Zina (Arabic)

Zina (Arabic)

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Zinā or Zināʾ is generally defined by Islamic Law
Islamic law
Islamic law can refer to:*Sharia: The code of conduct enjoined upon Muslims in the Quran*Fiqh: Muslim jurisprudence...

 as unlawful sexual intercourse, i.e. intercourse between a man and a woman who are not married to one another or in a state of lawful concubinage based on ownership (the relationship between the owner and his female slave). This encompasses extramarital sex
Extramarital sex
Extramarital sex occurs when a married person engages in sexual activity with someone other than his or her marriage partner.Where extramarital sexual relations breach a sexual norm it may also be referred to as adultery, fornication, philandery, or infidelity...

 and premarital sex
Premarital sex
Premarital sex is sexual activity, including vaginal intercourse, oral sex, and anal sex, practiced by persons who are unmarried. Although it has always been practiced, in the West it has increased in prevalence since the mid-1950s...

, as well.

Zina falls under the Islamic sexual jurisprudence of Fiqh
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....

, which is an expansion of the Sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...

 code of conduct given in the Qur'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...

.

Across all four schools of Sunni practice, and the two schools of Shi'a practice, the term zina signifies voluntary sexual intercourse
Sexual intercourse
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...

 between a man and a woman not married to one another, regardless of whether one or both of them are married to other persons or not. Note: it does not - in contrast with the usage prevalent in most Western languages - differentiate between the concepts of "adultery
Adultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...

" (i.e., sexual intercourse of a married man with a woman other than his wife, or of a married woman with a man other than her husband) and "fornication
Fornication
Fornication typically refers to consensual sexual intercourse between two people not married to each other. For many people, the term carries a moral or religious association, but the significance of sexual acts to which the term is applied varies between religions, societies and cultures. The...

" (i.e., sexual intercourse between two unmarried persons).

Islamic law prescribes punishments for both Muslim and non-Muslim men and women for the act of Zina as interpreted from the Qur'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...

 and the Hadith
Hadith
The term Hadīth is used to denote a saying or an act or tacit approval or criticism ascribed either validly or invalidly to the Islamic prophet Muhammad....

.

Qur'an

Islam considers zina a major sin. In this, Islam shares the same views as other Abrahamic religions
Abrahamic religions
Abrahamic religions are the monotheistic faiths emphasizing and tracing their common origin to Abraham or recognizing a spiritual tradition identified with him...

, such as Judaism
Judaism
Judaism ) is the "religion, philosophy, and way of life" of the Jewish people...

 and Christianity
Christianity
Christianity is a monotheistic religion based on the life and teachings of Jesus as presented in canonical gospels and other New Testament writings...

. From the perspective of the Qur’an, the prophetic tradition, and Islamic law, sex uncoupled with a legally binding marital tie is considered zina, and is equally punishable for both women and men. It is important to note that when it comes to punishment for illicit intercourse, men and women are treated equally. Thus clearly, the traditional Islamic framework for dealing with illicit sexual behavior is gender-balanced and fair.


The Qur’an deals with zina in several places. First is the Qur’anic general rule that commands Muslims not to commit zina:

“Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils).” (Qur'an, Surat al-Isra, 17:32)


Most of the rules related to zina, adultery, and false accusations from a husband to his wife or from members of the community to chaste women, can be found in Surat an-Nur (the Light). The sura
Sura
A sura is a division of the Qur'an, often referred to as a chapter. The term chapter is sometimes avoided, as the suras are of unequal length; the shortest sura has only three ayat while the longest contains 286 ayat...

 starts by giving very specific rules about punishment for zina:

“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.” (Qur'an, Surat an-Nur, 24:2)


It then turns to false accusations from members of the Muslim community to chaste righteous women:

“And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient, except for those who repent thereafter and reform, for indeed, Allah is Forgiving and Merciful.” (Qur'an, Surat an-Nur, 24: 4-5)

Hadith

Nearly all hadith
Hadith
The term Hadīth is used to denote a saying or an act or tacit approval or criticism ascribed either validly or invalidly to the Islamic prophet Muhammad....

 collections include three hadiths that are central in the legal arguments about the punishment for zina:

  • One to the effect that the Prophet
    Muhammad
    Muhammad |ligature]] at U+FDF4 ;Arabic pronunciation varies regionally; the first vowel ranges from ~~; the second and the last vowel: ~~~. There are dialects which have no stress. In Egypt, it is pronounced not in religious contexts...

     has enforced this punishment in a case of unlawful intercourse among Jews
    Jews
    The Jews , also known as the Jewish people, are a nation and ethnoreligious group originating in the Israelites or Hebrews of the Ancient Near East. The Jewish ethnicity, nationality, and religion are strongly interrelated, as Judaism is the traditional faith of the Jewish nation...

     on the basis of the Torah
    Torah
    Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five books of the bible—Genesis , Exodus , Leviticus , Numbers and Deuteronomy Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five...

    ;
  • a second one, transmitted by Abu Hurairah
    Abu Hurairah
    Abu Hurairah , was a companion of the Islamic prophet Muhammad and the narrator of Hadith most quoted in the isnad by Sunnis.-Early life:...

     states that the Prophet, in a case of intercourse between a young man and a married woman, sentenced the woman to stoning and the young man to flogging and banishment for a year;
  • and a third one in which Umar al-Khattab asserts that there was a revelation to the effect that those who are muhsan (i.e. an adult, free, Muslim who has previously enjoyed legitimate sexual relations in matrimony regardless of whether the marriage still exists) and have unlawful intercourse are to be punished with stoning.

The hadith related by Abu Hurairah has been the basis of the fiqh
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....

 doctrine.

The most accepted collection of Hadith Sahih al Bukhari has 4 entries (under 3829, 8804, 8805 and 8824) which refer to death by stoning
Stoning
Stoning, or lapidation, is a form of capital punishment whereby a group throws stones at a person until the person dies. No individual among the group can be identified as the one who kills the subject, yet everyone involved plainly bears some degree of moral culpability. This is in contrast to the...

. One case involved Jews who were stoned to death in accordance with the Law of the Torah
Torah
Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five books of the bible—Genesis , Exodus , Leviticus , Numbers and Deuteronomy Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five...

 (not the Qur'an). Another says: "A married man from the tribe of Bani Aslam who had committed illegal sexual intercourse and bore witnesses four times against himself was ordered by Mohammed to be stoned to death". These two hadiths clearly conflict as to who or what actually ordered the stoning. And in both entries, the narrator acknowledges his ignorance of whether the stoning to death was carried out before or after the revelation of Quranic Verse 24-2.

Sunni

Zina encompasses extramarital sex and premarital sex between a man and a woman who are not married to one another or in a state of lawful concubinage based on ownership.

Shi'a

This includes the Sunni definition of zina and also includes: heterosexual intercourse, a great variety of sexual behavior: buggery
Buggery
The British English term buggery is very close in meaning to the term sodomy, and is often used interchangeably in law and popular speech. It may be, also, a specific common law offence, encompassing both sodomy and bestiality.-In law:...

, both with men and women, lesbian
Lesbian
Lesbian is a term most widely used in the English language to describe sexual and romantic desire between females. The word may be used as a noun, to refer to women who identify themselves or who are characterized by others as having the primary attribute of female homosexuality, or as an...

 intercourse and heavy petting. Furthermore, Shi'a legal doctrine defines muhsan as an adult, free Muslim who is in a position lawfully to have sexual intercourse and whose partner is actually available (e.g. imprisoned or absent on a journey).

Accusation Process and Punishment


Given the severity of punishment for the offense of zina, the Qur’an requires solid proof beyond the shadow of doubt before convicting an individual, be it a man or a woman, of zina. Muslim jurists have derived from the Sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...

 of the Holy Prophet very strict requirements for proving zina. In fact, jurists unanimously agree on only two means of doing so:
  1. A clear, free, and willful confession by the person guilty of the act of zina. However, if that person retracts his/her confession, he/she is not punishable (barring the presence of witnesses, as indicated below), because there would no longer be any proof of the occurrence of the prohibited act, and alternatively,
  2. The testimony of four reliable Muslim male eye-witnesses, all of whom must have witnessed the actual intercourse at the same time.


It is pertinent to point out that the evidentiary requirement for zina was initially intended to protect men and women from frivolous charges. This intention derives directly from Asbab al-nuzul
Asbab al-nuzul
Asbāb al-nuzūl , an Arabic term meaning "occasions/circumstances of revelation", is a secondary genre of Qur'anic exegesis directed at establishing the context in which specific verses of the Qur'an were revealed...

 (reasons of revelation) relating to the Qur’anic verse that establishes the hadd of zina. Therefore it is believed that the requirement of four witnesses (with all its restrictions and specifications) is considered a merciful measure from God in order to not only avoid incriminating innocent people, but also to preserve the privacy of Muslims, which is one of the most valued principles in Islam.

It is worth noting that in the case of a confession, it is recommended that the judge ignore the first three iterations of such confession. The confession does not become legally binding unless it is repeated freely four different times.

Sunni Practice

All Sunni schools of jurisprudence agree that zina is to be punished with stoning if the offender is muhsan. The Hanafis
Hanafi
The Hanafi school is one of the four Madhhab in jurisprudence within Sunni Islam. The Hanafi madhhab is named after the Persian scholar Abu Hanifa an-Nu‘man ibn Thābit , a Tabi‘i whose legal views were preserved primarily by his two most important disciples, Abu Yusuf and Muhammad al-Shaybani...

 and Hanbalis
Hanbali
The Hanbali school is one the schools of Fiqh or religious law within Sunni Islam. The jurisprudence school traces back to Imam Ahmad ibn Hanbal but was institutionalized by his students. Hanbali jurisprudence is considered very strict and conservative, especially regarding questions of dogma...

 require that both partners in the act be muhsan for stoning to be applied. Persons who are not muhsan are punished with one hundred lashes if they are free and with fifty lashes if they are slaves, followed with banishment for the period of one year (six months for slaves). The offenders must have acted out of their free will; a woman who has been raped cannot be punished with the hadd penalty.

In relation to homosexual intercourse, there is difference of opinion within Sunni belief. The Shafi'is
Shafi'i
The Shafi'i madhhab is one of the schools of fiqh, or religious law, within the Sunni branch of Islam. The Shafi'i school of fiqh is named after Imām ash-Shafi'i.-Principles:...

 and Hanbalis regard it as zina. If the act has been testified to by four male eyewitnesses, the active partner, if he is muhsan, is to be punished with stoning, the passive partner with flogging and banishment. The Malikis
Maliki
The ' madhhab is one of the schools of Fiqh or religious law within Sunni Islam. It is the second-largest of the four schools, followed by approximately 25% of Muslims, mostly in North Africa, West Africa, the United Arab Emirates, Kuwait, and in some parts of Saudi Arabia...

 do not require Ihsan
Ihsan
Ihsan , also spelled as Ehsan, is an Arabic term meaning "perfection" or "excellence . It is a matter of taking one's inner faith and showing it in both deed and action, a sense of social responsibility borne from religious convictions...

 for the imposition of stoning. According to the Hanafis, homosexual intercourse can only be punished on the strength of tazir
Tazir
In Islamic Law, tazir refers to punishment, usually corporal, that can be administered at the discretion of the judge, called a Qadi, Kadi, as opposed to the hudud...

. Minimal proof for zina is still the testimony of four male eyewitnesses, even in the case of homosexual intercourse.

Shi'a Practice

Again, minimal proof for zina is the testimony of four male eyewitnesses. The Shi'is, however, also allow the testimony of women, if there is at least one male witness, testifying together with six women. All witnesses must have seen the act in its most intimate details, i.e. the penetration (like “a stick disappearing in a kohl container,” as the fiqh books specify). If their testimonies do not satisfy the requirements, they can be sentenced to eighty lashes for unfounded accusation of fornication (kadhf). If the accused freely admits the offense, the confession must be repeated four times, just as in Sunni practice.

Circumstantial evidence is not admitted, with one major exception: under Maliki
Maliki
The ' madhhab is one of the schools of Fiqh or religious law within Sunni Islam. It is the second-largest of the four schools, followed by approximately 25% of Muslims, mostly in North Africa, West Africa, the United Arab Emirates, Kuwait, and in some parts of Saudi Arabia...

 law, pregnancy of an unmarried woman is regarded as evidence of fornication. However, even if the act has been proved, punishment can be averted by shubha
Shubha (Arabic)
Shubha is an Islamic term which refers usually to arguments against or criticism of Islam. More precisely, it can point to difficulties perceived in Qur'an or Islam.-In Qur'an:...

 which is a formal refutation to the legal limits of the law. For example, a woman could have become pregnant through intercourse between a marriage that is null and void, or through intercourse with her lawful master (as a female slave). Accusation of a extramarital pregnancy as zina, as well as claims of rape, have been the source of worldwide controversy in recent years.

Worldwide Controversy


Human rights groups say hundreds of women in Afghan jails are victims of rape or domestic violence. This practice has been criticized as leading to "hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of Zina" and incarcerated,[2] and defended as punishment ordained by God

The zina and rape laws of countries under Sharia law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...

 are the subjects of heated debate both inside and outside the Muslim world. Major Muslim scholars vastly disagree on whether extramarital pregnancy should be considered evidence for zina. Imam Abu Hanifa was firm in rejecting the use of extramarital pregnancy as an evidence of zina. Basing his judgment on clear injunctions from the Qur’an and sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...

, he considered pregnancy as mere circumstantial evidence that does not constitute sufficient proof of zina. In his view, the judge has to ask the woman being tried for such accusation to defend herself. If she claims that she was raped, or forced into a sexual relationship, or that she had intercourse with a man to whom she thought she was married, then she would not be liable for hadd punishment.

Abu Hanifa even went so far in his reasoning as to state that an unmarried pregnant woman who claims that she was raped or married does not have to provide clear evidence of her rape or marriage. Her word alone suffices.

However, Imam Malik had a different view on the matter. He stated that an unmarried woman who becomes pregnant is liable to zina punishment unless she proves that she was raped or that she is married. However, Malik did acknowledge the possibility that pregnancy can result from an unwilling sexual act. Therefore, he established a number of safeguards that aim to assure that no innocent is convicted unjustly. First, physical evidence is undeniable proof of rape. If a woman comes bleeding to the judge (or, today, the police) and claims that she was raped, her word is accepted because of her physical state. If somebody hears her asking for help, her testimony is accepted. From this perspective, even if the Pakistani legislators were influenced by the Maliki view, adopting it would allow women to rebut the pregnancy proof by physical/medical evidence that they did not consent to the intercourse.

In short, the Hanafa position states:
  • Extramarital pregnancy should not be considered as proof of zina since it could result from a the woman’s wrong belief that she is married to the other party, or rape, or artificial insemination, and so on;

  • If a woman claims that she was raped, either to justify her extramarital pregnancy or just to report the assault, she should not be required to prove her accusation. Her word is sufficient evidence.


And the Maliki position states:
  • Extramarital pregnancy due to rape or sexual intercourse without consent requires physical or medical evidence as proof.

In all views, there still exists the fundamental Qur’anic principle of adalah
Adalah
Adalah means justice and denotes The Justice of God. It is among the five Shia Principles of the Religion.The Shias believe that there is intrinsic good or evil in things, and that God commands them to do the good things and shun the evil...

 (i.e. justice, balance, and equity). The law protects society, its morals and ideals, but without denying to individuals their rights, especially their basic right to life. As many Muslim scholars agree, it is better to let a guilty person get away with his/her sin and face God’s justice later, than to enforce the hadd on an innocent person.

Through these laws, opponents of the Shari’a law and Islamic belief have found it as an ideal opportunity to attack Islamic law as patriarchal and unjust to women. Many have even argued on this basis that Shari’a law, in its entirety, should be abolished. On the other hand, many serious Muslim scholars and activists are themselves troubled by these laws regarding zina and rape. They view them as incompatible and hypocritical with basic Qur’anic principles and the prophetic tradition. Either way, the tension surrounding the Sharia law and Islamic belief debates are evident in our everyday lives, be it through news media, academic discussion or worldwide communication.
• • •

See also

  • Islamic sexual jurisprudence
  • Sex and the law
    Sex and the law
    In general, laws proscribe acts which are considered either sexual abuse, or behavior that societies consider to be inappropriate and against the social norms. In addition, certain categories of activity may be considered crimes even if freely consented to...

  • Nikah urfi
    Nikah urfi
    Nikah 'urfi is a kind of Muslim marriage. It is similar to the Nikah ceremony. An 'urfi marriage is a marriage without an official contract. Couples repeat the words, "We got married" and pledge commitment before God. Usually a paper, stating that the two are married, is written and two witnesses...

  • Nikah mut‘ah
    Nikah mut‘ah
    ' , is a fixed-term marriage in Shi'a Islam. The duration of this type of marriage is fixed at its inception and is then automatically dissolved upon completion of its term. The marriage is contractual and is subject to renewal...

  • Rajm
    Rajm
    Rajm is an Arabic word that means "stoning". It is commonly used to refer to the Hudud punishment wherein an organized group throws stones at a convicted individual until that person dies. Traditionally it is called for in cases of adultery where the criteria for conviction are met...

  • Namus
    Namus
    Namus is the Arabic word of a concept of an ethical category, a virtue, in Middle Eastern patriarchal character...

  • Ma malakat aymanukum and sex
    Ma malakat aymanukum and sex
    In Islamic Divine law , Ma malakat aymanukum is the term for captives of war.-Qur'an:...



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