Overview (Verses 4 - 5)

Is Hard Punishment Justified?

When enacting such severe punishments for this abominable offence, Islam does not overlook the natural desire behind it. Islam knows that human beings cannot and should not suppress such a natural desire. Nor does Islam wish that people should fight the physiological functions God has given them as part of their nature and part of the laws of life, ensuring the continuity of mankind. Islam only shuns an animal approach to this desire that treats one body the same as another, and which has no intention of building a home, life partnership or family. Islam wants sexual relations between a man and a woman to be based on fine human feelings that involve their hearts and souls in their physical union, so as to make it a union between two human beings sharing their lives, pains, hopes, and futures. In this way, any children will be reared by both parents building a future together.

This is the reason why Islam ordains such a severe punishment for adultery, considering it a setback that reduces man to an animal. It destroys all these fine feelings and goals. Adultery turns human beings into animal-like creatures that treat all men as males and all women as females, trying to satisfy a physical desire in a casual way. Its momentary ecstasy has neither a constructive aim nor a fine, durable love behind it. It is the continuity aspect that distinguishes such a fine feeling from a momentary and casual charge which many people describe as passion when it is in fact a physical desire momentarily taking the guise of fine feeling.

Islam neither suppresses natural feelings nor considers them dirty. It only regulates, purifies and elevates them above the physical level so that they become central to many psychological and social values. By contrast, adultery, and prostitution in particular, removes from such natural desires all the exquisite feelings, attractions and values that have been refined over the long history of human life. It leaves such desires naked, dirty and coarser than in animals. In many animal and bird species, couples live together in a regulated life. They do not have the sort of sexual chaos that adultery spreads in some human communities, particularly where prostitution is rife.

In order to spare man this type of setback, Islam prescribes such punishment for adultery. Needless to say, this offence causes numerous social ills that people often mention when they speak about this crime. These include false parenthood, undermining family life and causing hatred and grudges. Each one of these social ills justifies a very hard punishment for the offence causing it. But the primary reason for it is preserving the humanity of man, protecting the moral standards that have come to be associated with clean sex, furthering the aims of marital life that is intended to last. This is, in my view, the reason that serves all others.

Islam, then, prescribes a very heavy penalty for adultery, but it does not legislate such a penalty without first putting in place sufficient legislation to protect people from falling into such sin. It also ensures that the punishment is not enforced except in cases where there is certainty about the offence and its perpetrators. Islam is a complete code of living that is not based on punishment. Its basis is to provide all that promotes a clean and pure life. If some individuals then abandon this clean and easy life in order to deliberately submerge themselves in filth, they incur such heavy penalties.

When a crime takes place in spite of all these measures, Islam prevents the infliction of the penalty wherever possible. The Prophet says: “Spare Muslims the infliction of mandatory punishments wherever possible. If there is any way out for the accused, let him go unpunished. It is better that the ruler errs on the side of pardon, rather than punishment.” [Related by al-Tirmidhī] In the case of adultery, Islam requires four witnesses to testify that they have seen the offence, or else, a clear and confirmed confession.

It may be suggested, then, that the punishment is unreal and unenforceable, which renders it ineffective as a deterrent. As we have said, punishment is not the basis of the Islamic approach; its basis is prevention, education and cultivating people’s finer feelings and consciences so that they refrain from even contemplating an offence. It only punishes those who are intent on committing the crime, paying little regard to society, so as to be seen by four witnesses. It also inflicts the punishment on those who wish to purify themselves of the effects of the offence after having committed it. In other words, the punishment is applied to those who confess to their offence. This is what happened to Mā`iz and his Ghāmidī consort when they went to the Prophet requesting him to inflict the punishment so as to purify them of their sin. Both were insistent, in spite of the Prophet turning away from them time after time. In fact, they confessed four times each, which left the Prophet no option but to inflict the punishment, for at this point the confession was no longer suspect. The Prophet said: “Spare yourselves mandatory punishments; for when I have established that a sin carrying such a punishment has been committed, the punishment must be done.” [Related by Abū Dāwūd]

Thus, when certainty is established and the matter has been put to the ruler, or judge, the mandatory punishment must be applied, with no compassion shown to the offenders. Such compassion is misplaced, because it is in fact cruel to the community and human morality. God is much more compassionate to His creatures and He has chosen what He knows to serve their interests best. When God decides on a particular case, no believer, whether man or woman, can counter that choice. Nor is it right that anyone should speak out against such punishment, describing it as hard or savage. It is indeed much more compassionate than what awaits a community that allows adultery to spread.

Measures Against False Accusation

Prescribing a very hard punishment for adultery is not sufficient, on its own, to protect the Muslim community and ensure the purity of its atmosphere. Therefore, a supplementary order is given to isolate the adulterers from the rest of the Muslim community. Furthermore, heavy punishment is prescribed for those who accuse chaste women of adultery without providing firm evidence in support of their accusation: As for those who accuse chaste women [of adultery], and cannot produce four witnesses, flog them with eighty stripes; and do not accept their testimony ever after; for they are indeed transgressors. Excepted are those who afterwards repent and make amends; for God is Much-Forgiving, Merciful. (Verses 4-5) Allowing people to accuse chaste women, whether married or not, without clear proof would mean that people could make such accusations without fear of repercussion. This in turn would stain the Muslim community’s reputation. Every individual would feel threatened with false accusations. Every man would suspect his wife, and every wife her husband, and people would begin to doubt their legitimacy. In such an intolerable state of doubt and suspicion, every family would be undermined. Moreover, when such accusations are frequently made, those who steer themselves away from adultery might begin to think that such crime was common in society. They might then begin to see it in a different light, as less ghastly, as a result of such frequent mention. Furthermore, those who would not even have contemplated it at all might even begin to think of doing so, feeling that since many others do it, there is no harm in it.

Thus, in order to protect people’s honour, and to prevent their suffering from suspicion as a result of uncorroborated accusations, the Qur’ān prescribes for false accusation a punishment that almost equals that of adultery. False accusers are to be flogged with 80 stripes each, and their future testimony in any case or situation rejected. Plus they are to be labelled as transgressors. The first part of this punishment is physical, while the second is moral. It is sufficient that the accuser is deprived of the right to testify, and considered an unreliable and unacceptable witness no matter what the case or situation. The third part is religious. The one guilty of false accusation follows a line that deviates from the straight path of faith. The only way out is that the accuser should provide four witnesses who have seen the offence being committed, or three alongside him if he himself has seen it. If the four give such testimony, the accusation is proved and the punishment for adultery is enforced on the perpetrator.

The point at issue here is that the Muslim community does not lose much by suppressing an accusation that cannot be proven. Conversely it loses much more by condoning accusations that cannot be proven. Indeed when such accusations become the subject of casual conversation, they serve to encourage people to do the same, while stopping any discussion of such matters, unless clearly proven, delivers a clear message that adultery, an abominable offence, is rare or even non-existent in society. Moreover, the false accusation of chaste women causes the latter much pain and mental suffering, in addition to its being a means of destroying families and relations.

The punishment meted out to the false accuser continues to hang over his head, even after its administration, unless he genuinely repents: “Excepted are those who afterwards repent and make amends; for God is Much-Forgiving, Merciful.” (Verse 5)

Scholars differ in their understanding of this exception: does it apply only to the last punishment, which means that the accuser is no longer considered a transgressor, but continues nevertheless to be unacceptable as a witness in any situation? Or would he be acceptable as a witness once he has declared his repentance? Mālik, Aĥmad and al-Shāfi`ī are of the view that once he has repented, he is no longer a transgressor. He is again acceptable as a witness. On the other hand, Abū Ĥanīfah maintains that repentance only stops him being considered a transgressor, but he remains unacceptable as a witness. Al-Sha`bī and al-Đahhāk, renowned scholars of the early Islamic period, say that despite his repentance, he is unacceptable as a witness unless he admits that his original accusation was false.

I personally prefer this last view, because it adds to the accuser’s repentance a clear declaration by him that the accused is innocent. In this way, all effects of the accusation are removed. No one can then say that the punishment was inflicted on the accuser because of lack of sufficient supporting evidence. No one who heard the accusation can continue to entertain any thought that its substance was correct, and that it could have been proven if more witnesses were ready to come forward. Thus, the innocent would have their innocence confirmed both socially and legally. This leaves no reason to continue to punish the accuser by refusing his testimony, after he has repented his original action and declared that the accusation he made was false.