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4.157. und dafür, daß sie sagten: "Gewiß, wir haben al-Masih ´Isa, den Sohn Maryams, den Gesandten Allahs getötet." - Aber sie haben ihn weder getötet noch gekreuzigt, sondern es erschien ihnen so. Und diejenigen, die sich darüber uneinig sind, befinden sich wahrlich im Zweifel darüber. Sie haben kein Wissen darüber, außer daß sie Mutmaßungen folgen. Und sie haben ihn mit Gewißheit nicht getötet.
24.1. (Here is) a Surah which We have revealed and enjoined, and wherein We have revealed plain tokens, that haply we may take heed. (Pickthall)
24.1. Eine Sure, Wir haben sie herabgesandt, und Wir haben sie zur Pflicht gemacht, und Wir haben in ihr klar beweisende Zeichen herabgesandt, damit ihr vielleich erinnert werdet. (Ahmad v. Denffer)
24.1. (Dies ist) eine Sura, die Wir (als Offenbarung) hinabgesandt und verpflichtend gemacht und in der Wir klare Zeichen hinabgesandt haben, auf daß ihr bedenken möget. (Bubenheim)
24.1. Dies ist eine Sure, die Wir herabsandten, rechtskräftig machten und in der Wir eindeutige Zeichen offenbarten, auf dass ihr euch besinnt. (Azhar)
24.1. Diese ist eine Sura, dieWIR hinabsandten und geboten, und darin sandten WIR deutliche Ayat hinab, damit ihr euch besinnt. (Zaidan)
24.1. (Dies ist) eine Sure, die wir hinabgesandt und für verbindlich erklärt (faradnaahaa), und in der wir klare Zeichen hinabgesandt haben. Vielleicht würdet ihr euch mahnen lassen. (Paret)
24.1. (Dies ist) eine Sura, die Wir hinabsandten und die Wir zum Gesetz erhoben, und worin Wir deutliche Zeichen offenbarten, auf das ihr ermahnt sein möget. (Rasul)
Tafsir von Maududi für die Ayaat 1 bis 1
This is a Surah which We have sent down and We have made it mandatory, and We have sent down clear Commandments in it ( 1 ) so that you may learn lessons.
Desc No: 1 In all these sentences the emphasis is on "We", which implies that it is Allah Who has revealed this and none else; therefore, "You should not treat these instructions lightly ike the word of an ordinary preacher. You should note it well that these have been sent down by One Who controls your lives and destinies and from Whom you can never escape even after your death. The second sentence emphasizes that the instructions sent down in this Surah are not of the nature of advice which you may accept or reject at will. These are mandatory Commandments which must be obeyed. If you are a believer and a true Muslim you are obliged to act upon them. The third sentence states that the instructions given in this Surah are free front arty ambiguity and are couched in clear and plain words. Therefore, you cannot put up the excuse that you could not act upon them as you did not understand them. This is the 'Preamble' of this blessed Message after which the specific Commandments follow. The cone of the preamble itself indicates the great importance which Allah has attached to the Commandments contained in Surah An-Nur. The preamble of no other Surah containing Commandments is so forceful as this. "
24.2. The adulterer and the adulteress, scourge ye each one of them (with) a hundred stripes. And let not pity for the twain withhold you from obedience to Allah, if ye believe in Allah and the Last Day. And let a party of believers witness their punishment. (Pickthall)
24.2. Die Ehebrecherin und den Ehebrecher, - also peitscht jeden von ihnen beiden mit hundert Peitschenhieben, und es soll euch für sie beide kein Mitleid in der Religion Allahs ergreifen, wenn ihr an Allah und den Letzten Tag glaubt, und es soll bei ihrer Bestrafung ein Teil der Gläubigen als Zeugen anwesend sein. (Ahmad v. Denffer)
24.2. Eine Frau und ein Mann, die Unzucht begehen, geißelt jeden von ihnen mit hundert Hieben. Laßt euch nicht von Mitleid mit ihnen beiden angesichts (der Rechtsbestimmungen) der Religion Allahs ergreifen, wenn ihr an Allah und den Jüngsten Tag glaubt. Und es soll bei (der Vollstreckung) der Strafe an ihnen ein Teil von den Gläubigen zugegen sein. (Bubenheim)
24.2. Wenn eine Frau und ein Mann Unzucht begehen, versetzt jedem hundert Peitschenhiebe! Ihr sollt kein Mitleid mit ihnen haben, geht es doch um die Religion Gottes, wenn ihr an Gott und den Jüngsten Tag glaubt. Eine Gruppe von Gläubigen soll beim Strafvollzug zugegen sein. (Azhar)
24.2. (Hinsichtlich) der Zina-Treibenden und des Zina-Treibenden, so peitscht jeden von ihnen mit hundert Peitschenschlägen. Und lasst kein Erbarmen beiden gegenüber (bei der Erfüllung) von ALLAHs Din euch ergreifen, solltet ihr den Iman an ALLAH und an den Jüngsten Tag verinnerlichen. Und eine Gruppe von den Mumin soll ihrer Peinigung beiwohnen! (Zaidan)
24.2. Wenn eine Frau und ein Mann Unzucht begehen, dann verabreicht jedem von ihnen hundert Peitschenhiebe Und laßt euch im Hinblick darauf, daß es (bei dieser Strafverordnung) um die Religion Allahs geht (fie dieni llaahi), nicht von Mitleid mit ihnen erfassen, wenn (anders) ihr an Allah und den jüngsten Tag glaubt Und bei ihrer Bestrafung soll eine Gruppe der Gläubigen (als Zeugen) anwesend sein. (Paret)
24.2. Peitscht die Unzüchtige und den Unzüchtigen gegebenenfalls jeweils mit hundert Peitschenhieben aus; und lasset euch angesichts dieser Vorschrift Allahs nicht von Mitleid mit den beiden ergreifen, wenn ihr an Allah und an den Jüngsten Tag glaubt. Und eine Anzahl der Gläubigen soll ihrer Pein beiwohnen. (Rasul)
Tafsir von Maududi für die Ayaat 2 bis 2
The woman and the man guilty of fornication, flog each one of them with a hundred stripes ( 2 ) - and let not any pity for them restrain you in regard to a matter prescribed by Allah, if you believe in Allah and the Last Day, ( 3 ) and let, some of the believers witness the punishment inflicted on them. ( 4 )
Desc No: 2 There are various legal, moral and historical aspects of this problem which need explanation, for if these are not clarified in detail, the modern man will find it difficult to understand the Divine Law concerning it. Accordingly, we shall discuss the various aspects of the problem below: (1) The common meaning of zinc which everyone knows is: "Sexual intercourse between a man and a woman without the legal relationship of husband and wife existing between them." There has been complete unanimity of view among all the social systems from the earliest times to this day that this act is morally wicked, religiously sinful and socially evil and objectionable, and there has been no dissenting voice except from those stray individuals who have subordinated their moral sense to their lust, or who in their misguided notions try to be "original" and "philosophical" in their approach. The universal unanimity of view in this respect is due to the fact that man by nature abhors zinc. In fact, the future of human race and civilization depends on this that the relationship between the husband and wife should be built upon the basis of an enduring and everlasting bond of fidelity, which should not only be fully recognized in the social life but should also be guaranteed by the existing social structure. Without this the human race cannot survive. This is because the human child requires years of tender care and training for as survival and development and a woman alone cannot bear the burden without the cooperation of the man who became the cause of the birth of the child. Similarly human civilization itself is the product of the corporate life of a man and a woman, their setting up a home, bringing up a family, and establishing mutual relationships and inter-connections between families. If men and women were to lose sight of this essential fact, that is, the establishment of a home and raising a family, and were to meet freely just for pleasure and lust, the entire structure of human society would crumble. In fact, the very foundations on which the structure of human civilization and culture has been built will topple down and the whole basis of the concept of a social life will disappear. It is for these reasons that free mixing of men and women, without any recognized and stable bonds of fidelity, is abhorrent to human nature, and it is for this reason that in every age zina has been considered as a moral evil and, in religious terminology, a grave sin. Accordingly, the social systems in every age recognised and adopted the institution of marriage and also adopted preventive measures against adultery or fornication. The forms of the measures adopted in this direction have, however, differed under different social, cultural and religious systems. This difference has been the result of the realization of the disastrous effects of adultery (or fornication) in varying degrees: some societies have considered it to be more heinous than others, and some have conceived it clearly and some others not so clearly and confused it with other problems. (2) Though adultery (or fornication) has always been accepted as an evil, opinion has differed as to whether it is legally a punishable offense or not, and this is where Islam differs from other religions and systems of law. Social systems which have been akin to human nature have always considered illicit intercourse between man and woman a serious crime and prescribed severe punishments for it. But with the deterioration in moral standards, this morality grew weaker and weaker and the attitude towards this crime became more and more tolerant. The tirst common lapse in this connection was caused by the invidious distinction between fornication and adultery. The former as such was taken as an ordinary offense while the latter only was held as a punishable crime. Zina, as defined under various laws, means "sexual intercourse between a man (whether married or bachelor) and a woman, who is not the wife of anybody." This definition takes into account the position of the woman rather than of the man. If a woman is without a husband, the illicit intercourse with her amounts to fornication irrespective of the fact whether the man is married or not. The ancient laws of Egypt, Babylon, Assyria and India provided very light punishments for it, and the same were adopted by the Greeks and the Romans,which finally influenced the Jewish attitude. According to the Bible, only monetary compensation is payable for such an offense. The Commandment on the subject is as follows: "And if a man entice a maid that is not betrothed, and lie with her, he shall surely endow her to be his wife. If her father utterly refuses to give her unto him, he shall pay money according to the dowry of virgins." (Exod. 22: 16,17) The same Commandment is repeated in different words in Deuteronorny, which is as below: "If a man finds a damsel that is a virgin, which is not betrothed, and lay hold on her, and lie with, and they be found; Then the man that lay with her shall give unto the damsel's father fifty shekels of silver (about fifty-five rupees), and she shall be his wife; because he hath humbled her." (Deut. 22: 28, 29). Under the Jewish law, if a priest's daughter acts immorally, she is to be sentenced to burning and the man with whom she was alleged to have acted immorally was to suffer strangulation. (Everyman's Talmud, pp. 319, 320). To judge the extent to which this conception resembles that of the Hindus, it will be worthwhile to compare it with the laws of Manu. According to him, "Anybody who commits illicit intercourse with an unmarried girl. of his own caste with her consent does not deserve any punishment. If the father of the girl is willing, the man should compensate him and marry the girl. But if the girl happens to belong to a higher caste and the man belongs to a lower caste, the girl should be turned out from her parents' house and the limbs of the man should be cut off." (Adhiai 8. Ashlok 365, 366). This punishment may be changed into burning him alive, if the girl happens to be a Brahman. (Ashlok 377). Under all these laws, illicit intercourse with a married woman only was the real and major crime. The deciding factor for treating it as a crime was not the illicit relationship between the man and the woman but the likelihood of an awkward situation under which a child might have to be reared up by a man (the real husband of the woman), who was not its father. It was therefore not the act of zinc itself but the danger of the mixing up of progenies and the problem of rearing up somebody else's child at the expense of another and a possibility of its inheriting his property, that was the :eat basis of treating it as a crime and holding both the man and the woman as criminals. Under the Egyptian law, the man was to receive a severe beating with sticks and the nose of the woman was to be cut off. Similar punishments existed in Babylon, Assyria and Iran. According to the Hindus, the woman was to be thrown to the dogs to be torn apart and the man was to be put on a hot iron bed with fire all around him to burn him alive. At first the Greek and the Roman laws gave a man the right to kill his wife if he found her involved in adultery. He had also the option to demand monetary compensation. In the first century B.C. Augustus Caesar enacted that half the property of the man should be confiscated and he should be exiled. In case of the woman, half her dowry should be written off and one-third of her assets confiscated, and she should also be sent out to a distant part of the country. Constantine changed this law and imposed death penalty both for the tnan and for the woman. In the times of Leo and Marcian, this punishment was changed to imprisonment for life. Justinian further reduced the punishment and ordered that the woman should be flogged with stripes and sent to a monastery and the husband should be given the right to take her out within two years if he liked, otherwise she was to remain there for ever. Under the Jewish law, the orders for illicit intercourse with a married woman are as under: "And whosoever lieth carnally with a woman, that is a bondmaid, betrothed to an husband, and not at all redeemed, nor freedom given her, she shall be scourged; they shall not be put to death, because she was not free." (Leviticus 19: 20). "And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death." (Leviticus 20: 10). "lf a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman: so shalt thou put away evil from Israel." (Deuteronorny 22: 22). "If a damsel that is a virgin be betrothed unto an husband and a man fmd her in the city, and lie with her; Then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die; the damsel, because she cried not, being in the city, and the man, because he had humbled his neighbour's wife: so thou shalt put away evil from among you. But if a man find a betrothed damsel in the Held, and the tnan force her, and lie with her: then the matt only that lay with her shall die: But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death: for as when a man riseth against his neighbour, and slayeth him, even so is this matter." (Deuteronorny 22: 23-26). However, long before the advent of Christ, the Jewish jurists and scholars, the rich and the poor, had practically ceased to observe these laws. Though it was written in the Old Testament, and it was considered as a Divine Commandment, nobody was inclined to apply it practically; in the entire Jewish history, there is not a single instance where this commandment was ever enforced. When Jesus Christ embarked upon his prophetic mission, and invited the people to the eternal truth, the learned Jews, seeing that there was no way to stop the tide, brought a woman guilty of adultery before him and asked him to decide her case. (John 8: 111). Their object was to create a dilemma for Christ and to tempt and embarrass him. If he decided in favour of any punishment other than stoning, they would vilify him saying, "Here comes a strange Prophet who has changed the Divine Law for the sake of worldly considerations." And if he were to give the verdict of stoning, this would, on the one hand, bring him in direct clash with the Ron Ziad law, and on the other, give them the opportunity to tell the people, "Look! What you believe in a Prophet who will expose you to all the severities of the Torah? But Jesus turned the tables on them with one sentence, saying: "He that is without sin among you, let him first cast a stone at her. " This put the jurists to shame and they departed one by one in humiliation, and the moral degeneration of the learned in law was totally exposed. When the woman was left alone, Jesus admonished her and after her repentance let her go. Jesus did this because he was neither a judge of any court competent to decide the case, nor any evidence had been produced against her, nor was there any government to enforce the Divine Law. On the basis of this incident and some miscellaneous sayings of Jesus on different occasions, the Christians formed an utterly erroneous conception about the crime of zina. According to them, illicit intercourse between an unmarried man and an unmarried woman is a sin but not a punishable offence. But if either of them (or both) is married, adultery is treated as a crime. It is so not because of the illicit intercourse as such but because of the vow of fidelity taken by each of them before the priest at the altar. Nevertheless, there is no punishment even for this, except that the wife has the right to sue her adulterous husband and claim separation for having violated the vow of fidelity. On the other side, the husband of the adulterous woman can also sue his wife for separation and can also claim compensation from the man who had illicit intercourse with his wife. This is the punishment in the Christian law for adultery. The irony is that even this punishment is a double-edged sword, because a woman, though entitled to separation from her husband by proving his infidelity and getting rid of him cannot remarry under the Christian law. Similarly the husband who sues his wife for infidelity can obtain judicial separation, but cannot remarry. Both the man and the woman who accuse each other of infidelity in a Christian court, will be deprived of the right of remarriage for the rest of their lives. The Western laws of the modem times, which have also been adopted by the Muslims in various countries, are based on such conceptions. According to them, zina may be an evil, and an immoral and sinful thing, but it is not a crime. It becomes a crime only when illicit intercourse is committed without the consent of the other party. As for adultery by a married man, this only provides a cause for complaint to his wife who may, if she likes, prove it and get a divorce. Similarly in the case of an adulteress, her husband can lodge a complaint against her and also against the man with whom adultery was committed and can sue both of them to claim divorce from the woman and monetary compensation from the man.
(3) The Islamic Law, in contrast to all these conceptions, holds zina as a punishable crime and its committal by the married person enhances the guilt all the more. This is not so because of the violation of the oath of fidelity taken by the man or the woman nor because of the encroachment on the conjugal rights of the other, but because the criminal resorted to an unlawful method when there existed a lawful method for satisfying his sex desires. The Islamic Law views zina as an act which, if allowed to be indulged in freely, will strike at the very roots of both human race and human civilization. In the interest of the preservation of the human race and the stability of human civilization, it is imperative that relationship between man and woman should be regulated only through lawful and reliable means. And it is not possible to restrain this relationship if opportunities for free mixing of the sexes are allowed to exist, for it cannot be expected from a man or a woman to be prepared to bear the onerous responsibilities of the family life if he or she has the opportunities for the gratification of the sex desires without this. For in that case it will be as meaningless as buying a ticket for a railway journey when people can travel without a ticket as well. A ticket is essential only when travelling without a ticket is declared to be an offence. If somebody is found travelling without a ticket because he cannot afford to buy it, he is a criminal though in a lesser degree. But if a rich man resorts to this, his guilt becomes all the more serious. (4) Islam dces not rely on punitive law alone for saving humanity from the menace of zina. It employs both reformatory and prohibitory measures on a large scale. It has provided legal punishment only as a last resort. Islam dces not want that the people should go on committing this crime and getting flogged with stripes day and night. Its real aim is that the people should not commit this crime at all and there should be no occasion to resort to the extreme punishment. For this purpose Islam first of all purifies man: it imbues him with the fear of All-Powerful and All-Knowing Allah: it inculcates in him the sense of accountability for his actions in the Hereafter from which even death cannot release him. It fills him with obligation of obedience to Divine Law which is sure to follow true Faith. Then, it repeatedly warns him that zina and unchastity are heinous crimes, which Allah will call to account with a severe reckoning. This theme occurs again and again in the Qur'an. Moreover, Islam provides all possible facilities for a man to marry. if he is not satisfied with one wife, he is allowed to take up to four. If the husband and the wife cannot pull on amicably, there are provisions for separation. In case of a dispute between the two, provision exists for reconciliation through the intervention of the members of the family and failing that through the judicial courts so that they should either reconcile or separate and then remarry wherever they like. All this has been explained in Surahs AIBaqarah, An-Nisa and At-Talaq. In this Surah too, it is not considered good and right to remain unmarried and a clear Commandment has been given that marriages should be arranged between unmarried persons and even slaves (men and women) should not be allowed to remain unmarried. Then Islam puts an end to all those factors which allure a man to zina or provide occasions for it. A year before the punishment for zina was prescribed, women were commanded (in Surah Al-Ahzab) to cover themselves with sheets and lower their head-covers over their faces when going out of their houses. The wives of the Holy Prophet (Allah's peace be upon him), who were a model for every Muslim family, were ordered to restrict themselves to their houses with decorum and dignity and not to display their charms and adornments. Moreover, they were required to communicate with men from behind the curtain if there be any need for that. This was a model which was followed by all the believing women who considered the Prophet's wives and daughters patterns of virtue and not the immodest women of the age of 'ignorance'. Similarly, the free mixing of the men and women was discouraged before it was declared as a criminal offence and women were prohibited from going out openly in make-up. After adopting such measures zina was declared to be a punishable offence and spreading of indecency in any way was also prohibited. Prostitution was legally banned and severe punishment was prescribed for charging men and women with adultery and propagating it without proof. Men were enjoined to restrain their gaze so that unrestricted feasting of eyes should not lead to lust for beauty and further on to illicit love. At the same time women were also enjoined to differentiate between mahram and non-mahram relatives.' This enables one to understand the entire scheme of reform, a constituent part of which is the prescribed punishment for zina. This extreme punishment is for those incorrigible persons who persist in resorting to the illegal course for the gratification of their sex desires in spite of all the treasures adopted to reform the individual and society. They certainly deserve to be flogged. Punishment of a wicked person serves as a, psychological deterrent for those who have similar tendencies. This . 1. Mahram relatives are those between whom marriage is not permissible under the Islamic Law, e.g. father and daughter, uncle and niece, nephew and aunt, and so on. Non-mahram are those between whom marriage is permissible e.g. cousins, etc. punishment is not merely a punishment for the criminal but is a declaration of the policy that the Islamic society has no room for debauchery and people cannot be allowed to live lives of indulgence and pleasures without restraint. If one tries to understand the Islamic scheme of reform from this point bf view, one will realize that not a single part of the law can either be dispensed with or amended. Only a tool who assumes the role of a self-styled reformer, without understanding this Divine Law, will ever think of changing it, or a mischievous person, who deliberately wants to alter the very object of the social order designed by Allah, will try to tamper with it.
(5) Zina was declared a culpable act in the third year of Hijrah, but, it was not a "legal" crime at that time; as such the police and the courts were not competent to initiate legal proceedings. It was considered as a social crime against the institution of family. Accordingly the members of the family themselves were competent to punish the accused. The Commandment at that time was that if four men should bear witness to having seen a man and a woman committing zina, both the culprits should get a beating and the woman should be imprisoned in the house. But at the same time there was a suggestion that this Commandment would apply till further orders and that the real law was yet to follow. (See 1V: 15). After about two to three years the present Commandment was revealed which cancelled the previous Commandment and declared zina to be a cognizable offence.
(6) The punishment prescribed in this verse (2) is for sexual intercourse between unmarried persons; it dces not apply to illicit intercourse after marriage, which is a much graver offence under the Islamic Law. This thing is implied in verses 15 and 25 of An-Nisa (IV}that the punishment being prescribed is for the unmarried offenders: "If any of your women are guilty of indecency, call four witnesses from among yourselves to testify this. If they give evidence and prove the guilt, then confine them to their houses until death comes to them, or Allah opens some other way out for them." (IV: 15). "Whoso cannot afford to marry free Muslim women, he should marry one of the Muslim slave-girls in your possession; Allah has full knowledge of your Faith. You all belong to one and the same Community; therefore you may marry them with the permission of their guardians and give them their dowries so that they may live a decent life in wedlock and not in licentiousness nor may have secret illicit relations. Then if they are guilty of indecency, after they have been fortified by wedlock, they shall be given half the punishment prescribed for free women." (IV: 25). Verse 15 held out a hope that Allah would open some other way out for those adulterous women who were to be imprisoned according to the Commandment contained in it. Thus, the Commandment in verse 2 of this Surah is the same which was promised in IV: 15. Then in IV: 25 the punishment for a married slave-girl guilty of adultery has been prescribed. The word muhsanat has been used twice in the same verse in the same context and one will have to concede that it has been used in the same sense at both the places. Now let us consider the sentence: "Whoso cannot afford to marry free Muslim women (muhsanat).... " Obviously a muhsanah cannot mean a married woman; it can only mean an unmarried woman of a free family. Then at the end of the verse it has been enjoined that if a slave woman commits adultery after her marriage, she should be given half the punishment prescribed for a free unmarried woman. The context clearly indicates that in this sentence the word muhsanat has the same meaning as in the first sentence, i.e. an unmarried woman, who enjoys the protection of a free family. Thus it is concluded from these two verses of An-Nisa that the Commandment contained in this verse of An-Nur is the same that was promised in v. 15 of An-Nisa and it prescribes punishment for sexual intercourse between unmarried persons. (Also see E. N. 46 of An-Nisa).
(7) As regards the punishment for adultery after marriage, the Qur'an does not mention it, but it has been prescribed in the Traditions. We learn from many authentic Traditions that not only did the Holy Prophet prescribe the punishment of stoning to death for it verbally but also enforced it practically in several cases. Then after him his successors not only enforced this punishment during their caliphates but also declared repeatedly that this was the legal punishment. The Companions and their followers were unanimous on this point and there is not a single saying of anyone to suggest that anybody doubted the authenticity of this law during that period. After them the jurists of all ages and countries have been unanimous that this is the legal punishment prescribed by the Sunnah, for there have been so many strong and continuous proofs of its authenticity that no scholar can refute them. In the entire history of the Muslims nobody ever denied this except the Kharijites and some Mu'tazilites and even they did not deny it on the ground that there was some weakness in the proof of its having been enjoined by the Holy Prophet, but because they considered it to be "against the Qur'an". This was, however, due to their lack of understanding the Qur'an. They argued that by using the words AZ zani waz-zaniyatu in their general sense the Qur'an has prescribed a punishment of one hundred stripes for this crime. Therefore, according to them, the only punishment for adultery (or fornication) prescribed in the Qur'an was this, and to prescribe a different punishment for the married persons who committed adultery would be against the Divine Law. But they forgot that the explanation of the Qur'anic verses by the Holy Prophet carries the same weight and authority in law as the words of the Qur'an itself, provided that the explanation is proved to be from the Holy Prophet. The Qur'an has used As-sariqu was-sariqatu in similar general terms and prescribed the punishment of amputation of hands for the thief, both male and female. Now if this Commandment were to be interpreted literally without the limitations authentically emanating from the Holy Prophet, the generality of the words used would demand that every man or woman, who steals a needle or a plum, should be declared to be a thief and his or her hand cut off from the shoulder. On the other hand, if a thief, who has stolen a million rupees, declares on his arrest that he has reformed himself and has repented of theft, he should be let off in accordance with: "But whoso repents after his iniquity and reforms himself, Allah will surely turn towards him with His favour." (IV: 39). Likewise the Qur'an forbids marriage only with a foster mother and a foster sister. According to their argument, such a ban should not apply to a foster daughter. The Qur'an forbids a person to keep two sisters as wives at one and the same time; therefore if a person keeps the aunt (paternal or maternal) and her niece together as wives, he should not be charged with violating the Qur'anic injunction. Again, the Qur'an forbids marriage with a step-daughter only when she has been brought up ' in the house of her step-father; therefore, according to their way of reasoning, the absolute prohibition of marriage with a step-daughter should be regarded as against the Qur'an. Similarly the Qur'an allows mortgage only when a man is on a journey and nobody is available to prepare the loan documents; therefore if a person is at home and a scribe is also available, mortgage should be regarded as un-Qur'anic. Then, the Qur'an enjoins in general terms: "You should have witnesses whenever you buy or sell goods." Therefore, according to them, all sales and purchases taking place in the markets without witnesses should be unlawful. These few instances should suffice to prove the error in the reasoning of those who hold the Commandment of stoning to death as against the Qur'an. Nobody can deny the position and authority of the Prophet in the legal system of Islam. It is he alone who can explain the underlying intention of a Divine Command, its procedures and in what cases it will be applicable and in what there is another injunction. To deny this position and authority of the Prophet is not only against the principles of Islam but it also entails innumerable complications in practice. (8) There is a difference of opinion among the jurists about the legal definition of .zina. According to the Hanafis, it means frontal sexual intercourse of a man with a woman who is neither his wife nor his bondwoman, nor is there any valid reason to believe that the sexual act was committed under the misapprehension that the woman was his own wife or his own Bondwoman According to this definition, sexual act with a woman in the rectum, or sodomy, or sex gratification with animals, does not constitute zina. It is confined only to the frontal sexual intercourse with a woman without any legal right or any doubt thereof. According to the Shafi`is, zina means insertion of the male sexual organ into the female sexual part, which though forbidden by law may be quite natural: According to the Malikis, zina means the entry of the male sexual organ into the frontal sexual part, or in the rectum of a woman or man, without legal right or any doubt about its being legal. According to these two definitions, sodomy also will be included in zina. The correct position, however, is that these definitions are removed from the common meaning of zina. The Qur'an always employs words in their ordinary meaning and according to their common usage, unless it uses a certain word as a term. In such a case the Qur'an itself makes plain the particular sense of the term. In the context in which the word zina occurs, there is no indication that it has been used in any particular sense. Accordingly the word will have to be taken in the sense in which it is commonly understood. It is, therefore, confined to an illicit intercourse with a woman in the natural way and dces not extend to other forms of sexual gratification. Besides, it is well known that there was a difference of opinion about the punishment for sodomy among the Companions of the Holy Prophet. Had sodomy been included in zina according to the Islamic terminology, there would have been no occasion for such a difference of opinion. (9) Penetration of the glans of the penis is a sufficient legal ground for punishing the act of Zina. It is not essential that the penetration should be full or the sexual intercourse should be complete. On the other hand, if there is no penetration of the glans of the penis, mere lying of the couple in the same bed or their caressing each other or their being found naked, is not a sufficient ground for declaring them to be guilty of Zina; so much so that the Islamic Law dces not bother to get the couple medically examined to establish their guilt of illicit sexual intercourse and then to get them punished according to the law. Those who are found in such an indecent condition are offenders and punishable according to the circumstances. The competent authority to determine the nature of the punishment is either a court or the legislature of the Islamic State. If the punishment is to be given in the form of flogging with stripes, it should not exceed ten stripes as specified in a Tradition: "Except in cases where a specific punishment has been prescribed by Allah, none should be flogged with more than ten stripes for any offence." (Bukhari, Muslim, Abu Da'ud). However, if a person is not caught red-handed but confesses his guilt himself, he should only be admonished to repent. According to a Tradition reported by `Abdullah bin Mas'ud, a man came to the Holy Prophet and said, "I did everything with a woman except the sexual intercourse, outside the city. Now you may give me any punishment you may deem fit." Hadrat `Umar s
24.3. Alzzanii la yankihuilla zaniyatan aw muschrikatan waalzzaniyatula yankihuha illa zanin awmuschrikun wahurrima dhalika AAalaalmu/miniina
24.3. The adulterer shall not marry save an adulteress or an idolatress, and the adulteress none shall marry save an adulterer or an idolater. All that is forbidden unto believers. (Pickthall)
24.3. Der Ehebrecher heiratet nur eine Ehebrecherin oder eine mitgöttergebende Frau, und die Ehebrecherin heiratet nur einen Ehebrecher oder einen mitgöttergebenden Mann, und dies ist den Gläubigen verboten worden. (Ahmad v. Denffer)
24.3. Ein Unzuchttreiber heiratet keine andere als eine Frau, die Unzucht begeht oder eine Götzendienerin. Und eine Unzuchttreiberin heiratet kein anderer als ein Mann, der Unzucht begeht oder ein Götzendiener. Den Gläubigen ist dies verboten. (Bubenheim)
24.3. Ein Mann, der die Unzucht gutheißt, wird nur eine heiraten wollen, die Unzucht gutheißt oder Gott Gefährten beigesellt. Eine Frau, die die Unzucht gutheißt, wird nur einen heiraten wollen, der die Unzucht gutheißt oder Gott Gefährten beigesellt. Unzucht ist den Gläubigen verboten. (Azhar)
24.3. Der Zina-Treibende heiratet nur eine Zina-Treibende oder Muschrika. Und die Zina-Treibende heiratet nur einen Zina-Treibenden oder einen Muschrik. Und dies wurde für die Mumin für haram erklärt. (Zaidan)
24.3. Und ein Mann, der Unzucht begangen hat, kann nur eine ebensolche oder eine heidnische Frau heiraten. Und eine Frau, die Unzucht begangen hat, kann (ihrerseits) nur von einem ebensolchen oder einem heidnischen Mann geheiratet werden. Für die (übrigen) Gläubigen ist dies verboten. (Paret)
24.3. Ein Unzüchtiger darf nur eine Unzüchtige oder eine Götzendienerin heiraten, und eine Unzüchtige darf nur einen Unzüchtigen oder einen Götzendiener heiraten; den Gläubigen aber ist das verwehrt. (Rasul)
Tafsir von Maududi für die Ayaat 3 bis 3
A man guilty of adultery (or fornication) shall not marry any but the woman guilty of the same or a mushrik woman, and none shall marry a woman guilty of adultery (or fornication) but the man guilty of the same or a mushrik man: such marriages are forbidden to true believers. ( 5 )
Desc No: 5 That is, only an adulterous woman is a fit match for an adulterous man who has not repented, or an idolatrous woman. No believing, virtuous woman can be a match for hull. It is forbidden for the Believers that they should give their daughters in marriage to such wicked people knowing them to be so. Similarly the tit match for adulterous women (who have not repented) can only be adulterous or idolatrous men; they are not fit for any righteous Believer. It is forbidden for the Believers that they should marry women who are known to possess immoral character. This thing applies to those men and women who persist in their evil ways, and not to those who repent and reform themselves, for after repentance and reformation they will no longer be regarded as "adulterous." According to Imam Ahmad bin Hanbal, the prohibition of marriage with an adulterous man implies that such a marriage, if contracted, will have no legal effect. But this view is not correct. Prohibition does not have any legal implications. It cannot mean that if a person violates this prohibition, the marriage will be void, and the parties concerned will be involved in zina in spite of marriage. For the Holy Prophet has stated: "The unlawful does not make the lawful unlawful." (Tabarani, Daraqutni). In other words, an illegal act does not make a legal act also illegal. Therefore, if a person commits zina and then marries, his conjugal relations with his spouse cannot be considered as zina, because in that case the other party of the marriage contract who is not immoral, will also have to be considered as involved in zina. As a rule, no illegal act except open rebellion can cause the one guilty of it to be declared an outlaw, so that no act of his can be regarded legal after that. If the verse is considered in this light the plain meaning would be this: It is a sin to select such persons for marriage as are known to be unmoral. The Believers should shun them, otherwise they will feel encouraged, whereas the Shari ah intends to segregate them as the undesirable and contemptible element of society. Similarly this verse dces not validate the marriage of an adulterous Muslim with an idolatrous woman and of an adulterous Muslim woman with an idolatrous man. The verse simply means to emphasize the act of zina, and declares that the person who commits it being a Muslim, makes himself unfit for contracting a marriage in the pure and pious Muslim society. He should either stripes so that he does not utter such a slander in future. Even if the accuser is an eye-witness of an immoral act, he should keep the secret and let the filth remain where it is instead of causing it to spread. However, if he has witnesses, he should abstain from publicising the matter in society but should bring the case to the notice of the authorities and get the criminals duly punished by the court of law. Below we give the details of the law in serial order: (1) The context in which the words wallazina yarmun-al-muhsanat (those who charge chaste women with false accusation) occur clearly shows that it does not imply any common sort of accusation but specifically the accusation of zina against the chastity of pure women. Then the demand from the accusers to produce four witnesses in support of their accusation also shows that it relates to zina, for in the entire Islamic Law producing four witnesses is the legal requirement only in a case zina and in no other matter. The scholars are, therefore, agreed that this verse describes the law relating to the accusation of zina, which has been termed qazf for convenience so that this law is not extended to cover cases of other accusations like that of theft, drinking, taking of interest, etc. Apart from qazf, the question of determining punishments for other allegations can be left to the discretion of the judge, or to the consultative council of the Islamic state, who can make general laws to cover cases of contempt and defamation as and when required (2) Though the verse only mentions al-muhsanat (pure and chaste women), the jurists are agreed that the law is not confined to the accusation in respect of women, but it extends to the accusation in respect of chaste men also. Likewise, though the masculine gender has been used for the accusers, the law is not confined to male accusers only but extends to female accusers as well. For as regards the gravity and wickedness of the crime, it does not make any difference whether the accuser or the accused is a man or a woman. Therefore in either case, the man or accuser or the woman accusing a virtuous and chaste man or woman of zina, will be dealt with under this law. (3) This law can be applied only in a case where the accuser has accused a muhsan or muhsanah, i.e., "a morally fortified" man or woman. In case the accused is not "morally fortified", the law cannot be applied. if a person who is not "morally fortified" is known for his immorality, there will be no question of the "accusation", but if he is not, the judge can use his discretion to award a punishment to the accuser, or the consultative council can make necessary laws to deal with such cases. (4) For an act of qazi to be considered as punishable, it is not enough that somebody has accused somebody else of immorality without a proof, but there are certain conditions which have to be fulfilled in respect of the qazif(accuser), maqzuf(the accused) and the act of qazf itself.
As for the qazif, he should satisfy the following conditions: (a) He should be an adult: if a minor commits the crime of qazf he can be given a discretionary punishment but not the prescribed punishment. (b) He should possess normal common sense: an insane and mentally abnormal person cannot be given the prescribed punishment; similarly, a person under the influence of an intoxicant, other than a forbidden intoxicant, e.g., chloroform, cannot be considered as guilty of qazi. (c) He should have committed qazf out of his own free will or choice, and not under duress, (d) He should not be the father or grandfather of maqzuf(the accused), for they cannot be given the prescribed punishment. According to the Hanafis, the fifth condition is that the accuser should not be drunk, because the person who only gesticulates cannot be held guilty of qazi. But Imam Shafi`i disputes this. He says that if the gesticulation of the drunk person is clear and unambiguous by which everybody can understand what he wants to say, he will be considered as a qazif, because his gesticulation is no less harmful to defame a person than the word of mouth. On the contrary, the Hanafis do not hold mere gesticulation as a strong enough ground for awarding the prescribed punishment of 80 stripes; they, therefore, recommend a discretionary punishment for it.
The conditions to be satisfied by maqzuf(the accused) are as follows: (a) He should be possessing normal common sense, i.e., he should be accused of having committed zina while in the normal state of mind; the accuser of an insane person (who might or might not have become sane later) cannot be held guilty of qazf, for the insane person cannot possibly safeguard his chastity fully; and even if the evidence of zina is established against him, he will neither become deserving of the prescribed punishment nor incur personal defamation; therefore, the one accusing him also should not be held as deserving of the prescribed punishment of qazf. However, Imam Malik and Imam Laith bin Sa`d hold that the qazif of an insane person deserves to be awarded the prescribed punishment of qazf, because he is accusing another person of zina without a proof thereof. (b) He should be an adult, i.e., he should be accused of having committed zina while being of full age legally; accusing a minor, or a grown up person that he committed zina when a minor, dces not deserve the " prescribed punishment, for, like an insane person, a child also cannot fully safeguard his honour and chastity. However, according to Imam Malik, if a boy approaching the age of majority is accused of zina, the accuser will not deserve the prescribed punishment, but if a girl of that age is accused of having submitted herself for zina, when sexual intercourse with her is possible, her qazif will deserve the prescribed punishment, for the accusation defames not only the girl's family but ruins the girl's future as well. (c) He should be a Muslim, i.e., he should be accused of having committed zina while in Islam. Accusing a non-Muslim, or a Muslim that he committed zina when a non-Muslim, does not entail the prescribed punishment. (d) He should be free; accusing a slave or a slave-girl, or a free person that he committed zina when a slave, does not call for the prescribed punishment, for the helplessness and weakness of the slave can hinder him from safeguarding his honour and chastity. The Qur'an itself has considered the state of slavery as excluded from the state of ihsan (moral fortification). (IV: 25). But Da'ud Dhahiri does not concede this argument; he holds that the qazif of the slave or slave-girl also deserves the prescribed punishment of qazf. (e) He should possess a pure and blameless character, i.e., he himself should be free from zina proper and everything resembling therewith, This means that he should neither have been held guilty of zina in the past, nor should have had sexual intercourse in an illegal marriage, nor with a slave girl who was not clearly in his possession legally, nor with a woman whom he mistook for his wife. His day to day life should be such that nobody could accuse him of immorality, nor he should have been held guilty of lesser crimes than zina before. In all such cases the moral purity of the person falls into disrepute, and the accuser of such a person cannot deserve the prescribed punishment of 80 stripes. So much so that if the guilt of zina against an accused person is proved on the basis of evidence just before the enforcement of the prescribed punishment on an accuser, the latter will be forgiven; because the former is no longer chaste and morally pure. Though the prescribed punishment cannot be enforced in any of these five cases it does not, however, mean that a person who accuses an insane person or a minor or a non-Muslim, or a slave, or an unchaste person of zina without proof, does not even deserve a discretionary punishment. Now let us consider the conditions which must be found in the act of qazf itself An accusation will be considered as qazf, if either an accuser accuses a person of such a sexual act which, if proved to be correct by necessary evidence, would make the accused liable to the prescribed punishment, or the accuser holds the accused as of illegitimate birth. But in either case the accusation must be unambiguous and in clear terms; vague references in which the accusation of zina or illegitimacy depends upon the accuser's intention, are not reliable. For instance, using words like adulterer, sinner, wicked, immoral, etc. for a man, and prostitute, harlot, whore, etc. for a woman is only a reference and not qazf. Similarly, words which are used as an abuse like bastard, etc. cannot be regarded as qazf. There is, however, a difference of opinion among the jurists whether an allusion is also gazf or not. According to Imam Malik, if the allusion is clear and is meant to charge the addressee of zina or hold him as of illegitimate birth, it will be qazf, and the qazif will be liable to the prescribed punishment. But Imam Abu Hanifah and his companions and Imam Shafi`i, Sufyan Thauri, Ibn Shubrumah, and Hasan bin Saleh hold the view that an allusion is in any way ambiguous and doubtful, and wherever there is doubt, prescribed punishment cannot be awarded. Imam Ahmad and Ishaq bin Rahaviyah maintain that if an allusion is made in the heat of a quarrel or fight, it is qazf, but if in sport and fun, it is not. Hadrat `Umar and Hadrat `Ali, from among the Caliphs, awarded the prescribed punishment in cases of allusion. In the time of Hadrat `Umar, one of the two men, who were involved in a brawl, said to the other, "Neither was my father an adulterer nor was my mother an adulteress." The case was brought before Hadrat `Umar. He asked those present there what they understood by the remark. Some said that the man had only praised his parents and had notb imputed anything to the other man's parents. Others objected to the use of the words and said that by these he had clearly alluded that the other man's parents were adulterous. Hadrat `Umar concurred with the latter and awarded the prescribed punishment. (Al-Jassas, vol. III, p. 330). There is also a difference of opinion as to whether accusing somebody of sodomy is qazf or not. lmam Abu Hanifah dces not regard it qazf but Imam Abu Yusuf, Imam Muhammad; Imam Malik and Imam Shafi`i hold it as qazf and recommend the prescribed punishment for it. (5) There is a difference of opinion among the jurists as to whether qazf is a cognizable offence or not. Ibn Abi Laila says that this is the right of Allah; therefore, the qazif will be awarded the prescribed punishment whether maqzuf (the accused) demands it or not. Imam Abu Hanifah and his companions hold that it is certainly a right of Allah in so far as the enforcement of the prescribed punishment on the establishment of the offence is concerned, but in so far as the trial of the accuser under the law is concerned, it depends on the demand of the accused, and in this respect it is the right of man. The same is the opinion of Imam Shafi`i, and Imam Auza'i. According to Imam Malik, if the offence of gazf is committed in the presence of the ruler, it is a cognizable offence, otherwise legal action against the accuser will depend on the demand of the accused (6) Qazf is not a compoundable offence. If the accused does not bring the case to the court, it will be a different thing; but when the case is brought to the court, the accuser will be pressed to prove his accusation, and if he fails to prove it, he will be awarded the prescribed punishment. The court then cannot pardon him nor the accused himself, nor the matter can be settled by making monetary compensation, nor the accuser can escape punishment by offering repentance or apology. The Holy Prophet has instructed: "Forgive among yourselves offences that deserve the prescribed punishment, but when a case is brought before me, the punishment will become obligatory." (7) According to the Hanafis, the demand for the prescribed punishment of qazf call either be made by the accused, or, if the accused is not there, by the one whose lineage suffers the stigma, e.g., the father, mother, children. and the children's children. But according to Imam Malik and Imam Shafi`i, this right is inherited. If the accused dies, each one of his legal heirs can make the demand for the prescribed punishment. It is, however, strange that Imam Shafi'i excludes the husband and the wife from this right on the ground that their marriage bond breaks with death, and the accusation against one spouse dces not affect the lineage of the other. The fact is that both these arguments are weak. When it is conceded that the right to demand the prescribed punishment for qazf is inheritable, it will be against the Qur'an to exclude the husband and the wife from the exercise of this right on the ground that their marriage bond breaks with death, because the Qur'an itself has declared each of them as an heir on the death of the other. As for the argument that the accusation against one dces not affect the lineage of the other, it may be correct in the case of the husband but it is absolutely wrong in the case of the wife; the man whose wife is accused of zina has the lineage of his children automatically rendered doubtful. Moreover, it is not correct to think that the punishment for qazf has been prescribed only to protect the lineage of the people; honour along with lineage is equally important. Thus, it is no less damaging for a gentleman or a lady that his wife or her husband is accused of zina. Therefore, if the right to demand the prescribed punishment for qazf be inheritable there is no reason why the husband and the wife should be debarred from exercising that right. (8) After it has been established that a person has committed qazf, the only thing that can save him from the prescribed punishment is that he should produce four witnesses who should give evidence in the court that they have seen the accused committing zina practically with such and such a man or woman. According to the Hanafis, all the four witnesses should appear at one and the same time in the court and they should give evidence all together. For if they appear one after the other, each one of them will become a qazf, and will need four witnesses to support him. But this is a weak argument. The correct position is the one adopted by Imam Shafi`i and `Uthman al-Bani, that it is immaterial whether the witnesses appear all together or come one after the other; it is rather better that as in other cases the witnesses should come one after the other and give evidence. The Hanafis hold that it is not necessary that the witnesses should be righteous; even if the qazif produces four immoral persons as witnesses, he will escape the prescribed punishment of qazf, and the accused also the prescribed punishment of zina, because the witnesses are not righteous. However, if the qazif produces witnesses who are unbelieving, or blind, or slave, or those already convicted of qazf, he will not escape the punishment. Imam Shafi`i holds that if the qzif produces witnesses who are immoral, he and his witnesses, all will become liable to the prescribed punishment, and the same is the opinion of Imam Malik. But the view of the Hanafis in this matter appears to be nearer the truth. According to them, if the witnesses are righteous, the qazif will be acquitted of the charge of qazf, and the crime of zina will become established against the accused. But if the witnesses are not righteous, the qazif's crime of qazf, the maqzuf's crime of zina and the evidence of the witnesses will all stand doubtful, and none will be held liable to punishment on account of the element of doubt. (9) The Qur'an has given three Commandments in respect of the person who fails to produce proper evidence which can cause his acquittal of the crime of qazf, (a) He should be awarded 80 stripes, (b) His evidence should not be accepted in future, (c) He himself is a transgressor. After this the Qur'an says: " .... except those who repent of it and mend their ways; Allah is Forgiving and Merciful." The question arises: To which of these three Commands is the forgiveness due to repentance and reformation as mentioned in the verse related? The jurists are agreed that it is not related to the first Command. That is, repentance will not render the punishment null and void, and the criminal will be given flogging in any case. The jurists are also agreed that the forgiveness is related to the third Command, which means that after repentance and reformation the criminal will no longer be a sinner and Allah will forgive him. (Here the difference of opinion is Only in this matter whether the criminal becomes a sinner due to the crime of qazf itself, or after his conviction by the court. Imam Shafi`i and Laith bin Sa`d hold that he becomes a sinner due to the crime of qazf itself, and therefore, they reject his evidence thenceforth. On the contrary, lmam Abu Hanifah, his companions and lmam Malik maintain that he becomes a sinner after the enforcement of the sentence; therefore, till the enforcement of the sentence his evidence will be acceptable. But the truth is that in the sight of Allah the criminal becomes a sinner as a result of the crime of qazf itself, but for the people his being a sinner depends on his conviction by the court and the enforcement of the punishment on him). Now as far as the second Command, viz. "The evidence of qazif should not be accepted in future", is concerned, there has been a great difference of opinion among the jurists as to whether the sentence ". .. except those who repent. ." is related to this or not. One group says that this sentence is related only to the last Command. That is, a person who repents and mends his ways, will no longer be a sinner in the sight of Allah and the common Muslims, but the first two Commands will remain effective, i.e. the sentence will be enforced on him and his evidence will never be accepted in future. To this group belong eminent jurists like Qazi Shuraih, Said bin Musayyab, Said bin Jubair, Hasan Basri, Ibrahim Nakha`i Ibn Sirin, Makhul, `Abdur Rahman bin Zaid, Abu Hanifah, Abu Yusuf, Zufar, Muhammad, Sufyan _Thauri, and Hasan bin Saleh. The other group says that the clause... except those who repent . .." is not related to the first Command but is related to the other two. That is, after repentance, not only will the evidence of the offender who has been punished for qazf be acceptable, but he wilt also not be regarded as a sinner. This group comprises jurists of the status of `Ata', Ta'us, Mujahid, Sha`bi, Qasim bin Muhammad, Salim, Zuhri, `Ikrimah, `Umar bin `Abdul `Aziz, Ibn Abi Nujaih, Sideman bin Yasar, Masruq, Zahhak, Malik bin Anas, `Uthman al-Batti, Laith bin Sa`d, Shafi`i, Ahmad bin Hanbal and Ibn Jarir Tabari. Among other arguments, these scholars cite the verdict of Hadrat `Umar which he gave in the case of Mughirah bin Shu`bah. For, according to some traditions, after enforcing the punishment, Hadrat `Umar said to Abu Bakrah and his two companions: "If you repent (or confess your lie), I shall accept your evidence in future, otherwise not." His companions confessed but not Abu Bakrah. On the face of it, it appears to be a strong argument. But from the details given above of Mughirah bin Shu`bah's case, it would become obvious that it is not correct to cite this precedent in support of this view. For in that case, there was complete unanimity as far as the act (of sexual intercourse) was concerned and Mughirah bin Shu`bah himself did not deny it. The point of dispute was the identity of the woman. Mughirah said that she was his own wife, whom the accusers had mistaken for Umm Jamil. Then it had also been established that the wife of Hadrat Mughirah and Umm Jamil resembled with each other to a degree that from the distance and in the kind of light that they were seen, the former could Be mistaken for the latter. But the circumstantial evidence was wholly in favour of Mughirah bin Shu'bah, and a witness of the case also had admitted that the woman was not clearly visible. That is why Hadrat `Umar decided the case in favour of Mughirah bin Shu`bah, and after punishing Abu Bakrah, said the words as mentioned in the above-quoted traditions. This clearly shows that the real intention of Hadrat 'Umar was to impress on the accusers that they should confess that they had given way to undue suspicion and that they should repent of accusing people on the basis of such suspicions in future, otherwise their evidence would never be accepted. From this it cannot be concluded that in the eyes of Hadrat 'Umar the evidence of a person whose falsehood had been established, could become acceptable just after he had repented. The truth is that in this matter the view of the former group is more sound. None except Allah can know whether a person has repented sincerely or not. If a person repents before us, we may not consider him as a transgressor afterwards, but once his falsehood has been established, we cannot afford to trust him in future simply because he has uttered repentance. Moreover, the words in the Text themselves indicate that except those who repent . .. " is related only to ". .. they themselves are transgressors" . The reason is that the first two things, in the sentence ---" flog them with eighty stripes, and never accept their evidence afterwards"--have been given in the imperative form, while the third thing-- "they themselves are transgressors"-is a predicate. Then the clause"... except those who repent ..." just after the predicate itself indicates that the exception relates to the predicate and not to the two imperative sentences. Nevertheless, if it is conceded that the exception is not confined to the last sentence, one dces not understand why it should be made to apply to "never accept their evidence" only and not extended to "flog them with eighty stripes" also. (10) A question may be asked: Why should not the exception in "... .except those who repent...." be made applicable to the first Command also? Qazf after all is a sort of defamation. Why should not a person who confesses his guilt, apologizes and repents, be let off, when Allah Himself says: "... except those who repent and trend their ways; Allah is Forgiving and Merciful. " It will be strange that Allah forgives while the people do not forgive. The answer is that the act of Taubah (repentance) is not merely uttering the word Taubah with the tongue; it lather implies having a feeling of regrets, a resolve to reform and an inclination to do right; and this can only be known to Allah whether a person has repented sincerely or not. That is why on repentance worldly punishments are not forgiven but only punishments of the Hereafter; and that is why, Allah dces not say that if the offenders repent, they thay be forgiven, but says: "For those who repent, Allah is Forgiving and Merciful." If the worldly punishments are also excused on repentance, there will be no offender who will not offer repentance in order to escape his sentence. (11) Another side of the question is that if a person cannot produce witnesses in support of his accusation, it may not necessarily mean that he is a liar. Is it not possible that he be true in his accusation, yet he may fail to produce evidence? Then, how is it that he should be condemned as a sinner on account of his failure to produce witnesses not only by the people but also by Allah ? The answer is that even if a person is an eye-witness to the immorality committed by an other person, he will be considered as a sinner for publicising the act and accusing the offender without necessary evidence. The Divine Law does not want that if a person gets polluted in filth in a private place, the other person should start spreading the filth in the .whole society. If he has any knowledge of the presence of the filth, there are two ways open for him: either he should let it remain where it is, or he should produce a proof of its existence, so that the officials of the Islamic State should cleanse it. There is no third way for him. If he publicises it, he will be committing the crime of spreading the filth everywhere; and if he brings the matter to the notice of the officials without satisfactory evidence, they will not be able to deal with it effectively. The result will be that the failure of the case will become a means of spreading the filth and encouraging the wicked element of society. Therefore, the one who commits qazf without necessary proof and evidence, will in any case be a sinner even if he be we in his accusation. (12) The Hanafi jurists hold that the qazif should be given a lighter punishment than the one who is convicted of zina. That is, he. should be given eighty stripes but flogging should be less intense, the reason being that his being a liar is not certain in the offence for which he is being punished. (13) Majority of the jurists including the Hanafis are of the view that only one punishment will be enforced on the qazif no matter how often he repeats the accusation before or during the enforcement of the punishment. If after the punishment the qazif goes on repeating the same accusation, the punishment which he has already been awarded, will suffice. however, if after the enforcement of the prescribed punishment, he brings another charge of zina against the accused, he will be tried again for the new charge of qazf. Abu Bakrah after getting the punishment in the case against Mughirah bin Shu`bah, went on repeating openly that he bore witness that Mughirah had committed zina. Hadrat `Umar wanted to try him again, but as he was repeating the same accusation, Hadrat `Ali expressed the opinion that he could not be tried again and Hadrat `Umar conceded it. After this the jurists became almost unanimous that a qazif who has received the prescribed punishment for a crime, cannot he tried again unless he commits a fresh crime of qazf. (14) There is a difference among the jurists with regard to qazf against a group. According to the Hanafi s, if a person accuses a number of persons in one word or in more words separately, he will be awarded only one prescribed punishment unless, of course, lie commits a- fresh crime of qazf after the enforcement of the first punishment. The words of the verse - "Those who accuse chaste woman... "-indicate that the accuser of one person or more persons deserves only one punishment. Moreover, there can be no zina for which at least two persons cannot be accused, but in spite of that the Law-giver has prescribed only one punishment and not two, one for accusing the woman and the other for accusing the man. Contrary to this, Imam Shafi`i holds that the person who accuses a group of persons, whether in one word or in more words separately, will be awarded as many punishments as the number of the persons accused, one for each. The same is the opinion of `Uthman al-Batti. However, the ruling of Ibn Abi Laila, to which Sha`bi and Auza`i also subscribe, is that the one who accuses a group of persons of zina in one word, deserves one punishment, and the one who accuses them separately in separate words, deserves separate punishments, one for each. "
24.4. And those who accuse honorable women but bring not four witnesses, scourge them (with) eighty stripes and never (afterward) accept their testimony. They indeed are evildoers. (Pickthall)
24.4. Und diejenigen, die ehrbare Frauen beschuldigen, und dann nicht vier Zeugen bringen, - so peitscht sie mit achtzig Peitschenhieben und nehmt von ihnen kein Zeugnis an, niemals, und diese, sie sind die Frevler, (Ahmad v. Denffer)
24.4. Diejenigen, die den ehrbaren Ehefrauen (Untreue) vorwerfen und hierauf nicht vier Zeugen beibringen, die geißelt mit achtzig Hieben und nehmt von ihnen niemals mehr eine Zeugenaussage an - das sind die (wahren) Frevler -, (Bubenheim)
24.4. Denjenigen, die ehrbaren Frauen Untreue vorwerfen, dann aber nicht vier Zeugen beibringen können, sollt ihr achtzig Peitschenhiebe versetzen, und ihr sollt später nicht ihre Zeugenaußagen annehmen, denn sie sind wirklich Frevler. (Azhar)
24.4. Und diejenigen, die den keuschen Frauen (Zina) vorwerfen dann (dafür) keine vier (Augen-)Zeugen bringen, diese sollt ihr mit achtzig Peitschenschlägen peitschen und ihr Zeugnis niemals gelten lassen. Und diese sind die wirklichen Fasiq, (Zaidan)
24.4. Und wenn welche (von euch) ehrbare Frauen (mit dem Vorwurf des Ehebruchs) in Verruf bringen und hierauf keine vier Zeugen (für die Wahrheit ihrer Aussage) beibringen, dann verabreicht ihnen achtzig Peitschenhiebe und nehmt nie (mehr) eine Zeugenaussage von ihnen an! Sie sind die (wahren) Frevler, (Paret)
24.4. Und denjenigen, die ehrbaren Frauen (Unkeuschheit) vorwerfen, jedoch nicht vier Zeugen (dafür) beibringen, verabreicht achtzig Peitschenhiebe. Und lasset ihre Zeugenaussage niemals gelten; denn sie sind es, die Frevler sind ; (Rasul)
24.5. Illa alladhiina tabuumin baAAdi dhalika waaslahuu fa-inna Allahaghafuurun rahiimun
24.5. Save those who afterward repent and make amends. (For such) lo! Allah is Forgiving, Merciful. (Pickthall)
24.5. Außer denjenigen, die danach reuig umkehren, und sie machen es wieder gut, so ist Allah ja verzeihend, barmherzig. (Ahmad v. Denffer)
24.5. außer denjenigen, die nach alledem bereuen und rechtschaffen werden, denn Allah ist Allvergebend und Barmherzig. (Bubenheim)
24.5. Ausgenommen die, die danach Reue empfinden, sich bessern und rechtschaffen werden. Gott ist voller Vergebung und Barmherzigkeit. (Azhar)
24.5. außer denjenigen, die danach bereuten und gottgefällig Gutes taten, dann ist ALLAH gewiss allvergebend, allgnädig. (Zaidan)
24.5. ausgenommen diejenigen, die danach umkehren und sich bessern. Allah ist barmherzig und bereit zu vergeben. (Paret)
24.5. außer jenen, die es hernach bereuen und sich bessern; denn wahrlich, Allah ist Allvergebend, Barmherzig. (Rasul)
Tafsir von Maududi für die Ayaat 4 bis 5
As for those persons who charge chaste women with false accusations but do not produce four witnesses, flog them with eighty stripes and never accept their evidence afterwards, for they themselves are transgressors, except those who repent and reform themselves; Allah is Forgiving and Merciful ( 6 ) .
24.6. As for those who accuse their wives but have no witnesses except themselves; let the testimony of one of them be four testimonies, (swearing) by Allah that he is of those who speak the truth; (Pickthall)
24.6. Und diejenigen, die ihre Gattinnen beschuldigen, und sie haben keine Zeugen außer sich selbst, so soll das Zeugnis eines von ihnen vier Bezeugungen bei Allah sein, daß er ja bestimmt einer von den Wahrhaften ist, (Ahmad v. Denffer)
24.6. Für diejenigen, die ihren Gattinnen (Untreue) vorwerfen, aber keine Zeugen haben außer sich selbst, besteht die Zeugenaussage eines (solchen) von ihnen darin, daß er viermal bei Allah bezeugt, er gehöre wahrlich zu denen, die die Wahrheit sagen, (Bubenheim)
24.6. Wenn Ehemänner ihre Frauen der Untreue zeihen und außer sich selbst keine Zeugen haben, so muss ein solcher Ehemann viermal bei Gott schwören und Gott zum Zeugen nehmen, dass er die Wahrheit sagt. (Azhar)
24.6. Und diejenigen, die ihren Ehefrauen (Zina) vorwerfen und dafür keine Zeugen außer sich selbst haben, dann ist das Zeugnis eines von ihnen vier Bezeugungen bei ALLAH: ‚Gewiß, er ist zweifelsohne von den Wahrhaftigen.‘ (Zaidan)
24.6. Und wenn welche (von euch) ihre (eigenen) Gattinnen (mit dem Vorwurf des Ehebruchs) in Verruf bringen und nur sich selber als Zeugen (dafür haben), dann soll die Zeugenaussage eines solchen Ehegatten darin bestehen, daß er viermal vor Allah bezeugt, daß er die Wahrheit sagt, (Paret)
24.6. Und (was) jene (betrifft), die ihren Gattinnen (Ehebruch) vorwerfen und keine Zeugen (dafür) außer sich selber haben - von solchen Leuten soll die Aussage des Mannes allein (genügen), wenn er viermal bei Allah schwört, daß er die Wahrheit rede ; (Rasul)
24.10. Walawla fadlu AllahiAAalaykum warahmatuhu waanna Allaha tawwabunhakiimun
24.10. And had it not been for the grace of Allah and His mercy unto you, and that Allah is Clement, Wise, (ye had been undone). (Pickthall)
24.10. Und was wäre, wenn es nicht die Gunst Allahs für euch gäbe und Seine Barmherzigkeit, und daß Allah vergebend, weise ist. (Ahmad v. Denffer)
24.10. Und ohne die Huld Allahs gegen euch und Seine Barmherzigkeit, und daß Allah Reue-Annehmend und Allweise wäre,... (Bubenheim)
24.10. Hätte Gott euch Seine Huld und Seine Barmherzigkeit nicht erwiesen, wäre Gott nicht unermesslich gnädig und weise, hättet ihr es schwer. (Azhar)
24.10. Und wären nicht ALLAHs Gunst euch gegenüber und Seine Gnade, und dass ALLAH doch reue-annehmend, allweise ist, (hätte ER euch bloßgestellt). (Zaidan)
24.10. Und wenn nicht Allah seine Huld und Barmherzigkeit über euch würde walten lassen, und wenn er nicht (so) gnädig (tauwaab) und weise wäre (wären diese Bestimmungen weniger mild ausgefallen). (Paret)
24.10. Wäre nicht Allahs Huld und Seine Barmherzigkeit über euch und wäre Allah nicht Vielvergebend, Allweise (, wäret ihr verloren gewesen). (Rasul)
Tafsir von Maududi für die Ayaat 8 bis 10
(As for the woman), it shall avert the punishment from her if she swears four times by Allah that the man is false (in his charge) and the fifth time she invokes Allah's wrath upon herself, if he be true (in his charge). ( 7 ) If Allah had not shown you His grace and mercy and if Allah had not been most Forgiving and All-Wise, (you would have been in a great fix because of accusing your wives).
Desc No: 7 These verses were sent down some time after the preceding verses. The Law of Qazf prescribed the punishment for the person who accused the other man or woman of zina, and did not produce witnesses to prove his charge, but the question naturally arose, what should a man do if he fords his own wife involved in zina? If he kills her, he will be guilty of murder and punishable; if he goes to get witnesses, the offender might escape; if he tries to ignore the matter, he cannot do so for long. He can, of course, divorce the woman, but in this case there will be no moral or physical punishment either for the woman or her seducer; and if the illicit intercourse results in pregnancy, he will have to suffer the burden of bringing up another person's child. Initially this question was raised by Hadrat Sa`d bin `Ubadah as an hypothetical case, who said that if he happened to see such a thing in his own house, he would not go in search of witnesses, but would settle the matter there and then with the sword. (Bukhari, Muslim). But soon afterwards actual cases were brought before the Holy Prophet by the husbands who were eyewitnesses of this thing. According to traditions related by `Abdullah bin Mas`ud and Ibn `Umar, an Ansar Muslim (probably `Uwaimir `Ajlani) came to the Holy Prophet and said, "O Messenger of Allah, if a person finds another man with his wife, and utters an accusation, you will enforce the prescribed punishment of qazf On him; if he commits murder, you will have him killed; if he keeps quiet, he will remain involved in anguish; then, what should he do?" At this the Holy Prophet prayed, "O Allah, give a solution of this problem." (Muslim, Bukhari, Abu Da'ud, Ahmad, Nasa`i). Ibn 'Abbas has reported that Hilal bin Umayyah presented the case of his wife whom he had himself witnessed involved in the act of sin. The Holy Prophet said, "Bring your proof, otherwise you will have the prescribed punishment of qazf inflicted on you." At this a panic spread among the Companions, and Hilal said, "I swear by Allah Who has sent you as a Prophet that I am speaking the truth: I have seen it with my eyes and heard it with my ears: I am sure Allah will send down a Command, which will protect my back (from the punishment). So, this verse was revealed." (Bukhari, Ahmad, Abu Da'ud). The legal procedure which has been laid down in this verse, is termed as the Law of Li `an. The details of the cases which the Holy Prophet judged in accordance with the Law of Li'an are found in the books of Hadith and these form the source and basis of this law. According to the details of Hilai bin Umayyah's case as reported in sibah Sitta, Musnad Ahmad and Tafsir Ibn Jarir, on the authority of Ibn `Abbas and Anas bin Malik, both Hilai and his wife were presented before the Holy Prophet, who first of all apprised them of the Divine Law, and then said: "You should note it well that the punishment of the Hereafter is much severer than the punishment of this world." Hilai submitted that his charge was absolutely correct. The woman denied it. The Holy Prophet then said: "Let us proceed according to the Law of Li'an." So, Hilal stood up first and swore oaths according to the Qur'anic Command. The Holy Prophet went on reminding them again and again: "Allah knows that one of you is certainly a liar: then, will one of you repent ?" Before Hilal swore for the fifth time, the people who were present there, said to him, "Fear God: the punishment of the world is lighter than of the Hereafter. The fifth oath will make the punishment obligatory on you. " But Hilal said that God Who had protected his back (from punishment) in this world, will also spare him in the Hereafter. After this he swore the fifth oath, too. Then the woman began to swear oaths. Before she swore the fifth oath, she was also stopped and counselled, "Fear God: the worldly punishment is easier to bear than the punishment of the Hereafter. This last oath will make the Divine punishment obligatory on you." Hearing this the woman hesitated a little. The people thought that she was going to make the confession. But instead of that she said: "I do not want to put my clan to disgrace for ever," and swore for the fifth time, too. At this the Holy Prophet ordered separation between them and ruled that her child after birth would be attributed to her and not to the man; that nobody after that would blame her or her child; that anybody who accused either of them would incur the punishment of qazf and that she had no right left to claim maintenance, etc. from Hilal, during her Legal waiting period, because she was being separated neither on account of divorce nor due to the husband's death. Then the Holy Prophet asked the people to see whether the child on birth took after Hilai or the man who was being accused in connection with the woman. After delivery when it was seen that the child took . after the other man, the Holy Prophet said: `If there had been no swearing of the oaths (or if Allah's Book had not settled the matter before this), I would have dealt with this woman most severely." The details of the case of `Uwaimir `Ajlani have been cited in Bukhari, Muslim, Abu Da'ud, Nasa'i, Ibn Majah and Musnad Ahmad, on the authority of Sahl bin Sa'd Sa'idi and Ibn `Umar (may Allah be pleased with them both). According to these, 'Uwaimir and his wife were both summoned to the Prophet's Mosque. Before proceeding against them in accordance with the Law of Li an, the Holy Prophet warned them thrice, saying: "Allah knows full well that one of you is a liar: then, will one of you repent ?" When neither repented, they were told to exercise Li'an. After that `Uwaimir said, "O Messenger of Allah, now if I keep this woman, I would be a liar" and then he divorced her thrice there and then even without the Holy Prophet's permission to do so. According to Sahl bin Sa`d, the Holy Prophet enforced the divorce to separate them, and said, "There shall be separation between the husband and the wife if they exercise Li'an. 'This became established as a Sunnah that the couple who swore against each other would separate never to marry again. Ibn `Umar only says this that the Holy Prophet enforced separation between them. Sahl bin Sa`d, however, adds that the woman was pregnant and `Uwaimir said that it was not due to his seed; so the child was attributed to the mother. The practice that thus became established was that such a child would inherit the mother and the mother him. Apart from these two cases, we find several other traditions also in the books of Hadith, which may or may not be related to these cases, but some of these traditions mention other cases as well, which provide important components of the Law of Li'an. Ibn `Umar has reported traditions according to which the Holy Prophet ordered separation between the spouses after Li'an and ruled that in case of pregnancy the child would be attributed to the mother (sibah Sitta, Ahmad). According to another tradition of Ibn `Umar, the Holy Prophet said to a man and woman after Li an: "Now your affair is with Allah: in any case one of you is a liar." Then he said to the man, "Now she is not yours: you have no right on her, nor can you treat her vindictively in any way." The man requested, "Sir, please have my dowry returned to me." The Holy Prophet said, "You have no right to have the dowry back. If you are true in your accusation, the dowry is the price of the pleasure you had from her when she was lawful to you; and if your accusation is false, the dowry has receded farther away from you than it is from her." (Bukhari, Muslim, Abu Da'ud). Daraqutni has quoted `Ali bin Abi Talib and Ibn Mas`ud (may Allah be pleased with them both) as saying: "The Sunnah that has become established is that the spouses who have exercised Li'an against each other, can never re-unite in marriage." Again Daraqutni has quoted Hadrat `Abdullah bin `Abbas as saying, "The Holy Prophet himself has ruled that the two can never re-unite in wedlock.' Qabisah bin Zu'aib has reported that a man in the time of Hadrat `Umar alleged that his wife was pregnant by illicit intercourse, then admitted that it was by his own seed, but after delivery again denied that the child was his. The case was brought to the court of Hadrat `Umar, who enforced the prescribed punishment of qazf on the man and ruled that the child would be attributed to him. (Daraqutni, Baihaqi). Ibn , `Abbas has reported that a man came to the Holy Prophet and said. "Sir, I have a wife for whom I have great love; but her weakness is that she does not mind if the other man touches her. (By this he might have meant zina or a lesser moral evil)." The Holy Prophet replied, "You may divorce her." The man said, "But I cannot live without her." Thereupon the Holy Prophet said, "Then you should pull on with her. " (The Holy Prophet did not ask the man for any explanation, nor took his complaint as an accusation of zina, nor applied the law of li`an). (Nasa'i) Abu Hurairah has narrated the case of a beduin who came to the Holy Prophet and said that his wife had given birth to a dark-coloured son and he was doubtful that it was his. (That is, the child's colour had caused him the suspicion, otherwise there was no ground with him to accuse her of zina). The Holy Prophet asked him, "Do you have any camels ?" The man replied in the affirmative. The Holy Prophet then asked, "What is their colour?" He said they were red. The Holy Prophet said, "Is any of them grey also?" He said, "Yes, Sir, some are grey also." The Holy Prophet asked, "What caused that colour?" He said, "MigHt be due to some ancestor of theirs." The Holy Prophet replied, "The same might be the cause for your child's colour." And he did not allow him to doubt and deny the child's fatherhood. (Bukhari, Muslim, Ahmad, Abu Da'ud). According to another tradition of Abu Hurairah, explaining the verse of !i `an the Holy Prophet said: "The woman who brings a child into a family which dces not actually belong to it (i.e. marries a man of the family with illicit pregnancy), has no relation with Allah. Allah will never admit her into Paradise. Similarly, the man who denies the fatherhood of his child, whereas the child looks up towards him, will never see Allah on the Day of Judgment, and Allah will put him to disgrace in front of all mankind." (Abu Da`ud, Nasa'i, Darimi). Thus, the verse of li `an, the traditions of the Holy Prophet, the precedents and the general principles of the Shari `ah together form the basis of the Law of Li'an, which the jurists have formulated a complete code with the following main clauses: (1) There is a difference of opinion about the man who sees his wife involved in zina with another man and kills him instead of having recourse to li`an. One group holds that he will be put to death because he had no right to take the law in his own hand and enforce the punishment. The other group says that he will not be put to death nor will he be held accountable for his act in any way provided that it is confirmed that he killed the man (adulterer) on account of zina and nothing else. Imam Ahmad and Ishaq bin Rahaviyah maintain that the man will have to produce two witnesses to confirm that he killed the adulterer only on account of zina. Ibn al-Qasim and Ibn Habib, from among the Malikis, attach an additional condition that the murdered person should be a married man; otherwise the murderer will be made subject to the law of retaliation for killing an unmarried adulterer. But the majority of jurists are of the opinion that the man will be exonerated from retaliation only when he produces four witnesses to establish zina, or if the murdered person himself confesses before death that he committed zina with the wife of the murderer, and if it is also confirmed that the murdered person was a married man. (Nail al-Autar, vol. IV, p. 228). (2) The Law of Li `an cannot be applied mutually at home, but in a court of law in front of the Judge. (3) Exercise of li`an is not the sole right of the man; the woman also has a right to demand it in a court of law if her husband accuses her of zina, or denies fatherhood of her child. (4) There is a difference of opinion among the jurists as to whether li `an can be resorted to between any husband and his wife, or whether they have to satisfy certain conditions. Imam Shafi'i holds that only that husband whose oath is legally reliable and who can exercise the right of divorce, can swear the oaths of li `an. In other words, sanity and maturity according to him, are the sufficient conditions which entitle a husband to exercise li'an no matter whether the spouses are Muslim or non-Muslim, slave or free, and whether their evidence is acceptable or not, and whether the Muslim husband has a Muslim or a zimmi wife. Imam Malik and Imam Ahmad have also given almost the same opinion. But the Hanafis maintain that li'an can be exercised only by free Muslim spouses, who should not have been convicted of qazf previously. If both husband and wife are nonMuslim, or slaves, or convicted of qazf previously, they cannot exercise li `an against each other. Furthermore, if the woman was ever found guilty of an illicit or doubtful relationship with another man, exercise of li `an will not be valid. The Hanafis have imposed these conditions, because according to them, there is no other difference between li `an and qazf than this: -the other man commits qazf, he is given the prescribed punishment, but if the husband himself commits it, he can escape the punishment by exercising li `an. In all other respects, li `an and qazf are identical. Moreover, since according to the Hanafis, the oaths of li an are in the nature of evidence, they do not concede this right to a person who is not legally fit to give evidence. But the truth is that in this matter the position of the Hanafis is weak, and the opinion of Imam Shafi`i is correct, because the Qur'an has not made the accusation of the wife a component part of the verse of qazf, but has prescribed a separate law for it. Therefore, it cannot be linked with the law of qazf and treated under the conditions prescribed for qazf. Then, the wording of the verse of li'an is different from the wording of the verse of qazf and the two lay down separate injunctions. Therefore, the law of li `an should be derived from the verse of li `an and not from the verse of qazf. For instance, according to the verse of qazf, the person who accuses chaste women (muhsanat) of zina, deserves to be punished. But in the verse of li `an, there is no condition of the chastity of the wife. A woman might have committed sins in life, but if she repents later on and marries somebody, the husband is not authorised by the verse of li `an to accuse her unjustly whenever he likes, and to deny fatherhood of her children simply because she had once lived in sin. The other equally important reason is that there is a world of difference between accusing a wife and accusing the other woman. The law cannot treat the two alike. A man has nothing to do with the other woman. He is neither attached to her emotionally, nor his honour, his family relations and rights are at stake nor his lineage. The only meaningful interest he can have in the woman's character can be his desire to see a morally pure and clean society. Contrary to this, his relationship with his wife is deep and of varied nature. She is the custodian of the purity of his race, of his property and his house; she is his life partner, sharer of his secrets, and with her he is attached in most delicate and deep feelings. If she is morally corrupt, it will deal a serious blow to his honour, his interests and his progeny. These two things, therefore, cannot be considered alike, and the law cannot treat them as equal to each other. Is an evil affair of the wife of a zimmi, or a slave, or a convicted husband in any way different, or less serious, in consequences than that of the wife of a free, mature and sound Muslim? If the husband himself sees his wife involved in zina with another person, or has reasons to believe that his wife is pregnant by illicit intercourse, how can he be denied the right of li 'an? And if he is denied this right, what else is there in our law which can help him out of his awkward situation? The intention of the Qur'an seems to be to open a way out of a difficult situation for married couples in which a husband may find himself placed due to the wife's immorality or illicit pregnancy, or a wife due to the husband's false accusation or unjustified denial of the fatherhood of her child. This is not particularly the need of the free and sound Muslims alone; there is in fact nothing in the Qur'anic Text which may confine it to them only. As for the argument that the Qur'an has described the oaths of li `an as evidence (shahadat), and therefore the conditions of evidence will apply here, the logical implication would be that in case a righteous and just husband whose evidence is acceptable, takes the necessary oaths, and the wife declines to take the oaths, she would have to be stoned to death, because her immorality would thus become established. But it is strange that in this case the Hanafis do not recommend stoning. This is a clear proof of the fact that they too do not regard the oaths as exactly identical with evidence. The truth is that though the Qur'an describes the oaths of li `an as evidence, it does not regard them as evidence in the technical sense, otherwise it would have required the woman to swear eight oaths and not four. (5) Li `an is not necessitated by an allusion or expression of doubt or suspicion, but only when the husband accuses his wife clearly of zina, or denies in plain words that the child is his. Imam Malik and Laith bin Sa`d impose an additional condition that the husband while exercising li `an must say that he has himself seen his wife involved in zina. But this is an unnecessary restriction which has no basis whatever in the Qur'an and Hadith. (6) If after accusing his wife, the husband declines to swear the oaths, the verdict of Imam Abu Hanifah and his companions is that he will be imprisoned and shall not be released until he exercises li `an or confesses the falsehood of his accusation, in which case he will be awarded the prescribed punishment of qazf On the contrary, Imam Malik, Shafi`i, Hasan bin Saleh and Laith bin Sa`d express the opinion that refusal to exercise li`an itself amounts to confessing one's being a liar, which makes the prescribed punishment of qazf obligatory. (7) If after the swearing of oaths by the husband, the wife declines to lake the oaths, the Hanafis give the opinion that she should be imprisoned and should not be released until she exercises li `an, or else confesses her guilt of zina. On the contrary, the other Imams (as mentioned in clause 6 above) say that in this case she will be stoned to death. They base their argument on the Qur'anic injunction: "...it shall avert the punishment from her if she swears four times by Allah," Now that she declines to swear the oaths, she inevitably deserves the punishment. But the weakness in this argument is that the Qur'an does not specify here the nature of "punishment"; it simply mentions punishment. If it is argued that punishment here means the punishment of zina only, the answer is that for the punishment of zina the Qur'an has imposed the condition of four witnesses in clear words, and this condition cannot be fulfilled by four oaths sworn by one person. The husband's oaths can suffice for him to escape the punishment of qazf and for the wife to face the injunction of li `an, but they are not enough to prove the charge of zina against her. The woman's refusal to swear the oaths in self-defense certainly creates a suspicion, and a strong suspicion indeed, but a prescribed punishment cannot be enforced on the basis of suspicions. This thing cannot be considered as analogous with the prescribed punishment of qazf for the man, because his qazf is established, and that is why he is made to exercise li `an. But contrary to this, the woman's guilt of zina is not established unless she herself makes a confession of it or four eye-witnesses are produced to prove it. (8) If the woman is pregnant at the time of li `an according to Imam Ahmad, li`an itself suffices to absolve the husband from the responsibility for pregnancy whether he has denied accepting it or not. Imam Shafi`i, however, says that accusation of zina by the husband and his refusal to accept responsibility for pregnancy are not one and the same thing. Therefore, unless the husband categorically refuses to accept the responsibility for pregnancy, he will be considered as responsible for it in spite of the accusation of zina by him, because the woman's being adulterous dces not necessarily mean that her pregnancy is also due to zina. (9) Imam Malik, Imam Shafi`i and Imam Ahmad concede the husband's right to deny responsibility for pregnancy during pregnancy, and allow him the right of li`an on that basis. But Imam Abu Hanifah says that if the basis for the man's accusation is not Zina, but only this that he has found pregnancy in the woman when it could not possibly be due to him, exercise of li 'an should be deferred until after delivery because sometimes symptoms of pregnancy appear due to some disease and not actual pregnancy. (10) If a husband denies fatherhood of a child, there is a consensus that li`an becomes necessary There is also a consensus that after he has accepted e child once (whether it is in clear words or by implication, e.g. by receiving congratulatory messages on its birth, or by treating it lovingly like. one's own child and taking due interest in its bringing up), he loses his right to deny him later, and if he dces so, he makes himself liable to the prescribed punishment of qazf. There is, however, a difference of opinion as to how long the father retains a right to deny fatherhood of the child. According to Imam Malik, if the husband was present at home while the wife was pregnant, he can deny the responsibility from the time of pregnancy till the time of delivery; after that he will have no right. However, if he was away from home and delivery took place in his absence, he can deny the child's fatherhood as soon as it comes to his knowledge. According to Imam Abu Hanifah, if he denies within a day or two of the child's birth, he will be absolved from the responsibility of the child after exercising li`an, but if he denies after a year or two, li`an will be valid, but he will not be absolved from the responsibility of the child. According to Imam Abu Yusuf, the father has the right to deny fatherhood within 40 days of the child's birth. or knowledge of its birth; after that he will have no right. But this restriction of 40 days is meaningless. The correct view is that of Imam Abu Hanifah that fatherhood can be denied within a day or two of the child's birth or knowledge of its birth, unless one is hindered from doing so due to a sound and genuine reason. (11) If a husband accuses a divorced wife of zina, according to Imam Abu Hanifah, this will be a case of qazf and not of li `an. Li `an can be resorted to between the spouses and cannot be extended to a divorced woman unless it is a retractable divorce and the accusation is made within the period of retraction. But Imam Malik holds that this will be qazf only if it does not involve the question of accepting or denying the responsibility of pregnancy or fatherhood of the child. If it is not that, the man has the right to exercise li `an even after pronouncing the final divorce, because in that case he would not be having recourse to li `an for the purposes of bringing infamy on the woman but to absolve himself from the responsibility of the child who, he believes, is not his. The same almost is the opinion of Imam Shafi`i. (12) There is a complete consensus of opinion in respect of certain legal implications of li `an, but certain others have been disputed by the jurists. The agreed ones are the following: Neither the woman nor the man is liable to punishment. If the man denies fatherhood of the child, it will be attributed to the mother alone; it will neither be attributed to the father nor will inherit him; the child will inherit the mother and the mother him. Thereafter nobody will have the right to call the woman adulterous nor the child illegitimate, whether the people might be wholly sure of her being adulterous under the circumstances at the time of li `an. Any person who repeats the old charge against the woman or her child, will make himself liable to the punishment of qazf. The woman's dowry will remain intact, but she will not be entitled to claim maintenance, etc. from the man, and she will become forbidden to him for ever, There is, however, a difference of opinion in respect of two things: (a) After li `an how will separation be effected between the husband and the wife? (b) Is it possible for them to re-unite in marriage after they have been separated on account of li'an? As regards the first question, Imam Shafi'i holds the opinion that as soon as a man has exercised his li'an, the woman stands automatically separated whether she refutes the man's charge by her li `an or not. Imam Malik, Laith bin S`ad and Zufar maintain that separation is effected when both a man and a woman have exercised their li `an one after the other. Imam Abu Hanifah, Abu Yusuf and Muhammad hold that separation dces not take place automatically after li`an, but it is effected by the judge. If the husband pronounces divorce, it takes effect, otherwise the judge will announce their separation. Regarding the second, question, the opinion of Imam Malik, Abu Yusuf, Zufar, Sufyan _Thauri, Ishaq bin Rahaviyah, Shafi`i, Ahmad bin Hanbal and Hasan bin Zaid is that the spouses who have been separated due to li'an, are forbidden to each other for ever. Even if they wish to remarry, they cannot do so in any case. The same is the opinion also of Hadrat `Umar, Hadrat `Ali and Hadrat `Abdullah bin Mas`ud. Contrary to this, Said bin Musayyab, Ibrahim Nakha`i, Sha`bi, Said bin Jubair, Abu Hanifah and Muhammad (may Allah be pleased with them all) opine that if the husband confesses his lie, and he is awarded the prescribed punishment for qazf, the two can re-unite in marriage. They argue that it is li `an which makes them unlawful for each other. As long as they stand by their li `an, they will remain forbidden for each other, but when the husband confesses his lie and receives the punishment, li `an will become null and void and so will their prohibition to marry each other again. "