Topic: Punishment For

4:20, 26; 24:20.

Important Words:

الفاحشة (lewdness) is derived from فحش. They say فحش الامر i.e. the matter or the affair or the thing was or became foul, evil, immodest or lewd; or it became excessively foul, etc. فحشت المرأة means, the woman became foul or ugly. فاحشهmeans, he vied with him or strove to surpass him in foul or obscene speech or language, etc. فاحشة therefore means, an excess or enormity or anything exceeding the bounds of rectitude; or a thing excessively and enormously foul, evil, immoral, lewd or obscene; a sin or crime which is excessively foul; adultery or fornication. فحشاءbesides giving the same meaning as فاحشة also signifies avarice or niggardliness in the payment of Zakah or the poor-rate (Lane).

Commentary:

The women referred to in this verse are those guilty of foul or immoral conduct short of adultery. Abu Muslim and Mujahid, among others, have also held this view.

The words, confine them to the houses until death overtake them or Allah open for them a way, mean that they should be prevented from mixing with other women until they reform themselves or get married, marriage being an effective means of weaning people from immoral practices. As the offence mentioned is a serious one, four witnesses are considered necessary in order to prevent injustice being done to women.

Some scholars have sought to interpret the verse in the light of a saying of the Holy Prophet which runs as follows: "Learn from me, Allah has indeed opened for them a way, which is that if an unmarried couple commit fornication with each other they should receive a hundred stripes and should be banished for one year. But if a married man commits adultery with a married woman, then they should receive a hundred stripes each and be stoned to death" (Jarir, iv. 182). These scholars hold that the word فاحشة (fahishah) mentioned in the verse means "adultery" and that this verse prescribed that the women who committed adultery were to be detained in their houses till their death or till the time when God should open a way for them, i.e. reveal the law concerning them; and that the law which was afterwards revealed was to the effect that an unmarried woman committing fornication should receive a hundred stripes and one year’s banishment, while a married woman guilty of adultery should be stoned to death after she had received a hundred stripes. This interpretation, however, is open to many objections:

1. If the words, confine them to the houses until death overtake them or Allah open for them a way, mean that they were to be detained in their houses until God gave His law concerning them, the question is, what hindered God from giving His law at the very time of the revelation of the verse under comment? There is no hint here that the time was not yet ripe for such a law to be revealed. In this case, the only inference will be that God hesitated to give the necessary law at the time when this verse was revealed because He was not yet decided, the matter being still under His consideration. Such a supposition cannot be made about God.

2. The law mentioned in the above-quoted hadith is not found in the Quran.

3. The Holy Prophet’s own practice was against this hadith. No less than four persons were stoned to death for adultery in his lifetime, but none of them was given the punishment of a hundred stripes before being stoned as the above-mentioned hadith prescribes.

It may also be pointed out here that according to the usage of the Quran, the word فاحشة (fahishah) does not always mean "adultery" but as shown under Important Words above, it is also applied to all sorts of excesses or sins or crimes or acts exceeding the bounds of rectitude. For this meaning of the word the reader is referred to 33:31 which says: O wives of the Prophet, if any of you be guilty of فاحشة مبینة (manifestly dishonourable conduct); and 65:2 which says: unless they commit فاحشة مبینة (an act which is manifestly foul); and 7:29 which says: and when they commit فاحشة (a foul deed). In none of these verses does the word فاحشة mean adultery.

Commentary:

The verse refers to two males who are guilty of an unnatural offence or something approaching it. What particular form the punishment mentioned here should take has been left to the discretion of the authorities concerned.

Both this verse and the preceding one refer to offences for which no حد شرعی (punishment definitely fixed by the Law) has been prescribed, the matter having been left to the discretion of the authorities to be decided according to circumstances.

4:16, 20; 24:20.

Important Words:

طولا (to afford) is noun from طال i.e. he or it was or became long, tall or high. طول means, bounty or gift; ampleness of means; excellence; excess or increase; power or ability; wealth or competence. It may also mean, dowry or expenses of marriage (Lane, Aqrab & Mufradat).

اخدان (secret paramours) is the plural of خدن. They say خادنه i.e. he was or became his friend or companion; or he was or became his secret or private friend. اخدان means friends or secret friends; amorous companions or associates; companions or associates affected with sensual appetency (Lane & Mufradat).

العنت (sins) is the noun-infinitive from عنت i.e. he fell into a difficulty; or he committed a sin or a crime or an act of disobedience; or he committed fornication or adultery. عنت therefore, means, severe difficulty or hardship; a state of perdition; a corrupt or evil state or conduct; a sin or crime, or an act of disobedience deserving punishment; a wrong action (intentional or unintentional); fornication or adultery (Lane & Aqrab). See also 3:119, 2:221.

Commentary:

As God attaches great value to the faith of a Muslim, He does not like it to become impaired by his marrying disbelieving women. Hence the condition that even the bondwoman a Muslim may marry should be a believer.

The words, you are all one from another, are meant to raise believing bondwomen in the estimation of Muslims, who are hereby required not to despise them or treat them with contempt on account of their so-called lower status.

The words, half the punishment, mean 50 stripes, the punishment for (unmarried) free women being 100 stripes. See also 24:3. The word half shows that the verse refers to a punishment which can be halved, and not to stoning to death, which was inflicted on married free women. The punishment definitely prescribed in the Quran (24:3) for a fornicator and a fornicatress is only a hundred stripes, but as the Holy Prophet differentiated between married and unmarried persons, inflicting on the former the punishment of stoning to death, the aforesaid verse has been taken as only applying to unmarried persons.

The expression, this is for him among you who fears lest he should commit sin, shows that Muslims are enjoined to avoid, as far as possible, contracting conjugal relations with bond women taken prisoner from belligerent disbelievers. This is to be done only if, on the one hand, one is not able to marry a free woman and, on the other, by remaining unmarried, one fears to fall into sin. The Muslim Empire of Baghdad fell to pieces because the khalifahs took to contracting conjugal relations with bondwomen. The incompetent princes born of them ruined the State. In most cases, marital relations with bondwomen are calculated to have a demoralizing effect on both husbands and children.

Important Words:

الزانی is act. part. from زنی (aor. یزنی inf. n. زنی & زناء). They say زنی بھا i.e. he committed fornication or adultery with her. Thus الزنا means both fornication and adultery. ابن زنی، ولد زنیة and ولد الزنا all mean the same thing, i.e. the offspring of fornication or adultery. الزانی means, fornicator or adulterer, and الزانیة means, fornicatress or adulteress; and applied to a man it has an intensive meaning, i.e. one much addicted to fornication or adultery. The plural of زان is زناة like قضاة which is plural of قاض and the plural of زانیة is زوان (Lane & Aqrab).

جلدة (stripes) is derived from جلد. They say جلدہ i.e. he hit or hurt his skin; he beat his skin; he beat him; he struck him with a whip; he flogged him with a whip. جلدة means, flogging, scourging, whipping; stripe. The word is used both as plural and singular (Lane & Aqrab).

Commentary:

Chastity as a moral virtue holds a very high place in the code of Islamic laws that govern relations between the sexes. The present Surah has laid down comprehensive commandments to safeguard and protect it. Islam views with extreme disapprobation the slightest breach of these laws. It is Islam’s very great sensitiveness about chastity that is reflected in the punishment prescribed for adultery or fornication in the verse under comment. The punishment prescribed is hundred stripes, no distinction having been made whether the guilty persons are married or unmarried or one of the party is married and the other unmarried. Thus flogging and not stoning to death according to this verse is the punishment prescribed by Islam for adultery or fornication. Nowhere in the Quran has stoning to death been laid down as punishment for adultery and for that matter for any other crime however serious. Islam has not prescribed killing as a necessary and unqualified punishment even for crimes much more heinous than adultery such as unprovoked murder, dacoity, treason against the state and disturbing the peace of the land. Though extreme penalty for these crimes is death, yet the payment of blood money in the case of the first offence (2:129) and imprisonment or banishment for the other crimes (5:33-34) have been laid down as alternative punishments. Elsewhere in the Quran where punishment for adultery for a married slave-girl is mentioned (4:26), it is clearly stated that she will get half the punishment prescribed for that of a free, married woman; and evidently the punishment of stoning to death cannot be halved.

So in spite of the fact that the Quran has quite clearly and unequivocally laid down (as in the verse under comment) flogging as the punishment for adultery and has made no discrimination whatever between a married or an unmarried culprit in the matter of awarding punishment (because زانی means both a fornicator and adulterer), and in spite of the fact that the present and other relevant verses were revealed in connection with slander-mongering about ‘A’ishah, the Holy Prophet’s noble consort, who herself was a married lady, it is curious that the misconception has persisted without any justification or linguistic authority among certain schools of Muslim religious thought that the verse under comment deals with punishment for unmarried persons only and that the punishment for a married adulterer and adulteress is stoning to death. The misconception seems to be due to a few cases recorded in Hadith whereby married persons guilty of adultery were stoned to death by the order of the Holy Prophet. One of these few cases was that of a Jew and a Jewess who were stoned to death in accordance with the Mosaic Law (Bukhari). It was invariably the Holy Prophet’s practice that he abided by the Law of the Torah in deciding cases till a new commandment was revealed to him. In one or two other cases on record in which the punishment accorded was stoning to death, it has not been established whether the crime was committed before or after the verse under comment was revealed. It seems that in cases in which the guilty person was stoned to death, the crime was committed before the revelation of this verse, but by some miscalculation on the part of some chronicler it was believed to have taken place after it. There is no dearth of such historical anachronisms in the books of Hadith. Or there might have been some other aggravating circumstances besides the crime of adultery which made the Holy Prophet award the guilty person or persons the extreme punishment of death and which the chronicler of the incident failed to take into account. Otherwise it is simply inconceivable that the Holy Prophet should have contravened the quite clear and unequivocal Divine commandment in this respect.

Another possible cause for misunderstanding about the form of punishment for adultery may be a saying attributed to Caliph ‘Umar. He is reported to have said: "There was a verse in the Book of God about rajm (stoning). We read it, we understood it and we remembered it. The Holy Prophet stoned adulterers to death and we also stoned after him. Were it not that people might say that ‘Umar had added in the Book of God what was not in it, I would have written it down" (Kashful-Ghummah vol.2, p.111). The whole hadith seems to be a pure fabrication or at best the result of misunderstanding or distortion of what ‘Umar might actually have said. How by writing down in the Quran what was a part of it could be called an addition to it and how, of all men, ‘Umar could have been afraid of anybody for doing the right thing, least of all for restoring to the Quran a lost text! It is impossible to attribute such confused thinking and irresponsible talk to a man of ‘Umar’s intellectual and moral calibre and stature. If the saying were to be taken at its face value, the whole claim of the Quran that it enjoys perpetual Divine protection and therefore is quite free from human interference falls to the ground.

‘Ali seems to hold quite a different view from that of ‘Umar regarding this very important religious question. After flogging a woman who had committed adultery and then stoning her to death, he is reported to have said: "I have flogged her in obedience to the commandment of the Book of God and have stoned her to death in accordance with the practice of the Holy Prophet" (Bukhari). From this hadith, two inferences clearly emerge:

(1) In the matter of punishing an adulterer or adulteress the practice of the Holy Prophet was at variance with the commandment of God as laid down in the Quran, which is impossible. (2) Whereas according to ‘Umar there was a commandment in the Book of God about stoning to death of an adulterer, according to ‘Ali there was no such commandment, it was only the practice of the Holy Prophet according to which he stoned to death persons guilty of adultery. It is impossible to reconcile the views of these two great leaders of Islam and equally impossible to believe that they held diametrically opposed views regarding a most important question of religion. And it is indeed very surprising that in the face of quite clear, unambiguous and unequivocal Divine commandments the view should have been held, of all men by ‘Umar and ‘Ali, or by any school of Muslim religious thought that Islam has prescribed stoning to death as punishment for an adulterer. The Quran rejects this view as wholly untenable. Somewhere some misunderstanding must have occurred on the part of a chronicler or narrator of the sayings of the Holy Prophet which has caused all this confusion.

It may be of interest to note that the verse has used the words الزانی and الزانیة (and not زانی and زانیة) which suggest a particular class of adulterers and fornicators such as hardened or habitual culprits or those who are lost to all sense of shame and remorse and having thrown all restraint and constraint to the winds indulge in this hideous crime openly.

The verse further lays down that the beating of the culprit should not be so severe as to cause his death or break his bone but should hurt only the skin as the word اجلدوا used in the verse signifies and as is implied in 4:26.

24:24.

Commentary:

The other social evil, second to adultery in heinousness which eats into the vitals of human society, is the slandering of innocent persons. Islam views also with extreme disfavour this social evil which has become so common in the so-called civilized modern society, and severely punishes the accusers of innocent people. The verse under comment mentions three forms of punishment in an ascending order which are to be meted out to a slanderer; first, the physical punishment of scourging; secondly, the disgrace of being branded as a perjurer and a liar which invalidates his evidence and thirdly, the spiritual stigma of being adjudged as a wicked transgressor.

It may be noted that the punishment prescribed for the slanderer who accuses a chaste woman without producing adequate evidence seems to be even more serious than the punishment prescribed for the crime of adultery itself. In the latter case the punishment prescribed is one hundred lashes, only twenty lashes more than those prescribed for slandering. But after undergoing the punishment the adulterer or adulteress has not to carry the disgrace of being branded as a perjurer, nor does he or she lie under the more serious spiritual stigma of being adjudged by God as a wicked transgressor.

The commandment about scandal-mongering is of particular importance in the present state of the so-called civilized society where it has assumed the form of a common social pastime. No wonder that as a result of scandal-mongering sexual immorality has greatly increased, particularly in western countries.

It may also be noted that in this verse no mention has been made of the accusation being true or false. So long as the accuser cannot produce the necessary evidence in support of his charge, the charge would be considered as false and the accuser would render himself liable to the prescribed punishment. Whatever the real facts of the case, the woman with whom adultery is alleged to have been committed will be held innocent so long as the required evidence is not produced. The law is, in fact, intended to suppress with a strong hand the offence of slandering and scandal-mongering which is calculated to encourage the spread of those very crimes which the scandal-mongers hold up to public gaze.

It follows from this verse that a person charged with adultery is held guilty only if four witnesses, in addition to the accuser, are forthcoming who solemnly declare and testify to the fact of having seen with their own eyes the accused person actually committing the crime.

In case the offender himself confesses to the crime, no witnesses will, of course, be required to prove his guilt provided he is in full possession of his senses. From Hadith it appears that in such an event the offender must himself testify four times to having committed the crime. In case a man alleges that he has committed adultery the woman implicated will not be held guilty unless she herself admits that she too has committed the crime. This provision is intended to save the good name of innocent men or women from being besmirched by persons of no character who are not ashamed of confessing to having committed adultery in order to implicate other innocent persons along with themselves.

Similarly, when a person makes an allegation against another, it is the accuser who is required to produce four witnesses to the crime alleged. The accused person has not to prove his innocence. It is only after four witnesses have been produced that he is asked to produce his defence. If the accuser fails to produce the requisite four witnesses, then both he and the witnesses will be liable to punishment on the plea of having made an allegation for which they had not produced the necessary evidence.

The object of such stringent provisions is to discourage the spread of indecent scandals. Such provisions amply refute the criticism that the penalty Islamic Law prescribes for adultery is barbarous. The evidence and the attendant conditions required to prove the commission of adultery are, in fact, almost impossible to produce save in cases where the offence is committed openly and in such cases a severe punishment, in order to be deterrent, is certainly very essential.

If a person confesses to having committed the crime and repeats his confession four times, he will not be punished if he recants at the time of infliction of the punishment. In such an event, however, the culprit will be liable to punishment for slandering the alleged accessory.

The commandment contained in this verse covers both men and women although the word used is المحصنات which means 'chaste women.' In the Arabic language when something has to be said which relates equally to both men and women the gender used is masculine. But when something is said regarding a matter which concerns women more than men, then feminine gender is used. The commandment here relates to punishment for slandering whether the victim of the slander is man or woman but as women generally are more often the victims of such slanders, the verse speaks of 'chaste women'. Similarly the word الذین (those) though in masculine gender applies to both men and women slanderers.