By Arif M. Khan
Tabri, in his History of Prophets and Kings, has narrated a case of adultery involving Mughira bin Shuba, the governor of Basra during the time of Caliph Umar and a young widow called umm Jamil. Sometime in AD 639, four Basra residents filed a complaint with the Caliph accusing the governor of adultery. What provided substance to the accusation was the fact that Mughira was a much married man, who would have to divorce one of his wives to take a new one in order to stay within the prescribed limit of four wives.
Many Basra Muslims were critical of the governor’s conduct. Among them was one Abu Bakra whose house faced the governor’s house. One day a strong wind blew open a window in the house of Abu Bakra who was sitting with some friends. When he got up to close it, he saw through the open window of the house opposite, Mughira and the woman in a compromising position. Abu Bakra called his friends to witness the governor involved with the woman.
Soon thereafter, Abu Bakra wrote to the Caliph, who promptly suspended Mughira, appointed a new governor, Abu Musa Ashari, and summoned Mughira to Medina to face trial. Abu Bakra and three other persons who claimed to be witnesses were also summoned and formal judicial proceedings were launched.
During the trial, Mughira pleaded not guilty and insisted that the woman in question was his wife and not Umm Jamil. Mughira averred with great indignation and force that Abu Bakra and the others had no right to violate his privacy and spy on him, he pleaded that personal privacy was an integral part of his dignity, which is protected by the Quran and Islamic laws. Abu Bakra, on the other hand, stood by his charge and maintained that the woman with the governor was Umm Jamil. Three other witnesses corroborated his statement, But a fourth witness, Ziyad, presented a confusing picture by saying that he could not see the face of the woman and could not say with certainty that it was Umm Jamil. During cross-examination the witnesses were asked whether the woman had her back or her face towards them. They admitted that the woman had her back towards them, but insisted that even from her back she could be identified as Umm Jamil. They further referred to the reputation of the governor to support their charge against him.
Under Quranic law, to press the charge of adultery the definite evidence of adultery the definite evidence of four eyewitnesses is an absolute necessity. Since in this case the witnesses claimed to have seen the woman from her back, the evidence was considered weak, and since the fourth witness was not sure of the identity of the woman, Mughira was given the benefit of doubt and duly acquitted. The men who brought the charge against Mughira were punished as provided in law.
Since this case belongs to the early Islamic period, it has been commented upon by many scholars. The overwhelming view is, what tilted the judgement in favour of Mughira was not only the lack of definite evidence but the Quranic injunction that prohibits any violation of the right to privacy of an individual. The Quran says: “Enter not houses other than your own until you have asked permission and saluted those in them... If you find no one in the house enter not until permission is given to you: if you are asked to go back, go back, that makes for greater purity for you” (24.27-28). This position is further reinforced by a prophetic narration saying, “Asking for permission is allowed up to three times. If it is not granted, you must return.” The Quran clearly forbids spying (tajassus) and indulgence in suspicion and undercover activities that offend the individual’s right to privacy. It says, “Avoid suspicion, for suspicion in some cases is a sin: and spy not on each other nor (backbite) speak ill of each other behind their back. Would any of you like to eat the flesh of his dead brother?”
Strong words, but that is how Islam upholds the individual’s right to privacy.
Source: The Sunday Guardian, New Delhi