> Amina Lawal's Story - a reminder for us!

[optimist]

Salam,

Amina Lawal was sentenced to death by stoning in March, 2002 in Katsina state in Nigeria under ‘Islamic Law’ that considers pregnancy outside of marriage as grounds for being convicted of adultery. Amina Lawal, a 30-year-old divorcee, was arrested by the police after nine days after giving birth and police charged with adultery due to pregnancy. The alleged father of the child denied having had sex and there was not witnesses against him, and was released. Aminal Lawal gave birth to her child and her sentence was supposed to be carried out once the baby was weaned. However, on September 25, 2003, the judges at the Katsina Sharia Court of appeal freed her. The five-judge panel stated that she was not given "ample opportunity to defend herself" in the previous proceedings

Another case reported is from a 17-year old Nigerian girl, Hafsatu Abubakar, with a one-month-old baby arrested by the police for unlawful sexual relationship with a man. Her one-month-old baby was the evidence, as it was conceived outside marriage. Hafsatu Abubakarfirst confessed she had had an unlawful sexual relationship. Changing her testimony however saved her life. Hafsatu Abubakar, under consultancy of her lawyer Abdulkadir Imam, explained that the baby probably was fathered by her former husband, whom she was divorced from 18 months ago. Under the Maliki school of interpreting Shari'a law, if a woman is separated from her husband through death, divorce, or some other reason for as many as seven years and has a child during this period, the child is attributed to the husband.

Yet another case reported was from Ms Safiya Hussaini, a Nigerian woman was sentenced to death by stoning by a Sharia Court in 2001 in Gwadabawa, Sokoto StateNigeria, for an alleged crime of adultery. She was arrested on the evidence of her pregnancy. The man she named, Yakubu Abubakar, as responsible was also charged with adultery, was acquitted by the same Sharia court that convicted Safiya. A confession of adultery that he made to her family, in the presence of two policemen, was retracted in court. He even told the judge he had never met Safiya, despite coming from the same village. Under Nigerian Islamic law, if a man withdraws his confession, he must be acquitted, unless four men can be made to testify that they witnessed the adulterous act. Yakubu Abubakar was let off, leaving the woman to bear the punishment.

This was Safiya’s comment to a reporter after the death sentence was initially pronounced. "Only I will be punished, because the injustice of the law is that men are not punished for impregnating women," she says. "I insist that my crime is not adultery, but pregnancy. Since only women can be pregnant this means that the real crime is being a woman. The man will always commit adultery and escape. The woman is the only one who can ever conceive, the unknowing depository of the traitor’s semen."

Anyhow, Safiya also saved her life after she withdrew her intial confession of adultery, which she claimed made under 'force', and stated that a former husband fathered her one-year-old daughter. Here also Maliki Law saved the life of Safiya, and her defense lawyers successfully argued on the basis of "extended pregnancy", under Maliki school of jurisprudence. Her defense lawyers argued that, under Maliki law, one of the main social functions of Shari’a is to protect people’s nasab (genealogy) and thus to ensure that every child has a legal father. The long period after a marriage in which children can still be seen as the legal offspring of the husband is therefore a means to entitle the child to rights under Islamic law!! The Sokoto State Shari’a Court of Appeal followed the defence and acquitted Ms Hussaini’s sentence on 9 September 2002.


Now we will see whether pregnancy as a ground for punishment for Zina does violate Quranic rules. The Qur'an first established that there was to be no speculation about a women’s sexual conduct. No one may cast any doubt upon the character of a woman except by formal charge with the support of four eyewitnesses. If such direct proof does not materialise then anyone engaging in such a charge is subject to physical punishment for slander.

“Those who launch a charge against chaste women and do not bring four witnesses should be punished with eighty lashes, and their testimony should not be accepted afterwards; - (24:4)

Notice, men is not even a concern in the above verse. It is clear that no presumption should be made against the charactor of any women unless with the support of four eye witnesses. If someone makes any charge against any women without the support of four witnessess the punishment will be 80 lashes and permanent rejection his testimony. Even if a Judge in an Islamic state himself actually saw a woman committing adultery, but he lacks four witnesses, he has to keep silent. Any public discussion without the support of four witnesses is prohibited.

The following verses were revealed in connection with a rumour spread against Aysha’s honour. Notice how strongly the Qur'an prohibits public discussion of Zina.

“Why did the faithful men and women not think well of their people when they heard this, and (say) “this is a clear lie”? When you talked about it and said what you did not know, and took it lightly, though in the sight of God it was serious. Why did you not say when you heard it: “this is not for us to speak of it? Glory to thee (our Lord), this is a most serious slander!” - (24:12-16)

Therefore, why the Qur'an has put strict evidentiary requirements to allege sexual misconduct is that, it wanted to safeguard the dignity of women. If pregnancy is taken as a ground for punishment for Zina, the women is automatically put in the position of defending her honour against accusations, which do not meet the Qur'anic four-witness requirement. This unfairness is not supported by the spirit of the Qur'anic verses which discourage women’s sexual activity by insisting that no presumptions be made about women’s sexual conduct without four witnesses. The shift in the burden of proof will be even more patently unfair when the pregnant woman is a victim of rape. In that instance, an unmarried pregnant woman must overcome the burden of a prima facie case against her simply because the attack has resulted in pregnancy.

Moreover, the Qur'anic insistence on four witnesses, as we saw earlier, establishes that the act of intercourse must be public, i.e., not less than four people must witness this act, not its consequences. It is in such a public sex in which the involved persons are liable to be punished, not public pregnancy. One cannot tell whether the pregnancy occurred from rape or Zina. In modern societies of large populations, it is generally not obvious which of these will apply to pregnant women on the street. Nor, indeed, should the public speculate about it without the solid eyewitness proof. Furthermore, pregnancy is something that only applies to women. If pregnancy alone constitutes sufficient evidence of Zina, the result overshadows the very purpose of the Zina verses is to protect women’s honour. Women, again, tend to be susceptible to accusation, and the Qur'an addresses this susceptibility directly, by enjoining any charges against women without four eye witnesses. If pregnancy is allowed as sufficient proof of Zina, a pregnant adulteress will be convicted without any testimonial proof, while her adulterous partner escapes punishment with his reputation intact. The woman-affirming spirit of the Zina verses is lost.

Wassalam

[Umm Sufyaan]

stories like this are sad. i mean the accusing and questioning the honor of a woman.

[salman]

brother optimist, Jazak Allah khayr for sharing. Did you just want us to remind or do you want to discuss something further?

This is the problem for blind following of one the madhaahab and implementing it in the shar'iah court and not referring to the Qur'an and Sunnah when understanding of madhhab is incorrect. ONLY in Maliki madhhab pregnancy is an evidence for zina and I am sure more details are involved within the madhhab. But that just opposes the more well known and correct opinion and it is strange that the latter Maliki Fuqha (jurists) did not correct this position. Because the madhhab is not limited only to the opinions of the founder of that madhhab; it evolves over time and as a result the madhhab becomes more free of errors. Allahu A'lam

akhee boriqee, has the ibn Rushd touched on this issue?

[al-boriqee]

Originally Posted by salman

brother optimist, Jazak Allah khayr for sharing. Did you just want us to remind or do you want to discuss something further?

This is the problem for blind following of one the madhaahab and implementing it in the shar'iah court and not referring to the Qur'an and Sunnah when understanding of madhhab is incorrect. ONLY in Maliki madhhab pregnancy is an evidence for zina and I am sure more details are involved within the madhhab. But that just opposes the more well known and correct opinion and it is strange that the latter Maliki Fuqha (jurists) did not correct this position. Because the madhhab is not limited only to the opinions of the founder of that madhhab; it evolves over time and as a result the madhhab becomes more free of errors. Allahu A'lam

actually everything you stated, like optimist, are over simplifications. Meaning some of it are truths, but need to be clarified with added information in order to make sense of the whole issue.

akhee boriqee, has the ibn Rushd touched on this issue?

actually, yes. I spent the last hour reading 13 pages of his Bidayatul-Mujtahid on this topic after initially reading this post because after I read this statement of yours, it forced me to look into what he records. Im not going to transcribe everything that was stated, but inshallah in my reply to opitmist, some of the point may be highlighted, because although optmist is most likely correct in abut 70 percent of his deductions, some things need to be elaborated more in depth because I have found that any discourse, in usoolul-fiqh and the ahkam of shariah, are always over-simplified and it is due to this oversimplification that enables people to make or form entire judgments and viewpoints based on these haphazard simplifications of a single matter.

[al-boriqee]

what I will do is to quote an excerpt from 'Bidayatul-MUjtahid wan-Nihayatul-Muqtasid" from the jurist Ibn Rushd inshallah on the topic and then move on from here to respond with some of the point raised therein inshallah

On the Issue of the Application of Hadd due to the Appearance of Pregnancy:
"Regarding their disagreement about the application of hadd due to the appearance of pregnancy along with a claim of rape, a group of jurists imposed hadd in such a case as is recorded by Maalik in his 'al-Muwwatta' in the tradition of Umar. This was the opinion of Maalik, unless she could provide evidence of coercion, as in case she was a virgin and complained while she was bleeding, or shows on her body the signs of coercion. The case is the same according to him when she claims to be married; she has to prove it. The exception is the one on an unexpected visit. Ibnul-Qaasim said that when she claims marriage on a sudden visit, her statement will be accepted. Abu Hanifah and Shafi'i said that hadd is NOT to be applied to her due to the appearance of pregnancy accompanied by the claim of coercion, even if she does not come up with the evidence of coercion in a claim of coercion or of marriage, as she is in the position of one who has confessed and then claims coercion. One of the proofs for them is what is related in the tradition of Shuraha that Ali radhiyallahu anhu said to her, 'were you coerced?' she said, 'No!' He said, 'Maybe someone came upon you while you were asleep?" They said that proof is related from Umar in so far as he accepted the statement of the women who claimed that she was a sound sleeper and a man came upon her and went away, but she did not come to know who it was.
There is NO disagreement among the Muslim Jurists that there is no hadd for a women coerced."

So this was stated by the mujtahid alaamah Ibn Rushd whose expertise was in the relayment of the positions of the most authoritative Imaams of usool and shariah such as Abu Thawr, the four Imaams, Abu Ubayd, Hammad bin Zayd, Layth bin S'ad, and some of the companions, Ibnul-Qaasim, Thawri, al-Awzaa'i, the Dhahiris (Ibn Hazm and Dawud adh-Dhaahiree) and others of judicious repute.

Originally Posted by optimist

Salam,

Amina Lawal was sentenced to death by stoning in March, 2002 in Katsina state in <st1:place w:st="on"><st1:country-region w:st="on">Nigeria</st1:country-region></st1:place> under ‘Islamic Law’ that considers pregnancy outside of marriage as grounds for being convicted of adultery. Amina Lawal, a 30-year-old divorcee, was arrested by the police after nine days after giving birth and police charged with adultery due to pregnancy. The alleged father of the child denied having had sex and there was not witnesses against him, and was released. Aminal Lawal gave birth to her child and her sentence was supposed to be carried out once the baby was weaned. However, on September 25, 2003, the judges at the Katsina Sharia Court of appeal freed her. The five-judge panel stated that she was not given "ample opportunity to defend herself" in the previous proceedings

1. firstly, the issue of pregnancy does not fall to the extreme of automatically assuming zina, nor does it fall to the other extreme that we remain silent in the face of pregnancy in the face of real life facts of a women being unmarried.
this is because pregnancy is the real life manifestation of sexual intercourse. To require four witnesses on account of pregnancy is like demanding four witnesses to prove that Zayd raped Fatimah when there is a video that reveals the act at hand.
2. the existence of other "modes" of proof are also taken into acount in shariah law, such as dna testing, video, etc. It is for this reason that most of such systems that claims to narrate on behalf of shariah law while not appropriating proper legislating for the accommodation of these new modes of proofs as witnesses are not really relaying on behalf of Islamic law, but on behalf of a law quarantined with a particular era
3. there is also much misunderstanding about the case of those who renege on a confession. When most people hear stories such as these where perpetrators "deny" the claim, it is based on the assumption that they are trying to slither away. How true or false that is is irrelevant to what Im about to state herein. The purpose of Islam affording to the person who may be guilty of this charge in incriminating themselves was sent as a mercy to the perpetrator. This is due to one account where the prophet alaihi salatu salam was approached by a women who committed zina (of adultery) and so the prophet sent her back to rethink her position. This event happen three consecutive times after which was commenced with the prophet alaihi salatu salam stoning her.
4. It is the general right that people should not suspect a women in pregnancy of having committed zina even if she is unmarried because part of the shariah, especially involving hadd, is to ultimately delay the implementation of hadd for even the flimsiest of excuses. If excuse can be offered to someone whom speculation is caste about, then excuse should be sought for.
5. What I would suggest as an opinion on this matter, and Allah knows best, is that sense we have other modes of attestation (like dna), then the women who is under suspect should not be punished until the other partner is found and proven to be the perpetrator and then both punished equally. And I would further stipulate that if she initially charges a person of the act, and the test prove that she is lying, then the punishment be carried out on her to the exclusion of finding the other perpetrator as a recompense for lying about the sanctity of another person just as men are to be punished for the false accusation of al-qadhf.
This entire stipulation would assure that injustice would not take place by punishing the women to the exclusion of the man and that both of them are equally punished while at the same time averting the possibility of having a women merely take out vengeance on an individual whom she dislikes under al-qadhf (false accusation) or any other reason by which in reality the one whom she accuses is actually free from her accusation.

Another case reported is from a 17-year old Nigerian girl, Hafsatu Abubakar, with a one-month-old baby arrested by the police for unlawful sexual relationship with a man. Her one-month-old baby was the evidence,

if she is not married, then what is the problem here. I will relate a hypothetical story (not real) only to indicate, through analogy, how insidious this objection sounds.

"a 17 year old nigerian boy, Umartu Abubakr, with a one month blood stained dagger was arrested by the police for unlawful murder of another person. His on month old blood stained dagger was the evidence".

UMM hello, if you possess the very evidence of a crime, then this is by default enough of a prosecution to be made on any person in any country in any time of human history. To have objection to this on the basis of pregnancy is an invalid argument in terms of law and order. That is why when the Jews came across Mariam, the Mother of Isa alaihi salam when she was bore the child, their argument WAS a valid argument for them to punish her, on account of her pregnancy. The only thing that uprooted their argument is the testimony of her child who protected her while in the craddle, otherwise, they would have been validated to punish Mariam alaihati salam.

as it was conceived outside marriage. Hafsatu Abubakarfirst confessed she had had an unlawful sexual relationship. Changing her testimony however saved her life.

retraction of confession was for the most part acceptable by most of hte jurists even if the one retracting is lying.

Hafsatu Abubakar, under consultancy of her lawyer Abdulkadir Imam, explained that the baby probably was fathered by her former husband,

I have a better solution. Find out who the father is, and punish them both according to their appropriate titles (whther they were married or not)

whom she was divorced from 18 months ago. Under the Maliki school of interpreting Shari'a law, if a woman is separated from her husband through death, divorce, or some other reason for as many as seven years and has a child during this period, the child is attributed to the husband.

great. So she can fornicate as much much as she wants for the next seven years and whatever child becomes born on account of this lewdness, her ex-husband has to bear the burden. If I was the ex-husband, I would kill her myself (if she did it more than once).
Anyways
I had to review the entire idda section and actually the kitabu-talaq of Ibn Rushd and I was unable to remotely find anything about a seven year ex-spousal responsibility. I wonder from what pothole did this idea come about.

Yet another case reported was from Ms Safiya Hussaini, a Nigerian woman was sentenced to death by stoning by a <st1:street w:st="on"><st1:address w:st="on">Sharia Court in 2001</st1:address></st1:street> in Gwadabawa, <st1:place w:st="on"><st1:city w:st="on">Sokoto State</st1:city> <st1:country-region w:st="on">Nigeria</st1:country-region></st1:place>, for an alleged crime of adultery. She was arrested on the evidence of her pregnancy. The man she named, Yakubu Abubakar, as responsible was also charged with adultery, was acquitted by the same Sharia court that convicted Safiya. A confession of adultery that he made to her family, in the presence of two policemen, was retracted in court. He even told the judge he had never met Safiya, despite coming from the same village. Under Nigerian Islamic law, if a man withdraws his confession, he must be acquitted, unless four men can be made to testify that they witnessed the adulterous act. Yakubu Abubakar was let off, leaving the woman to bear the punishment.
<o:p>
</o:p> This was Safiya’s comment to a reporter after the death sentence was initially pronounced. "Only I will be punished, because the injustice of the law is that men are not punished for impregnating women," she says. "I insist that my crime is not adultery, but pregnancy. Since only women can be pregnant this means that the real crime is being a woman. The man will always commit adultery and escape. The woman is the only one who can ever conceive, the unknowing depository of the traitor’s semen."
<o:p>
</o:p> Anyhow, Safiya also saved her life after she withdrew her intial confession of adultery, which she claimed made under 'force', and stated that a former husband fathered her one-year-old daughter. Here also Maliki Law saved the life of Safiya, and her defense lawyers successfully argued on the basis of "extended pregnancy", under Maliki school of jurisprudence. Her defense lawyers argued that, under Maliki law, one of the main social functions of Shari’a is to protect people’s nasab (genealogy) and thus to ensure that every child has a legal father. The long period after a marriage in which children can still be seen as the legal offspring of the husband is therefore a means to entitle the child to rights under Islamic law!! The Sokoto State Shari’a Court of Appeal followed the defence and acquitted Ms Hussaini’s sentence on 9 September 2002.

outside the fact that both the fornicators are liars who will get double punishment for escaping todays punishment, if her case has been brought out to light, where is the injustice here, that the other partner escaped. If that is the injustice, then that can easily be affirmed or denied through other modes of proofs, like dna. If such testing proves the reality, then their retraction (for both of them) is not worth anything.
<o:p></o:p>

Now we will see whether pregnancy as a ground for punishment for Zina does violate Quranic rules.

now, because there is a difference between the incrimination of the plausibility for zina, and outright pronouncement of zina on account of pregnancy. In other words these are two separate matters and people on both sides fo the aisle are misconstruing both as the same. Furthermore, the light of four witnesses was utilized in the face of any absence of validation. In other words, the modern fuqaha like the hanbalis, maalikis, and other than them affirm that dna testing and or video or other forms of witness overrides the requirement of four witnesses, but it takes someone who truly has a good foundation in the Book, and the sunnah and the objectives o the shariah to understand this reality and this point will be elaborated inshallah later on below.

The Qur'an first established that there was to be no speculation about a women’s sexual conduct.

the Qur'an did the rule general for all using women as an example. this is called in the shariah is called at-Tanbih bi Adna ‘ala A’la (the use of the lower meaning to indicate the higher meaning). An example of this kind of stipulation from the Qur'an.
The example of a specific word having a general intent (Lafzahun Khashshun Yuradu bihi al-’Am) is evident in the words of the Exalted:
“Say not ‘Ah (uff)!’ unto them nor repulse them, but speak to them a gracious word” (17:23). This is the case of “at-Tanbih bi Adna ‘ala A’la” as the prohibition includes beating, abuse, and whatever is more grievous.



So with the example of the ayaah regarding the guarding the chastity of women, it utilized women as a general intent for both genders. This is why Ibn Katheer states

This Ayah states the prescribed punishment for making false accusations against chaste women, i.e., those who are free, adult and chaste. If the person who is falsely accused is a man, the same punishment of flogging also applies. If the accuser produces evidence that what he is saying is true, then the punishment does not apply.


but of course, it takes someone with a good command of the wisdom and objective of the shariah along with sound knowledge of the revealed law to be able to understand this. This makes the argument that because the words "state" verbatimly a women, that it is not to be applied if the one who is accused is a man.

No one may cast any doubt upon the character of a woman except by formal charge with the support of four eyewitnesses.

that is agreed. The events you have narrated do not even account for someone who accused a women of adultury, RATHER, the events that you have narrated clearly narrated that the women who gave birth to a child and did not have a spouse and thus a valid reason for the child i.e. marriage, are only suspect. In other words, the narrators of these events merely narrated the events of those who actually did perform zina, otherwise, if there was no zina i.e. the perpetrator not having a spouse, then it would not have been a story to begin with because nothing would have happened.

If such direct proof does not materialise then anyone engaging in such a charge is subject to physical punishment for slander.

but that is the point of those who took them into account. The purpose of proof to materialize is in the face of a situation where the truth is hidden and requires for someone to find it and bring it out. However, when someone is as guilty as a pig, like with the case of a person whose own bloody dagger is found, then the requirement for having eye-witness becomes null. It is like requiring four witnesses as a proof for the charge of murder in the face of someone (i person) having a video clip of the actual murder. The situation of the unmarried women who got pregnant is like the person "caught on camera". BUSTED is their crime.

“Those who launch a charge against chaste women and do not bring four witnesses should be punished with eighty lashes, and their testimony should not be accepted afterwards; - (24:4)

of course, however the ayaah does not pertain to the account of those that were narrated above.

Notice, men is not even a concern in the above verse.

according to the objective principles laid out by the muslims, men were incorporated within the stated message. Accusing a man of this crime is just as serious as accusing a women, and the accuser who accuses anyone of them is to be punished, including the women who charges a man without proof, just as the man who charges a women without proof.

It is clear that no presumption should be made against the charactor of any women unless with the support of four eye witnesses.

of course. no presumption should be made. But when a women has a child out of wedlock, busted is the most appropriate description of the event, not "presumption" because presumption resides in the realm of "doubt", not within the realm of proven reality. If a dna test result shows that the child is the son of Amr, then Amr is likewise BUSTED and the entire four witnesses methodology is rendered inapplicable.

If someone makes any charge against any women without the support of four witnessess the punishment will be 80 lashes and permanent rejection his testimony. Even if a Judge in an Islamic state himself actually saw a woman committing adultery, but he lacks four witnesses, he has to keep silent. Any public discussion without the support of four witnesses is prohibited.

of course,even if I were to see a muslima in the act thereof with another man, what am I gonna do. I can't do nothing. But the narrations of these events you stated above do not even met what your talking about here, rather they exceed them. This is a classic case of comparing the case of apples and applying this to oranges.

The following verses were revealed in connection with a rumour spread against Aysha’s honour. Notice how strongly the Qur'an prohibits public discussion of Zina. <o:p>
<o:p>
</o:p></o:p> “Why did the faithful men and women not think well of their people when they heard this, and (say) “this is a clear lie”? When you talked about it and said what you did not know, and took it lightly, though in the sight of God it was serious. Why did you not say when you heard it: “this is not for us to speak of it? Glory to thee (our Lord), this is a most serious slander!” - (24:12-16)<o:p>
<o:p></o:p></o:p>

again, this is a classic example of a person who has no understanding of Islam, the sunnah, or even plain logic, because part of the realm of logical analytical deductions is to apply a certain pre-existent case with a new case THAT IS LIKE IT. The prophetic event that you have narrated about Aisha is UNLIKE the events that have been narrated above by you in these modern stories because the ultimate fundamental difference is that Aisha did not have a child out of the event which would have busted the reality all out in the open UNLIKE the case of these women may Allah forgive them. Aisha did not fall pregnant, nor did she conceive a child which would have been the criterion of the truth.
To claim that a women who got pregnant and bore a child out of wedlock is not guilty is like basically saying that she just happened to got pregnant without any causal effect. It would be tantamont to saying that a women can get pregnant outside of copulation.

Therefore, why the Qur'an has put strict evidentiary requirements to allege sexual misconduct is that, it wanted to safeguard the dignity of women.

that is agreed, it did want to safeguard the dignity of women, and I will add to that extension as every other Muslim on earth did, the dignity of a man. However, what is more important to note is that what dignity is there to safeguard against a PROOF that bore witness to its opposite i.e. pregnancy. To safeguard the alleged dignity of a women who got pregnant out of marriage is like trying to safeguard the dignity and sound mind of a man beside me has become a drunkard having a bottle of vodka in his hand. Its like telling to the judge "sir, forget about what you see, he really isn't a drunkard".

If pregnancy is taken as a ground for punishment for Zina,

this is the wrong wording and a false allusion.
Pregnancy is a STATE, and the correctness of a state is determined by the states of other factors. Masturbation is a state, and its correctness or incorrectness can only be determined by the state of other factors that determine overall the nature of the state of anything that is being discussed. Masturbation in the view of everyone is haraam and the only exception alloted for the act was concerning the unmarried who did so to prevent a further vice, like zina.

likewise, pregnancy, like copulation was made UNLAWFUL EXCEPT within the garb of marriage.

So in reality, pregnancy is a state, and its correctness is determined by the other conditions or the state of the individual. If the person is married, the the pregnancy is VALID, if the person is NOT married, then likewise the pregnancy is invalid.

the women is automatically put in the position of defending her honour against accusations,

well duh, if I was caught red handed by camera in raping sister X, what honor is there to defend. Your statement above is reflective of the ignorance of the fact that it is only applicable when the reality is hidden and has to be brought out, NOT when the reality has already been brought out and exposed in broad daylight.

which do not meet the Qur'anic four-witness requirement.

which entails, that you do not know what your talking about

This unfairness is not supported by the spirit of the Qur'anic verses

just because a man cannot get pregnant does not entail that Allah was being unfair in the revelation of what one must do in the face of zina being a reality. It was not fair that Allah would punish man with the fire of hell for merely wearing gold that Women were allowed. Everything and one is within the realm of their being and each being has to observe the laws surrounded for that being.

which discourage women’s sexual activity by insisting that no presumptions be made about women’s sexual conduct without four witnesses.

again, of course, but when pregnancy outside of wedlock occurs, all presumptions go out the window, as they say "the proof is in the putting'

The shift in the burden of proof will be even more patently unfair when the pregnant woman is a victim of rape.

according to jaahili laws maybe, not not according to Islam. According to what I narrated initially in the post, the view of the majority is that if rape has been claimed, then there is no hadd at all on the part of the women, she is therefore exonerated completely.

In that instance, an unmarried pregnant woman must overcome the burden of a prima facie case against her simply because the attack has resulted in pregnancy.

again, that maybe according to jaahili law, but this is not what the Sunni established jurists who expounded on the shariah of Islam have opted as an opinion.
<o:p></o:p>

Moreover, the Qur'anic insistence on four witnesses, as we saw earlier, establishes that the act of intercourse must be public, i.e., not less than four people must witness this act, not its consequences.

this is primal ignorance that has never been stated by any source of Islam, particularly the Qur'an, neither explicitly, NOR IMPLICITLY. What the jurist stated was that it requires four witnesses, public or not. None of the jurist came out with the idea that the consequences of the action has no link to the crime, rather as is apparent to ALL, the consequences of the crime is the cream of the crop of the crime. The only word I can describe this view is "insanity" purely insanity.

It is in such a public sex in which the involved persons are liable to be punished, not public pregnancy. One cannot tell whether the pregnancy occurred from rape or Zina.

1.that is why generally, no one questions the pregnancy. We are not to investigate the matter.
2. however if everyone knows she was not married for quite some time or was never married, and she just all of a sudden happens to get pregnant, then the perpetrator has pretty much opened the can of worms her ownself unless of course if it was rape. If it was not rape, then she has indeed opened up a can of worms that is inescapable to all.

In modern societies of large populations, it is generally not obvious which of these will apply to pregnant women on the street

modern societies palys no role in this because we still live in something called "communities" and if someone becomes pregnant, then obviously the "community" is going to know about it.

. Nor, indeed, should the public speculate about it without the solid eyewitness proof.

the public wont speculate about nothing because there is nothing to speculate after the beans have been spilled.

Furthermore, pregnancy is something that only applies to women.

1. blame Allah for that
2. the law is not to be obstructed on account of the inability of a gender or the ability of a gender if a particular law has been revealed for both genders

If pregnancy alone constitutes sufficient evidence of Zina

again, wrong wording. As I stated before "pregnancy" is a state, and its correctness can only be determined by the state of other factors linked with it.
It is more proper to word it as
"pregnancy ALONG WITH the state of being outside of wedlock, is blatant evidence of zina"

this is the more accurate description

[quotethe result overshadows the very purpose of the Zina verses is to protect women’s honour. [/quote]

it is also to protect the honor of anyone who is falsely accused, both women, and men.

Women, again, tend to be susceptible to accusation,

yeah in modern times because we have UNIslamic legislation that continues to be administered through the muslim world

and the Qur'an addresses this susceptibility directly,

wrong, the Qur'an address the crime of false testimony. The rest of this, the susceptibility factor, is an invention of your own making.

by enjoining any charges against women without four eye witnesses.

which is a general rule

If pregnancy is allowed as sufficient proof of Zina, a pregnant adulteress

the term "adulteress" completely nullifies everything you said after because in Islam, the adulterer and the adulteress are condemned.

will be convicted without any testimonial proof

she can claim rape under Islam and that by default exonerates her of any social repercussion.

while her adulterous partner escapes punishment

I'll have to look more into that because I don't think this was just as simple as that. However, according to usoolis, dna testing has also been added as part of the verification process. If a man is indeed the perpetrator, it can be known for sure.

with his reputation intact.

not really, at least under the Islamic system, I can;t speak for non shar'i based systems.

The woman-affirming spirit of the Zina verses is lost.

Wassalam

Only in the view of someone who has confused apples and oranges to be one in the same.

[salman]

^

Jazak Allah khayran for this akhee. Wouldn't dna testing be tabd'eel of the Sharee'ah? Shaykh Munajjid, may Allah preserve him, disagrees with the idea of using videos, DNA, etc.: the fatawa can be found here. Do we have any work on this by our contemporary scholars?

[al-boriqee]

Originally Posted by salman

^

Jazak Allah khayran for this akhee. Wouldn't dna testing be tabd'eel of the Sharee'ah? Shaykh Munajjid, may Allah preserve him, disagrees with the idea of using videos, DNA, etc.: the fatawa can be found here. Do we have any work on this by our contemporary scholars?

tht is a fatwa bereft of any soundness, infact quite a bit of his fatwa are like this, but of course I do regard him with esteem. As for coming across other scholars, I only remember coming across another scholar who briefly spoke on the topic but I wil have to find it, cuz it seems as such a contraversial issue wallahul-alim

I will point out two points of his, one that makes sense and one that does not.

1. first, he mentioned that the reality of zina can be proved through what the shariah revealed OR through pregnancy, which is a direct refutation of optimist's newly formed idea that it is not a direct proof.

2. look at what he says
It cannot be proven by DNA testing or by use of cameras and videos in place of the things mentioned above. And Allaah knows best.

this is refuted through the fact that everyone who views the event on video COUNTS as a witness. The only thing that I can see as a weak argument, highly weak, but acceptable, is the idea of a forgery.

I'll try to ask around and search more on the subject, I could be wrong, but until then, I think munajid is blatantly wrong.

[optimist]

Salam,

Brother Al boriqee, according to you, if an unmarried woman is pregnant, we should arrest her and force from her information ragarding the responsible person and arrest the man as well, and go for DNA testing to verify whether the alleged man is infact the father and punish both of them. You didnt explain untill dna testing was found what was the way to identity the man!!. And you are also saying, if available, even video evidence (smile) should be considred. I will say taking video of someone having sex will be another criminal offense (including encroaching someone else privacy) that should be punished seperately and also additionally punished with 80 lashes and his testimony should be permanently rejected.

Please use your logic. As you are aware, if there is only one witness for zina, the man who actually saw zina can not make it public and to take video of adultery by this man and make it public will be a much more serious offense. According to your logic it is a sufficient evidence that if someone saw an adultery taking place, and since he has no other witnesses, to record the same in a video and present before an Islamic Court!!! In fact an Islamic court will punish this man with 80 lashes and his testimony will not be accepted in any cases. You said "everyone who views the event on video COUNTS as a witness"!!!!!! haha! In fact, everyone who views the event on video will be punished and the one who recorded the event on camera will be punished double. Even if there are four witnesses also, taking video of zina by them should be punished since it is not required any additional evidence other than 4 eye witnesses. If the four witnesses take video of someone having sex, their credibility as sincere witnesses should be suspected, which may even amount to rejection of their testimony by an Islamic court and they should be punished for taking video.

I will prove you are wrong after I return from my work.

Wassalam

[optimist]

Originally Posted by al-boriqee

On the Issue of the Application of Hadd due to the Appearance of Pregnancy:

Originally Posted by al-boriqee

"Regarding their disagreement about the application of hadd due to the appearance of pregnancy along with a claim of rape, a group of jurists imposed hadd in such a case as is recorded by Maalik in his 'al-Muwwatta' in the tradition of Umar. This was the opinion of Maalik, unless she could provide evidence of coercion, as in case she was a virgin and complained while she was bleeding, or shows on her body the signs of coercion. The case is the same according to him when she claims to be married; she has to prove it. The exception is the one on an unexpected visit. Ibnul-Qaasim said that when she claims marriage on a sudden visit, her statement will be accepted. Abu Hanifah and Shafi'i said that hadd is NOT to be applied to her due to the appearance of pregnancy accompanied by the claim of coercion, even if she does not come up with the evidence of coercion in a claim of coercion or of marriage, as she is in the position of one who has confessed and then claims coercion. One of the proofs for them is what is related in the tradition of Shuraha that Ali radhiyallahu anhu said to her, 'were you coerced?' she said, 'No!' He said, 'Maybe someone came upon you while you were asleep?" They said that proof is related from Umar in so far as he accepted the statement of the women who claimed that she was a sound sleeper and a man came upon her and went away, but she did not come to know who it was.
There is NO disagreement among the Muslim Jurists that there is no hadd for a women coerced."

So this was stated by the mujtahid alaamah Ibn Rushd whose expertise was in the relayment of the positions of the most authoritative Imaams of usool and shariah such as Abu Thawr, the four Imaams, Abu Ubayd, Hammad bin Zayd, Layth bin S'ad, and some of the companions, Ibnul-Qaasim, Thawri, al-Awzaa'i, the Dhahiris (Ibn Hazm and Dawud adh-Dhaahiree) and others of judicious repute.

Salam,

I agree with you that Muslim Jurists are unanimous there is no hadd for a women coerced. Actually coercion means a physical attack where sex is used as a weapon, and there is no need of even thinking about ‘adultery’ aspect in such an offense. This is an entirely different offense. According to the above statement, what is interesting is that, even if a lady does not come up with the evidence of coercion in a claim of coersion, she can not be punished. Actually whether a lady could be left free by simply claiming coersion is of no importance. According to Quran, the main offense and crime is charging and public discussion concerning morality of a woman, unless with the support of 4 eye witnesses. The offense of falsly charging a women and thus hurting her reputation still remain as a crime even if a woman is left free on the ground of coersion. I will explain the same below.

1. firstly, the issue of pregnancy does not fall to the extreme of automatically assuming zina, nor does it fall to the other extreme that we remain silent in the face of pregnancy in the face of real life facts of a women being unmarried. this is because pregnancy is the real life manifestation of sexual intercourse. To require four witnesses on account of pregnancy is like demanding four witnesses to prove that Zayd raped Fatimah when there is a video that reveals the act at hand.

When you arrest an unmarried pregnant lady the assumption is that she committed Zina, i.e, you are charging her for adultery and the burden to prove her innocence will fall on the lady, and Quran prohibits charging anyone with adultery except with formal change with the support of 4 eye witnesses. You assume a video could be accepted by an Islamic court in an allegation of adultery without any eye witnesses. Actually a Islamic court will punish the one who recorded the video with 80 lashes and his testimony will never be accepted. You may refer to my my previous post and I like to know your comments on this issue.

2. the existence of other "modes" of proof are also taken into acount in shariah law, such as dna testing, video, etc. It is for this reason that most of such systems that claims to narrate on behalf of shariah law while not appropriating proper legislating for the accommodation of these new modes of proofs as witnesses are not really relaying on behalf of Islamic law, but on behalf of a law quarantined with a particular era

You are wrong. An Islamic court may depend on may depend on DNA testing and video (if available), and other modes of evidences in an allegation of rape to punish the culprit, but in a proof for Zina allegation an Islamic court can not depend on these evidences.

3. there is also much misunderstanding about the case of those who renege on a confession. When most people hear stories such as these where perpetrators "deny" the claim, it is based on the assumption that they are trying to slither away. How true or false that is is irrelevant to what Im about to state herein. The purpose of Islam affording to the person who may be guilty of this charge in incriminating themselves was sent as a mercy to the perpetrator. This is due to one account where the prophet alaihi salatu salam was approached by a women who committed zina (of adultery) and so the prophet sent her back to rethink her position. This event happen three consecutive times after which was commenced with the prophet alaihi salatu salam stoning her.

There will be no such situation where a perpetrator can effectively simply “deny” the claim and save himself/herself in an Islamic proceeding unless they can provide sufficient evidence to the effect that the 4 eye witnesses are lying. Please note that according to the Quran, there shall be no charge against anyone except with the support of 4 formal eye witnesses.

4. It is the general right that people should not suspect a women in pregnancy of having committed zina even if she is unmarried because part of the shariah, especially involving hadd, is to ultimately delay the implementation of hadd for even the flimsiest of excuses. If excuse can be offered to someone whom speculation is caste about, then excuse should be sought for.

Good! If, as you said, “people should not suspect a women in pregnancy of having committed zina even if she is unmarried”, no women will come before a court proceeding. I can agree with you that this is Quranic. There should be no formal charge against any women simply because she is pregnant.

5. What I would suggest as an opinion on this matter, and Allah knows best, is that sense we have other modes of attestation (like dna), then the women who is under suspect should not be punished until the other partner is found and proven to be the perpetrator and then both punished equally. And I would further stipulate that if she initially charges a person of the act, and the test prove that she is lying, then the punishment be carried out on her to the exclusion of finding the other perpetrator as a recompense for lying about the sanctity of another person just as men are to be punished for the false accusation of al-qadhf.

Here you are contradicting point number 4. You are discussing here ‘women under suspect’! Earlier you said a woman should not be suspected. You are also forgetting the fact that, according to Quran, no woman should suspected for adultery unless with the support of 4 eye witnesses. In an Islamic proceeding all the eye witnesses should be able to identity both parties, man and woman. Each and every eye witness will be cross examined to prove that they are not contradicting each other. You are saying no women should not be punished until the other partner is found and proven to be the perpetrator and both punished equally. Firstly, this DNA testing and other modern methods of knowing who is the father of a child was not available before. This itself shows the fallacy of such an argument. I know you only suggesting an opinion to solve an apparantly women biased treatment. Good! I am happy that you are at the least aware of a bias in punishment, which is in fact what has happened in the three cases I referred in my initial post. I can show you another 5 similar cases reported in Pakistan as well. The male perpetrators were simply left free without sufficient evidence against them. You are trying to provide a solution which we created by ourselves without any support from the Quran. Quran says that do not suspect the chastity of a woman unless with the support of four witnesses. It does not matter whatever other evidence you have in your possession, you are simply not allowed. You yourself said “people should not suspect a women in pregnancy of having committed zina”. I am sure you will be able to apprecaite the following verse correctly.

“Why did not those, who gave currency to this charge, bring four witnesses to prove it? Since they have not brought the required witnesses, they are indeed liars in the sight of God. Were it not for the grace of God and His mercy upon you, in this world and the Hereafter, a great punishment would have befallen you on account of the slander you plunged in; For, you began to learn it from each other's tongue and then you uttered with your mouths that of which you had no knowledge, and you thought it to be a light matter, while in the sight of God it was a grievous thing. And wherefore did you not say, when you heard of it, 'It is not proper for us to talk about it. Holy art Thou, O God, this is a grievous calumny.' God admonishes you that you never repeat the like thereof, if you are believers. And God explains to you the commandments; and God is All-Knowing, Wise.(24:13-18)

Read the highlighted parts again and see for yourself how serious in the eye of Allah to charge a woman for adultery without formal charge with the support of 4 eye witnesses. See how Allah says; "it not for the grace of God and His mercy upon you, in this world and the Hereafter, a great punishment would have befallen you on account of the slander you plunged in". Finally Allah admonishes the believers, 'never repeat the like thereof, if you are believers'. The issue of concern is the honor of a woman. No one should suspect the honor of a woman unless with the formal support of four eye witnesses. Don't tell me that it was because of Aisha's issue Allah mentions eye witnesses. Better no one go for such wild guess and risk Allah's punishment. Even the original verse (24:4) stipulate nothing less than four eyes witnesses. The above verses are enough for any true believer to shiver with fear if he sees someone suspect the morality of woman other than with the support of 4 eye witnesses.

The

purpose of proof to materialize is in the face of a situation where the truth is hidden and requires for someone to find it and bring it out. However, when someone is as guilty as a pig, like with the case of a person whose own bloody dagger is found, then the requirement for having eye-witness becomes null. It is like requiring four witnesses as a proof for the charge of murder in the face of someone (i person) having a video clip of the actual murder. The situation of the unmarried women who got pregnant is like the person "caught on camera". BUSTED is their crime.

This is your whole argument. You have still not understood the relevant verses properly. You are saying women can be saved from punishment of Hadd if she claims rape, even if she does not come up with the evidence of coercion, so and so. It is charging a women for adultery which is a matter of concern unless with the support of four eye witnesses. In a trial proceeding may be a women will be able to expose the weakness of the witnesses and will be left free. This is another issue. What Quran prohibits is public discussion concerning the morality of women and making a charge against her. It is the dignity of women that is of paramount concern here. A Zina charge for the reason of pregnancy unfairly shifts the burden of proof against women to prove that she is innocent. In cases of coercion, forced to prove that the intercourse was nonconsensual, a woman is automatically put in the position of defending her honor against accusations which do not meet the Quranic four-witness requirement.

For the sake of argument you can claim that a woman shall not be punished unless the perpetrator for pregnancy is found out and proved and both of them punished at the same time. According to your logic, Islam had to wait until DNA testing is invented to practice its laws correctly without any bias! Brother, your inner heart is telling you there is a problem with adultery as a groud for punishment for zina. In all the incidents I have quoted above, the men responsible for pregancy was left free without any sufficient evidence. Your “opinion” for DNA testing and punishing both man and woman at the same time is just your opinion, which has no basis in the teaching of the Quran. How many scholars will agree with you to conduct DNA testing and punish the man? You are simply guessing some solutions for an apparent contradiction.

The thing we need to to understand is only this. IT IS NOT THE WILL OF Allah to punish those who are responsible for adultery in this world unless there is evidence of adultery with the formal charge of 4 eye witnesses. The issue is as simple as that. If you incorporate any man made additions in the law of Allah, the result will be apparent contradictions and it will become a reason for spoiling the very purpose for which the verses were revealed. Here is further evidence for this.

It is said that actual witnessing of penetration by four witnesses is required to punish the man and women. This is another fallacy which has no basis. Why we put such impossible evidentiary requirements on a criminal offence for which the requirements have been clearly prescribed by Allah. By limiting conviction to only those cases where four individuals actually saw penetration take place, the crime will realistically punishable only if the two parties are committing the act in the public, in the nude. That is; even if four witnesses actually saw a couple having sex, but under a coverlet for example, this testimony will fail to support a Zina charge. It is nothing short of making a mockery of Quranic law!

Wassalam

[al-boriqee]

Originally Posted by optimist

Salam,

Brother Al boriqee, according to you, if an unmarried woman is pregnant, we should arrest her and force from her information ragarding the responsible person and arrest the man as well, and go for DNA testing to verify whether the alleged man is infact the father and punish both of them. You didnt explain untill dna testing was found what was the way to identity the man!!. And you are also saying, if available, even video evidence (smile) should be considred. I will say taking video of someone having sex will be another criminal offense (including encroaching someone else privacy) that should be punished seperately and also additionally punished with 80 lashes and his testimony should be permanently rejected.

Brother u misconstrued my issue with the video. I wasn't talkin about someone specifically shootin the video, I was talkin about a video cam already in place like in a bank or something. Of course if someone is shootin the video privately in the home of the fornicator thin it would be wrong even the person was fornicating. I was specifically talkin about those "caught on camera" situations. However this agreement on this point that you and both have does not cover pornography as everyone in it is a criminal including the viewer who had nothing to do with the act.

As for the issue of before the DNA was discovered then before it was pretty much a case of not even suspecting anything regarding the pregnancy or it was always claimed as being coerced I.e. Rape wallahulalim

I'm on the itouch so I can't say to much till I get on the pc

Please use your logic. As you are aware, if there is only one witness for zina, the man who actually saw zina can not make it public and to take video of adultery by this man and make it public will be a much more serious offense. According to your logic it is a sufficient evidence that if someone saw an adultery taking place, and since he has no other witnesses, to record the same in a video and present before an Islamic Court!!! In fact an Islamic court will punish this man with 80 lashes and his testimony will not be accepted in any cases. You said "everyone who views the event on video COUNTS as a witness"!!!!!! haha! In fact, everyone who views the event on video will be punished and the one who recorded the event on camera will be punished double. Even if there are four witnesses also, taking video of zina by them should be punished since it is not required any additional evidence other than 4 eye witnesses. If the four witnesses take video of someone having sex, their credibility as sincere witnesses should be suspected, which may even amount to rejection of their testimony by an Islamic court and they should be punished for taking video.

I will prove you are wrong after I return from my work.

Wassalam

u will never prove that oranges are wrong using apples you will only confuse your ownself
asalamu alaikum