Adultery
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Zinā al-Muḥṣan or al-Muḥṣana (Arabic:زِنا المُحْصَن او المُحْصَنَة) (adultery or extramarital sex) is a zina (out of wedlock sexual intercourse) committed by a married man or woman. It is established by the testimony of four eyewitnesses or by a confession. In certain conditions, the adulterer is punished by stoning.
Meaning
In Islamic laws, the fornication of a married man is called "Zina al-Muhsan" and of a married woman is called "Zina al-Muhsana". A man who has Ihsan is called "Muhsan" or "Thayyib" and a woman who has Ihsan is called "Muhsana" or "Thayyiba".[1]
Conditions
According to Shi'a jurisprudence, in addition to the special conditions of proving Zina and general conditions of Taklif, such as being adult and sane, some conditions must be met in order to prove adultery:
- The adulterer has a permanent spouse
- The adulterer has consummated his/her marriage
- The adulterer's spouse was available at all times
- Having intercourse with the spouse was possible[2]
Rulings
Jurists believe that issues such as: Hayd, Nifas, traveling, imprisonment, and diseases that prevent sexual intercourse would exclude the adulterer from being Muhsan.[3] Likewise, even if the wife is available but refuses to submit to the husband's sexual desire, the husband is not counted as Muhsan.[4] In Shi'a jurisprudence Talaq al-Ba'in (irrevocable divorce) causes exclusion from Ihsan; however, there are disagreements whether Talaq al-Rij'i (revocable divorce) has a similar effect or not.[5] Moreover, some believe that if a man becomes al-Murtadd al-Fitri (Muslim-born apostate), he is no longer Muhsan.[6]
Proving
Zina is proved by confession in four different sessions or by the testimony of four sane, adult, male eyewitnesses who have seen the act of penetration.[7]
Punishment
In Islamic Laws, the punishment for Zina of a sane, adult Muhsan or Muhsana is stoning.[8] In addition, if the adulterer is an elderly person, he/she is flogged 100 times before being stoned.[9] The Hadd (specific legal Islamic punishment) for someone who has not Ihsan and for the Zina of Muhsan or Muhsana with the insane or minors is 100 flogs.[10] Some jurists maintain that the punishment for someone who has married but has not consummated the marriage is 100 lashes and exile.[11] Some jurists said that if one sees one's spouse committing Zina with another person, one is allowed to kill both of them; however, others said it is not permissible.
Notes
- ↑ Hāshimī Shahrūdī, Farhang-i fiqh, vol. 1, p. 307.
- ↑ Tawḍīḥ al-masāʾil, p. 896; Tabrīzī, Usas al-ḥudūd wa l-taʿzīrāt, p. 29.
- ↑ Khomeini, Taḥrīr al-wasīla, vol. 4, p. 177; Muntaẓirī, Mujāzāthā-yi Islāmī, p. 151.
- ↑ Gulpāyigānī, Majmaʿ al-masāʾil, vol. 1, p. 543.
- ↑ Mūsawī Ardibīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 1, p. 234.
- ↑ Khomeini, Taḥrīr al-wasīla, vol. 4, p. 178.
- ↑ Hāshimī Shahrūdī, Farhang-i fiqh, vol. 1, p. 393; Kadkhudāyī, "Barrasī-yi ḥukm-i sangsār", p. 28.
- ↑ Mūsawī Ardibīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 1, p. 198.
- ↑ Hāshimī Shahrūdī, Farhang-i fiqh, vol. 1, p. 293.
- ↑ Ṭabāṭabāyī Burūjirdī, Manābiʿ fiqh al-Shīʿa, vol. 30, p. 637.
- ↑ Khomeini, Taḥrīr al-wasīla, vol. 4, p. 179.
References
- Gulpāyigānī, Muḥammad Riḍā. Majmaʿ al-masāʾil. Qom: Dār al-Qurʾān al-Karīm, 1409 AH.
- Hāshimī Shahrūdī, Maḥmūd. Farhang-i fiqh muṭābiq bā madhhab-i Ahl al-Bayt (a). Qom: Markaz Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, 1423 AH.
- Kadkhudāyī, Muḥammad Riḍā. 1390 Sh. "Barrasī-yi ḥukm-i sangsār dar Islām." Kāwushī Nu dar Fiqh-i Islāmī 67:13-64.
- Khomeini, Rūḥollāh. Taḥrīr al-wasīla. Qom: Daftar-i Intishārāt-i Islāmī, 1425 AH.
- Muntaẓirī, Ḥusayn ʿAlī. Mujāzāthā-yi Islāmī wa ḥuqūq-i bashar. Qom: Arghawān-i Dānish, 1429 AH.
- Mūsawī Ardibīlī, Sayyid ʿAbd al-Karīm. Fiqh al-ḥudūd wa l-taʿzīrāt. Qom: Muʾassisat al-Nashr al-Jāmiʿa al-Mufīd, 1437 AH.
- Ṭabāṭabāyī Burūjirdī, Ḥusayn. Manābiʿ fiqh al-Shīʿa. Translated by Ḥusaynīyān & Ṣabūrī. Tehran: Farhang-i Sabz, 1429 AH.
- Tabrīzī, Jawād. Usas al-ḥudūd wa l-taʿzīrāt. Qom: Daftar-i Āyatollāh Saykh Jawād Tabrīzī, 1417 AH.
- Tawḍīḥ al-masāʾil, Qom: Intishārāt-i Tafakkur, 1372 Sh.