Hudud

Hudud is plural for Arabic term had. Hudud literally means limitation.

In Islamic criminal law, hudud stand for offences and punishment prescribed by Allah in
Al-Quran and the Prophet s.a.w.

Hudud crimes are most serious, heinous and grave under Islamic penal law.

Hudud is considered as rights of god because no human intervention is permissible to

forgive or minimize in any manner.

To block all the channels to crime and the punishments are inflicted as a last resort.

Islamic scholars are not unanimous regarding the crimes that fall under hudud.

The offences agreed by all scholar to be hudud are as follow:

i.

Adultery

ii.

Defamation

iii.

Theft

iv.

Highway Robbery

The offences below are considered hudud by majority of scholars:

i.

Rebellion

ii.

Apostasy

iii.

Drinking alcoholic beverage

1. Adultery (zina)
A.

Meaning of zina

This is a sin and crime in Islam. It can open the door of other sins.

It ruins the very basis of the family sanctity as it works against the interests of
wife, children and other relatives. It may lead to disaster as it provides cause for
murders, feuds and loss of reputation, property and may also affect the bonds of
family and society adversely.

All sacred laws do not only forbid but also render harsh and exemplary punishment
for adultery.

In the world history, this is also considered as a serious crime.

Literally zina means unlawful sexual intercourse.

Technically it means the penetration of the private parts of an adult in the

private parts of the adult woman without nikah or and it is not a suspicious
sexual relationship.

Fornication is illicit sexual relationship before marriage while adultery is after

marriage.

In Islamic legal literature zina is the term used for unlawful sexual
intercourse before marriage and zina bada ihson is after marriage.

B.

Zina before and at the early stage of Islam.

Jews: and the man that committed adultery with another mans wife, even
he committed adultery with his neighbors wife, the adulterer and the
adulteress surely be put to death (Leviticus, 20:10)

Classical Hidu law: cutting of nose and lips which cause terror, and
afterwards banish them (Manu Smiriti, IX:9)

Christian: The mode of execution varied with standing of the woman; a

guilty wife was to be put to death, i.e. strangled along with her paramour
while a bethrothed woman who was seduced was to be stoned(Dictionaruy
of the Bible, vol. III p. 273)
In the law the only recognized form of capital punishment is by
stoning it fell to the witness to vcast the first stone

Before Islam-light punishment because Arabs at that time were ignorant.

C.

The Punishment for Zina

At the early stage of Islam: The punishment for woman was the detention in the house while for man
was reprimanding and rebuking.

This is based on the Quranic verse:

And those of your women who commit illegal sexual intercourse, take the evidence of four witnesses
from amongst you against them; and if they testify, confine them (i.e. women) to houses until death
comes to them or Allah ordains for them some (other) way. (an-Nisa:15)

The punishment for zina was imposed gradually in order to make people understand and accept the
law.

After that, the above verse was repealed and replaced by the following verse:

The woman and the man guilty of illegal sexual intercourse, flog each of them with a hundred
stripes. Let not pity withhold you in their case, in a punishment prescribed by Allah, if you believe in
Allah and the Last Day. And let a party of the believers witness their punishment. (This punishment is
for unmarried persons guilty of the above crime but if married persons commit it, the punishment is
to stone them to death, according to Allah's Law). (an-Nur:2)

The punishment for zina also prescribed by the Prophet s.a.w, as narrated by
Ubadah bin Somit:

Take from me, take from me, Allah has provided the way, for the unmarried
man and women is 100 and one year banishment, and for married man and
woman is 100 lashes and stoning to death

Story of Asif

Story of Maiz

Story of al-Ghamidiah

Meaning to say that, Islam law has provided 100 lashes togeteher with
banishment for unmarried and 100 lashes and stoning to death for married.
The heavier punishment for the married man or woman compared to
unmarried because the zina of married person can destroy his/her family and
also other families and he was in a state where he can enjoy sexual relations
with his spouse but he choose to do it unlawfully. Therefore id is considered
more immoral and dishonest.

D.

The banishment is part of hudud or tazir?

In the above hadith, it was mentioned that the punishments for unmarried adulterer were
whipping and banishment. However al-Quran only mentioned about the whipping. The issue
here is whether banishment is only tazir exercised by the Prophet as a leader/ruler of the
state?

There are 2 opinins of the scholars regarding this issue:

1)

Imam Abu Hanifah: banishment is only tazir, and not part and parcel of hudud
punishment. It is the prerogative power of the ruler to impose. His arguments are:
i.

Based on the plain and literal understanding of the Quranic verse, the punishment
is only whipping, not banishment. If we consider banishment as part of hudud,
then the said prophetic saying can be considered as repeling the quramic verse and
this is not possible because, on principle, hadith ahad can not repeal the Quranic
verse. If the banishment is part of hudud, then the prophet will express about it
but no evidence from the prophet of such expression.

ii.

Based on hadith, if the woman slave committed adultery, and her adultery
proven, then whip her and do not go beyond it, then if she repeated it, sell her

iii.

Based on the hadith narrated by Saidina Ali, if unmarried man and woman
committed zina then lash them and do not banish them because the banishment
can invite fitnah

iv.

Based on the opinion of Umar al-Khattab saying that the banishment is tazir, not
hudud.

2)

The majority of scholars opined that the banishment for 1 year is part of
hudud. Their arguments are as follow:
i.

Based on the hadith, Take from me, take from me, Allah has
provided the way, for the unmarried man and women is 100 and one
year banishment, and for married man and woman is 100 lashes and
stoning to death

ii.

Based on the prophetic saying for in Asifs story, for your son 100
lashes and one year banishment

iii.

The banishment punishment was mentioned several time in Asifs

story,

iv.

And there is no prohibition to add the rules on the Quranic verse by

using hadith ahad.

E.

Stoning to death is part of hudud or tazir?

There are three opinions pertaining this issue.

i.

The opinion of Mustafa al-Zarqa and Abu Zuhrah(contemporary scholars):

Stoning to death is not hudud but only tazir. Their arguments:
i.

Al-Quran do not mention it. Stoning to death is only mentioned in

hadith ahad. And Hadit Ahad can not specify the generality of alQuran.

ii.

Stoning to death contradicts with the several quranic verses (like

surah al-Anam:151 and Surah al-Furqan:68) which protect the
humans life.

iii.

Hadiths on stoning to death are not strong due to different narration

which invited criticism should them to be applied. And the chain of
narration of those hadith also disputed.

iv.

Hadith on Asifs story was disputed and it only reaches the level of
gharib where it not not stand as a proof. The chains of narrations are
not consistent.

2)

3)

The opinion of majority of scholars: Stoning to death is part of hudud punishments for
adultery. Their arguments:
i.

The prophet practiced it as narrated in several hadith by companions (hadith as

above-mentioned, stor of Asif, Maiz and Ghamidiyyah).

ii.

The practice of the prophet was narrated up to mutawatir level.

iii.

The companions were unanimous about the implementation of stoning to death.

The opinion of Khawarijite: They do not accept stoning to death at all. Their
arguments:
i.

Stoning to death is the harshest and heaviest punishment and it is not possible alQuran does not mention about it.

ii.

The whipping for the woman slave is half of the free woman. So how can stoning
be divided into half should the slave woman to be punish.

iii.

The punishment for zina in al-Quran is general, and to specify the generality of alQuran through imposing this stoning contradicts al-Quran itself.

F.

If we are to accept the stoning to death as a hadd punishment, then whether it

will be executed with 100 lashes?
1)

2)

The opinion of Zahirite one of the opinions of Imam Ahmad: Both punishment must be
executed:
i.

The generality of Quranic verse does not differentiate between muhsan(married) and ghair
muhsan (unmarried). Therefore the whipping must be implemented on both.

ii.

Based on the literal understanding of above-mentioned hadith , for the unmarried man and
women is 100 and one year banishment, and for married man and woman is 100 lashes and
stoning to death

iii.

Based on the opinion of Saidina Ali who said, I whipped her based on al-Quran and I stoned
her based on the sunnah of the Prophet s.a.w

The opinion of majority of scholars: Only stoning to death to be executed, and their
arguments as follow:
i.

Based on the Story of Asif, where the Prophet said, 100 lashes and 1 year banishment on
your son and Oo Unais, go to the women and if she admitted then stone her. In this hadith,
no instruction from the Prophet s.a.w to whip the women.

ii.

Based on the logic, because both punishments are to deter and educate. These purposes can
be achieved altogether with stoning to death. Therefore no purpose to impose whipping. It
will be redundancy of purpose.

G.

The Method of Whipping

Imam al-Qurtibi said: Inflicting pain with no injury, whipping without lifting
the armpit.

The inflicted pain must be moderate, not so painful and not so soft.

There is story of Saidina Umar when he imposed qisas on whipping executor

because of the whipping was overboard.

H.

Conditions for Conviction of Zina through Testimony and Confession

1)

There are 6 conditions for the convictions of adultery through Testimony:

i.

The witnesses are 4 person based on the Quranic verse, take the evidence of four witnesses from
amongst you against them (an-Nisa:15)

ii.

The witnesses must be all men. Also based on the verse above, , take the evidence of four witnesses
from amongst you against them (an-Nisa:15). The word you or in Arabic pronounced as kum is
something referring to man, not woman. It is also based on the Quranic verse, ..and produce not four
witnesses.(al-Nur:4) Based on the Aarabic syntax, the word witnesses here is referred to man.

iii.

The witnesses must be adil. Based on Quranic verse, And take for witness two just persons from
among you (al-Talaq:2). And based on the verse, O you who believe! If a rebellious evil person comes
to you with a news, verify it, lest you harm people in ignorance, and afterwards you become regretful to
what you have done. (al-Hujurat:6)

iv.

The witnesses must be Muslim, sane and major. All of these 3 requirements are basic requirements for
religious and social burden.

v.

The witnesses themselves must see the act like a bucket get in to the well. Because the Prophet S.A.W
said, hudud case will be dismissed if there is a doubt

vi.

The witnesses testify in one occasion.

2)

There are conditions for the convictions of adultery through confession:

i.

Sane and major.

ii.

Self-expression. Imam Abu Hanifah- confession of deaf and dumb is not admissible
even though they are capable to write the statement of confession.

iii.

Confession related to sexual intercourse.

iv.

4 times admission in separate occasion (majority of scholars). According to Imam

Shafiite, one confession is adequate.