> zina question

[salamfromrom]

Salam

reading through The Amina lawal thread has prompted me to do some research about an issue I had been wondering about for a while. That issue is the extramarital sexual relations which do not involve ''normal sex'' and their classification according to the shariah. I have found the following:

if the purport of your question is to inquire whether it is considered zina to engage in oral sex with anyone other than one’s married partner, the answer is most categorically and definitely, yes. In other words, it is nothing but zina, pure and simple.

To derive sexual satisfaction from anyone other than one’s marriage partner in any way is considered zina in Islam. This is according to the explicit commandment of Allah: (And come not near unto adultery. Lo! it is an abomination and an evil way.) (Al-Israa' 17:2).

(IslamOnline.net fatwa)

The scholar seems to imply that every act of extra-marital intimacy , including (kissing?) Oral sex etc is to come under the same punishment as zina.

This is confusing because I remember a hadith in which a man came to the Prophet(pbuh) admitting he had commited zina with a woman and Muhammad(pbuh) asked him something along the lines of: ''Are you sure it wasn't just kissing, touching etc?'' At that point the person admitted it was full on sex and then the prophet(pbuh) ordered for him to be punished.

Isn't this proof that non-vaginal intercourse(even though it's completely haram outside of marriage) is not supposed to be punished with the prescribed punishment for zina but with a different ta'zeer penalty?

Salam a leikum

[salman]

akhee, where did he say that same punishment is applied? He is simply saying that it is zina in the general sense of the shari'ah. As far ta'zeer punishment, then read this fatawa and that should make things clear, insha'Allah:

Praise be to Allaah.

Zinaa, in Arabic, means immorality, and is used with two meanings in shar’: a general meaning and a specific meaning.

The general meaning includes that which carries the punishment (hadd) and that which does not carry it. Islam does not give the name of zinaa only to that which carries the punishment, which is just one of many types of zinaa. Ibn ‘Abbaas (may Allaah be pleased with them both) said: “I have never heard any better definition of ‘small faults’ [al-Najm 53:32] than that which Abu Hurayrah (may Allaah be pleased with him) narrated from the Prophet (peace and blessings of Allaah be upon him): ‘Allaah has decreed for every son of Adam his share of zinaa, and there is no way to escape from it. The zinaa of the eye is a glance, the zinaa of the tongue is speaking, and the zinaa of the mind is wishing and hoping; then the private part either acts upon this or it does not.’” (Reported by al-Bukhaari, 11/26; Muslim, 4/2046).

Al-Bukhaari included this hadeeth in a chapter entitled Baab zinaa al-jawaarih doon al-farj (Chapter on the zinaa of faculties other than the private part).

Al-Haafiz Ibn Hajar (may Allaah have mercy on him) said: “Zinaa is not always associated with the private part itself, but may involve other faculties such as the eyes and so on.” Ibn Battaal (may Allaah have mercy on him) said: “Looking and speaking are called zinaa because they lead to real zinaa. This is why he said that the private part either acts upon this or it does not”

Zinaa is one of the forbidden deeds, one of the most serious major sins (kabaa’ir) after shirk and murder. Allaah says (interpretation of the meanings):

“And those who invoke not any other god along with Allaah, nor kill such life as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse – and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; except those who repent and believe and do righteous deeds, for those Allaah will change their sins into good deeds, and Allaah is Oft-Forgiving, Most Merciful.” [al-Furqaan 25:68-70]

“And come not near to unlawful sexual intercourse. Verily, it is a faahishah [anything that transgresses its limits – a great sin], and an evil way (that leads one to Hell unless Allaah forgives him).” [al-Isra’ 17:32]

Imaam al-Qurtubi (may Allaah have mercy on him) said: “The ‘ulama’ said that the phrase And come not near to unlawful sexual intercourse is more eloquent than merely saying ‘Do not commit zinaa’, because the meaning is, Do not even come close to zinaa.” This means not doing any deed that may get close to zinaa or lead to it, such as being alone with a member of the opposite sex, touching, looking, going to evil places, speaking in a haraam manner to a woman to whom one is not related, thinking about and planning immoral acts, and so on.

‘Abd-Allaah ibn Mas’ood said: “I asked the Messenger of Allaah (peace and blessings of Allaah be upon him), ‘Which sin is worst in the sight of Allaah?’ He said, ‘To make any rival to Allaah, when He has created you.’ I asked, ‘Then what?’ He said, ‘To kill your child for fear that he will eat with you.’ I asked, ‘Then what?’ He said, ‘To commit zinaa with the wife of your neighbour.’” (Reported by al-Bukhaari, 8/492; Muslim, 1/90).

All religions are agreed that zinaa is haraam; no religion allows it. The punishment for zinaa is the most severe of punishments, because it violates people’s honour and lineages.

The sin of zinaa may be of varying degrees, and the gravity of the offence depends on the nature and circumstances of the deed, although all zinaa is haraam, a major sin and an act of immorality. Zinaa with a mahram [i.e., incest] (Allaah forbid) or with a married woman is far worse than zinaa with a woman to whom one is not related or with an unmarried woman, because it involves violating the rights of the husband, contaminating his bed, attributing a child to him that is not his, and other kinds of offence and harm. If her husband is a neighbour, the crime of being a bad neighbour is added to the offence; if her husband is one's brother or relative, the crime of breaking family ties is added. The Prophet (peace and blessings of Allaah be upon him) said: He will not enter Paradise whose neighbour is not safe from his evil actions.” (Reported by Muslim, 1/68). There is no evil action worse than zinaa, and if the husband is absent for the sake of Allaah, such as in worship, seeking knowledge or jihaad, then the sin is compounded. Buraydah (may Allaah be pleased with him) reported that the Prophet (peace and blessings of Allaah be upon him) said: “The wives of the mujaahideen are as sacred and forbidden to those who stay behind as their own mothers. There is no man of those who stay behind who is entrusted by one of the mujaahideen with the care of his family and then betrays him (by committing zinaa), but he will be detained on the Day of Resurrection, and (the one whom he betrayed) will take as much of his good deeds as he wishes. So what do you think?” (Reported by Muslim, 3515). If the adulterer is married, the sin is greater, and the punishment is stoning, and if he is an old man, the sin is greater and the punishment is as the Prophet (peace and blessings of Allaah be upon him) mentioned in the hadeeth about the three whom Allaah will neither look at nor praise on the Day of Resurrection, and who will have a painful punishment.” (Saheeh Muslim, 156). If the deed is also committed during a sacred month or in a sacred place or at a time which is special in the sight of Allaah, the sin is compounded.

The fuqaha’ (may Allaah have mercy on them) stated that the basic act of zinaa which carries the punishment is illegal sexual intercourse, whereby the two “circumcised parts” [i.e. genitals] come together and there is penetration of the tip of the penis, because this is actual penetration (which carries the prescribed hadd or punishment).

A person must avoid evil deeds and everything that can lead to them. Allaah has commanded us to avoid the traps of the Shaytaan, because if a man takes one step in that direction, his shaytaan and his own ego (nafs) will keep urging him to do evil until he commits immoral deeds.

One should think about how serious it is to touch a woman to whom one is not related, as the Prophet (peace and blessings of Allaah be upon him) explained: “If one of you were to be stabbed in the head with a piece of iron it would be better for him than if he were to touch a woman whom it is not permissible for him to touch.” (Reported by al-Tabaraani; see also Saheeh al-Jaami’, 5045). This refers to the punishment for touching, so how about worse deeds, such as embracing and kissing, and even worse kinds of illicit activity? The Muslim qaadi is empowered to stipulate an appropriate punishment for every proven action other than actual intercourse; in the case of intercourse, the punishment set out by Islam is one hundred lashes and a year’s exile for one who is unmarried, and stoning for one who is married. This is the punishment in this world, and the punishment in the Hereafter is far more severe.

One of the important principles which the salaf (may Allaah have mercy on them) pointed out is that the sincere believer who truly hopes for Allaah and the Hereafter should not look at whether the sin is major or minor, or whether is carries a punishment (hadd) or not. It was reported that Ibn ‘Abbaas (may Allaah be pleased with them both) said: “There is no major sin if one asks for forgiveness, and there is no minor sin if one persists in repeating it.” Someone else said: “If you want to disobey Allaah, do not think about the smallness of the sin, think about the greatness of the One Whom you are disobeying.”

With regard to the matter of repentance from zinaa, please refer to the book "I Want to Repent, But...", …”, under the heading Books on this website. May Allaah bless our Prophet Muhammad.

Source: Islam Question and Answer - Is zinaa intercourse only?

and Allah knows best

[salamfromrom]

salam

where did he say that same punishment is applied?

He didn't. That's why I said ''He seems to imply...'''

The Muslim qaadi is empowered to stipulate an appropriate punishment for every proven action other than actual intercourse

Thank you for the above answer. As far as the appropriate punishment left to the discretion of the qadi is concerned, can he/she give out punushments for even the most ''minor'' of zina-related sins such as shaking hands with a non-mahram woman and such, or is punishment rezerved for more ''serious'' offenses. basically, I would be interested in finding out where do we draw the line in terms of limiting the power of the qadi (is there even a limit?)

[salman]

Originally Posted by salamfromrom

salam

He didn't. That's why I said ''He seems to imply...'''

sorry akhee, I missed that part. Even so, I did not think that his speech was implying full punishment. khayr, moving on

Originally Posted by salamfromrom

Thank you for the above answer. As far as the appropriate punishment left to the discretion of the qadi is concerned, can he/she give out punushments for even the most ''minor'' of zina-related sins such as shaking hands with a non-mahram woman and such, or is punishment rezerved for more ''serious'' offenses. basically, I would be interested in finding out where do we draw the line in terms of limiting the power of the qadi (is there even a limit?)

Allahu A'lam akhee, this is beyond my knowledge and ability to search. however, the general principle regarding ta'zeer is that it depends on the situation and level of violation and its affects etc.

Edit

The Shaykh said following in another fatawa but I do not think that answers your question:

Undoubtedly the zina for which a person is to be punished in the manner described above is penetration, where the private parts meet. As for the things that lead to zina, such as touching, kissing and putting the fingers into the vagina, although they are haraam and abhorrent, the one who does them may be punished for doing them, but he is not punished with the hadd punishment that is meted out to the zaani; rather he should be rebuked and disciplined.

Is the one who kisses a non-mahram woman regarded as a zaani (fornicator or adulterer)?

[salamfromrom]

Salam

I believe that answers it perfectly, thank you brother.

:-)