By Muhammad Yunus, New Age Islam
(Joint Author), Essential Message of Islam, Amana Publications, USA, 2009.
In not too distant a past, women in the Western world were meted out most torturous punishments on the slightest suspicion of adultery. Caught in the bed with a stranger, her husband could lawfully kill her. Suspected of adulterous behavior, she could be burnt alive on the stakes or killed by other inhuman methods that can be readily accessed on the Internet  and is fairly well known and too unsavory for any elaboration. Plight of women in other major civilizations was no better. Today, as the Qur’anic ideals of forgiveness, mercy and matrimonial tribulations  have permeated the global human society, the world has largely abjured its methods of torture and execution of women and adopted softer methods of punishment. Some centers of Islam, however, stick to the context specific exemplary punishment (flogging in public) that were far from harsh for its era but stand out excessive and barbaric in relation to today’s changed punishment protocols in the world. Cruelty and torture upon women has thus changed sides. With this we probe the Qur’an for a fresh insight.
The Qur’an prescribed flogging for ‘public adultery’ or ‘Zina’ - a custom that permitted married women to cohabit with strangers when their husbands were away from homes on trading, raiding or other missions (24:2). This created controversy in establishing paternal lines, which was decided by comparing the looks and features of the child born outside of marriage other with its likely fathers, assembled for the purpose . The practice, established as a social norm, absolved men-folk of all social and financial responsibilities towards the women they espoused or cohabited with and their offspring, forced women into commercial adultery, and left children born of such unions at the mercy of the society. This was in stark contradiction to the Qur’anic family laws that were designed to i) divest men of their sexual, financial and social licenses, ii) abolish institutionalized adultery, iii) vest women with legal, financial, inheritance and personal rights and iv) give financial protection to women in their procreative phase. The Qur’an therefore had to stop this outrageous practice, as an emergency measure, for which it uses a specific term, ‘Zina’ (25:68, 17:32) as well as the generic term ‘fahishah’ (4:15). Accordingly, the Qur’an asks the Prophet to take an oath of fealty from believing women who came to him to pledge their faith that they will refrain from, among other customary vices like infanticide and theft, ‘Zina’ (60:12).
“O Prophet! When believing women come to you to swear allegiance to you, (let them declare that :) they will not associate anything with God, nor will they steal, nor commit adultery (la yaznina), nor kill their children, nor invent any slander deliberately, nor disobey you in anything fair. Then you accept their allegiance, and seek forgiveness for them from God. Indeed God is Most Forgiving and Merciful” (60:12).
The Qur’an starts off with an interim punishment of house confinement until death (4:15), subject to witnessing by four persons (4:15):
“Should any of your women commit sexual perversity (fahishah), collect evidence against them from four of you. If they (so) testify, confine them to their houses until death claims them or God makes a way for them (4:15).
The Qur’an then legislates the prevalent punishment of flogging to both the partners of ‘Zina’ (public adultery)
“Flog the adulteress (zaniyah) and the adulterer (zani) each with a hundred lashes, and don’t let compassion with them keep you from (complying with) the law of God, if you believe in God and the Last Day; and let a group of believers witness their punishment (24:2). An habitual adulterer (zani) couples with none but a habitual adulteress (zaniah), who is perverted in faith; and as to a habitual adulteress (zaniyah) – none couples with her but a habitual adulterer (zani), who is perverted in faith. That is forbidden to believers” (24:3).
To avoid any false accusation of a chaste woman, false witnessing is declared a punishable offence (24:5).
“And those who accuse chaste women, but fail to bring four witnesses, flog them with eighty lashes, and never accept their testimony, ever, for it is they who are perverse (24:4), except those who repent after that (ba‘da dhalika) and reform (themselves); for God is Most Forgiving and Merciful” (24:5).
However, if the husband was the sole witness to his wife’s adulterous indulgence, his wife could avert the punishment by taking an oath several times (24:6-9).
“Those who accuse their own wives but have no witnesses except themselves, the evidence of one of them should be to testify four times keeping God as a witness that he is truthful (24:6), (swearing) a fifth (time) that God’s curse be on him if he is a liar (7). However, it will avert the punishment from her if she testifies four times keeping God as a witness that he (her husband) is a liar (8), (swearing) a fifth time that God’s curse be on her if he (her husband) is truthful” (24:9).
As this verse apparently gave a license to women to commit adultery without leaving any witnesses the Qur’an introduced a three stage ‘correction’ regime which was to be followed by arbitration (4:34/35) – a man suspecting his wife of adulterous behavior (nushuz) is commanded to counsel her, temporarily shun her bed, and finally assert on her, failing which he should involve the community and proceed for a divorce (4:34/35).
“Men are the supporters (qawwamah) of (their) wives because God has favored each of them in different measures (ba'dahum ‘ala ba'din), and because of what they spend (for them) of their wealth. The righteous women are devout (qanitatun) and guard the unseen that God would have them guard. As for those (women), of whom you fear adulterous behavior (nushuz), counsel them, leave them (alone) in their beds and assert (wadribu) on them; but if they listen to you, do not seek a way against them. (Remember,) God is Sublime, Great. If you (the community) fear breach between the two, appoint an arbiter from his family and an arbiter from her family. If they wish reconciliation, God will unite them. Indeed God is All-Knowing and Informed” (4:34/35).
If, however, a man chooses to charge his wife of adultery, he must bring four eyewitnesses (4:15), which is impossible to find almost in all cases – given the secrecy that goes with adultery. Setting up false witnesses, on the other hand, would be constrained by the severity of punishment for false witnessing (24:4 above). So the best a man could perhaps do is to divorce her, or to create a situation for her to divorce him. Therefore, during the course of the revelation, the emergency measure (public flogging) that was prescribed to put a complete brake on the prevalent openly adulterous practices (zina) was transformed into counseling cum arbitration protocol for the customary secretive adultery (nushuz, 4:34).
Is flogging an eternally decreed method of punishment - being a word?
Flogging as an instrument of punishment drew on the prevalent code. The Qur’an does not specify the flogging tool (cane or whip), the physical method and the limb to take the flogging, and its severity level. It therefore follows that ‘flogging’ as mentioned in the Qur’an (24:2) symbolizes ‘a punishment’ – as this was the only way that punishment was inflicted apart from stoning to death. Given the dynamic nature of the divine law (shir‘ah wa minhaj, 5:48), humans can alter its mode – as they have done for many of the Qur’an’s existential tenets as illustrated in an earlier report .
Therefore, to take the nature of punishment (flogging) in isolation – disregarding other conciliatory Qur’anic verses (4:34/35, 24:8/9) and out of its historical context as harsh or draconian will be misleading. The Qur’an was not sent down to punish humanity but to deliver humanity – particularly the women and the oppressed classes - “to lift from them their burdens and shackles that were upon them (before)” (7:157), and the achievement of its noble objectives inevitably entailed some short term hard measures, as is inevitable for attaining any sudden change in entrenched social order.
Conclusion: There can be no doubt whatsoever that the punishment of stoning to death for adultery is NOT prescribed by, or derived from the Qur’an. The Qur’an prescribed flogging for zina – institutionalized public adultery as an emergency measure, as the custom stood in the way of the Qur’anic family laws. It, however, enables a woman committing adultery (nushuz) without leaving witnesses to avert punishment by simply taking an oath of innocence (24:8/9). In the same token, an unwedded woman bearing a child may be exempted from punishment by repeatedly affirming (under oath) that she was betrayed by a man who had pledged to marry her, as typically happens, or sexually abused or assaulted, while the man who has impregnated her should be liable to punishment depending upon the severity of his sexual offence – whether rape or betrayal of trust – the former defilement of what God venerates (4:1) and decrees to be guarded (4:34), and the latter, a violation of God’s covenant (2:177, 6:152, 23:8, 70:32). The Muslim jurists have to act and create a modern Sharia in line with the Qur’anic paradigms – the divine Shar‘iah as expounded in this paper.
In sum, the literalist application of a context specific emergency law (public flogging, mainly the women bearing its brunt) tailored to the pre-Islamic realities of seventh century Arabia for all time and all places transforms the specific into the generic, disregards the Qur’anic mandate on legislative dynamism, overshadows its spirit of mercy and compassion, dilutes its profound concern for women, drains Islam of its beauty and nobility and thus stands brutal and un-Islamic today.
. A mother bears a child with “spell after spell of weakness” (31:4), “she bears him with hardship and give him birth painfully” (46:15).
. Muhammad Husayn Haykal, The Life of Muhammad, English translation by Ismail Ragi, 8th edition, Karachi 1989, p. 319
Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009