأتوا لم ثم* )ٌكونوا أن صفتهم من وأنًف فرجه بمعاٌنة تكون أن الشهادة هذه شرط من وأن ،عدوالأن على وجمهورهم ،بالكناٌة ال بالتصرٌح تكون وأنها ،فرجهاًف وال زمان ًف ال تختلف ال أن الشهادة هذه شرط منمكانFour upright witnessesWitnessing the actual actAll witnesses must have seen the act at thesame time and at the same placeVery tough requirement!
Proof of adulteryconfessionفإنمالكٌقوالن ًوالشافع:به اعترافه علٌه الحد وجوب ًف ًٌكفأبو وقال ،وجماعة والطبري ثور وأبو داود قال وبه ،واحدة مرةمرة أربعة بأقارٌر إال الحد ٌجب ال ،لٌلى ًأب وابن وأصحابه حنٌفةوإسحاق أحمد قال وبه ،مرة بعدوزادوأصحابه حنٌفة أبو:مجالس ًفمتفرقةThe person confessing should be sane, not drunkConfessing once is enough: Imam Malik and ImamAsh ShafaiConfession four times: Hanafis, HanbalisConfession in different settings.
DNA cannot be primary evidence for rape: Pak Islamicbody• DNA samples cannot be used as primaryevidence in rape cases, an Islamic body thatadvises the Pakistan government said.• The Council of Islamic Ideology, aconstitutional body, ruled thatDeoxyribonucleic acid (DNA) sample is notacceptable as primary evidence in case of arape. However, they can be used as secondaryor supporting evidence.
Arguments of those who opposestoningIt is not in the Holy QuranIt is possible that the Holy Prophet,m, peace be uponhim, had the Jews guilty of zina stoned according to theirown law; then as there were no revelations concerningthe offence, he, peace be upon him, prescribed the samepunishment for guilty Muslims.Punishment by stoning was abrogated by the Holy Quranِ َّاَّلل َدْبَع ُتْلَأَس ًُِّناَبٌَّْشال اَنَثَّدَح ِد ِاحَوْلا ُدْبَع اَنَثَّدَح َلٌِعاَمْسِإ ُنْب ىَسوُم اَنَثَّدَحىَف ْوَأ ًِبَأ َنْبُهَدْعَب ْمَأ ِورُّنال َلْبَقَأ ُتْلُقَف َمَّلَسَو ِهٌَْلَع ُ َّاَّلل ىَّلَص ًُِّبَّنال َمَجَر َلاَقَف ِمْجَّرال َْنعي ِْردَأ َال َلاَق
Arguments of those who opposestoning• The stoning was done according to thefollowing verse of المائدةِضْرَ ْاأل ًِف َن ْوَعْسٌََو ُهَلوُسَرَو َ َّاَّلل َونُب ِارَحٌُ ٌَِنذَّلا ُءاَزَج اَمَّنِإٍف َال ِخ ْنِم ْمُهُلُجْرَأَو ْمِهٌِدٌَْأ َعَّطَقُت ْوَأ واُبَّلَصٌُ ْوَأ واُلَّتَقٌُ ْنَأ اًداَسَفِةَر ِخَ ْاْل ًِف ْمُهَلَو اٌَْنُّدال ًِف ٌيْز ِخ ْمُهَل َكِلَذ ِضْرَ ْاأل َنِم ا ْوَفْنٌُ ْوَأٌمٌِظَع ٌابَذَع(33)
Arguments of those who opposestoningإذاوالشٌخة الشٌخ زنىعزٌز وهللا هللا من نكاال البتة فارجموهماحكٌم1. The style is not like the Holy Quran2. There is no abrogation in the verse of the Holy Quran.The Holy Quran abrogated earlier revelations.3. How can Umar RA be the only one to bring this versesince Ubay ibn Kaab mentioned that we used to reciteit?4. The verse pertains to old man and woman. Whatabout young people?5. Issues with the long narration from Umar RA in AlBukhari
Arguments of those who opposestoningَّنَأ ْمَلْعَت ْمَلَأ اَهِلْثِم ْوَأ اَهْنِم ٍرٌَْخِب ِتْأَن اَهِسْنُن ْوَأ ٍةٌََآ ْنِم ْخَسْنَن اَمٌرٌِدَق ٍءًَْش ِّلُك ىَلَع َ َّاَّلل(106)البقرةAccording to this verse Allah SWT replaces anabrogated verse with something similar to orbetter than this. If the verse of stoning wasabrogated then which verse has replaced it?