Zaheer Ahmad Khan, UK
Within every set of laws in the world there is a penal code and the system of punishment serves as a deterrent for crime. In all matters, Islamic teachings carry within them the spirit of moderation and the acquisition of reforming one’s own self and society as a whole. Similarly, a high level of wisdom and balance are found in its system of Hadd and Ta’zir punishments. This system is a source of blessings and mercy for all people, as it safeguards their lives, wealth, honour and well-being. If one were to adhere to the teachings presented in the Islamic laws of Hadd and Ta’zir punishments, then a spirit of justice and peace would be established within society. The punishments found in worldly laws are manmade and created according to people’s own understandings, whereas the punishments ordained by Islam have been established by Allah the Almighty and His Messenger (sa).
There are three types of punishments for crimes which have been mentioned in the Holy Qur’an and the Sunnah [practice] of the Holy Prophet (sa):
- Jinayat – Qisas and Diyat [equitable retaliation and blood money]
The difference between Hadd, Ta’zir and equitable retaliation and blood money is that Hadd punishments are those that have been categorically established by Allah the Almighty and the punishments have been clearly stipulated in the Holy Qur’an. Therefore, once those crimes have occurred and been proven, there can be no compromise in the implementation of the punishment for such crimes; for example, theft, fornication (and according to some jurists, rape), as well as levelling false accusations against someone.
Jinayat are to do with the rights of the people, which include punishments in the form of equitable retaliation, blood money, expiation or ransom. In certain cases, these punishments can be lessened or forgiven entirely, such as the punishments for killing or causing injury, etc.
Ta’zir is a form of punishment which is established by Allah the Almighty and the implementation has been left to the discretion of the authorities. The exact form of punishment has not been stipulated by Islamic law, instead Allah the Almighty has left it to the representatives of governments – i.e. the relevant authorities – to conduct the investigation and to determine the severity of the punishment according to the nature of the crime, time and place and circumstances of those in question. Some jurists have included rape under Ta’zir punishments, which I will elaborate on further ahead, God-willing.
A clear and distinct difference between the punishments stipulated by Islam and those stipulated by other laws is that in Islam, the more severe the punishment, the more precautions Islam has commanded to take, so that even if perpetrators find a way of avoiding punishment, an innocent party should never be punished. Hence, the condition of four witnesses having seen the actual crime is set in place so that there remains no room for doubt. Furthermore, it is necessary for those witnesses to have proven through their past actions to be of high standard and sound moral character, so that they are proven to be not only truthful but dignified as well. All of these precautions ensure that an innocent party will not be convicted of a crime they did not commit. Furthermore, the laws of testimony in Islam are so strict that no other worldly laws of testimony can compare. For example, even if it seems that one of the witnesses is telling the truth, but is lacking in etiquettes in that he urinates in public places, even if his back is turned to those passing by, then according to the Islamic laws of testimony, his testimony will not be accepted.
Hence, Islam does not simply rely on its comprehensive teachings and establishing a pristine society for the prevention of crime; rather, even after a crime has occurred, it has commanded to take such precautions as a result of which the cases in which the Hadd punishment is implemented are very few and far between, aside from cases of a person having become utterly shameless, brazen and a danger to society. This is because every precautionary measure is taken to prevent someone from reaching a stage whereby they commit an act for which they are liable for punishment. However, according to Islam, whenever punishments are enacted, they should be in a manner which serve as a strong deterrent.
After this brief introduction, I now return to my actual topic. According to scholars and jurists, fornication – which occurs with the mutual consent of both parties – can only be proven through witnesses (four witnesses who fulfil the criteria set for testimony) or through the admission of the fornicators themselves. According to Hazrat Umar (ra), if the woman does not have a husband – or in the case of religious wars, where women would be taken as prisoners of war and would remain with their captors, and in this case the woman was not held in anyone’s direct custody – then fornication could also be proven through pregnancy. Of the four jurists, Hazrat Imam Malik (rh) is in agreement with this stance, whereas the rest of the jurists including Hazrat Imam Abu Hanifa (rh) and Hazrat Imam Shafi’i (rh) dispute this. According to them, the Hadd for fornication can only be enacted when there are four witnesses or in the case of admission. They all state that it is not permissible to carry out exhaustive enquiries and investigations to implement the Hadd punishment for fornication.
The Islamic Punishment for Fornication or Adultery Occurring with Mutual Consent and its Implementation
Surah An-Nur [Chapter 24] of the Holy Qur’an has clearly expounded upon the punishments for fornication with mutual consent when it is proven; the punishment for those who accuse chaste women of fornication without being able to present four witnesses; and a husband and wife accusing each other of adultery but not having witnesses and therefore have to curse one another [Li’an].
If fornication with mutual consent is proven, then the ordained punishment for both is a hundred lashes. No leniency of any kind can be shown and the implementation of this punishment must be witnessed by a group of believers. Similarly, if one accuses someone of fornication but fails to provide evidence, then the ordained punishment for each accuser is eighty lashes and that their testimony can never be accepted again. Allah the Almighty has said that such people are wicked.
Whilst explaining the wisdom behind the punishment for fornication stipulated in the Holy Qur’an, the Promised Messiah (as) states,
‘At times, a person is reformed by being physically reprimanded, and at other times, by witnessing the punishment. Thus, God has ordained that the punishment for fornication should be implemented in the presence of people.’ 
Similarly, in the case of a person who levels a false accusation – Qadhf – the Promised Messiah (as) states,
‘Those who accuse chaste women of fornication and cannot present four witnesses to prove this allegation must be flogged eighty lashes, their testimony should never be accepted again and such people themselves are evil.’ 
In Islamic terminology, the punishments for both fornication and levelling false accusations fall under the category of Hadd.
There are also many Ahadith [sayings of the Holy Prophet (sa)] regarding fornication committed with mutual consent.
It is proven through a Hadith that once when a person had committed fornication and was being urged by someone to admit to it, the Holy Prophet (sa) said to the person who was urging him to confess that it would have been better if he kept the matter concealed. Thus, in the case of Hazrat Ma’iz Aslami (ra), this was the same guidance given by the Holy Prophet (sa) to his guardian Hazrat Hazzal (ra). 
In light of various Ahadith, scholars have deemed it preferable to advise a person who has admitted to fornication to recant their admission and seek repentance and forgiveness from Allah the Almighty. This is so every possible step is taken to save them from the enactment of the Hadd punishment. Hence, when a person from the Aslam tribe admitted to fornication, both Hazrat Abu Bakr Siddiq (ra) and Hazrat Umar Farooq (ra) advised him to repent and to leave the matter concealed in the cover of Allah the Almighty.  Similarly, when Ma’iz Aslami and a woman from the Ghamidiyah tribe admitted to fornication, the Holy Prophet (sa) turned away from them and constantly gave them opportunities to avoid making this confession. 
Hence, the practice of Allah the Almighty’s prophets, saintly and esteemed people has been to advise those who commit this disgraceful act to adopt silence and rather than making this shameful act known among people, they should bow before Allah the Almighty in repentance and seek forgiveness from Him for their mistake.
If a fornicator recants their admission before they have been sentenced, then the commandment is given to cease the punishment. In the case of Ma’iz Aslami (ra), whilst the punishment was being imposed on him and he could not bear the punishment, he tried to flee. The Holy Prophet (sa) asked the Companions why they did not let him go; it could have been that he repented and Allah the Almighty would have accepted his repentance. 
It is also proven through Ahadith that if a person deserving of a Hadd punishment becomes silent after admitting their fault once or twice, or ceases to make further admissions after being advised to repent and seek forgiveness, then a Hadd punishment will not be imposed on them. Once, a person went to the Holy Prophet (sa) and admitted to committing a fault which warranted a Hadd and thus requested for the Hadd to be imposed on him. The Holy Prophet (sa) did not ask him any questions about the fault that was committed. The time for prayer approached, and the man offered prayer along with the Holy Prophet (sa). When the Holy Prophet (sa) completed the prayer, the man stood before him once again and said, ‘O Messenger (sa) of Allah, I have committed a fault that warrants a Hadd, thus impose the Hadd against me which has been prescribed in the Book of Allah.’ The Holy Prophet (sa) said, ‘Did you not offer prayer with us?’ He replied, ‘Yes, I offered the prayer’. The Holy Prophet (sa) said, ‘Allah has forgiven your fault and remitted your Hadd.’ After this, the person did not repeat his admission and the Holy Prophet (sa) did not impose the Hadd penalty. 
It is also proven through Ahadith that if a person admits to fornicating with another person, the Hadd will only be imposed on the person who confesses, and the other person involved in the act will not be questioned. In the case of Hazrat Ma’iz Aslami (ra), upon enquiry, despite the fact that he told the Holy Prophet (sa) about the woman with whom he had fornicated, the Holy Prophet (sa) only imposed the Hadd against Hazrat Ma’iz Aslami (ra) and did not enquire anything from the woman. 
If however, the matter of both parties is presented in a case before the courts, then the Hadd will be imposed on the person who confessed, and the person regarding whom the accusation of fornication has been made public will be questioned, so that if it is a false allegation, the punishment of eighty lashes for making a false accusation can also be imposed against the accuser. In a narration by Hazrat Ibn Abbas (ra) recorded in Sunan Abi Dawud, it is proven that the Holy Prophet (sa) enacted the Hadd punishment of a hundred lashes against a person who admitted to fornication. Then, when the woman with whom he admitted to having fornicated denied the accusation and called him a liar, the Holy Prophet (sa) did not say anything further to her and then also enacted the punishment of eighty lashes against the man as punishment for levelling a false accusation. 
However, if the other party also admits to fornication, then the Hadd for fornication will be imposed against both parties and the accusing party will not endure the Hadd for levelling a false accusation. Once, when a worker fornicated with a woman in the home [where he worked], the Holy Prophet (sa) enacted the punishment for fornication against the man and also enacted the Hadd for fornication against the woman upon her admission, rather than enacting the Hadd for a false accusation. 
It is also proven through Ahadith that in the case of fornication, if the necessary conditions for testimony are not fulfilled, nor is there any admission to fornication, but there is circumstantial evidence of fornication having taken place, neither the Hadd for fornication or levelling a false accusation will be imposed. There is an incident recorded in Ahadith; when Utbah bin Abi Waqas, the brother of Hazrat Sa’d bin Abi Waqas’ (ra) was about to pass away, he informed his brother that he had established relations with a certain female worker belonging to Abd bin Zam’ah as a result of which she became pregnant with his child. And so, when the child is born, he should take it. When the child was born, there was a dispute between Hazrat Sa’d bin Abi Waqas (ra) and the woman’s owner Abd bin Zam’ah. In this matter, the Holy Prophet (sa) gave the child regarding whom there was a dispute [between Hazrat Sa’d bin Waqas (ra) and Abd bin Zam’ah] to the woman’s owner, and rejected the claim of Hazrat Sa’d bin Abi Waqas’s (ra) brother, the one who claimed to be the child’s father. However, the Holy Prophet (sa) instructed his wife Hazrat Saudah bint Zam’ah (who was the sister of the woman’s master Abd bin Zam’ah and thus the disputed child’s paternal aunt) to observe the veil when around this child, because the child’s appearance resembled that of Utbah bin Abi Waqas, who had admitted to committing fornication. 
All of the above incidents are related to fornication committed with mutual consent and either one or both parties admitting to their guilt, upon which those who confessed were punished according to the existing laws.
The Islamic Punishment for Rape and the Method of its Implementation
As far as someone’s claim to being raped is concerned, we find guidance from both the Holy Qur’an and Ahadith. In the Holy Qur’an, we are guided through the incident of a prophet being accused of this crime. This incident is detailed from verses 24-30 of Surah Yusuf [Chapter 12], in which the wife of an Egyptian nobleman closed all the doors in the home and attempted to seduce Joseph (as) to commit an indecent act against his will. However, when she was unsuccessful in her evil plot and Joseph (as) ran towards the door in order to save himself, the woman forcibly struggled with him, causing his shirt to rip from behind. When he reached the door, he found the woman’s husband standing nearby, upon which the woman conjured a plot and falsely accused Joseph (as) of trying to commit an indecent act with her. Joseph (as) denied the woman’s accusation and said that the woman had sought to force him against his will, but he refused to comply.
In this case, apparently there were only the opposing statements of both sides and there were no eye-witnesses of the incident, except the woman’s husband, who had only seen them running towards the door. In this instance, in order to distinguish between truth and falsehood, the Holy Qur’an adopts the method of analysing the circumstantial evidence of the case. Thus, it is recorded that a member of the household said that the woman’s clothes were still intact and the man’s clothes had only just ripped; hence, if the man’s shirt was ripped from the front then the woman was telling the truth and the man was false, because either he ripped it in order to commit the act, or the woman ripped it in an attempt to save herself and push the man away. However, if the shirt was ripped from behind, then he was telling the truth and the woman was lying, because no one would rip their shirt from behind in order to commit this act. Instead, such a person would certainly have been trying to flee in an attempt to save himself and the woman tried to catch him by pulling on his shirt and ripped it. Thus, based on this person’s suggestion, when Joseph’s (as) shirt was examined it was found to be ripped from behind. Accordingly, the Egyptian nobleman gave his verdict and said to his wife, ‘This was certainly your plot. O women, your plots are indeed mighty.’
Another point to note from this Qur’anic account is that in order to reach a verdict in the case of a woman claiming that a man raped her, Allah the Almighty called the person who suggested to analyse the circumstantial evidence (i.e. the ripped shirt) by the phrase, شَھِدَ شَاھِدٌ (Shahida Shahidun) meaning, ‘a witness gave witness’, thereby equating circumstantial evidence to that of a witness.
Furthermore, this commandment of the Holy Qur’an also shows that for someone to merely accuse another person holds no merit because the accusation could also be false. Hence, until an accusation is proven through witnesses or circumstantial evidence, the accused cannot be punished in any way.
As for instances where the accusation of rape is made, two of the six authentic books of Ahadith, Sunan Abi Dawud and Sunan Tirmidhi have recorded Ahadith where an investigation was carried out and a punishment was imposed. They mention that during the blessed era of the Holy Prophet (sa), a woman left her home in order to offer prayers, when along the way, someone seized her, forced themselves upon her and fled after committing this act. Then, another person passed by and the woman who had been attacked told the people that he was the one who had forced himself upon her. Hence, a group of Muhajireen who were passing by seized the individual who the woman thought had attacked her. When the man was brought before the woman, she said that it was indeed him who had forced himself upon her. The people then took him to the Holy Prophet (sa) and he commanded for him to be stoned, at which point another man stood up, who was in fact the person who had raped the woman, and said, ‘O Messenger (sa) of Allah, I raped her.’ The Holy Prophet (sa) said to the woman, ‘Go, Allah has forgiven you.’ He then spoke kindly to the man who had been acquitted and instructed for the rapist to be stoned. The Holy Prophet (sa) then said about this man for whom punishment was ordained that he had repented in such a manner that if all the residents of Madinah repented in the same manner, they would be forgiven. 
It is worth pondering over the words of this narration which state that based on the woman’s accusation, the Holy Prophet (sa) commanded for such a person to be punished who had not committed the crime. Apparently, it would seem that – God-forbid – before consulting witnesses and circumstantial evidence and before analysing the events, the Holy Prophet (sa) made the wrong decision out of haste. This would be far from the Islamic teachings of justice, and it is impossible to perceive such a thing for the Holy Prophet (sa) who perfectly embodied the attributes of wisdom, justice and was the personification of the verse:
وَمَا یَنۡطِقُ عَنِ الۡھَوٰی اِنۡ ھُوَ اِلَّا وَحۡیٌ یُّوۡحٰی
[‘Nor does he speak out of his own desire. It is nothing but pure revelation revealed by God’]
The Promised Messiah (as) – the spiritual son of the Holy Prophet (sa) and his true servant – who was the Judge and Just Arbiter of the latter days and commissioned for the revival of Islam, has outlined 12 principles to discern the validity of a narration. One of those principles is as follows:
‘With regards to the Book [the Holy Qur’an] and Sunnah [practice of the Holy Prophet (sa)] in the context of passing verdicts in the Islamic Shari’ah, it is my view that the Book of Allah takes precedence and is foremost. If there is a matter in which the meanings of the Ahadith of the Holy Prophet (sa) do not contradict the Book of Allah, then those meanings will be considered as part of the Shari’ah. However, we cannot accept those meanings which contradict the clear teachings of the Holy Qur’an. In fact, so far as it is possible, we will try to derive such meanings from the Hadith which are in concordance with the clear statements found in the Book of Allah. If we come across a Hadith which contradicts the teachings of the Holy Qur’an and we are unable to interpret it accordingly, then we will regard it to be fabricated because Allah the Almighty states,
فَبِاَیِّ حَدِیۡثٍۭ بَعۡدَ اللّٰہِ وَاٰیٰتِہٖ یُؤۡمِنُوۡنَ
‘In what word then, after rejecting the Word of Allah and His signs, will they believe?’ 
This verse clearly indicates that if the Holy Qur’an had given a clear and decisive verdict on a matter without leaving any room for doubt and the desired meaning is made apparent, then it does not behove a believer to accept anything which is in clear contradiction to it. 
If we examine the explanation of this Hadith in light of the principle outlined by the Promised Messiah (as), we find that in Fath al-Wadud, the commentary of Sunan Abi Dawud, there is an explanation of this Hadith which aligns with the example set by the Holy Prophet (sa).
Hence, it is written in Fath al-Wadud that the words of the aforementioned Hadith, the Holy Prophet (sa) commanded him (i.e. the first person who was accused) to be punished, show that the way in which these events unfolded was the narrators own assertion. Otherwise, when the person was presented in the presence of the Holy Prophet (sa), he was conducting an investigation into the circumstances surrounding the incident and the accused’s past reputation and conditions, at which point the actual perpetrator confessed his guilt. 
Not only does this explanation cement the authenticity of this Hadith, it also leads to the conclusion that there should be no haste in rendering punishment. Furthermore, a person should not be considered guilty simply on the basis of a person’s accusation, especially when they are denying the accusation; because at times it may be that on the surface, the chain of events seem to link together in a way that makes it seem that the accusation is true. However, when a deeper investigation into the circumstances and events is conducted and all circumstantial evidence and testimonies based on the accuser and the accused’s past life and reputation are analysed, then it is possible for there to be a completely different outcome altogether.
The general stance taken by earlier jurists with regards to rape is that it falls within the category of fornication and according to the Shari’ah it warrants the same punishment as consensual fornication. Furthermore, they say that the standard of proof required for rape is the same as that required for consensual fornication, which is the eye-witness testimony of four Muslim men. If there are four eye-witness testimonies, then the Hadd of a hundred lashes or stoning will be imposed and if these conditions to establish the crime are not fulfilled then the Hadd punishment will not be applicable. These are laws of the Shari’ah which are proven through the established practise of the Holy Prophet (sa).
This shows that according to some jurists, rape and consensual fornication are the same in terms of the proof that is required and the enactment of Hadd punishments. The standard of proof and the Hadd punishments outlined by the Shari’ah for consensual fornication also apply in cases of rape.
According to them, the difference between the two crimes is that in the case of consensual fornication, both are liable to be punished, whereas in cases of rape, only the perpetrator will be punished and the victim is exempt from punishment. Jurists have cited the following verse for this exemption:
وَمَنۡ یُّکۡرِھۡھُّنَّ فَاِنَّ اللّٰہَ مِنۡۢ بَعۡدِ اِکۡرَاھِھِنَّ غَفُوۡرٌ رَّحِیۡمٌ
‘But if any one forces them then after their compulsion Allah will be Forgiving and Merciful to them’. 
In other words, Allah will not punish them. Furthermore, these jurists have also made the following statement of the Holy Prophet (sa) as the basis of their stance:
اِنَّ اللہَ تَجَاوَزَ عَنْ أُمَّتِی الْخَطَأَ وَ النِّسْیَانَ وَ مَا اسْتُکْرِھُوا عَلَیْہِ
‘Allah the Almighty has forgiven my people the punishment of that which they have done out of forgetfulness or that which they were forced to do.‘ 
Hence, in many Muslim countries, the proof required for both fornication and rape is the eye-witness testimony of four Muslim men; and if the crime is proven, the Hadd punishment of either a hundred lashes or stoning is imposed.
In contrast to the view of past jurists, some contemporary Muslim scholars deem rape to be separate from consensual fornication. In fact, according to them, rape does not fall within the category of Hadd punishments in Islam; instead, it falls under Ta’zir punishments. These contemporary scholars have outlined that rape also falls under the scope of ‘warfare’ and ‘disorder’ [referring to the Quranic verse]; therefore, rather than requiring four witnesses as proof, they have deemed testimonies, conditions and circumstantial evidence as sufficient proof. In their view, the perpetrator can be given the death penalty to serve as a deterrent. However, these contemporary scholars also agree that a person cannot be punished merely on the basis of someone’s accusation, rather testimonies and circumstantial evidence must be presented in order to prove the accusation.
In summary, Islam does not impose punishment in cases of rape simply based on the accusations of the affected person; it is necessary for there to be witnesses, or testimonies and circumstantial evidence. This is because it is possible for the accuser to be wrong; whether intentionally, as was the case of Joseph (as), or because of failing to correctly identify the perpetrator, as was the case in the above mentioned narration of Sunan Abi Dawud.
In such cases where there are no witnesses, then procuring circumstantial evidence and testimony according to the means available at the time is not at all contrary to the teachings of Islam. Hence, jurists have deemed circumstantial evidence and testimony derived from medical examinations and modern technology to be admissible in order to reach a verdict in such cases.
Hazrat Musleh Maud (ra) has expounded on the Islamic teachings regarding fornication and other related matters in his magnificent commentary of verse 5 of Surah An-Nur, the summary of which is as follows:
- Fornication can be proven either through the testimony of four witnesses or through a confession which is free from duress.
- The term Muhsanat refers to both men and women, just as the male conjugation of the same word refers to both men and women.
- In this day and age, this must be enforced because people accuse others of such crimes without any evidence, simply to create trouble and discord.
- To wrongly accuse another is a grave sin, and the punishment for falsely accusing someone is 80 lashes, which is almost the same as the punishment of a 100 lashes in the case of (consensual) fornication.
- The term Muhsanat also refers to those who have been accused of indecency, whereby the accusation cannot be proven through testimony. In this case, such an accused individual is considered chaste and blameless in the sight of God Almighty, while the accuser is regarded as a liar and fabricator and is liable for punishment because according to the law, the burden of proof lies with the accuser.
- In the case that an individual confesses to committing fornication and reaffirms their confession four times, then in light of the Shari’ah, only the individual making the confession will be considered guilty. If a man confesses to fornication, the woman in question would not be deemed guilty. If the man provides the name of the woman, then the woman would simply be asked, without her taking any oath, whether the confession of the man is correct or not. If she claims that the confession is false, the woman would be free.
- To openly claim in public that one has been subjected to such a crime does not demonstrate one’s righteousness and piety, rather, it is a sign of impudence and shamelessness. Zulaikhah accused Joseph (as) of indecency against her. Did such an accusation prove her righteousness, or her cunning ploy and deceitfulness?
- The Holy Prophet (sa) was also displeased at an individual who said that he had committed (consensual) fornication, and he turned away angrily from him and considered his confession to be a foolish act.
- In a Hadith, it is recorded that a man once stated that the son of such and such person was actually the son of his brother, because his brother had claimed that the child belonged to him. Upon hearing this, the Holy Prophet (sa) did not commend that individual, nor did he seek a declaration from the other individual to validate this claim. Rather, he stated, ‘the son belongs to whoever the wife is in wedlock with and the one who has committed fornication will be stoned.’
- Instead of confessing about themselves, if one accuses another individual, the one being accused will not be questioned, nor will they be required to take the oath or engage in a prayer duel. To establish the punishment of Hadd through taking an oath would be akin to dishonouring the Shariah and this was also the belief of past jurists.
- In matters where a Hadd punishment is prescribed, an oath cannot become the basis of implementing that Hadd. In such a case, the decision of the matter rests with the testimony of witnesses. During the time of Hazrat Umar (ra), when the governor of Basra, Hazrat Mughirah bin Shu’bah (ra) was accused of indecency, there were three witnesses who testified against him. The fourth witness differed slightly in that he said that he did not witness the act of fornication in the manner that was required to testify against it. As a result, Hazrat Umar (ra) sentenced the three witnesses with the penalty of Qadhf (false accusation). Someone suggested that since there were three valid testimonies and the fourth testimony had an element of doubt, therefore an oath should be taken from the accused in order to verify or falsify the accusation. However no oath was taken from that individual, rather, along with the penalty of lashes (for false accusation), the witnesses were stripped of their right to give testimony. Hazrat Umar (ra) openly announced that the testimony of those individuals would not be accepted in the future. 
While on the subject [of taking an oath], it is important to touch upon an important point. In Surah An-Nur, Allah the Almighty has prescribed the method of Li’an for a husband or wife who accuses their partner of adultery, but has no witness to prove their claim. Some people are under the impression that the method of Li’an can be applicable to matters besides those of a husband and wife, i.e. between those accused of fornication who are not married. This assumption is incorrect. In fact, Hazrat Musleh Maud (ra) has clearly rejected this view. Aside from the aforementioned explanation taken from Tafsir-e-Kabir, Hazrat Musleh Maud (ra) has explained this in many of his other writings and speeches.
On this very subject, Hazrat Musleh Maud (ra) wrote a response to a letter he received;
‘Because this is a matter due to which many people have faltered, I wish to write a response to this letter with my own hands. In light of the Holy Qur’an, a plaintiff of fornication is of two kinds: 1. A husband or wife, 2. An unmarried man or woman. In the case that the husband or wife accuse one another and there are no witnesses, the husband would avail the method of Mula’anah. In other words, they would take an oath in the name of God against their spouse. (The husband is mentioned unequivocally in the Holy Qur’an, while matters pertaining to the wife can be deduced from this because aside from very specific matters, the Holy Qur’an imparts commandments to both parties whilst addressing only one). Taking a single oath would be the equivalent of the testimony of one witness, and the fifth time he would call upon the curse of God to befall the liar. If the accusation is being levelled between a man and woman who are unmarried, then only four witnesses will be required.They cannot ask for their matter to be resolved by taking an oath in God’s name, nor does such an oath taken by an accuser hold any value. A plaintiff without any witnesses will be considered a liar, in which case the defendant will not be considered guilty, even though they have not taken an oath in God’s name.
When the Holy Prophet (sa) inquired about an accusation made against Hazrat Aisha (ra), she refused to give any answer. She said, ‘If I accept this accusation, then it is a lie, and if I reject it, then the people will not accept me as truthful. Thus, I will not answer to anything. God is my witness.’ And thus God supported her in this matter and absolved her of all charges. Therefore, to publically take an oath in this matter is not admissible in the court of law and nor does such an oath hold any value as evidence. According to the Shariah, the plaintiff will be considered a liar unless they produce four witnesses. If this sentence was passed in accordance with the Islamic Shariah, then the plaintiff would be subjected to lashes. Even if they have, in fact, witnessed something, it is their obligation to remain silent and not reveal that which God has concealed.’ 
According to the Islamic teachings, in the case where force has been used [rape, sexual assault], the affected party is obligated to inform the relevant authorities immediately. If, for whatever extenuating circumstances, the affected party was unable to do so, then they must also provide proof of the reason why they delayed in reporting the incident to the authorities. In respect to a woman who makes an accusation of rape, Hazrat Khalifatul Masih IV (rh) states,
‘In my opinion, this is a matter that strictly falls under the category of Ta’zir, and the investigation surrounding the accusation should be conducted accordingly. Upon confirming the accusation, the case should be resolved through Ta’zir.’ 
In regards to the matter pertaining to the accusation of rape levelled by a woman, Hazrat Khalifatul Masih IV (rh) approved the following suggestions of Majlis Ifta’ (judicial council):
- A woman who is a victim of rape can take her case to the relevant authorities, and she will not be required to provide four witnesses. In fact, just like other crimes, circumstantial evidences would be taken into account for this matter as well. When deciding on verdicts in light of circumstantial evidence for such cases verses 27 to 29 of Surah Yusuf would be taken as a guiding principle
- In the event that such a woman is unable to provide evidence to substantiate her claim, she will not face the penalty of Qadhf (false accusation). Except in the case where it is proven that the woman plaintiff has made this accusation with ill intent and has schemed to level such an allegation solely to disgrace and defame the defendant and has thus implicated herself. In such a situation, if the defendant presses charges, [against the woman] then the court of law can propose a suitable penalty for the woman who has levelled the accusation.
- The victim of rape should inform the relevant authorities of the crime as soon as possible. However, if the victim delays in this due to certain circumstances or fear of disgrace, in such a case the plaintiff’s lawsuit will not be rejected altogether. However, during this delay, if some evidence is lost, then the plaintiff is responsible for it. Notwithstanding, it is the responsibility of the court of law to keep those reasons for delay in view when coming to a decision. 
In regards to the underlined point in the third clause above, Hazrat Khalifatul Masih IV (rh) gave the following guidance which was noted by his Private Secretary and included in the same report:
‘All the recommendations are acceptable, but why is it that the plaintiff’s lawsuit cannot be rejected due to the delay in reporting the incident? In such matters, the Holy Prophet (sa) took immediate action. During a delay, one may also have sought repentance (taubah) from God. When, a woman takes the decision to report the incident after a delay, then she should not be given the right to cite anything from the past. If after warning the perpetrator, he continues his abuse, then the plaintiff should only report the most recent incident, and thus it would be deemed as an immediate reporting of the incident. Otherwise, it is unbeknownst what the two individuals had done consensually in the past.’ 
From the Holy Qur’an, sayings of the Holy Prophet (sa) and the aforementioned guidance [of the Promised Messiah (as) and the Khulafa], it becomes clear that in light of Islamic teachings, any sort of abuse requires the affected party to report the incident immediately and seek justice from the relevant authorities. If, due to certain circumstances, the affected party is unable to do so and reports the incident to the relevant authorities at a later time, then before beginning their investigation on the matter, the authorities are entitled to discuss the cause of delay to ascertain whether the situation was indeed preventing the plaintiff from reporting the incident in a timely manner or not.
The Punishment for Rape
As it has been mentioned above, in light of Islamic punishments and their terminology, rape falls under the category of Ta’zirat. As such, the punishment of such offences is relative to the nature of the crime. The Ahadith confirm that the offender accused of rape is subjected to Rajm, or in other words, stoning. 
While elaborating on the punishment of stoning in Islam, the Promised Messiah (as) writes,
‘In short, we have given you ample reply here that an objection of compulsion cannot be raised against the Holy Qur’an nor are we called those who compel. You are still unaware of the doctrine of the Muslims; you do not even know that God Almighty orders for the hand of a thief to be cut off and that a fornicator should be stoned, so if people were compelled to follow the teachings then how could it be possible [for one to commit sin and] to be stoned? In the Holy Qur’an there are not just one or two, but hundreds of verses which prove the free will of man and, should you wish, a complete list will be presented.’ 
Hazrat Khalifatul Masih IV (rh), while elaborating on the matter of stoning, states,
‘In my view, because the word ‘stoning’ [in the aforementioned reference of the Promised Messiah (as)] appears here unequivocally, and since the term ‘Zina’ not only refers to fornication, but can also include the crime of rape as well, then this punishment was not given solely for fornication, but for such fornication in which a woman was subjected to abuse and cruelty and was left scarred forever. This is not ordinary fornication, rather an act of cruelty has been committed against an innocent woman. Thus, if the Holy Qur’an decreed the punishment for fornication to be applicable to all other related matters, then the teachings of the Holy Qur’an would be proven incomplete, because without considering the whole situation, the same punishment given for a minor crime is also being given for one that is severe and horrifying. For this reason, the verse [of the Holy Qur’an pertaining to this issue] has left the matter open and society has been given the right to appoint certain punishments if it finds a particular crime to be very serious or if the perpetrators in question are exceedingly evil. Among these abhorrent crimes, as I have mentioned earlier, is rape. Accordingly, where the Promised Messiah (as) has referred to this [i.e. stoning] and owing to the fact that there is no other reference, we have to read it in light of the specific context [of rape]. Otherwise, in Surah An-Nur, where this matter [of fornication] is mentioned, there is no mention of [rape].’ 
Furthermore, in support of the aforementioned stance of the Promised Messiah (as), Hazrat Khalifatul Masih IV (rh) cites the following verse and elaborates on it in the following words,
اِنَّمَا جَزٰؤُا الَّذِیۡنَ یُحَارِبُوۡنَ اللّٰہَ وَرَسُوۡلَہٗ وَیَسۡعَوۡنَ فِی الۡاَرۡضِ فَسَادًا اَنۡ یُّقَتَّلُوۡا اَوۡ یُصَلَّبُوۡا اَوۡ تُقَطَّعَ اَیۡدِیۡھِمۡ وَاَرۡجُلُھُمۡ مِّنۡ خِلَافٍ اَوۡ یُنۡفَوۡا مِنَ الۡاَرۡضِ ؕ ذٰلِکَ لَھُمۡ خِزۡیٌ فِی الدُّنۡیَا وَلَھُمۡ فِی الۡاٰخِرَۃِ عَذَابٌ عَظِیۡمٌ
[The reward of those who wage war against Allah and His Messenger and strive to create disorder in the land is only this that they be slain or crucified or their hands and their feet be cut off on alternate sides, or they be expelled from the land. That shall be a disgrace for them in this world, and in the Hereafter they shall have a great punishment.] (Surah al-Maidah, verse 34)
‘Thus, in light of a verdict of the Holy Prophet (sa), this verse has a connection with the subject of fornication. The Holy Prophet (sa) sentenced a slave who committed fornication with a free woman to lashes and also exiled him for one year. Thus, under the context of the term ‘fasad’ [disorder] in this verse, where matters become exceedingly severe and where cruelty exceeds all bounds and becomes grievous, then such punishments can be given [as mentioned in the verse above]. However, during the time of the Holy Prophet (sa), no one was ever crucified, nor were any opposing limbs severed, though there are records of exile. Hence, if the punishment of stoning was given, I have already mentioned, that it was given for fornication in the case that the perpetrator was a Jew or before Surah An-Nur was revealed. The punishment of stoning mentioned in this verse [Surah Al-Maidah, verse 34] is only applicable in extremely heinous crimes, for example in the cases of rape. In such a case, if the perpetrator [of rape] is sentenced to one hundred lashes and others [guilty of fornication by mutual consent] are also sentenced to one hundred lashes, then human nature cannot accept such a verdict. For example, an innocent young girl, who has not reached an age of maturity is cruelly made a target of an individual’s carnal passions – this is a day-to-day occurrence in today’s society – for the rest of her life, the poor girl is left in ruins. Even in the most excellent hospitals a great deal of effort and resources are needed to help the victim, and despite that, they may or may not survive. Their whole internal equilibrium is destroyed. In such a case, should such a perpetrator only be sentenced to one hundred lashes? Where human nature cries out for such wretched individuals to be sentenced to severe punishment, this verse supports such sentiments and the punishment of stoning thus becomes applicable.
Hence, whether it is the crime of rape or abuse of children, human nature itself demands that a more severe punishment should be given. This verse of the Holy Qur’an coincides with those sentiments and stands in their support. This is the verse that makes it permissible to give certain punishments, but only in exceptional circumstances. By exceptional circumstances, what is meant is that some forms of punishment were never given in the lifetime of the Holy Prophet (sa); a crime of that severity never took place which would prompt the Holy Prophet (sa) to make such a decision. Where a situation did arise, there were severe punishments that were given, such as exile.’ 
In response to a question regarding this matter, His Holiness Hazrat Khalifatul Masih V (aba) elaborated in a letter dated 15 October 2018,
‘If illicit sexual relations, that are consensual, are proven through the Islamic method of witnesses, then it is been ordained for the two parties involved to be sentenced to one hundred lashes. However, in case of rape, which is a cruel and savage act, or where a fornicator targets children and commits a heinous crime such as these, then the perpetrator cannot be sentenced to a mere one hundred lashes alone. Such a criminal would then be subjected to severe punishments the likes of death and stoning, as is deduced from the teachings mentioned in verse 34 of Surah Al-Maidah and verses 61 to 63 of Surah Al-Ahzab. However, the governing authorities have been given the right to administer this punishment, and in light of these teachings, the governing authorities have been permitted to implement this course of action. As such, these are the very verses of the Holy Qur’an from which Promised Messiah (as) has derived the punishment of stoning for a fornicator [i.e. rapist] of this severity.’ 
In regards to the methods of establishing the crime of rape, its punishment, the punishment for the one who falsely accuses someone of rape and the superiority of the laws devised by Islam as compared to secular laws, Hazrat Khalifatul Masih IV (rh) states,
‘In worldly affairs, there is a drawback in that no one has knowledge of the unseen. Therefore, in each case, a verdict has to be given with regards to the plaintiff and defendant. If a punishment is not prescribed for [false accusation], then the lives and honour of the innocent is put at stake. This is a dangerous flaw in this secular system of law and justice. There should be a prescribed punishment, and a thorough investigation should take place. After the completion of the investigation, if they are unable to reach a verdict, then the authorities can state that the matter is still inconclusive and the woman who has levelled the accusation was unable to substantiate her claim. For this reason, there should be some penalty for her. She should be liable for the charges of calumny and defamation.
If it is said that this may become a hindrance for those who are truly victims, then in my opinion, there is no reason for this to be a hindrance because in this day and age, through scientific methods this matter can be proven even without the presence of any witnesses. In the case of rape, even a regular doctor who is not specialised in examining genetic evidence, can also ascertain whether it is in fact, a rape case, or if it is an ill-intended ploy. I do not understand the reason why women who were wronged would be hindered [to report the case] simply over the fact that a person who levels a false accusation would also be punished.
At the very least, this should not at all discourage women who are victims. However, for instance, there was a case in America. [Mike] Tyson, a famous boxer, and perhaps who was released from prison recently, was accused of rape by a woman. He was imprisoned for three years and also paid a heavy fine. Such a case can also incite and encourage lewd and conniving women to ensnare anyone whenever they please. Whether the target becomes trapped or not, there is a possibility and danger that he is incriminated for the crime. He would be fined, disgraced, and defamed; all such outcomes are possibilities. These tabloids prevalent today sustain themselves by publishing such stories.
In such a society, if this is not discouraged, then it is a grave injustice. The courts accept such cases which involve a long history of interactions [between the two parties]. This case [of Mike Tyson] was not such that the woman claimed she was abused and she immediately went for a medical examination and filed a police report and was examined all at once. The truth of the matter is that she frequently visited the hotel where he had invited her. After that, she remained silent.
A case like this would never be accepted by Islam, because if it was accepted, then the woman would also face punishment. It is quite possible that she may also have some involvement. And if it turns out that the man refuses the allegations then he would not be held accountable, but she would be liable. [This would be the outcome], except in the case where four witnesses are brought forward. For this reason, the Holy Qur’an has given greater emphasis to the protection of the innocent. It has placed more emphasis on protecting the innocent as compared to convicting the criminal. There is less emphasis given to convicting a criminal also because of the fact that one day, everyone will return to Allah the Almighty, and no one will be able to escape from Him. Even secular laws purport that even if a handful of criminals are let go for the sake of saving a single innocent person, then the protection of the innocent is vital. Nowadays in the western world, with each passing day, more and more protection is given to those levelling the accusation as opposed to those who are truly innocent. And this is done in the guise of protecting the so-called victim. This ideology has gone to such an extreme that owing to this, those who level false accusations are becoming bolder and the lives of innocent people are now in danger; their honour and dignity is at stake. Undoubtedly, Allah alone is the one Whose laws are perfect, thus, at the very least, lawmakers should try and follow the laws designed by God and legislate whilst keeping this essence in view.’ 
In short, according to the Holy Qur’an, practices of the Holy Prophet (sa), the Ahadith and guidance of the Promised Messiah (as) and his esteemed caliphs, it is an established fact that there is an excellent system provided by Islam to substantiate crimes of fornication and rape, punish the perpetrators in the case that their crimes are brought to light, and to punish for levelling false accusations. This system of Hudud and Ta’zirat has been declared by Allah the Almighty and His messenger (sa); it is eternally relevant and applicable, and has been a guarantor of mercy and blessings, peace and security, balance and justice, honour and dignity, and societal and individual reform for all its followers for the past 1450 years. In every age, God’s chosen ones have abided by these laws and have expounded and elaborated on this system based on the guidance and knowledge bestowed upon them by God Almighty in their era; and in their respective eras they have further strengthened these very foundations. This is a system which is unparalleled by any other set of laws in the world. However, to benefit from this divine system, just like all other teachings of Islam, the first and foremost condition is that one must adopt righteousness.
May Allah the Almighty enable all of us to attain the highest standards of righteousness. May He enable us to act in accordance with the commandments of the Holy Qur’an, the practices and guidance of the Holy Prophet (sa) and the sayings of his spiritual son and true servant [the Promised Messiah (as)], and to follow the footsteps of all those who came in the form of the second manifestation of God’s power, so that it becomes the means of reforming our life in this world and in the hereafter. Ameen, O Lord of all the worlds.
About the Author: Zaheer Ahmad Khan is an Imam of the Ahmadiyya Muslim Community, who has specialised in the field of Islamic Jurisprudence [Fiqah]. Amongst his various responsibilities, he is a senior lecturer at Jamia Ahmadiyya UK in the subjects of Hadith and Fiqah, where he also serves as the Head of the Academics Committee. He is also a member of Dar-ul-Qaza [Ahmadiyya Arbitration Council] and regularly appears on MTA International as a panellist on programmes related to Islamic Jurisprudence.
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