What Is Zina In Islamic Law?
The term ‘Zina’ literally refers to illicit sexual intercourse between any two Muslim individuals, under Islamic law. It is considered to be a sin. However, the consequences and punishments for committing this sin, vary from case to case, depending on the marital status of the individuals involved in the act. On a broader note, the jurisprudence of Islamic law encompasses the following sexual activities under Zina:
1. Adultery– refers to the act of a married person having sexual intercourse with some other person who is not his or her spouse. This happens when either of the parties involved in the act, is married to someone else. It is also known as fornication, where two people are having sexual intercourse, without being married to each other.
2. Prostitution– this refers to the activities of people who offer to have sex, in exchange for money, and run a business out of it.
3. Rape– the act of forceful sexual intercourse without the consent of the victim.
4. Sodomy- refers to anal intercourse between any two individuals.
5. Homosexuality– refers to the sexual activity between two individuals of the same sex.
6. Incest- this refers to sexual behavior between two individuals related by blood. For instance, sexual activity between a brother and a sister.
7. Bestiality- refers to sexual intercourse between a man and an animal.
All in all, Zina condemns the premarital and extramarital sexual affairs between any two Muslim individuals. The Sharia law (Islamic law) while stating about Zina, distinguishes between the punishments, for a married man, an unmarried man, and a slave, for committing any sin under Zina. It imposes that, a married man who is accused of any of the above deeds, should be stoned to death, and an unmarried man or a slave should be publicly lashed with a whip, and the number of lashes for a slave should be half of what an unmarried man receives. Before going into further details, we need to know about Sharia law, which is the very foundation of Zina law.
SHARIA LAW
The word ‘Shari’a’, means ‘path’. Hence this law is believed to be the guiding path for the Islam community. The whole Islamic law system is based on Sharia law. It provides a code of conduct for every Muslim individual in the world, to abide by while leading every single day of their lives. The Sharia law is capable to govern every aspect of a person’s life, starting from their behavior with others to their financial matters, covering everything.
The Sharia law is said to be God’s divine law, which guides a person morally. The ‘fiqh’ is the human interpretation form or jurisprudence of the Sharia law, by the ancient scholars, which contradicts its own source, on some stances. Sharia Law has been primarily derived from the holy Quran and the ‘Hadith’ which is the document containing the preachings and approvals of Prophet Mohammad.
There are two branches of the jurisprudence of Sharia law, namely, rituals and social relationships. And the rules and regulations of it, are broadly categorized into five types:
- wajib – mandatory rules
- mustahabb- recommended rules
- mubah– neutral, which does not involve God’s judgment
- makruh- abhorred or disliked actions
- haram- prohibited actions.
It is considered to be a sin if any prohibited action is committed or any mandatory action is not performed. The disliked acts are generally avoided, but even if committed, they cannot be considered a sin. And it is also believed that if the recommended actions are done, then people will be rewarded in their afterlife. The crimes under Sharia law are bifurcated into two types, ‘Haddh’ and ‘Tazir’. The former are grievous crimes whose punishments are fixed and the latter comprise of not-so-serious crimes, which are left at the judge’s disposal.
Haddh and Tazir can be compared to criminal and civil offenses respectively, in our legal system. The punishments fixed for the Haddh offenses are whipping or stone pelting, even to death in some cases. And in Tazir or the civil offenses, the punishments are levying fines, seizing property, incarcerating, etc.
Now coming back to Zina law, earlier if a person committed Zina, then it was treated somewhat like a civil offense and was punished under Tazir. But gradually it got considered to be a criminal (haddh) offense and sanctions were imposed, following the marital status of the offender.
However, this law needs proofs and certain required conditions to be fulfilled, before sanctioning the culprit with the punishment:
- The offender is given four distinct opportunities to admit his offense. And if the offender denies his/her confession, before the punishment is imposed, then he/she will be set free. Thus, usually, they are persuaded by their well-wishers to take back their words.
- A minimum of four male eyewitnesses are required, who is known to be ideal, religious and must not have committed any sin before. They must have seen the two individuals having sexual intercourse, and should even be able to describe it, without any discrepancy. Women and non-Muslims cannot be witnesses to this or any other Haddh crimes.
- But if the four eyewitnesses withdraw their statements before the punishment is awarded, then the person would be set free, but these witnesses will be sanctioned with punishments for having falsely accused someone.
- The eyewitnesses are not supposed to procrastinate giving their testimony, because if they do so, then the punishment would not be awarded to the offender. But if they reach late because of their faraway location from the court or any other travel issue, then they can be excused.
- And finally, if the offender is found guilty, then the witnesses should be the ones to punish him/her by stone-pelting if that is what is the decided- punishment.
If any person or even a victim accuses a Muslim of Zina but is not successful in putting forth, the required four male witnesses, then he/she will be punished in public with eighty lashes. Now, if a woman admits herself, that she got pregnant because of an illicit sexual relationship, then she will be convicted of committing Zina, by the Sharia courts. And in general pregnancy cases, where there are no confessions or eyewitnesses, a married woman cannot be held guilty of committing a crime.
In cases of rape and sexual assault, if the girl or woman gets pregnant, then she is a victim here, and not a party to the crime. She should not be punished in these cases. But for proving that she has been a victim of rape, and not a perpetrator of Zina, she has to produce four male witnesses who must have witnessed the coercion. And that is practically impossible. Therefore, in Islamism, it is nearly impossible for a pregnant woman to prove that she has been raped by coercion, as her ‘say’ has got no value here. Hence they are convicted of Zina and punished for something, they have not even done.
So if you go to any women’s prison in western Africa, you will find many helpless girls who have been put behind the bars, just because they were raped. They are branded as criminals for getting involved in adultery. Their side of the story is never paid heed to, in the Sharia laws.
In Islamic countries like UAE, Iraq, Qatar, Saudi Arabia, Mauritiana, Yemen, Somalia, Sudan, Afghanistan, Pakistan, etc. stoning is a legal punishment for the Haddh crimes, including Zina. For such inhuman customary laws, Sharia is a highly debated topic in the world. These cruel forms of punishment, without even listening to both sides of the party, are condemned by human rights organizations all over the world. This clear discrimination against women, treating them as invaluable objects and punishing them for crimes, that they have not committed, is all greatly abhorred by women’s rights commissions.
Moreover, the gruesome punishment of stoning is imposed for the acts which should not even be criminalized in the first place! Every individual has the right to privacy, which comes along with the right to life. A man or a woman should have the liberty of choosing their religion, their partner, and their social and intimate relationships until and unless their activities harm others.
The very existence of such horrendous laws in this modern era is a huge threat to the world. These are detrimental to humanity. We are all humans here, and we all make mistakes. The sinner must be punished, but the rationale behind the punishment should be governed by humanitarian values. Hence, we should all join hands and pledge to abrogate these inhuman laws and come up with collaborative and favorable laws that would hold the essence of mankind high.
This Article is Authored by Shalini Koppula, 1st Year BBA LLB Student at Xavier Law School, Xavier University Bhubaneswar.
