Ala-Maududi
(24:9) and a fifth time that the wrath of Allah be on her if the man be truthful (in hisaccusation).[7]
7. These verses were revealed some time after the preceding verses. The law of qazf prescribedthe punishment for the person who accused the other man or woman of zina, and did not producewitnesses to prove his charge, but the question naturally arose, what should a man do if hefinds his own wife involved in zina? If he kills her, he will be guilty of murder andpunishable. If he goes to get witnesses, the offender might escape. If he tries to ignore thematter, he cannot do so for long. He can, of course, divorce the woman, but in this case therewill be no moral or physical punishment either for the woman or her seducer. And if the illicitintercourse results in pregnancy, he will have to suffer the burden of bringing up anotherperson’s child. Initially this question was raised by Saad bin Ubadah as a hypothetical case,who said that if he happened to see such a thing in his own house, he would not go in search ofwitnesses, but would settle the matter there and then with the sword. (Bukhari, Muslim). Butsoon afterwards actual cases were brought before the Prophet (peace be upon him) by the husbandswho were eyewitnesses of this thing. According to traditions related by Abdullah bin Masud andIbn Umar, an Ansar Muslim (probably Uwaimir Ajlani) came to the Prophet (peace be upon him) andsaid: O Messenger of Allah, if a person finds another man with his wife, and utters anaccusation, you will enforce the prescribed punishment of qazf on him; if he commits murder, youwill have him killed; if he keeps quiet, he will remain involved in anguish; then, what shouldhe do? At this the Prophet (peace be upon him) prayed: O Allah, give a solution of this problem.(Muslim, Bukhari, Abu Daud, Ahmad, Nasai). Ibn Abbas has reported that Hilal bin Umayyahpresented the case of his wife whom he had himself witnessed involved in the act of sin. TheProphet (peace be upon him) said: Bring your proof, otherwise you will have the prescribedpunishment of qazf inflicted on you. At this a panic spread among the companions, and Hilaisaid: I swear by Allah Who has sent you as a Prophet that I am speaking the truth. I have seenit with my eyes and heard it with my ears. I am sure Allah will send down a command, which willprotect my back (from the punishment). So, this verse was revealed. (Bukhari, Ahmad, Abu Daud).The legal procedure which has been laid down in this verse is termed as the law of lian.
The details of the cases which the Prophet (peace be upon him) judged in accordance with the lawof lian are found in the books of Hadith and these form the source and basis of this law.
According to the details of Hilai bin Umayyah’s case as reported in sihah-sitta, Musnad Ahmad andTafsir Ibn Jarir, on the authority of Ibn Abbas and Anas bin Malik, both Hilai and his wife werepresented before the Prophet (peace be upon him), who first of all apprised them of the divinelaw, and then said: You should note it well that the punishment of the Hereafter is much severerthan the punishment of this world. Hilai submitted that his charge was absolutely correct. Thewoman denied it. The Prophet (peace be upon him) then said: Let us proceed according to the lawof lian. So, Hilai stood up first and swore oaths according to the Quranic command. The Prophet(peace be upon him) went on reminding them again and again: Allah knows that one of you iscertainly a liar: then, will one of you repent? Before Hilai swore for the fifth time, thepeople who were present there, said to him: Fear God, the punishment of the world is lighterthan of the Hereafter. The fifth oath will make the punishment obligatory on you. But Hilai saidthat God Who had protected his back (from punishment) in this world, will also spare him in theHereafter. After this he swore the fifth oath, too. Then the woman began to swear oaths. Beforeshe swore the fifth oath, she was also stopped and counseled: Fear God, the worldly punishmentis easier to bear than the punishment of the Hereafter. This last oath will make the divinepunishment obligatory on you. Hearing this the woman hesitated a little. The people thought thatshe was going to make the confession. But instead of that she said: I do not want to put my clanto disgrace for ever, and swore for the fifth time, too. At this the Prophet ordered separationbetween them and ruled that her child after birth would be attributed to her and not to the man;that nobody after that would blame her or her child; that anybody who accused either of themwould incur the punishment of qazf and that she had no right left to claim maintenance, etc.from Hilai during her legal waiting period, because she was being separated neither on accountof divorce nor due to the husband’s death. Then the Prophet (peace be upon him) asked the peopleto see whether the child on birth looks after Hilai or the man who was being accused inconnection with the woman. After delivery when it was seen that the child looked after the otherman, the Prophet (peace be upon him) said: If there had been no swearing of the oaths (or ifAllah’s Book had not settled the matter before this), I would have dealt with this woman mostseverely.
The details of the case of Uwaimir Ajlani have been cited in Bukhari, Muslim, Abu Daud, Nasai,Ibn Majah and Musnad Ahmad, on the authority of Sahl bin Saad Saidi and Ibn Umar (may Allah bepleased with them both). According to these, Uwaimir and his wife were both summoned to theProphet’s Mosque. Before proceeding against them in accordance with the law of lian, the Prophet(peace be upon him) warned them thrice, saying: Allah knows well that one of you is a liar;then, will one of you repent? When neither repented, they were told to exercise lian. After thatUwaimir said: O Messenger of Allah, now if I keep this woman, I would be a liar and then hedivorced her thrice there and then even without the Prophet’s (peace be upon him) permission todo so. According to Sahl bin Saad, the Prophet (peace be upon him) enforced the divorce toseparate them, and said: There shall be separation between the husband and the wife if theyexercise lian. This became established as a Sunnah that the couple who swore against each otherwould separate never to marry again. Ibn Umar only says this that the Prophet (peace be uponhim) enforced separation between them. Sahl bin Saad, however, adds that the woman was pregnantand Uwaimir said that it was not due to his seed; so the child was attributed to the mother. Thepractice that thus became established was that such a child would inherit the mother and themother him.
Apart from these two cases, we find several other traditions also in the books of Hadith, whichmay or may not be related to these cases, but some of these traditions mention other cases aswell, which provide important components of the law of lian.
Ibn Umar has reported traditions according to which the Prophet (peace be upon him) orderedseparation between the spouses after lian and ruled that in case of pregnancy the child would beattributed to the mother (sihah Sitta, Ahmad). According to another tradition of Ibn Umar, theProphet (peace be upon him) said to a man and woman after lian: Now your affair is with Allah,in any case one of you is a liar. Then he said to the man: Now she is not yours, you have noright on her, nor can you treat her vindictively in any way. The man requested to have my dowryreturned. The Prophet (peace be upon him) said: You have no right to have the dowry back. If youare true in your accusation, the dowry is the price of the pleasure you had from her when shewas lawful to you; and if your accusation is false, the dowry has receded farther away from youthan it is from her. (Bukhari, Muslim, Abu Daud).
Daraqutni has quoted Ali bin Abi Talib and Ibn Masud (may Allah be pleased with them both) assaying: The Sunnah that has become established is that the spouses who have exercised lianagainst each other, can never re-unite in marriage. Again Daraqutni has quoted Abdullah binAbbas as saying: The Prophet (peace be upon him) himself has ruled that the two can neverre-unite in wedlock.
Qabisah bin Zuaib has reported that a man in the time of Umar alleged that his wife was pregnantby illicit intercourse, then admitted that it was by his own seed, but after delivery againdenied that the child was his. The case was brought to the court of Umar, who enforced theprescribed punishment of qazf on the man and ruled that the child would be attributed to him.(Daraqutni, Baihaqi).
Ibn Abbas has reported that a man came to the Prophet (peace be upon him) and said: I have a wifefor whom I have great love; but her weakness is that she does not mind if the other man touchesher. (By this he might have meant zina or a lesser moral evil). The Prophet (peace be upon him)replied: You may divorce her. The man said: But I cannot live without her. Thereupon the Prophet(peace be upon him) said: Then you should pull on with her. The Prophet (peace be upon him) didnot ask the man for any explanation, nor took his complaint as an accusation of zina, norapplied the law of lian. (Nasai).
Abu Hurairah has narrated the case of a beduin who came to the Prophet (peace be upon him) andsaid that his wife had given birth to a dark-coloured son and he was doubtful that it was his.(That is, the child’s color had caused him the suspicion, otherwise there was no ground with himto accuse her of zina). The Prophet (peace be upon him) asked him: Do you have any camels? Theman replied in the affirmative. The Prophet (peace be upon him) then asked, What is their color?He said they were red. The Prophet (peace be upon him) said: Is any of them grey also? He said:Yes, some are gray also. The Prophet (peace be upon him) asked: What caused that color? He said:Might be due to some ancestor of theirs. The Prophet (peace be upon him) replied: The same mightbe the cause for your child’s color. And he did not allow him to doubt and deny the child’sfatherhood. (Bukhari, Muslim, Ahmad, Abu Daud).
According to another tradition of Abu Hurairah, explaining the verse of lian the Prophet (peacebe upon him) said: The woman who brings a child into a family which does not actually belong toit (i.e. marries a man of the family with illicit pregnancy), has no relation with Allah. Allahwill never admit her into Paradise. Similarly, the man who denies the fatherhood of his child,whereas the child looks up towards him, will never see Allah on the Day of Judgment, and Allahwill put him to disgrace in front of all mankind. (Abu Daud, Nasai, Darimi).
Thus, the verse of lian, the traditions of the Prophet (peace be upon him), the precedents andthe general principles of the Shariah together form the basis of the law of lian, which thejurists have formulated a complete code with the following main clauses.
(1) There is a difference of opinion about the man who sees his wife involved in zina withanother man and kills him instead of having recourse to lian. One group holds that he will beput to death because he had no right to take the law in his own hand and enforce the punishment.The other group says that he will not be put to death nor will he be held accountable for hisact in any way provided that it is confirmed that he killed the man (adulterer) on account ofzina and nothing else. Imam Ahmad and Ishaq bin Rahaviyah maintain that the man will have toproduce two witnesses to confirm that he killed the adulterer only on account of zina. Ibnal-Qasim and Ibn Habib, from among the Malikis, attach an additional condition that the murderedperson should be a married man; otherwise the murderer will be made subject to the law ofretaliation for killing an unmarried adulterer. But the majority of jurists are of the opinionthat the man will be exonerated from retaliation only when he produces four witnesses toestablish zina, or if the murdered person himself confesses before death that he committed zinawith the wife of the murderer, and if it is also confirmed that the murdered person was amarried man. (Nail al-Autar, vol. IV, p. 228).
(2) The law of lian cannot be applied mutually at home, but in a court of law in front of thejudge.
(3) Exercise of lian is not the sole right of the man; the woman also has a right to demand it ina court of law if her husband accuses her of zina, or denies fatherhood of her child.
(4) There is a difference of opinion among the jurists as to whether lian can be resorted tobetween any husband and his wife, or whether they have to satisfy certain conditions. ImamShafai holds that only that husband whose oath is legally reliable and who can exercise theright of divorce, can swear the oaths of lian. In other words, sanity and maturity according tohim, are the sufficient conditions which entitle a husband to exercise lian no matter whetherthe spouses are Muslim or non-Muslim, slave or free, and whether their evidence is acceptable ornot, and whether the Muslim husband has a Muslim or a zimmi wife. Imam Malik and Imam Ahmad havealso given almost the same opinion. But the Hanafis maintain that lian can be exercised only byfree Muslim spouses, who should not have been convicted of qazf previously. If both husband andwife are non Muslim, or slaves, or convicted of qazf previously, they cannot exercise lianagainst each other. Further more, if the woman was ever found guilty of an illicit or doubtfulrelationship with another man, exercise of lian will not be valid. The Hanafis have imposedthese conditions, because according to them, there is no other difference between lian and qazfthan this: the other man commits qazf, he is given the prescribed punishment, but if the husbandhimself commits it, he can escape the punishment by exercising lian. In all other respects, lianand qazf are identical. Moreover, since according to the Hanafis, the oaths of lian are in thenature of evidence, they do not concede this right to a person who is not legally fit to giveevidence. But the truth is that in this matter the position of the Hanafis is weak, and theopinion of Imam Shafai is correct, because the Quran has not made the accusation of the wife acomponent part of the verse of qazf, but has prescribed a separate law for it. Therefore, itcannot be linked with the law of qazf and treated under the conditions prescribed for qazf.Then, the wording of the verse of lian is different from the wording of the verse of qazf andthe two lay down separate injunctions. Therefore, the law of lian should be derived from theverse of lian and not from the verse of qazf. For instance, according to the verse of qazf, theperson who accuses chaste women (muhsanat) of zina, deserves to be punished. But in the verse oflian, there is no condition of the chastity of the wife. A woman might have committed sins inlife, but if she repents later on and marries somebody, the husband is not authorised by theverse of lian to accuse her unjustly whenever he likes, and to deny fatherhood of her childrensimply because she had once lived in sin. The other equally important reason is that there is aworld of difference between accusing a wife and accusing the other woman. The law cannot treatthe two alike. A man has nothing to do with the other woman. He is neither attached to heremotionally, nor his honor, nor his family relations and rights are at stake, nor his lineage.The only meaningful interest he can have in the woman’s character can be his desire to see amorally pure and clean society. Contrary to this, his relationship with his wife is deep and ofvaried nature. She is the custodian of the purity of his race, of his property and his house;she is his life partner, sharer of his secrets, and with her he is attached in most delicate anddeep feelings. If she is morally corrupt, it will deal a serious blow to his honor, hisinterests and his progeny. These two things, therefore, cannot be considered alike, and the lawcannot treat them as equal to each other. Is an evil affair of the wife of a zimmi, or a slave,or a convicted husband in any way different, or less serious, in consequences than that of thewife of a free, mature and sound Muslim? If the husband himself sees his wife involved in zinawith another person, or has reasons to believe that his wife is pregnant by illicit intercourse,how can he be denied the right of lian? And if he is denied this right, what else is there inour law which can help him out of his awkward situation? The intention of the Quran seems to beto open a way out of a difficult situation for married couples in which a husband may findhimself placed due to the wife’s immorality or illicit pregnancy, or a wife due to the husband’sfalse accusation or unjustified denial of the fatherhood of her child. This is not particularlythe need of the free and sound Muslims alone; there is in fact nothing in the Quranic text whichmay confine it to them only. As for the argument that the Quran has described the oaths of lianas evidence (shahadat), and therefore the conditions of evidence will apply here, the logicalimplication would be that in case a righteous and just husband whose evidence is acceptable,takes the necessary oaths, and the wife declines to take the oaths, she would have to be stonedto death, because her immorality would thus become established. But it is strange that in thiscase the Hanafis do not recommend stoning. This is a clear proof of the fact that they too donot regard the oaths as exactly identical with evidence. The truth is that though the Qurandescribes the oaths of lian as evidence, it does not regard them as evidence in the technicalsense, otherwise it would have required the woman to swear eight oaths and not four.
(5) Lian is not necessitated by an allusion or expression of doubt or suspicion, but only whenthe husband accuses his wife clearly of zina, or denies in plain words that the child is his.Imam Malik and Laith bin Saad impose an additional condition that the husband while exercisinglian must say that he has himself seen his wife involved in zina. But this is an unnecessaryrestriction which has no basis whatever in the Quran and Hadith.
(6) If after accusing his wife, the husband declines to swear the oaths, the verdict of Imam AbuHanifah and his companions is that he will be imprisoned and shall not be released until heexercises lian or confesses the falsehood of his accusation, in which case he will be awardedthe prescribed punishment of qazf. On the contrary, Imam Malik, Shafai, Hasan bin Saleh andLaith bin Saad express the opinion that refusal to exercise lian itself amounts to confessingone’s being a liar, which makes the prescribed punishment of qazf obligatory.
(7) If after the swearing of oaths by the husband, the wife declines to take the oaths, theHanafis give the opinion that she should be imprisoned and should not be released until sheexercises lian, or else confesses her guilt of zina. On the contrary, the other Imams (asmentioned in clause 6 above) say that in this case she will be stoned to death. They base theirargument on the Quranic injunction: “it shall avert the punishment from her if she swears fourtimes by Allah,” Now that she declines to swear the oaths, she inevitably deserves thepunishment. But the weakness in this argument is that the Quran does not specify here the natureof punishment; it simply mentions punishment. If it is argued that punishment here means thepunishment of zina only, the answer is that for the punishment of zina the Quran has imposed thecondition of four witnesses in clear words, and this condition cannot be fulfilled by four oathssworn by one person. The husband’s oaths can suffice for him to escape the punishment of qazfand for the wife to face the injunction of lian, but they are not enough to prove the charge ofzina against her. The woman’s refusal to swear the oaths in self-defense certainly creates asuspicion, and a strong suspicion indeed, but a prescribed punishment cannot be enforced on thebasis of suspicions. This thing cannot be considered as analogous with the prescribed punishmentof qazf for the man, because his qazf is established, and that is why he is made to exerciselian. But contrary to this, the woman’s guilt of zina is not established unless she herselfmakes a confession of it or four eyewitnesses are produced to prove it.
(8) If the woman is pregnant at the time of lian, according to Imam Ahmad, lian itself sufficesto absolve the husband from the responsibility for pregnancy whether he has denied accepting itor not. Imam Shafai, however, says that accusation of zina by the husband and his refusal toaccept responsibility for pregnancy are not one and the same thing. Therefore, unless thehusband categorically refuses to accept the responsibility for pregnancy, he will be consideredas responsible for it in spite of the accusation of zina by him, because the woman’s beingadulterous does not necessarily mean that her pregnancy is also due to zina.
(9) Imam Malik, Imam Shafai and Imam Ahmad concede the husband’s right to deny responsibility forpregnancy during pregnancy, and allow him the right of lian on that basis. But Imam Abu Hanifahsays that if the basis for the man’s accusation is not zina, but only this that he has foundpregnancy in the woman when it could not possibly be due to him, exercise of lian should bedeferred until after delivery because sometimes symptoms of pregnancy appear due to some diseaseand not actual pregnancy.
(10) If a husband denies fatherhood of a child, there is a consensus that lian becomes necessaryThere is also a consensus that after he has accepted e child once (whether it is in clear wordsor by implication, e.g. by receiving congratulatory messages on its birth, or by treating itlovingly like one’s own child and taking due interest in its bringing up), he loses his right todeny him later, and if he does so, he makes himself liable to the prescribed punishment of qazf.
There is, however, a difference of opinion as to how long the father retains a right to denyfatherhood of the child. According to Imam Malik, if the husband was present at home while thewife was pregnant, he can deny the responsibility from the time of pregnancy till the time ofdelivery; after that he will have no right. However, if he was away from home and delivery tookplace in his absence, he can deny the child’s fatherhood as soon as it comes to his knowledge.According to Imam Abu Hanifah, if he denies within a day or two of the child’s birth, he will beabsolved from the responsibility of the child after exercising lian, but if he denies after ayear or two, lian will be valid, but he will not be absolved from the responsibility of thechild. According to Imam Abu Yusuf, the father has the right to deny fatherhood within 40 daysof the child’s birth or knowledge of its birth; after that he will have no right. But thisrestriction of 40 days is meaningless. The correct view is that of Imam Abu Hanifah thatfatherhood can be denied within a day or two of the child’s birth or knowledge of its birth,unless one is hindered from doing so due to a sound and genuine reason.
(11) If a husband accuses a divorced wife of zina, according to Imam Abu Hanifah, this will be acase of qazf and not of lian. Lian can be resorted to between the spouses and cannot be extendedto a divorced woman unless it is a retractable divorce and the accusation is made within theperiod of retraction. But Imam Malik holds that this will be qazf only if it does not involvethe question of accepting or denying the responsibility of pregnancy or fatherhood of the child.If it is not that, the man has the right to exercise lian even after pronouncing the finaldivorce, because in that case he would not be having recourse to lian for the purposes ofbringing infamy on the woman but to absolve himself from the responsibility of the child who, hebelieves, is not his. The same almost is the opinion of Imam Shafai.
(12) There is a complete consensus of opinion in respect of certain legal implications of lian,but certain others have been disputed by the jurists. The agreed ones are the following. Neitherthe woman nor the man is liable to punishment. If the man denies fatherhood of the child, itwill be attributed to the mother alone; it will neither be attributed to the father nor willinherit him; the child will inherit the mother and the mother him. Thereafter nobody will havethe right to call the woman adulterous nor the child illegitimate, whether the people might becompletely sure of her being adulterous under the circumstances at the time of lian. Any personwho repeats the old charge against the woman or her child, will make himself liable to thepunishment of qazf. The woman’s dowry will remain intact, but she will not be entitled to claimmaintenance, etc. from the man, and she will become forbidden to him forever. There is, however,a difference of opinion in respect of two things.
(a) After lian how will separation be effected between the husband and the wife?
(b) Is it possible for them to re-unite in marriage after they have been separated on account oflian?
As regards to the first question, Imam Shafai holds the opinion that as soon as a man hasexercised his lian, the woman stands automatically separated whether she refutes the man’scharge by her lian or not. Imam Malik, Laith bin Saad and Zufar maintain that separation iseffected when both a man and a woman have exercised their lian one after the other. Imam AbuHanifah, Abu Yusuf and Muhammad hold that separation does not take place automatically afterlian, but it is affected by the judge. If the husband pronounces divorce, it takes effectotherwise the judge will announce their separation.
Regarding the second, question, the opinion of Imam Malik, Abu Yusuf, Zufar, Sufyan Thauri, Ishaqbin Rahaviyah, Shafai, Ahmad bin Hanbal and Hasan bin Zaid is that the spouses who have beenseparated due to lian are forbidden to each other forever. Even if they wish to remarry, theycannot do so in any case. The same is the opinion also of Umar, Ali and Abdullah bin Masud.Contrary to this, Said bin Musayyab, Ibrahim Nakhai, Shabi, Said bin Jubair, Abu Hanifah andMuhammad (may Allah be pleased with them all) opine that if the husband confesses his lie, andhe is awarded the prescribed punishment for qazf, the two can re-unite in marriage. They arguethat it is lian which makes them unlawful for each other. As long as they stand by their lian,they will remain forbidden for each other, but when the husband confesses his lie and receivesthe punishment, lian will become null and void and so will their prohibition to marry each otheragain.