Father not entitled to carry out the corporal punishment on his daughter if she committed fornication

19-8-2015 | IslamWeb

Question:

What is the ruling on a girl who was proved to have committed fornication? What is her legitimate guardian required to do by the Sharee'ah in a time when corporal punishments are no longer applied? Is it obligatory on him to carry out the corporal punishment on her by himself or detain her in his house until Allaah Almighty decides her case?

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Answer:

All perfect praise be to Allaah, the Lord of the worlds. I testify that there is none worthy of worship except Allaah and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.

Before we explain the issue of carrying out the prescribed corporal punishment on the woman or man found guilty of unlawful sexual intercourse and who is entitled to do that, we have to make sure of three things:

1-      The girl should not have been forced to practice fornication. If she was forced to do so, then there is no blame on her.

2-      There should be an actual practice of vaginal intercourse whether from behind or from the front. What is beyond this is not considered fornication.

3-      The occurrence of unlawful sexual intercourse must be proven; this cannot been done except through three matters:

-        The perpetrator insistently confesses his being guilty of unlawful sexual intercourse. It was narrated that the Prophet, sallallaahu ‘alayhi wa sallam, carried out the corporal punishment of adultery on Ma‘iz and Al-Ghamidiyyah when they confessed to having committed adultery. [Al-Bukhari, Muslim, Ahmad, At-Tirmithi and others]

-        The testimony of four men, who saw the sexual intercourse taking place with their own eyes, for Allaah Almighty says (what means):

•        {Why did they [who slandered] not produce for it four witnesses? And when they do not produce the witnesses, then it is they, in the sight of Allaah, who are the liars.} [Quran 24: 13]

•        {Those who commit unlawful sexual intercourse of your women—bring against them four [witnesses] from among you.} [Quran 4: 15]

-        Availability of evidence on the occurrence of unlawful sexual intercourse, such as when an unmarried woman becomes pregnant and does not deny committing such a sin and is no longer a virgin. Sa‘eed ibn Mansoor narrated that a case of a woman who had no husband was referred to ‘Umar . When ‘Umar asked her, she said: “I am a heavy sleeper. A man had sexual intercourse with me while I was sleeping. I did not wake up except after he finished.” Thus, ‘Umar did not carry out the prescribed corporal punishment on her.

It was also report that ‘Ali and Ibn ‘Abbaas said: “If a crime that entails a corporal punishment is not decisively proven, then the punishment should not be carried out.”

If the unlawful sexual intercourse was proven through one or more of the ways stated above, then who is the one entitled to carry out the prescribed punishment?

Jurists have agreed that the prescribed corporal punishments can only be implemented by the Imaam (Muslim ruler) or his deputy. The father, husband, relative, or a group is not entitled to implement it.

If that abominable act occurred with the consent of the girl and she is adult and competent for religious assignment, then she is sinful and has committed a grave major sin. Allaah Almighty says (what means): {And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way.} [Quran 17: 32]

That girl should sincerely repent so that Allaah Almighty would remove this grave major sin from her. Also, she has to do a great deal of good deeds. Indeed, it is obligatory to repent of every sin. Allaah Almighty says (what means): {O you who have believed, repent to Allaah with sincere repentance.} [Quran 66: 8]

The father, relatives and all those who know about that incident should conceal it and not spread it, for the Prophet, sallallaahu ‘alayhi wa sallam, said:

•        “Allaah is modest and conceals faults, and He loves modesty and concealment of faults.” [Abu Daawood with an authentic Isnad (chain of narrators), Ahmad and An-Nasaa’i]

•        “Whoever conceals a Muslim, Allaah will conceal him on the Day of Judgment.” [Al-Bukhari and Muslim]

As long as the person does not invite others for the sin he commits, meaning that he adheres to secrecy as he drinks alcohol, commits unlawful sexual intercourse or does wicked (deeds), and does not do so openly and defiantly, then it is recommended to conceal him and not to expose him in public or in private. His sin should not be reported to the ruler or anyone else. 

The guardian of the girl should advise her, without exposing her matter, and frighten her from the Wrath of Allaah Almighty and encourage her to attain His Pardon and Forgiveness. Then, he should search for the cause that led that girl to do that crime and handle the matter with wisdom. He should rely upon Allaah Almighty and supplicate Him earnestly. He himself might be the cause of her deviation due to his negligence or any other fault.

Al-Fudhayl ibn Iyadh said: “A believer covers up faults and advises [his or her fellow believers], whereas an evildoer exposes and taunts [others for their sins].”

Allaah Knows best.