Zina

Whether XXX can be charged with the offence of zina under hudud punishment.

Definition

Zina refers to willful sexual intercourse between a man and a woman who are not married to each
other. Zina may destroy the basis of family, it works against the interest of children born or to be born, it
may cause murders and feuds and loss of reputation and property and also permanently loosen social ties.
Modern jurists define it as sexual intercourse between man and woman who are not in a state of legal
matrimony. Zina is prohibited in Islam. This can be proven under Surah Al-Isra (17):32 which states that
“And come not near to adultery: For it is shameful (deed) and an evil, opening the road (to other evil).” This
verse shows that zina is completely prohibited in Islam because it brings evil to believers.

The concept of zina in Islamic law only applies when there is actual intercourse such as physical
penetration. If there is no sexual intercourse such as the penis of a man did not penetrate the vagina of the
woman, then it is not considered as zina. However, Islam forbids all directions and avenue that lead to zina.
As a consequence, any act that encourages illicit sexual relations between a man and a woman, as well as
promotes indecency and obscenity, is forbidden and punishable by taazir.

Elements
In order to establish the offence of hudud adultery, actus reus and mens rea of the offender must be
proven. The actus reus of zina is the act of penetration. Penetration must be of the penis of a man into the
vagina of a woman. Penetration is necessary to constitute the sexual intercourse amounts to the crime of zina
liable to hadd. Hence, any sexual relationship without intercourse is not zina but may be liable for other
crime under ta’zir.

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Then, the mens rea of zina is intention to commit illegal sexual intercourse. It must be proven that
the offender intended to commit illegal sexual intercourse and is not under force or coercion.

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Besides, the parties to zina must be male and female who are unmarried or married but not towards
each other. Both of them must also be adult and sane.

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5 proofs of Zina

Proceed to the proof of zina, the available in evidence in this case are confession,

1. Confession (4 ways)

Confession means the statement of a person before the court stating that he has committed the
offence for which he is accused. The offence of zina may prove by the confession of the accused. To
illustrate, Maiz bin Mal confessed four times before Prophet Muhammad that he has committed zina.
Prophet ordered to stone him to death and he was stoned to death accordingly.

They are four elements of confession. Firstly, the confession made by the accused must be clear,
free and willful for the act of zina. For a confession to be valid, it is required that the person accurately and
expressly state the facts of the act of adultery or illicit sex in clear, real, and non-metaphoric words, so that
all doubts are removed. This eliminates ambiguities, since the term “zina” might be used by some to refer to
other minor acts that are not punishable in the same way

For instances, Ibn Abbas reported that the Prophet Muhammad said to Ma’iz: “Maybe you just
kissed, maybe you touched her, or looked…” and the man said: “No!” He (the Messenger) said, “So, did you
penetrate her? (using no metaphors), and the man said: “Yes!”. The Prophet then ordered his punishment. In
another version of the same hadith, the Prophet asked the man: “Till that of yours disappeared in that of
hers?” the man said, “Yes”, the Prophet asked, “Like a stick disappears in a kohl canister and a rope in a
well?” The man said, “yes!” He then asked him, “Do you know the meaning of zina?” The man said, “Yes! I
did with her illegally what a husband does with his wife legally.” Thus, from this hadith we can see that the
man had confessed himself of committing the act of zina and this is considered as a strong proof.

Secondly, the confessor must be adult and a good mental condition. He must be capable of self-
expression. According to Imam Abu Hanifa, confession made by the confessor who is dumb and deaf is
not acceptable in an offence of zina liable to had even he can write his confession or his sign is intelligible.
However, on the contrary, Imam Malik, Imam Shafie and Imam Ahmad stated that the confession of deaf
and dumb is acceptable, if his sign is intelligible or he can write his confession before the court.

Thirdly, the confession must be voluntary. This means that the confessor must make his confession
with free consent and without any force, pressure, temptation or coercion. If he makes his confession under
any pressure, force, temptation or coercion, his confession is not valid or acceptable.

Lastly, the confessor must explicit as to committing of the offence. This means that the confession
must be clearer explicit as to vomiting of the offence. According to Imam Abu Hanifah and Iman Ahmad,
the confessor must make four separate confessions before the court. However, Imam Malik and Imam
Shafie stated that only one-time confession is sufficient to prove the offence of zina.

2. Retraction from confession

Retraction from confession in matters of zina liable to hadd is admissible in Islamic law at any stage
before the execution of the punishment and it nullifies hadd punishment. According to Imam Abu
Hanifah, Imam Malik and Imam Ahmad, retraction does not have to mean proper retraction; merely
running away or turning away from the punishment can be considered retraction as to nullify the hadd
punishment. However, according to Imam Shafie, he stated that proper retraction is required to nullify the
had punishment and those who run away from the punishment without submitting any proper retraction will
still be liable for had punishment. Thus, if a confessor retracts his confession before the punishment is
carried out, his retraction will be acknowledged and he will not be punished with hadd. Hence, he shall be
punished with ta’azir if there is any evidence on the record or shall be released if there is no other evidence
on the record.

3. Circumstantial Evidence
The circumstantial evidence for zina is there is a proof of pregnancy out of wedlock. This means
that if the woman was pregnant, then this is a strong proof to prove that there is a sexual intercourse
involved and they will be liable for committing zina. Thus, according to Imam Maliki, the offender will be
liable for hadd if there is a proof of pregnancy by the woman. However, according to majority of the
jurists, even though there is a proof of pregnancy, it is still not sufficient for the offender to be liable for
hadd. This is because hadd is a serious punishment and it should be based either on the evidence or on the
confession of guilt.
4. Position when there is a denial of one party in zina
If a party denies the commission of zina and the other confess it, hadd shall not be implemented on
both of them. This is because denial of one party creates doubt in the commission of the offence by the other
party since zina is joint offence of the 2 parties. Hence, according to Imam Hanafi, if either one of them
denied that the commission of zina, hudu punishment shall not be implemented on both of them. He arhued
that the denial of one party create doubt in the commission of the offence by the party because zina is a joint
offence involving both parties. Thus, it removes had of zina. However, bithe of them will be liable for ta’azir
punishment.
However, according to Imam Malik, Imam Shafie, Imam Ahmnad and Zaidis, they stated that the
one who confessed the offence shall be liable for hudud punishment while the other party who deny will be
liable for ta’azir punishment. This is because the refusal of the other party does not affect his confession and
confession is a conclusive proof against the confessor.
5. Shahadah/ Testimony of Four Eye Witnesses
Testimony means the statement of a person in or before the court stating that he has seen the
occurrence of the offence. With respect to the offence of zina liable to hadd such statement includes the
declaration that the witness has seen the penetration of the accused man and woman while making sexual
intercourse. Four eye-witnesses are required for the proof of zina liable to hadd.
There are six conditions for the testimony of an eye-witness. Firstly, the eye-witnesses should be a
credible, free, sane, adult Muslim male.
According to the majority of the jurist, all the four witnesses required for the proof of the offence
of zina liable to hadd must be male. They opined that evidence of a woman is not acceptable in the matters
of hudud. The view that woman cannot appear as a witness in matters of hudud and qisas is only juristic
view and not based on Quran and Sunnah. The reason for not accepting the evidence of women in matters of
hudud is based on their protection, sanctity and modesty. It is further based on the social structure of an
Islamic society wherein women are not involved in outdoor activities to such extent as to observe the
incidents of the offences of hudud and qisas. Besides, the jurist concur that the evidence of a non-Muslim is
not acceptable against a Muslim in the offence of zina. Thus, non-Muslim or females are not acceptable to
be a witness for the offence of zina. As proven, Imam Zuhri said that, “It has been in practice since the
period of the Prophet and the right-guided Caliphs that the evidence of the woman was not acceptable in
Hudud and Qisas.” Thus, according to Imam Malik and Imam Shafii, the evidence of a non-Muslim is not
acceptable in any offence.
Also, the witness must be adil. Adil means a Muslim who abstains himself from major sins and does
not indulge in minor sins and his good deeds are more visible than his evils deeds and he is moderate in his
sayings and works. The jurists have defined ‘adalah in different words but as a whole they concur that adil
is a person who is, generally considered reliable in the society and not notorious. Imam Abu Hanifah
states that every witness is credible and his credibility shall not be questioned unless the opposite party has
challenged his credibility. Imam Shafie and Imam Ahmad argue that the Quran has laid down the
condition of credibility for each witness whether his credibility has been challenged by the opposite party or
not. Thus, a person who has not committed to any either small sins or big sins shall be considered as a
credible witness.
Secondly, a witness must have capacity of speaking and seeing. In other words, he must possess the
power of speaking and seeing. According to Imam Abu Hanifah, the evidence of a dumb and deaf is not
acceptable for the proof of zina liable to hadd even if his signs are intelligible or his gives his evidence in
writing. However, his evidence is considered as presumption liable for ta'azir. But according to Imam
Malik and Imam Ahmad states that his evidence will be acceptable for a had offence like zina if he can
write before the court. Also, Imam Malik opines that his evidence is acceptable even in hudud if his signs
are intelligible. Unanimous opinion of jurists provides that the evidence of a blind person is not acceptable.
 Thirdly, the witness should have eye-witnessed the actual act of intercourse. The witness must
have observed the occurrence of the sexual intercourse himself. This proof is a direct evidence provided by
the eye-witnesses.
Next, there should be at least four witnesses of the offence of zina liable to hadd. If the number of
the witnesses is less than four, hadd shall not be implemented on their evidence but ta’azir shall be
implemented. This is stated in Surah An Nisa (4):15 which says “As for those of your women who commit
illegal intercourse—call four witnesses from among yourselves.” Besides, Surah An-Nur (24):4 stated that
“those who accuse chaste women ˹of adultery˺ and fail to produce four witnesses, give them eighty lashes
˹each˺”. Surah An-Nur (24): 13 provided that why did they not produce four witnesses? Now, since they
have failed to produce witnesses, they are ˹truly˺ liars in the sight of Allah. Besides, according to Imam
Abu Hanifah & Imam Malik, if the number is less than four in an offence of zina liable to hadd, the
accuser shall be punished with hadd of qazf which is 80 stripes. This is because accusing someone of
committing zina is a serious offence if there is not enough evidence to proof the offence of zina.
The last condition is the witnesses should testify in the same hearing, about the same zina act.
Their testimony may not conflict. If the witnesses changed their testimony before execution, then hadd may
not be applied. Also, the witnesses must not delay in the hearing as delayed evidence create doubt which
removes hudud punishment. According to Abu Hanifah, the evidence that requires to prove the offence of
zina must not be delayed for a considerable time because the delayed evidence will create doubt which
removes hadd. However, Imam Malik and Imam Shafie have different views as they stated that delay in
evidence does not affect its authenticity and permissibility. Thus, delayed evidence is acceptable in hudud.
Possible Defence
There are several possible defences can be used against hudud punishment. Firstly, the defence for
minor and unsound mind. Based on the Hadith, Prophet Muhammad stated that “3 types of person are
exempt from the punishment hadd, a child till he attains maturity, the sleeping person until he awakes and
the insane until he attains sanity.”
Next, defence for those commit illegal sexual intercourse under coercion or mistake. Under
Islamic criminal, there is a consensus that force or coercion nullifies criminal liability. In case of zina bil
jabr, force nullifies liability of the victim, even if pregnancy exists.
According to the Hadith, Prophet Muhammad stated that, “My ummah has been exempted from
the liability of the action done by mistake, forgetfulness or under coercion.” The coerced party must believe
that he will be afflicted with serious harm where he is in fact beaten, wounded or his life will be threatened
if he does not commit the act of theft. Besides, another Hadith reported the Prophet said “A women was
coerced to commit zina in the period of the Prophet and the prophet did not implement had on her”
However, the jurist differed on the issue of pregnancy by a woman claimed to be rape. According to
the majority of Muslim jurists, extramarital pregnancy alone in not a sufficient evidence to prove zina.
Imam Abu Hanifah was firm in rejecting the use of extramarital pregnancy as an evidence of zina. In his
view, the judge has to ask the woman under trial for such accusation to defend herself. This can be seen
form the decision of ‘Umar ibn al Khattab, who tried an unmarried woman for zina. ‘Umar accepted her
defence when she said: “I am a heavy sleeper, and a man raped me while I was asleep and then he left. I
could not recognize him thereafter.” Umar acquitted her. However, according to Imam Malik, pregnancy
does not amount to the proof of illegal sexual relations. This is based on may traditions of the Prophet.
Punishment of zina
The punishment of zine is provided in Quran and Sunnah. According to Surah An-Nur (24):2, it
states that “The fornicating woman and the fornicating man, flog each one of them with one hundred stripes.
No pity for them should prevail upon you in the matter of Allah’s religion, if you really believe in Allah and
the Last Day; and a group of believers must witness their punishment. This means that those who committed
zina will be punishable with 100 stripes.
According to Surah An Nisa (4):15, it states that “those of your women who commit the shameful
act, have four witnesses (against them) from among you. So, if they testify, then confine those women to
their homes until death overcomes them, or Allah prescribes a way for them.” The verse deals with women.
The punishment laid down was to confine them until further directives were revealed. Also, Surah An Nisa
4:16) states that “Punish both of those among you who are guilty of this sin, then if they repent and mend
their ways, leave them alone. For Allah is always ready to accept repentance. He is All-Compassionate.”
This verse applies to both sexes where they should be beaten and publicly reproached.
Apart from the punishment laid down in the Al Quran, Hadith provides that married person who
commits zina shall be punished with stoning to death. For example, Abdullah b Buraida reported on the
hadith where his father Ma’iz b Malik al-Aslami confessed to Prophet Muhammad saying that he had
committed adultery and asked Prophet to prufy him. However, Prophet Muhammad turned him away. On
the next day, Ma’iz approached Prophet Muhammad and said the same thing where he had committed
adultery. Once again, Prophet Muhammad turned him away. On the fourth time, Prophet asked: Fomr what
am I to purify you? Ma’iz answered from adultery. Thus, Prohpet Muhamad asked Ma’iz that whether he
was drunk and Ma’iz was not drunk since there was no smell of wine. Allah asked Ma’iz again that whether
he had committed adultery. Ma’iz answered “Yes!” Hence, Prophet Muhammad punished Ma’iz through
stoning to death. From this hadith, we can see that zina is a serious offence and the punishment for zina is
severe. Therefore, Prophet Muhammad had asked several times to make sure that the offender had actually
committed the offence of zina.
Another example can be seen under the Hadith where a woman confessed to Prophet Muhammad
that she had committed adultery. Prophet Muhammad turned her away. The woman later than admitted that
she was pregnant. Prophet Muhammad asked her to come back after she gave birth to the child. Later, the
woman came back to Prophet Muhammad together with her child. However, Prophet Muhammad told her to
go away and suckle him until she weans him. The woman did what Prophet Muhammad told her to do.
Prophet Muhammad then entrusted the child to one of the Muslims and the woman was stoned to death as
she had committed adultery.
Execution of whipping punishment (I think not important for problem questions)
 The word ‘jald’ derives from ‘jild’ which means skin.
 It signifies that whipping shall be carried out in such a way that its effect shall be confined to skin
only and should not reach the flesh under it.
 Mode of whipping: - the lash should be moderate neither very fresh branch nor entire dry, not to
cause severe pain, should be one after another, the executioner should not raise his hand over his
head.
 The lash should not remain on his body but be raised and applied with normal force, the lash should
not be applied on the face, shames and head of the convict, the convict should not be tied and be in a
normal dress (not naked)
 Male should be whipped when he is standing, the woman when she is sitting.
 The application of whipping should be continuous and not after intervals.
 The punishment shall be executed publicly or openly as a matter of deterrent.
 Any person commits zina out of coercion shall not be punished, rather the person who is responsible
for such coercion shall be liable for punishment.
 Thus, sex without a legally binding marital tie is considered zina, and is equally punishable for both
women and men. It is important to note that when it comes to punishment for illicit intercourse, men
and women are treated exactly alike.
 Thus clearly, the traditional Islamic framework for dealing with illicit sexual behavior is gender-
balanced and fair.
Other forms of approaching zina

1) Khalwat (Proximity) （没有 sexual intercourse 可是有亲密动作）

Proximity which denotes a man and woman who are neither married to each other nor mahram to
each other being alone together in a place in which there is no fear of intrusion by anyone else, so that an
opportunity exists for sexual intimacy such as touching, kissing etc. (Liable for ta’azir)

2) Incest （乱伦）

A man and woman commit zina who are mahram to each other and marriage between them are
permanently forbidden. (Subject to hadd punishment)

3) Sodomy – Sexual intercourse through anus. 鸡奸–通过肛门进行性交。

According to majority scholars, penetration through vagina or anus will be liable for had
punishment. Sodomy is a prohibited sexual intercourse and the Holy Quran refers to both zina and sodomy
as fahishah (evil thing). According to Surah Al-'Ankabut (29):28, it states that “And Lot: when He said to
his people, ‘You practise outrageous acts that no people before you have ever committed.” According to
Surah An Nisa (4):15), it states that “those of your women who commit the shameful act, have four
witnesses (against them) from among you. So, if they testify, then confine those women to their homes until
death overcomes them, or Allah prescribes a way for them.” According to the Hanafi scholars, they stated
that sodomy is not liable for hadd but liable for taazir. This is because sodomy has different meaning than
zina and does not affect parentage of children
4) Rape - sexual intercourse under coercion or force
Only the person responsible for such coerced intercourse shall be liable for hadd or ta’azir
punishment if proved as the case may be. Testimony of a coerced woman alone corroborated with other
evidences shall be considered sufficient for the punishment of taazir. The jurists concur that taazir in rape
cases shall be severe.

Effect / Consequences of Zina Crime

1) Baby dumping
2) Lineage problem often not knowing who the father is
3) Government troubled in finding olution for selfish acts of these individuals
4) Rise in illegitimate child
5) Diseases such as HIV or AIDS due to multiple sex partner