الزاني لا ينكح إلا زانية أو مشركة والزانية لا ينكحها إلا زان (24:3) بالانجليزي

(24:3) A man guilty of adultery (or fornication) shall not marry any but the woman guilty of the same or a mushrik woman, and none shall marry a woman guilty of adultery (or fornication) but the man guilty of the same or a mushrik man: such marriages are forbidden to true believers. *5

Tafseer Abu-al-A'la Maududi

Page 350 English Traditional

*5) That is, only an adulterous woman is a fit match for an adulterous man who has not repented, or an idolatrous woman. No believing, virtuous woman can be a match for hull. It is forbidden for the Believers that they should give their daughters in marriage to such wicked people knowing them to be so. Similarly the tit match for adulterous women (who have not repented) can only be adulterous or idolatrous men; they are not fit for any righteous Believer. It is forbidden for the Believers that they should marry women who are known to possess immoral character. This thing applies to those men and women who persist in their evil ways, and not to those who repent and reform themselves, for after repentance and reformation they will no longer be regarded as "adulterous."
According to Imam Ahmad bin Hanbal, the prohibition of marriage with an adulterous man implies that such a marriage, if contracted, will have no legal effect. But this view is not correct. Prohibition does not have any legal implications. It cannot mean that if a person violates this prohibition, the marriage will be void, and the parties concerned will be involved in zina in spite of marriage. For the Holy Prophet has stated: "The unlawful does not make the lawful unlawful." (Tabarani, Daraqutni). In other words, an illegal act does not make a legal act also illegal. Therefore, if a person commits zina and then marries, his conjugal relations with his spouse cannot be considered as zina, because in that case the other party of the marriage contract who is not immoral, will also have to be considered as involved in zina. As a rule, no illegal act except open rebellion can cause the one guilty of it to be declared an outlaw, so that no act of his can be regarded legal after that. If the verse is considered in this light the plain meaning would be this: It is a sin to select such persons for marriage as are known to be unmoral. The Believers should shun them, otherwise they will feel encouraged, whereas the Shari ah intends to segregate them as the undesirable and contemptible element of society.
Similarly this verse dces not validate the marriage of an adulterous Muslim with an idolatrous woman and of an adulterous Muslim woman with an idolatrous man. The verse simply means to emphasize the act of zina, and declares that the person who commits it being a Muslim, makes himself unfit for contracting a marriage in the pure and pious Muslim society. He should either stripes so that he does not utter such a slander in future. Even if the accuser is an eye-witness of an immoral act, he should keep the secret and let the filth remain where it is instead of causing it to spread. However, if he has witnesses, he should abstain from publicising the matter in society but should bring the case to the notice of the authorities and get the criminals duly punished by the court of law. Below we give the details of the law in serial order:
(1) The context in which the words wallazina yarmun-al-muhsanat (those who charge chaste women with false accusation) occur clearly shows that it does not imply any common sort of accusation but specifically the accusation of zina against the chastity of pure women. Then the demand from the accusers to produce four witnesses in support of their accusation also shows that it relates to zina, for in the entire Islamic Law producing four witnesses is the legal requirement only in a case zina and in no other matter. The scholars are, therefore, agreed that this verse describes the law relating to the accusation of zina, which has been termed qazf for convenience so that this law is not extended to cover cases of other accusations like that of theft, drinking, taking of interest, etc. Apart from qazf, the question of determining punishments for other allegations can be left to the discretion of the judge, or to the consultative council of the Islamic state, who can make general laws to cover cases of contempt and defamation as and when required
(2) Though the verse only mentions al-muhsanat (pure and chaste women), the jurists are agreed that the law is not confined to the accusation in respect of women, but it extends to the accusation in respect of chaste men also. Likewise, though the masculine gender has been used for the accusers, the law is not confined to male accusers only but extends to female accusers as well. For as regards the gravity and wickedness of the crime, it does not make any difference whether the accuser or the accused is a man or a woman. Therefore in either case, the man or accuser or the woman accusing a virtuous and chaste man or woman of zina, will be dealt with under this law.
(3) This law can be applied only in a case where the accuser has accused a muhsan or muhsanah, i.e., "a morally fortified" man or woman. In case the accused is not "morally fortified", the law cannot be applied. if a person who is not "morally fortified" is known for his immorality, there will be no question of the "accusation", but if he is not, the judge can use his discretion to award a punishment to the accuser, or the consultative council can make necessary laws to deal with such cases.
(4) For an act of qazi to be considered as punishable, it is not enough that somebody has accused somebody else of immorality without a proof, but there are certain conditions which have to be fulfilled in respect of the qazif(accuser), maqzuf(the accused) and the act of qazf itself.

As for the qazif, he should satisfy the following conditions:
(a) He should be an adult: if a minor commits the crime of qazf he can be given a discretionary punishment but not the prescribed punishment.
(b) He should possess normal common sense: an insane and mentally abnormal person cannot be given the prescribed punishment; similarly, a person under the influence of an intoxicant, other than a forbidden intoxicant, e.g., chloroform, cannot be considered as guilty of qazi.
(c) He should have committed qazf out of his own free will or choice, and not under duress,
(d) He should not be the father or grandfather of maqzuf(the accused), for they cannot be given the prescribed punishment.
According to the Hanafis, the fifth condition is that the accuser should not be drunk, because the person who only gesticulates cannot be held guilty of qazi. But Imam Shafi`i disputes this. He says that if the gesticulation of the drunk person is clear and unambiguous by which everybody can understand what he wants to say, he will be considered as a qazif, because his gesticulation is no less harmful to defame a person than the word of mouth. On the contrary, the Hanafis do not hold mere gesticulation as a strong enough ground for awarding the prescribed punishment of 80 stripes; they, therefore, recommend a discretionary punishment for it.

The conditions to be satisfied by maqzuf(the accused) are as follows:
(a) He should be possessing normal common sense, i.e., he should be accused of having committed zina while in the normal state of mind; the accuser of an insane person (who might or might not have become sane later) cannot be held guilty of qazf, for the insane person cannot possibly safeguard his chastity fully; and even if the evidence of zina is established against him, he will neither become deserving of the prescribed punishment nor incur personal defamation; therefore, the one accusing him also should not be held as deserving of the prescribed punishment of qazf. However, Imam Malik and Imam Laith bin Sa`d hold that the qazif of an insane person deserves to be awarded the prescribed punishment of qazf, because he is accusing another person of zina without a proof thereof.
(b) He should be an adult, i.e., he should be accused of having committed zina while being of full age legally; accusing a minor, or a grown up person that he committed zina when a minor, dces not deserve the " prescribed punishment, for, like an insane person, a child also cannot fully safeguard his honour and chastity. However, according to Imam Malik, if a boy approaching the age of majority is accused of zina, the accuser will not deserve the prescribed punishment, but if a girl of that age is accused of having submitted herself for zina, when sexual intercourse with her is possible, her qazif will deserve the prescribed punishment, for the accusation defames not only the girl's family but ruins the girl's future as well.
(c) He should be a Muslim, i.e., he should be accused of having committed zina while in Islam. Accusing a non-Muslim, or a Muslim that he committed zina when a non-Muslim, does not entail the prescribed punishment.
(d) He should be free; accusing a slave or a slave-girl, or a free person that he committed zina when a slave, does not call for the prescribed punishment, for the helplessness and weakness of the slave can hinder him from safeguarding his honour and chastity. The Qur'an itself has considered the state of slavery as excluded from the state of ihsan (moral fortification). (IV: 25). But Da'ud Dhahiri does not concede this argument; he holds that the qazif of the slave or slave-girl also deserves the prescribed punishment of qazf.
(e) He should possess a pure and blameless character, i.e., he himself should be free from zina proper and everything resembling therewith, This means that he should neither have been held guilty of zina in the past, nor should have had sexual intercourse in an illegal marriage, nor with a slave girl who was not clearly in his possession legally, nor with a woman whom he mistook for his wife. His day to day life should be such that nobody could accuse him of immorality, nor he should have been held guilty of lesser crimes than zina before. In all such cases the moral purity of the person falls into disrepute, and the accuser of such a person cannot deserve the prescribed punishment of 80 stripes. So much so that if the guilt of zina against an accused person is proved on the basis of evidence just before the enforcement of the prescribed punishment on an accuser, the latter will be forgiven; because the former is no longer chaste and morally pure.
Though the prescribed punishment cannot be enforced in any of these five cases it does not, however, mean that a person who accuses an insane person or a minor or a non-Muslim, or a slave, or an unchaste person of zina without proof, does not even deserve a discretionary punishment.
Now let us consider the conditions which must be found in the act of qazf itself An accusation will be considered as qazf, if either an accuser accuses a person of such a sexual act which, if proved to be correct by necessary evidence, would make the accused liable to the prescribed punishment, or the accuser holds the accused as of illegitimate birth. But in either case the accusation must be unambiguous and in clear terms; vague references in which the accusation of zina or illegitimacy depends upon the accuser's intention, are not reliable. For instance, using words like adulterer, sinner, wicked, immoral, etc. for a man, and prostitute, harlot, whore, etc. for a woman is only a reference and not qazf. Similarly, words which are used as an abuse like bastard, etc. cannot be regarded as qazf. There is, however, a difference of opinion among the jurists whether an allusion is also gazf or not. According to Imam Malik, if the allusion is clear and is meant to charge the addressee of zina or hold him as of illegitimate birth, it will be qazf, and the qazif will be liable to the prescribed punishment. But Imam Abu Hanifah and his companions and Imam Shafi`i, Sufyan Thauri, Ibn Shubrumah, and Hasan bin Saleh hold the view that an allusion is in any way ambiguous and doubtful, and wherever there is doubt, prescribed punishment cannot be awarded. Imam Ahmad and Ishaq bin Rahaviyah maintain that if an allusion is made in the heat of a quarrel or fight, it is qazf, but if in sport and fun, it is not. Hadrat `Umar and Hadrat `Ali, from among the Caliphs, awarded the prescribed punishment in cases of allusion. In the time of Hadrat `Umar, one of the two men, who were involved in a brawl, said to the other, "Neither was my father an adulterer nor was my mother an adulteress." The case was brought before Hadrat `Umar. He asked those present there what they understood by the remark. Some said that the man had only praised his parents and had notb imputed anything to the other man's parents. Others objected to the use of the words and said that by these he had clearly alluded that the other man's parents were adulterous. Hadrat `Umar concurred with the latter and awarded the prescribed punishment. (Al-Jassas, vol. III, p. 330). There is also a difference of opinion as to whether accusing somebody of sodomy is qazf or not. lmam Abu Hanifah dces not regard it qazf but Imam Abu Yusuf, Imam Muhammad; Imam Malik and Imam Shafi`i hold it as qazf and recommend the prescribed punishment for it.
(5) There is a difference of opinion among the jurists as to whether qazf is a cognizable offence or not. Ibn Abi Laila says that this is the right of Allah; therefore, the qazif will be awarded the prescribed punishment whether maqzuf (the accused) demands it or not. Imam Abu Hanifah and his companions hold that it is certainly a right of Allah in so far as the enforcement of the prescribed punishment on the establishment of the offence is concerned, but in so far as the trial of the accuser under the law is concerned, it depends on the demand of the accused, and in this respect it is the right of man. The same is the opinion of Imam Shafi`i, and Imam Auza'i. According to Imam Malik, if the offence of gazf is committed in the presence of the ruler, it is a cognizable offence, otherwise legal action against the accuser will depend on the demand of the accused
(6) Qazf is not a compoundable offence. If the accused does not bring the case to the court, it will be a different thing; but when the case is brought to the court, the accuser will be pressed to prove his accusation, and if he fails to prove it, he will be awarded the prescribed punishment. The court then cannot pardon him nor the accused himself, nor the matter can be settled by making monetary compensation, nor the accuser can escape punishment by offering repentance or apology. The Holy Prophet has instructed: "Forgive among yourselves offences that deserve the prescribed punishment, but when a case is brought before me, the punishment will become obligatory."
(7) According to the Hanafis, the demand for the prescribed punishment of qazf call either be made by the accused, or, if the accused is not there, by the one whose lineage suffers the stigma, e.g., the father, mother, children. and the children's children. But according to Imam Malik and Imam Shafi`i, this right is inherited. If the accused dies, each one of his legal heirs can make the demand for the prescribed punishment. It is, however, strange that Imam Shafi'i excludes the husband and the wife from this right on the ground that their marriage bond breaks with death, and the accusation against one spouse dces not affect the lineage of the other. The fact is that both these arguments are weak. When it is conceded that the right to demand the prescribed punishment for qazf is inheritable, it will be against the Qur'an to exclude the husband and the wife from the exercise of this right on the ground that their marriage bond breaks with death, because the Qur'an itself has declared each of them as an heir on the death of the other. As for the argument that the accusation against one dces not affect the lineage of the other, it may be correct in the case of the husband but it is absolutely wrong in the case of the wife; the man whose wife is accused of zina has the lineage of his children automatically rendered doubtful. Moreover, it is not correct to think that the punishment for qazf has been prescribed only to protect the lineage of the people; honour along with lineage is equally important. Thus, it is no less damaging for a gentleman or a lady that his wife or her husband is accused of zina. Therefore, if the right to demand the prescribed punishment for qazf be inheritable there is no reason why the husband and the wife should be debarred from exercising that right.
(8) After it has been established that a person has committed qazf, the only thing that can save him from the prescribed punishment is that he should produce four witnesses who should give evidence in the court that they have seen the accused committing zina practically with such and such a man or woman. According to the Hanafis, all the four witnesses should appear at one and the same time in the court and they should give evidence all together. For if they appear one after the other, each one of them will become a qazf, and will need four witnesses to support him. But this is a weak argument. The correct position is the one adopted by Imam Shafi`i and `Uthman al-Bani, that it is immaterial whether the witnesses appear all together or come one after the other; it is rather better that as in other cases the witnesses should come one after the other and give evidence. The Hanafis hold that it is not necessary that the witnesses should be righteous; even if the qazif produces four immoral persons as witnesses, he will escape the prescribed punishment of qazf, and the accused also the prescribed punishment of zina, because the witnesses are not righteous. However, if the qazif produces witnesses who are unbelieving, or blind, or slave, or those already convicted of qazf, he will not escape the punishment. Imam Shafi`i holds that if the qzif produces witnesses who are immoral, he and his witnesses, all will become liable to the prescribed punishment, and the same is the opinion of Imam Malik. But the view of the Hanafis in this matter appears to be nearer the truth. According to them, if the witnesses are righteous, the qazif will be acquitted of the charge of qazf, and the crime of zina will become established against the accused. But if the witnesses are not righteous, the qazif's crime of qazf, the maqzuf's crime of zina and the evidence of the witnesses will all stand doubtful, and none will be held liable to punishment on account of the element of doubt.
(9) The Qur'an has given three Commandments in respect of the person who fails to produce proper evidence which can cause his acquittal of the crime of qazf,
(a) He should be awarded 80 stripes,
(b) His evidence should not be accepted in future,
(c) He himself is a transgressor. After this the Qur'an says:
" .... except those who repent of it and mend their ways; Allah is Forgiving and Merciful."
The question arises: To which of these three Commands is the forgiveness due to repentance and reformation as mentioned in the verse related? The jurists are agreed that it is not related to the first Command. That is, repentance will not render the punishment null and void, and the criminal will be given flogging in any case. The jurists are also agreed that the forgiveness is related to the third Command, which means that after repentance and reformation the criminal will no longer be a sinner and Allah will forgive him. (Here the difference of opinion is Only in this matter whether the criminal becomes a sinner due to the crime of qazf itself, or after his conviction by the court. Imam Shafi`i and Laith bin Sa`d hold that he becomes a sinner due to the crime of qazf itself, and therefore, they reject his evidence thenceforth. On the contrary, lmam Abu Hanifah, his companions and lmam Malik maintain that he becomes a sinner after the enforcement of the sentence; therefore, till the enforcement of the sentence his evidence will be acceptable. But the truth is that in the sight of Allah the criminal becomes a sinner as a result of the crime of qazf itself, but for the people his being a sinner depends on his conviction by the court and the enforcement of the punishment on him). Now as far as the second Command, viz. "The evidence of qazif should not be accepted in future", is concerned, there has been a great difference of opinion among the jurists as to whether the sentence ". .. except those who repent. ." is related to this or not. One group says that this sentence is related only to the last Command. That is, a person who repents and mends his ways, will no longer be a sinner in the sight of Allah and the common Muslims, but the first two Commands will remain effective, i.e. the sentence will be enforced on him and his evidence will never be accepted in future. To this group belong eminent jurists like Qazi Shuraih, Said bin Musayyab, Said bin Jubair, Hasan Basri, Ibrahim Nakha`i Ibn Sirin, Makhul, `Abdur Rahman bin Zaid, Abu Hanifah, Abu Yusuf, Zufar, Muhammad, Sufyan _Thauri, and Hasan bin Saleh. The other group says that the clause... except those who repent . .." is not related to the first Command but is related to the other two. That is, after repentance, not only will the evidence of the offender who has been punished for qazf be acceptable, but he wilt also not be regarded as a sinner. This group comprises jurists of the status of `Ata', Ta'us, Mujahid, Sha`bi, Qasim bin Muhammad, Salim, Zuhri, `Ikrimah, `Umar bin `Abdul `Aziz, Ibn Abi Nujaih, Sideman bin Yasar, Masruq, Zahhak, Malik bin Anas, `Uthman al-Batti, Laith bin Sa`d, Shafi`i, Ahmad bin Hanbal and Ibn Jarir Tabari. Among other arguments, these scholars cite the verdict of Hadrat `Umar which he gave in the case of Mughirah bin Shu`bah. For, according to some traditions, after enforcing the punishment, Hadrat `Umar said to Abu Bakrah and his two companions: "If you repent (or confess your lie), I shall accept your evidence in future, otherwise not." His companions confessed but not Abu Bakrah. On the face of it, it appears to be a strong argument. But from the details given above of Mughirah bin Shu`bah's case, it would become obvious that it is not correct to cite this precedent in support of this view. For in that case, there was complete unanimity as far as the act (of sexual intercourse) was concerned and Mughirah bin Shu`bah himself did not deny it. The point of dispute was the identity of the woman. Mughirah said that she was his own wife, whom the accusers had mistaken for Umm Jamil. Then it had also been established that the wife of Hadrat Mughirah and Umm Jamil resembled with each other to a degree that from the distance and in the kind of light that they were seen, the former could Be mistaken for the latter. But the circumstantial evidence was wholly in favour of Mughirah bin Shu'bah, and a witness of the case also had admitted that the woman was not clearly visible. That is why Hadrat `Umar decided the case in favour of Mughirah bin Shu`bah, and after punishing Abu Bakrah, said the words as mentioned in the above-quoted traditions. This clearly shows that the real intention of Hadrat 'Umar was to impress on the accusers that they should confess that they had given way to undue suspicion and that they should repent of accusing people on the basis of such suspicions in future, otherwise their evidence would never be accepted. From this it cannot be concluded that in the eyes of Hadrat 'Umar the evidence of a person whose falsehood had been established, could become acceptable just after he had repented. The truth is that in this matter the view of the former group is more sound. None except AIIah can know whether a person has repented sincerely or not. If a person repents before us, we may not consider him as a transgressor afterwards, but once his falsehood has been established, we cannot afford to trust him in future simply because he has uttered repentance. Moreover, the words in the Text themselves indicate that except those who repent . .. " is related only to ". .. they themselves are transgressors" . The reason is that the first two things, in the sentence ---" flog them with eighty stripes, and never accept their evidence afterwards"--have been given in the imperative form, while the third thing-- "they themselves are transgressors"-is a predicate. Then the clause"... except those who repent ..." just after the predicate itself indicates that the exception relates to the predicate and not to the two imperative sentences. Nevertheless, if it is conceded that the exception is not confined to the last sentence, one dces not understand why it should be made to apply to "never accept their evidence" only and not extended to "flog them with eighty stripes" also.
(10) A question may be asked: Why should not the exception in "... .except those who repent...." be made applicable to the first Command also? Qazf after aII is a sort of defamation. Why should not a person who confesses his guilt, apologizes and repents, be let off, when Allah Himself says: "... except those who repent and trend their ways; Allah is Forgiving and Merciful. " It will be strange that Allah forgives while the people do not forgive. The answer is that the act of Taubah (repentance) is not merely uttering the word Taubah with the tongue; it lather implies having a feeling of regrets, a resolve to reform and an inclination to do right; and this can only be known to Allah whether a person has repented sincerely or not. That is why on repentance worldly punishments are not forgiven but only punishments of the Hereafter; and that is why, Allah dces not say that if the offenders repent, they thay be forgiven, but says: "For those who repent, Allah is Forgiving and Merciful." If the worldly punishments are also excused on repentance, there will be no offender who will not offer repentance in order to escape his sentence.
(11) Another side of the question is that if a person cannot produce witnesses in support of his accusation, it may not necessarily mean that he is a liar. Is it not possible that he be true in his accusation, yet he may fail to produce evidence? Then, how is it that he should be condemned as a sinner on account of his failure to produce witnesses not only by the people but also by Allah ? The answer is that even if a person is an eye-witness to the immorality committed by an other person, he will be considered as a sinner for publicising the act and accusing the offender without necessary evidence. The Divine Law does not want that if a person gets polluted in filth in a private place, the other person should start spreading the filth in the .whole society. If he has any knowledge of the presence of the filth, there are two ways open for him: either he should let it remain where it is, or he should produce a proof of its existence, so that the officials of the Islamic State should cleanse it. There is no third way for him. If he publicises it, he will be committing the crime of spreading the filth everywhere; and if he brings the matter to the notice of the officials without satisfactory evidence, they will not be able to deal with it effectively. The result will be that the failure of the case will become a means of spreading the filth and encouraging the wicked element of society. Therefore, the one who commits qazf without necessary proof and evidence, will in any case be a sinner even if he be we in his accusation.
(12) The Hanafi jurists hold that the qazif should be given a lighter punishment than the one who is convicted of zina. That is, he. should be given eighty stripes but flogging should be less intense, the reason being that his being a liar is not certain in the offence for which he is being punished.
(13) Majority of the jurists including the Hanafis are of the view that only one punishment will be enforced on the qazif no matter how often he repeats the accusation before or during the enforcement of the punishment. If after the punishment the qazif goes on repeating the same accusation, the punishment which he has already been awarded, will suffice. however, if after the enforcement of the prescribed punishment, he brings another charge of zina against the accused, he will be tried again for the new charge of qazf. Abu Bakrah after getting the punishment in the case against Mughirah bin Shu`bah, went on repeating openly that he bore witness that Mughirah had committed zina. Hadrat `Umar wanted to try him again, but as he was repeating the same accusation, Hadrat `Ali expressed the opinion that he could not be tried again and Hadrat `Umar conceded it. After this the jurists became almost unanimous that a qazif who has received the prescribed punishment for a crime, cannot he tried again unless he commits a fresh crime of qazf.
(14) There is a difference among the jurists with regard to qazf against a group. According to the Hanafi s, if a person accuses a number of persons in one word or in more words separately, he will be awarded only one prescribed punishment unless, of course, lie commits a- fresh crime of qazf after the enforcement of the first punishment. The words of the verse - "Those who accuse chaste woman... "-indicate that the accuser of one person or more persons deserves only one punishment. Moreover, there can be no zina for which at least two persons cannot be accused, but in spite of that the Law-giver has prescribed only one punishment and not two, one for accusing the woman and the other for accusing the man. Contrary to this, Imam Shafi`i holds that the person who accuses a group of persons, whether in one word or in more words separately, will be awarded as many punishments as the number of the persons accused, one for each. The same is the opinion of `Uthman al-Batti. However, the ruling of Ibn Abi Laila, to which Sha`bi and Auza`i also subscribe, is that the one who accuses a group of persons of zina in one word, deserves one punishment, and the one who accuses them separately in separate words, deserves separate punishments, one for each.