Zina and Some Related Issues
Adultery or ‘Zina' in Islam is one of the most heinous and deadliest of sins. Its enormity can be gauged from the fact that it has often been conjoined in the Qur'an with the gravest of all sins: shirk or associating partners with Allah.
The enormity of this sin is no small measure due to its dire consequences affecting individuals, families, and societies. Among these are that it entails infidelity and erodes the trust and tranquility that are the foundations of a fulfilling family life; it dissipates one's energies; it undermines peace at home; it corrodes the purity of one's soul and hence destroys one's faith; finally, it exposes the person to the wrath of Allah, thus resulting in eternal damnation.
It is no wonder then that Allah and His Messenger have sounded dire warnings against adultery in so many ways. To list only a few instances:
Allah says in the Qur'an, (And come not near unto adultery. Lo! it is an abomination and an evil way) (Al-Isra' 17: 32).
(And the servants of the Beneficent) are those who do not invoke another god with Allah, and who do not...commit fornication/adultery, for whoever does that shall receive the penalty; for him shall the torment be doubled on the day of resurrection, and therein he shall abide forever, disgraced, save him who repents and believes and does good works; those, Allah shall change their misdeeds into good works. And Allah is Forgiving, Compassionate) (Al-Furqan: 68-70).
The Prophet (peace and blessings be upon him) said, "Whoever guarantees me that he will guard his chastity, I will guarantee him Paradise" (Al-Bukhari).
Abu Hurayrah reports that the Messenger of Allah said, "No one commits adultery while still remaining a believer, for faith is more precious unto Allah than such an evil act!" In another version, it is stated, "When a person commits adultery he casts away from his neck the bond that ties him to Islam; if, however, he repents, Allah will accept his repentance" (Al-Bukhari, Muslim, Abu Dawud, An-Nisa'i and others).
The Prophet (peace and blessings be upon him) further said: "[Under Islamic laws in an Islamic state] It is not lawful to shed the blood of a Muslim except for one of three sins: a married person committing fornication, and in just retribution for premeditated murder, and [for sin of treason involving] a person renouncing Islam, and thus leaving the community [to join the enemy camp in order to wage war against the faithful]." (Al-Bukhari, Muslim, Abu Dawud, Tirmidhi, and An-Nasa'i)
During his ascension, the Prophet (peace and blessings be upon him) was escorted by Jibreel and shown different types of punishments meted out to those guilty of various major offenses. While recounting the various scenes shown to him, he said, "Then Jibreel took me and we passed by a group of people with terribly inflated bodies emitting worst foul smells just like that of open sewers; when I enquired who they were, he replied, ‘These are those who commit adultery!'" (Ibn Khuzaymah)
The Prophet (peace and blessings be upon him) said: "Faith is like a shirt that Allah places on those He chooses; but whoever commits adultery his shirt will be taken off from him; if he were to repent sincerely, Allah will place it back on him." (Al-Bayhaqi)
"There are three types of sinners that Allah will not speak to on the Day of Resurrection; neither He will purify them nor will He even look at them; rather they will suffer severe punishment: an older person who commits adultery, a king or ruler who lies to his subjects, and a poor person who acts arrogantly!" (Muslim and An-Nasa'i)
"When adultery becomes rampant in a nation Allah will expose them to His chastisement." (Abu Ya`la)
"When promiscuous behavior becomes rampant in a nation, Allah will send upon them such (strange) diseases that their own ancestors never heard of." (At-Tabarani)
"There are seven categories of people who will be granted protection under the shade of Allah on the Day when there is no other shade;... among them is a young person who is seduced by a woman of great beauty and wealth and yet he rejected her advances saying ‘I fear Allah!'" (Al-Bukhari and Muslim)
The Prophet (peace and blessings be upon him) said, "O mankind! Beware of fornication/adultery for it entails six dire consequences: three of them relating to this world and three to the next world. As for the three that are related to this world, they are the following: it removes the glow of one's face, brings poverty, and reduces the life-span. As for its dire consequences in the next world they are: it brings down the wrath of Allah upon the person, subjects him to terrible reckoning, and finally casts him in hell-fire" (Al-Bayhaqi).
Given the above, it is to be noted that the punishment specified for an unmarried person guilty of fornication in the Shari`ah is 100. In the very beginning of Surat An-Nur, it is stated that: (The woman and the man guilty of adultery or fornication,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment) (An-Nur 24: 2).
As for the punishment specified in the Shari`ah for the married adulterer or adulteress, it is stoning to death. In the Kuwaiti Encyclopedia of Islamic Jurisprudence, we read the following:
Ibn Qudamah wrote: "Muslim jurists are unanimous on the fact stoning to death is a specified punishment for married adulterer and adulteress. The punishment is recorded in number of traditions and the practice of the Prophet (peace and blessings be upon him) stands as an authentic source supporting it. This is the view held by all Companions, Successors and other Muslim scholars..."
Using Laboratory Tests to Prove Adultery
Sheikh Ahmad Kutty, a senior lecturer and an Islamic scholar at the Islamic Institute of Toronto, Ontario, Canada, states:
"Truth and justice are the two pivotal values that Islam cherishes deeply and endeavors to establish. As for the first, Allah, the Almighty describes Himself as the Truth, and He orders us to be truthful and strive to know the truth and seek to establish it.
Concerning justice, Allah tells us that He is Just, and He enjoins us to establish it, and eliminate injustice.
Many of the great scholars of Islam such as Ibn Taymiyyah and Ibn al-Qayyim and others have reminded us that the essential focus of the Shari`ah, in all its diverse injunctions, recommendations as well as prohibitions, is to establish justice, and nothing but justice.
This applies to the Islamic punishments for adultery and fornication as well; they exist for the sole purpose of rendering justice and ensuring perfect justice and this is why the Shari`ah has insisted on the testimony of four witnesses to prove guilt in the case of adultery. Witnesses in themselves are not the goals but the means to establish the truth beyond a shadow of doubt as far as humanly possible. So if there are other means of proving guilt, as is the case with scientific tests (i.e., DNA, etc.), they can be taken into account in order to render decisions accordingly.
The admissibility of such evidence can be established through itjtihad (personal reasoning), the purpose of which is to extend the applicability of the Shari`ah to the ever-changing circumstances of life. The Shari`ah is not a static system; rather it has all the built-in mechanisms that enable it to adapt to new situations.
In conclusion, let me summarize what has been said: Scientific methods of verification to prove guilt or innocence can be readily accommodated into the system of the Shari`ah, which dispenses justice."
What is DNA?
According to Microsoft Bookshelf dictionary (1996-97 Edition), DNA is the deoxyribonucleic acid that carries the genetic information in the cell and which is capable of self-replication and synthesis of RNA or ribonucleic acid.
DNA consists of two long chains of nucleotides twisted into a double helix and joined by hydrogen bonds between the complementary bases adenine and thymine or cytosine and guanine. The sequence of nucleotides determines individual hereditary characteristics.
Here below are the opinions of scholars regarding the issue:
First, the prominent Azharite scholar Sheikh `Abdul-Majeed Subh, states:
I would like to stress that DNA as well as the hereditary print are no more than supporting evidences. In other words, they can not be considered as independent legal evidences on their own.
Thus, if we are to consider DNA as an evidence that is supposed to establish paternity or prove a crime such as Zina, then it must be supported by clear legal proofs such as witnesses or confession.
Second, Sheikh Muhammad Iqbal Nadvi, Imam of Calgary Mosque, Canada, and Former Professor at King Saud Univ., Saudi Arabia, adds:
The DNA testing can be used in Islamic Courts as a supporting evidence in the absence of four just witnesses. However, it cannot be the sole and only evidence to prove a huge crime like Zina which entails inflicting severe punishment on the criminal.
The reason for not accepting DNA as a sole and complete evidence is that DNA testing cannot tell us whether the one who committed adultery did it willingly or unwillingly, be it the man or the woman.
Thirdly, the prominent Muslim scholar and Da`iyah, Sheikh `Abdul-Khaleq Hasan Ash-Shareef, concludes:
First and foremost, I want to state that the crime of Zina is proved by one of two means: the evidence of four reliable witnesses or the confession of the adulterer or the fornicator.
However, other things such as pregnancy and the like are merely signs or indications and are not qualified enough to serve as a legal proof. For instance, pregnancy does not necessarily denote fornication. Therefore, it should not be taken as evidence to prove the crime. The scholars state that the prescribed punishments (Hudud ) are to be fended off for the least occurrence of suspicion.
As far as DNA test is concerned, if it's proved by reliable physicians and experts that it certainty serves as a valid legal proof, then it is the role of Muslim scholars to decide how to deal with it.
It is clear from the above Fatwas that DNA is not a sufficient proof to establish paternity. It must be corroborated by other proofs. This is due to the continuous change in the principles that govern such things. It stands to reason that Shari`ah principles are based on certainty, and nothing should be left to risk or doubtfulness when it comes to establishing an important issue such as the one referred to in the question.
DNA Analysis to Establish Paternity: Right of the Father or the Mother?
Sheikh Yusuf Al-Qaradawi, states the following:
"Allah, the Almighty has prescribed the qadhf penalty for anyone who accuses a certain person of committing adultery without proving his allegation by bringing four trustworthy persons to testify that they have seen the act of adultery with their naked eyes, without having premeditated to spy on the adulterers.
Allah, the Almighty says in this respect: "And those who accuse honorable women but bring not four witnesses, scourge them (with) eighty stripes and never (afterward) accept their testimony - they indeed are evil-doers - save those who afterward repent and make amends. (For such) lo! Allah is Forgiving, Merciful." (An-Nur: 4-5)
However, there is an exception made with regard to the ruling in this verse, that is, when the accuser is a husband of the accused. In this case, he is not required to bring four witnesses; instead, he is to give a solemn oath four times that his wife has committed adultery, and then invokes Allah's curse upon himself if he is telling a lie in this regard. This would avert from him the penalty of qadhf.
Allah, the Almighty says: "And (as for) those who accuse their wives and have no witnesses except themselves, the evidence of one of these (should be taken) four times, bearing Allah to witness that he is most surely of the truthful ones. And the fifth (time) that the curse of Allah be on him if he is one of the liars. And it shall avert the chastisement from her if she testifies four times, bearing Allah to witness that he is most surely one of the liars; And the fifth (time) that the wrath of Allah be on her if he is one of the truthful." (An-Nur: 6-9)
The following step in the case of li' an is that the spouses are to be separated, and the child is called after the name of his/her mother. The mother here is not to be affected by the accusation, which guarantees her and her child protection from scandal, especially that it is not known for certain, who has told the truth: the husband or the wife.
After the discovery of the DNA analysis, establishing paternity has become possible. However, the Muslim scholars are unanimous that if the husband has asked to apply the DNA analysis to support his denial of paternity of his wife's child, his request is not to be granted, for this will make the wife miss the protection guaranteed to her by the provision of li` an .
On the other hand, scholars have differed in opinion if it is the wife, who asks for the application of the DNA analysis. The majority of scholars are of the opinion that her request is not to be granted. According to them, the measures of li `an are sufficient, for this is what Almighty Allah has prescribed in this case.
However, in my point of view, there is nothing wrong in granting the request of the wife in this case, for she will not ask for that unless she is sure that the result will be in her favor.
Requesting the application of the DNA analysis on the part of the wife brings about three important benefits:
Firstly, she proves her innocence of the accusation made against her.
Secondly, she establishes the paternity of her child. (As it is known in Shari `ah, it is of a paramount importance to protect lineage against mixing.)
Thirdly, this will reassure the husband and remove the seeds of doubt in his heart regarding the paternity of his child.
Hence, answering the request of the wife will be of a great benefit to the husband, the wife, and the child.
The Shari ah would not refuse a measure that accomplishes such a great benefit and which does not contradict a religious principle. Hence, a parent-child DNA analysis is to be applied if it is the wife who asks for it."
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