Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut Tahrir, to Questions from Visitors to his Facebook Page "Fiqhi"
Answer to a Question
To Muhammad Amin
Question:
Assalamualaikum War. Wab. yes Sheikh wa Amiruna. I would like to ask a question, hopefully you will answer it.
Regarding the death penalty for Muhson, is Qothie categorized in Fiqh Islam? There are some scholars such as Sheikh Abu Zahrah who do not categorize it as Hudud punishment. It is even supported by Sheikh Mustafa Zarqa who states that it is categorized in the sentence of Takzir. How do you think about this issue?
Jazaakumullah khoiron for your convenience answer my question.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuhu,
You are asking whether the punishment for the married adulterer (muhson) is definitive (qat’i) in Islamic jurisprudence? And is it among the Hudud (fixed punishments) or is it not among the Hudud but rather among the Ta’zirat (discretionary punishments), as some scholars say in this era?
The answer to your question is as follows:
The punishment of stoning (rajm) until death for the married adulterer is part of the Shari’ah rulings and is not part of the matters of Aqidah (creed). Therefore, like all other Shari’ah rulings, it is not required that its evidence be definitive (qat’i) to be adopted; rather, the predominance of thought (ghalabat az-zann) is sufficient, as is well known in Usul al-Fiqh (principles of jurisprudence). Thus, whether the evidence for this punishment is definitive or not has no impact on its adoption. What matters is that evidence for it is established in Shari’ah. Many authentic (sahih) evidences have been reported in Shari’ah showing, without any room for doubt, that the punishment for the married adulterer is stoning until death, as mentioned below.
It is observed that some scholars in this era do not follow the correct method in deriving Shari’ah rulings from their evidences. In their search for a Shari’ah ruling, they are keen on keeping pace with the times and arriving at opinions that conform to the prevailing rulings and views in the world—imposed by Western civilization on people under the names of international laws, human rights agreements, and others. This matter is incorrect because what is required is the ruling of Allah, not just any ruling, nor a ruling that conforms to the laws, treaties, and opinions prevailing in the world. The obligation is to take the Shari’ah ruling as it is from its evidences, make it the subject of application and implementation, and call for it and propagate it throughout the world. It is the ruling suitable for all of humanity because it is from the Creator of mankind, who is the Knower of their conditions, Glory be to Him:
أَلَا يَعْلَمُ مَنْ خَلَقَ وَهُوَ اللَّطِيفُ الْخَبِيرُ
"Does He who created not know, while He is the Subtle, the Acquainted?" (QS Al-Mulk [67]: 14)
أَلَا لَهُ الْخَلْقُ وَالْأَمْرُ تَبَارَكَ اللَّهُ رَبُّ الْعَالَمِينَ
"Unquestionably, His is the creation and the command; blessed is Allah, Lord of the worlds." (QS Al-A'raf [7]: 54)
Therefore, one should not pay attention to the statements of those who are keen in their deductions to keep pace with the era and conform to Western civilization, whether they do so under the pressure of reality or to please the Western disbelievers.
- The punishment for adultery for the married person (muhson), which is stoning until death, and for the unmarried person, which is one hundred lashes, is a punishment within Islam under the category of Hudud. We have explained the rulings of the Hadd of adultery in the book The Penal Code (Nizam al-Uqubat) in a detailed and sufficient manner. I will quote for you some of what came in the chapter "The Hadd of Adultery":
[Some say that the Hadd for the female and male adulterer is one hundred lashes for both the muhson and the non-muhson alike, with no difference between them, due to the saying of Allah Almighty:
الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِنْهُمَا مِائَةَ جَلْدَةٍ وَلَا تَأْخُذْكُمْ بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ
"The woman or man found guilty of sexual intercourse - lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah." (QS An-Nur [24]: 2)
They said it is not permissible to leave the Book of Allah, which is certain and definitive, for solitary reports (ahad) where lying is possible, and because this leads to abrogating the Book by the Sunnah, which is not permissible. However, the general body of scholars among the Sahaba, the Tabi’in, and the scholars of the cities after them in all ages say that the non-muhson is lashed one hundred times, and the muhson is stoned until he dies because the Messenger ﷺ "stoned Ma’iz," and because of what was narrated from Jabir bin Abdullah "that a man committed adultery with a woman, so the Prophet ﷺ ordered him to be lashed, then he was informed that the man was a muhson, so he ordered him to be stoned."
One who looks at the evidences sees that the saying of the Almighty: "The female adulterer and the male adulterer, lash each one of them with a hundred lashes" is general ('aam), as the words "the female adulterer" and "the male adulterer" are among the expressions of generality. Thus, it includes both the muhson and the non-muhson. But when the Hadith came, which is the saying of the Prophet ﷺ:
واغد يا أُنيْس إلى امرأة هذا فإن اعترفت فارجمها
"And go, O Unays, to the woman of this man, and if she confesses, stone her."
And it was established that the Messenger of Allah ﷺ stoned Ma’iz after asking about his ihsan (marital status), and he stoned the Ghamidiyyah woman and other authentic hadiths, then the Hadith specifies (takhsis) the verse. These hadiths specified this general term in the verse for the non-muhson and excluded the muhson from it. Thus, the hadiths specified this general term and did not abrogate the Quran. Specifying the Quran by the Sunnah is permissible and has occurred in many verses that came as general, and the Hadith came and specified them.
The Shari’ah ruling indicated by the Shari’ah evidences—namely the Book and the Sunnah—is that the punishment for adultery is lashing the non-muhson one hundred times, acting upon the Book of Allah, and exile for a year acting upon the Sunnah of the Messenger of Allah. However, exile is permissible and not obligatory; it is left to the Imam: if he wishes, he lashes him and exiles him for a year, and if he wishes, he lashes him and does not exile him. But it is not permissible to exile him and not lash him, because his punishment is lashing. As for the punishment of the muhson, it is stoning him until he dies, acting upon the Sunnah of the Messenger of Allah ﷺ which came to specify the Book of Allah. It is permissible for the muhson to have both lashing and stoning combined, so he is lashed first then stoned; and it is permissible to apply only the punishment of stoning without lashing. However, it is not permissible to apply only the punishment of lashing because his obligatory punishment is stoning.
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As for the evidence for the punishment of the muhson, there are many hadiths. Narrated by Abu Hurairah and Zaid bin Khalid, they said that a man from the desert Arabs came to the Messenger of Allah ﷺ and said: "O Messenger of Allah, I adjure you by Allah to judge between us by the Book of Allah." The other opponent, who was more knowledgeable than him, said: "Yes, judge between us by the Book of Allah, and permit me." The Messenger of Allah ﷺ said: "Speak." He said: "My son was a laborer ('asif) for this man and committed adultery with his wife. I was told that my son must be stoned, so I ransomed him with a hundred sheep and a female slave. Then I asked the people of knowledge, and they told me that my son must be lashed one hundred times and exiled for a year, and that the wife of this man must be stoned." The Messenger of Allah ﷺ said:
والذي نفسي بيده لأقضين بينكما بكتاب الله، الوليدة والغنم ردّ، وعلى ابنك جلد مائة، وتغريب عام، واغدُ يا أنيس - لرجل من أسلم - إلى امرأة هذا فإن اعترفت فارجمها، قال: فغدا عليها فاعترفت فأمر بها رسول الله e فرجمت
"By Him in Whose Hand is my soul, I will judge between you according to the Book of Allah. The slave-girl and the sheep are to be returned, and your son is to receive a hundred lashes and be exiled for a year. And you, O Unays—to a man from Aslam—go to the wife of this man, and if she confesses, stone her." He said: So he went to her and she confessed, so the Messenger of Allah ﷺ ordered her to be stoned and she was stoned.
The "laborer" ('asif) is the hired worker. The Messenger ordered the stoning of the muhson and did not lash her. And from Ash-Sha’bi: "That Ali (ra), when he stoned the woman, struck her on Thursday and stoned her on Friday, and said: I lashed her according to the Book of Allah and stoned her according to the Sunnah of the Messenger of Allah ﷺ." And from Ubadah bin as-Samit, he said: The Messenger of Allah ﷺ said:
خذوا عني، خذوا عني، قد جعل الله لهن سبيلاً البكر بالبكر جلد مائة ونفي سنة، والثيب بالثيب جلد مائة والرجم
"Take from me, take from me; Allah has made a way for them. The unmarried with the unmarried: a hundred lashes and exile for a year; and the married with the married: a hundred lashes and stoning."
So the Messenger says that the punishment for the muhson is lashing and stoning, and Ali lashed the muhson and stoned her. And from Jabir bin Samurah that the Messenger of Allah ﷺ stoned Ma’iz bin Malik and did not mention lashing. In Bukhari, from Sulayman bin Buraidah that the Prophet ﷺ stoned the Ghamidiyyah woman and did not mention lashing. In Muslim, that the Prophet ﷺ ordered a woman from Juhaynah, so her clothes were tied around her, then he ordered her to be stoned and did not mention lashing. This indicates that the Messenger stoned the muhson and did not lash him, and that he said:
الثيب بالثيب جلد مائة والرجم
"The married with the married: a hundred lashes and stoning."
This indicates that stoning is obligatory, while lashing is permissible and left to the opinion of the Khalifah. Lashing was made part of the Hadd of the muhson along with stoning to reconcile the hadiths. It cannot be said that the hadith of Samurah—in which he ﷺ did not lash Ma’iz but restricted it to stoning—abrogates the hadith of Ubadah bin as-Samit which says: "The married with the married: a hundred lashes and stoning." This cannot be said because it has not been established what indicates that the hadith of Ma’iz came after the hadith of Ubadah. Without establishing its coming later, the omission of the mention of lashing does not necessitate its nullification or the abrogation of its ruling. Thus, the lack of establishing which of the two hadiths preceded the other negates abrogation, and there is no weightier evidence for one over the other. What came in the hadith as an addition to stoning is considered a permissible matter, not an obligatory one, as the obligatory part is stoning, and what is beyond that, the Imam has the choice in order to reconcile the hadiths...] End of quote from the book The Penal Code.
Summary: The punishment for the married adulterer is stoning until death. This has been indicated by authentic, established evidences from the Sunnah of the Messenger of Allah ﷺ in the two Sahihs and in other books of Hadith. It is a punishment that falls within the Hudud and is not among the Ta'zirat.
Allah (swt) is most knowing and most wise.
Your brother, Ata Bin Khalil Abu Al-Rashtah
12 Muharram 1441 AH Corresponding to 11/09/2019 CE
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