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TOPIC 2.1: HUDUD CRIMES ZINA

(ADULTERY)
By Ms. Saidatul Nasuha Binti Jamaludin
 Adultery/Zina

Types of Syariah Punishments

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Theft/Sariqah

False accusation
of Adultery/Qazaf

Hudud Extortion/Hirabah

Treason/Bughah

Intoxicant/Sukran

Apostasy/Irtad
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Is this Zina (Adultery) or Khalwat (Close Proximity)?

DEFINITION OF ZINA
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• “Zina’ means wilfull sexual intercourse between man and

woman who are not, and do not suspect to be validly
married to each other. Modern jurists define it as sexual
intercourse between man and woman who are not, and do
not suspect to be in a state of legal matrimony.

• Zina is prohibited in Islam.

ً‫ح َش ًة َو َساء َس ِبيال‬ ِّ ‫َوالَ َت ْق َربُو ْا‬

َ ‫الز َنى إِ َّن ُه َك‬
ِ ‫ان َفا‬
‘And come not near to adultery: For it is a shameful (deed) and an
evil, opening the road (to other evil).’ AQ, 17:32

• Adultery is not only shameful in itself and inconsistent with

any self-respect or respect for others, but it opens the road
to many evils.
• It may destroy the basis of family, it works against the 5

interest of children born or to be born, it may cause

murders and feuds and loss of reputation and property
and also loosen permanently the bonds of society.

• The concept of zina in Islamic law applies only to the

actual intercourse, i.e. physical penetration. No act
other than that is considered zina, nor does such act
fall under the same legal framework as zina.

• However, Islam prohibits every step and avenue

leading to zina. Thus, any act which open ways for
illicit sexual relations between a man and woman and
promotes indecency and obscenity is prohibited and
the violation is punishable with taazir.
ELEMENTS OF CRIME ZINA
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1. Legal element (authorities from AQ/Sunnah)

ً ‫َان َفا ِـح َش ًة َو َساءـ َس ِبيال‬
َ ‫َوال َ تَقْ َربُوا ْ ال ِّ ّـِزنَى ِإَن ّـَّ ُه ك‬
And come not near to adultery: For it is a shameful(deed) and an
evil, opening the road (to other evil).’ AQ, 17:32
2. Actus reus: 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.
3. Mens rea: intention to commit illegal sexual
intercourse (not under the element of force or
coercion)
4. Parties: Unmarried/Married persons (a man/woman
who marries validly with a woman/man and make
sexual intercourse in such valid marriage
PROOF OF ZINA
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CONFESSION

RETRACTION FROM CONFESSION

CIRCUMSTANTIAL EVIDENCE

A DENIAL OF ONE PARTY IN ZINA

SHAHADAH/ TESTIMONY OF FOUR EYE

WITNESSES
CONFESSION
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1. Confession must be a clear, free, and willful confession by the accused
of the act of zina.
- 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 is proved by the confession of the accused
- For a confession to be valid, it is required that the person accurately
and expressly state the facts of the act of adultery/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.
- Ibn Abbas reported that the Prophet – peace be upon him - 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.”
2. Confessor must be adult and a good mental condition
- He must be capable of self-expression.
- According to Imam Abu Hanifa the confession of deaf and dumb is not 9
acceptable in an offence of zina liable to hadd even he can write his
confession or his sign is intelligible.
- According to Imam Malik, Imam Shafie and Imam Ahmad: the
confession of deaf and dumb is acceptable, if his sign is intelligible or
he can write his confession before the court

3. Confession must be voluntary

- The confession must be made with free consent of the confessor
without any pressure, force, temptation or coercion. Any confession
made under pressure, force, temptation or coercion is not valid.

4. Confessor must explicit as to committing of the offence

- According to Imam Abu Hanifah and Imam Ahmad: the confessor has to
make four separate confessions before the court.
- Imam Malik and Imam Shafie: only one time confession is sufficient to
proof zina
RETRACTION FROM CONFESSION
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• 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 mean proper retraction but mere running away or
turning away from the punishment is also sufficient to be considered
retraction which nullifies hadd punishment
- Imam Shafie: mere running away is not sufficient but proper retraction is
required to nullify the hadd punishment.
- Thus, if a confessor retracts his confession at any stage before the
execution of the punishment, his retraction shall be accepted and he
shall not be be punished with hadd. 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.
CIRCUMSTANTIAL EVIDENCE
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Circumstantial evidence – pregnancy out of wedlock

• Maliki – liable for hadd
• Majority – not sufficient to be liable for hadd.
Since hadd is serious punishment it should be based either
on the evidence or on the confession of guilt.
POSITION WHEN THERE IS A DENIAL OF ONE
PARTY IN ZINA 12

• 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. Both will be liable for
ta’azir.- Hanafis jurists
• One who confesses the offence shall be liable for
the hadd of zina as the refusal of the other party
does not affect his confession and confession is a
conclusive proof against the confessor – Majority
of jurists
SHAHADAH/ TESTIMONY OF FOUR EYE
WITNESSES 13
• Testimony means the statement of a person in or before the court
that he has seen the occurrence of the offence or he has the
knowledge of the right disputed in the court by uttering the word
“asyhadu” or by use any synonymous expression.
• 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 liabe to hadd.
• Requirements of witnesses for zina offence:
– He should be adil (credible), free, sane, adult Muslim male,
– He should have capacity of speaking and seeing
– He should have eye-witnessed the actual act of intercourse (i.e., actual
penetration)
– There should be at least four witnesses, and
– The witnesses should testify in the same hearing, about the same zina
act. Any disagreement about the time of the act, its place or even the
color of the clothes of accused persons, leads to the rejection of the
accusations.
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1. He should be a credible, free, sane, adult Muslim male,

• A witness in case of zina must be adult and sane both at the time of
seeing occurrence of the offence as well as giving testimony in the
court.

• The jurists concur that the evidence of a non-Muslim is not

acceptable against a Muslim in the offence of zina liable to hadd.

• 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
opine 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.
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• Another condition for witness in the offence of zina liable to hadd is

that he 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 define ‘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: every witness is credible and his credibility
shall not be questioned unless the opposite party has
challenges his credibility.
- Imam Shafie and Imam Ahmad: they argue in the Quran has laid
down the condition of credibility for each witness whether his
credibility has been challenged by the opposite party or not. (a
person who has not committed to any either small sins or big
sins)
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2. He should have capacity of speaking and seeing

• He must possess the power of speaking and seeing.

- 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. His evidence considered as presumption liable
for ta’azir specially when corroborated with other evidence
- Imam Malik and Imam Ahmad: if he can write before the court
his evidence is acceptable even for a hadd offence like zina,
while Imam Malik opines that his evidence is acceptable even in
hudud if his signs are intelligible.
- Unanimous opinion of jurists: evidence of blind person is not
acceptable

3. He should have eye-witnessed the actual act of intercourse

• The proof must be direct evidence

• The witness must have observed the occurrence of the offence
himself
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4. There should be at least four witnesses

• 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
• 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: 80 stripes

5. The witnesses should testify in the same hearing, about the same zina act

• Abu Hanifah: The evidence requires the proof of the offence of zina is
liable to hadd must not be delayed for a considerable time. The delayed
evidence creates doubt which removes hadd.
• Imam Malik and Imam Shafie: delay in evidence does not affect its
authenticity and permissibility and delayed evidence is acceptable in
hudud
• These are severe requirements relating to the establishment of guilt
through the testimony of eyewitnesses are very specific to the hadd of 18
zina. It is pertinent to point out here that the evidentiary requirement for
zina was initially intended to protect women from frivolous charges. This
intention derives directly from Asbab al-Nuzul (reasons of revelation)
relating to the Qur’anic verse that establishes the hadd of zina.
• Therefore, it is believe that the requirement of four witnesses (with all its
restrictions and specifications) is a merciful measure from God in order not
only to avoid incriminating innocent people, but also to preserve the privacy
of Muslims, which is one of the most valued principles in Islam.
• In fact, most Muslim scholars agree that the act of zina encompasses two
rights, the right of God and the right of society or the community. The
fact that a person has committed a forbidden act, even secretly, means that
the right of God was transgressed.
• But when the act becomes public, in one way or another, then the right of
society to protect its morals is activated. The earthly punishment of zina
which is not directed towards the act itself, because this is a matter that
only God can judge, but rather towards the fact that such an act has
become known to the community, and therefore has disturbed public order
and morality.
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POSSIBLE DEFENCE
• There are several possible defenses can be used against
hudud punishment:
Based on the hadith:
“ Three persons are exempted Based on hadith:
from any liability, namely,
“My ummah has been exempted
Minor until he attains puberty from the liability of the action done
The sleeping person until he by mistake, forgetfulness or under
awakes; and coercion.”
Insane until he attains sanity.”

Minor Under coercion

Unsound
mind/Insane Mistake
PUNISHMENT
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‫اح ٍد ِ ّمن ُۡه َما ِمائَ َة َجل َۡد ٍة‬ ِ ‫• اَل َّزا ِنيَ ُة َوال َّزا ِنىۡ َفاجۡلِ ُدوۡا ك ّ َُل َو‬
‫َّول َا تَا ُۡخذۡكُمۡ ِب ِه َما َراۡ َف ٌة ِفىۡ ِدي ِۡن الل ّ ٰ ِه اِنۡ كُنۡتُمۡ تُؤ ِۡمنُو َۡن ِبالل ّ ٰ ِه‬
‫ع َذابَ ُه َما َطٓا ِئ َف ٌة ِ ّم َن ال ُۡمؤ ِۡم ِني َۡن‬
َ ۡ‫​ َوالۡيَوۡ ِم الۡا ٰ ِخ ِرۚ َولۡيَش َۡهد‬
• Al Quran(24:2)
• “The woman and the man guilty of adultery or fornication, flog
each of them with a hundred stripes: Let not compassion move
you in their case, in a matter prescribed by Allah, if ye believe in
Allah and the Last Day: and let a party of the Believers witness
their punishment.”
• Al Quran (4: 15-16)
• Hadith : Rajm (stoning to death) for married person.
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'Abdullah b. Buraida reported on the authority of his

father that Ma'iz b. Malik al-Aslami came to Allah's
Messenger (may peace be upon him) and said :
Allah's Messenger, I have wronged myself ; I have
committed adultery and I earnestly desire that you
should purify me. He turned him away. On the
following day, he (Ma'iz) again came to him and said :
Allah's Messenger, I have committed adultery. He
turned him away. When it was the fourth time, Allaah's
Messenger (may, sallAllaahu alayhi wa sallam) said:
From what am I to purify you? He said: From
adultery, Allah's Messenger asked if he had been
mad. He was informed that he was not mad. He said:
Has he drunk wine? A person stood up and smelt his
breath but noticed no smell of wine. Thereupon Allah's
Messenger said: Have you committed adultery? He
said: Yes. Allah’s Messenger made pronouncement
about him and he was stoned to death. (Sahih
Muslim)
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He (the narrator) said : There came to him (the Holy

Prophet) a woman from Ghamid and said : Allah's
Messenger, I have committed adultery, so purify me.
He (the Holy Prophet) turned her away. On the
following day she said : Allah's Messenger, Why do
you turn me away ? Perhaps, you turn me away as
you turned away Ma'iz. By Allah, I have become
pregnant. He said: Well, if you insist upon it, then go
away until you give birth to (the child). When she
was delivered she came with the child (wrapped) in
a rag and said : Here is the child whom I have given
birth to. He said : Go away and suckle him until you
wean him. When she had weaned him, she came to
him (the Holy Prophet) with the child who was
holding a piece of bread in his hand. She said :
Allah's Apostle, here is he as I have weaned him
and he eats food. He (the Holy Prophet) entrusted
the child to one of the Muslims and then pronounced
punishment. And she was put in a ditch up to her
chest and he commanded people and they stoned
her. (Sahih Muslim)
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Stoning until death

Whipping
Execution of whipping punishment
• The word ‘jald’ derives from ‘jild’ which means skin. 24

• 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, 25

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:
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• Khalwat (Proximity) – 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 taazir
• Incest – a man and woman commit zina who are mahram to each
other and marriage between them are permanently forbidden. --
subject to hadd punishment
• Sodomy – Sexual intercourse through anus.
- Majority scholars: penetration through vagina or anus --liable for
hadd.
- Reason: it is a prohibited sexual intercourse and the Holy Quran
refers to both zina and sodomy as fahishah (evil thing). AQ,
29:28, 4:15
- Hanafi: sodomy is not liable for hadd but liable for taazir.
- Reason: it has different meaning than zina and does not affect
parentage of children
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The anus is the opening where the gastrointestinal tract

ends and exits the body. The anus starts at the bottom of the
rectum, the last portion of the colon (large intestine). The
anorectal line separates the anus from the rectum.
• Rape – sexual intercourse under coercion or force
- Only the person responsible for such coerced intercourse 28

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.
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EFFECT OF ZINA CRIME

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Baby dumping

Diseases: HIV/AIDS Lineage problem

due to multiple sex often not knowing
partner who the father is

EFFECTS OF ZINA CRIME

Government troubled
Rise in illegitimate in finding solution for
child selfish acts of these
individuals
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Thank you