Fornication

Priority: b, Quality: c
From wikishia

Fornication or Zinā (Arabic: الْزِنا) is sexual act between a man and a woman, when no contract of marriage is made between them. Fornication is among great sins, and its prohibition is considered an essential of the Religion. The punishment for fornication varies depending on its conditions. The punishment for the fornication of a single person is one hundred lashes. The punishment for adultery (sexual acts between a married person and a person other than the spouse) is being stoned, and the punishment for incest (fornication between mahram people in consanguinity) and rape (fornication by force) is death.

According to the fatwas of jurists, proving fornication is only possible by the confession of the fornicator and the existence of proof. It would not be proved by only medical examinations. Different jurisprudential rulings apply to fornication; including that fornication with a married woman or a woman who is in rij'i 'idda results in the prohibition of their marriage forever.

Meaning

In definitions given by jurists, fornication refers to sexual intercourse between a man and a woman, when (1) no contract of marriage is made between them;[1] (2) the man is not the owner of the woman (in case of slave women), and (3) there is no doubt of marriage, and no doubt of ownership contract exists. The sexual intercourse will be considered fornication when the man's penis penetrates the woman's vulva or her anus as much as the glans.[2]

Fornication, A Great Sin

Islamic scholars have counted fornication among great sins[3] and considered its prohibition a definite belief in Islam.[4] According to the Muhammad Hasan al-Najafi the author of Jawahir al-kalam, the Shia jurist of 13th/19th century, all religions agree on prohibition of fornication.[5] According to the Bible, fornication was among the ten commandments of Moses (a)[6] and in some cases entails the punishment of being stoned.[7]

Seven verses of the Qur'an are about fornication and its rulings.[8] In books of hadiths, a chapter is dedicated to hadiths about this issue.[9] In hadiths, fornication is introduced at the level of killing the prophet and demolition of the Ka'ba[10] and different consequences are mentioned for it in this world and the hereafter. Lack of blessings in life,[11] removal of light in the appearance, shortness of life, poverty[12] and sudden death[13] are among consequences of fornication in this world. Being strict and harsh upon the person's reckoning, divine wrath, and entering the hell are among its consequences in the hereafter.[14]

Punishment

In jurisprudential texts, three punishments are mentioned for fornication, each of which is for one or some of its types: lashes, death, and stoning.

  • Lashes: the punishment of the fornicator, man or woman who is adult, free and non-muhsan (conjugal sex is not available for them), is one hundred lashes.[15] This ruling is mentioned in Qur'an 24:2. According to this verse, a group of believers should be present upon administering the punishment.[16]
  • Death: the punishment of fornication with mahram ones (close blood-related kin such as one's mother, sister and daughter), fornication by force (rape),[17] fornication of a non-Muslim man with a Muslim woman and several times of committing fornication after being lashed is death.[18]
  • Being stoned: the punishment for adultery is to be stoned.[19] Fornication of a free married man or woman with another adult and sane one is called muhsana fornication (adultery).[20] A person who is sentenced to be stoned should perform ghusl. The punishment for a fornicator who is a free married old man or woman is one hundred lashes and then being stoned.[21]

Fornication committed in holy places such as mosques, shrines of religious leaders, and in the month of Ramadan will have intensified punishment, and in addition to the prescribed punishment, it is also subject to discretionary punishment by the judge. The rule about fornication of a man with a dead woman is the same.[22]

The Islamic punishment of fornication is reflected in the penalty law of Islamic countries such as Iran, Saudi Arabia and Pakistan.[23]

Ways of Proving

According to the fatwa of jurists, there are two ways for proving fornication which are: the fornicator's confession and the existence of proofs. Fornication is not proved by medical examination.

  • Confession: Proving fornication by confession in addition to the requirement of general conditions of taklif (religious liability) (puberty, sanity, volition and freedom) requires the fornicator's confession for four times.[24]
  • Proof: Proving fornication with proofs requires testimony of four men, and if four men are not available, based on the common view, it requires three men and two women.[25] With the testimony of two men and four women, the person will only be subject to receive lashes, not being stoned.[26] Testimony of the witnesses would justify the punishment only if all the witnesses' testimonies assert the occurrence of fornication and witnessing it at the same time and the same place; otherwise, the witnesses will receive the punishment of slender for accusation.[27]

According to fatwas, it is recommended that the witnesses avoid giving testimony about fornication. Also, it is recommended that the judge urges them using indications and implications to abandon giving testimony.[28]

Some of the Rulings regarding Fornication

Some of the rulings regarding fornication are as follows:

  • Blood relationship is not established through fornication. Therefore, based on religious law, a baby born out of fornication neither belongs to the man nor the woman.[29]
  • Based on the fatwa of most jurists, if a married woman commits fornication before divorce from her husband, she will be prohibited from marrying the fornicator forever.[30] However, some religious authorities such as Sayyid Musa Shubayri Zanjani believe that the woman will not be prohibited from marrying the fornicator forever.[31]
  • Based on the famous view among jurists, fornication with a woman's mother or daughter will cause the prohibition of marriage with her forever, provided that the fornication is committed before marriage.[32]
  • Based on the common view, a single woman who has committed fornication will not have idda;[33] but, a married woman who has become pregnant from fornication and then has divorced from her husband can marry after the idda, even if she has not delivered the baby yet.[34]
  • If a man accuses his wife of fornication, in case li'an (a particular mutual cursing) occurs between them, the two will be prohibited from marrying each other forever.[35]
  • If the fornicator escapes upon administration of punishment, in case his/her punishment is to be stoned and has been proved by confession, based on the common view, he/she will not be punished anymore; but, if his/her punishment has been lashes or being stoned proved by proof, he/she will be brought back for punishment.[36]
  • Lashes and being stoned will be justified if the fornicator had been aware of the prohibition of fornication at the time of its commitment.[37]
  • Punishment for fornication will be canceled in the following cases: fornication with doubt (i.e. for example, the fornicator mistakenly had thought that he was having sexual intercourse with his own wife), the claim of marital relationship, coercion (being coerced to commit fornication)[38] and the fornicator's repentance before fornication is proved to the judge.[39]
  • Punishment of fornication is a right of God. Therefore, its administration does not depend upon anyone's demand, and the judge can administer it based on his own knowledge.[40] Also, voluntary witness (without the judge's request for it) is accepted.[41]

Notes

  1. ↑ Ṭūsī, al-Tibyān, vol. 6, p. 475; Ḥillī, Sharāʾiʿ al-Islām, vol. 4, p. 136.
  2. ↑ Ḥillī, Sharāʾiʿ al-Islām, vol. 4, p. 136.
  3. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 258; Ṭūsī, al-Tibyān, vol. 6, p. 475; Khomeini, Taḥrīr al-wasīla, vol. 1, p. 274.
  4. ↑ Ṣadr, al-fatāwā al-wāḍiḥa, p. 19.
  5. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 258.
  6. ↑ Book of Exodus 20:1-18.
  7. ↑ Book of Deuteronomy 22:23-24; Book of Leviticus 20:11-12.
  8. ↑ Quran 4:15,16; Quran 17:32; Quran 24:2,3; Quran 25:68; Quran 60:12.
  9. ↑ Majlisī, Biḥār al-anwār, vol. 76, p. 17 to the next pages. (Chapter Zina).
  10. ↑ Majlisī, Biḥār al-anwār, vol. 76, p. 20.
  11. ↑ Majlisī, Biḥār al-anwār, vol. 76, p. 19.
  12. ↑ Majlisī, Biḥār al-anwār, vol. 76, p. 22.
  13. ↑ Majlisī, Biḥār al-anwār, vol. 76, p. 23.
  14. ↑ Majlisī, Biḥār al-anwār, vol. 76, p. 21.
  15. ↑ Ṣadūq, al-Muqniʿ fī al-fiqh, p. 428.
  16. ↑ Quran 24:2.
  17. ↑ Ḥillī, Sharāʾiʿ al-Islām, vol. 4, p. 141.
  18. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 309-313; Khomeini, Taḥrīr al-wasīla, vol. 2, p. 462-463.
  19. ↑ Ṣadūq, al-Muqniʿ fī al-fiqh, p. 428.
  20. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 318-322.
  21. ↑ Shahīd al-Thānī, al-Rawḍat al-bahiyya, vol. 9, p. 85-86; Najafī, Jawāhir al-kalām, vol. 41, p. 318-320.
  22. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 373-374; Khomeini, Taḥrīr al-wasīla, vol. 2, p. 468.
  23. ↑ Ḥaydarī, Zina in Dānishnāma-yi jahān-i Islām, p. 600.
  24. ↑ Ḥillī, Sharāʾiʿ al-Islām, vol. 4, p. 138-139; Khomeini, Taḥrīr al-wasīla, vol. 2, p. 459.
  25. ↑ Ḥillī, Sharāʾiʿ al-Islām, vol. 4, p. 139.
  26. ↑ Ḥillī, Sharāʾiʿ al-Islām, vol. 4, p. 139.
  27. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 154-158; 296-302; Khomeini, Taḥrīr al-wasīla, vol. 2, p. 461; Khoeī, Takmilat minhāj al-ṣāliḥīn, p. 25.
  28. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 307.
  29. ↑ Najafī, Jawāhir al-kalām, vol. 29, p. 256-257; vol. 31, p. 236; Khomeini, Taḥrīr al-wasīla, vol. 2, p. 264-265.
  30. ↑ Najafī, Jawāhir al-kalām, vol. 29, p. 446.
  31. ↑ Shubayrī Zanjānī, Tawḍiḥ al-masā'il, p. 517, Issue 2407.
  32. ↑ Najafī, Jawāhir al-kalām, vol. 29, p. 363-368; Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, vol. 5, p. 549-550.
  33. ↑ Baḥrānī, al-Ḥadāʾiq al-nāḍira, vol. 23, p. 504.
  34. ↑ Shahīd al-Thānī, Masālik al-ifhām, vol. 9, p. 262-263; Najafī, Jawāhir al-kalām, vol. 32, p. 263-264.
  35. ↑ Najafī, Jawāhir al-kalām, vol. 30, p. 24-25.
  36. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 349-351.
  37. ↑ illī, Sharāʾiʿ al-Islām, vol. 4, p. 136.
  38. ↑ illī, Sharāʾiʿ al-Islām, vol. 4, p. 137-138.
  39. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 393, 307-308.
  40. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 366.
  41. ↑ Najafī, Jawāhir al-kalām, vol. 41, p. 106.

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