the Islamic punishment for adultery be reconsidered?
In October 2001, a Muslim woman named
Safiya was sentenced to death by stoning (rajm) by the Islamic
Sharia Court at Sikota in North Nigeria. She got a reprieve
because the Islamic Appeal Court ruled in March, 2002 that the
act of adultery was committed before it was made an illegal
In August, 2002, a 30-year-old Muslim widow named
Amina Lawal has been sentenced to Rajm by the Islamic Shariah
Court at Bakori in State of Katsina, also in North Nigeria.
Amina had an 8 month old daughter. The Appeal Court rejected
her appeal but stayed the execution of the sentence till the
end of the weaning period. Ahmadu Ibrahim and Fatima Usman
convicted of adultery also stand sentenced to death by stoning.
They are also awaiting the Order of the Appellate Court.
the sentences have evoked worldwide condemnation and protest. One
can easily imagine world reaction as and when the sentences are
carried out and receive worldwide publicity in the electronic
No doubt only a few Muslim countries have this law
on their books, perhaps only Afghanistan, Iran, Nigeria and
Saudi Arabia but the attitude of millions of people towards
Islam perhaps forever will be determined by the sight and sound of
the TV coverage and the printed words in the newspapers.
therefore, becomes the duty of all Muslims and specially the
ulama (Religious Scholars) everywhere to examine whether Islam
indeed prescribes this punishment for zena i.e. unlawful
sexual intercourse between a man and a woman.
stands for sexual purity and considers all sexual intercourse
outside the marital bond as sinful. Thus it makes no
distinction between adultery and formication or discriminates
between the two situations: both parties are unmarried or one
of the parties or both are married.
The Quran is the
ultimate source of the Shariah because Allah has guaranteed
its integrity. The Quran prescribes flogging. It does not even
mention the word 'stoning' or 'death by stoning' (Rajm). Verse
"The woman and the man guilty of
adultery or fornication flog each of them".
has this pre-Islamic punishment crept into Islam? Muslim jurists
think that the Quranic punishment in Verse 24(2), applies only to
fornication and that in the case of adultery, the Sunnah of
the Prophet prescribes stoning to death.
The most accepted
collection of Hadith Sahih al Bukhari has 4 entries under
3829, 8804, 8805 and 8824 which refer to stoning by death. The
case under 4829 involved Jews who were stoned to death in
accordance with the Law of the Torah. 8805 says: "A
married man from the tribe of Bani Aslam who had committed
illegal sexual intercourse and bore witnesses four times against
himself was ordered by the Prophet (s.a.s.) to be stoned to
death". 8804 and 8824 overlap each other. And in both the
narrator acknowledges his ignorance of whether the stoning to
death was carried out before or after the revelation of
Quranic Verse 24-2.
The Hadith is very clear but is silent
on the question whether stoning to death was ordered by the
Prophet before or after the revelation of the Verse 24-2.
is well known that the Quran was revealed in stages over 23
years. Until revelation on a specific point was received by the
Prophet, he followed the law of Moses or the Traditions of
Abraham but once a revelation was received, there was no
question of his substituting it by his own will or by the law
of Moses. In any case, there is no record in Sahih al Bukhari or
any other accepted compendium of the Traditions of the Holy
Prophet of another Rajm (death by stoning) carried out under
the command of the Prophet.
Some scholars support 'Rajm' by
attributing a statement to the second Caliph Omar that a
revelation on the subject had been received but had been lost.
It is generally accepted that the Quran was compiled in its
present form during the period of the third Caliph Othman.
Some scholars maintain that the compilation was already
available during the life-time of the Prophet or during the
Caliphate of the first Caliph Abu Bakr.
Hence there is an
obvious discrepancy and the statement attributed to Caliph
Omar needs to be rejected for being prima facie erroneous. And
also because it is the firm faith of the Muslims that the
Quran includes every word that was revealed by Allah to the
Prophet and not a word has been lost or added to the
Apart from the brutality of the 'Rajm',
repugnant to conscience, here is an element of gender injustice
in the operation of the traditional law which allows the male
partner to get scot-free, even if he has coerced and raped the
female. If the woman lodges a complaint, her complaint is taken
as a testimony against herself and, therefore, amounts to
admission and requires no further evidence while it is
necessary to get 4 witnesses against the man. Also the woman
may bear a child, as in Amina's case, which is admitted as
evidence of zena against the woman. Man suffers from no such
Amina has, however, named the man who has
fathered her daughter. But the Shariah Court is too
conservative to apply the genetic test! One recalls in this
connection the case in Pakistan when a blind girl was raped
but punished on the basis of her own complaint!
aspect is the relative guilt and the degree of culpability.
Flogging can be more or less but 'Rajm' becomes an ultimate,
irreversible punishment. In the multi-religious world we live
in, there may be cases of criminal liaison between a Muslim
man and a non-Muslim woman or vice-versa. This would raise a
serious problem relating to conflict of laws. Shall both be
dealt with under a common law or after being found guilty of the
alleged misdemeanour, shall each be sentenced according to the
law applicable to him or her? In a non-Muslim state like the
UK or India, which has a common criminal law, both shall be
sentenced under the same law. But it is not clear what will be
the case in an Islamic State. The Islamic family law does not
apply to the non-Muslims. Does the criminal law apply?
raises another interesting question: In many non-Muslim States,
Muslim citizens are demanding recognition or promulgation of
Islamic family law. Anti-Muslim forces in rebuttal club the
civil with the criminal and demand that if Muslims are allowed
exemption from common civil code and the Islamic family law,
then they should also be subject to the Islamic criminal law
In several Muslim countries there is public
pressure for the promulgation of the Shariah Law. In Nigeria,
which is a federal State, some constituent states which have
Muslim majority have adopted the Shariah law including the
Criminal Law but the federal government, though Nigeria as a
whole has a Muslim majority, has declared that it shall block
execution by stoning of persons condemned by Shariah Courts.
But that may lead to a constitutional crisis, if the federal
supreme Court overrules the judgement or the federal
parliament nullifies it by adopting a general or particular
law or the federal government revokes it on a mercy petition or
simply imposes its fiat. In Pakistan, the Federal Shariat Council
has decided to reconsider the Hudood after the recent gangrape
of a woman under the orders of a tribunal council. Iran is
also reported to have 'signalled its willingness to consider
an alternative punishment' after a series of visiting
dignitaries from Europe raised the question.
course can be for the eminent jurists from the Muslim world to
reconsider the question of permissibility of 'Rajm' on the sound
basis that since a Hadith may be unauthentic, it cannot overrule
a clear mandate of the Quran as the Prophet could not possibly
have violated the mandate of the Quran after the revelation of
the relevant verse.
Since there is no equivalent in
Islam of the Synod of the Bishop of the Catholic Church or the
Dharam Sansad of the VHP in India to review questions of
Islamic law, the nearest equivalent, the International
Ifta Academy associated with the Rabita al Alam al Islami,
Mecca, though not fully representative of all sects and
denominations, may have to undertake the task.
challenge to Islam in the 21st Century is to rewrite the fiqh
but for this it has to throw up a genius who can combine the
knowledge and wisdom of the five acknowledged Imams (Abu
Hanifa, Shafii, Malik, Hanbal and Jafar Sadiq), to consider
the new questions that have arisen, since the gates of Ijtihad
were closed in the 10th Century, and formulate answers in the
light of the Quran and the authoritative Traditions of the
Prophet which are the only two pillars on which the Shariah