|Dear scholars, As-Salaam `Alaykum. I was wondering in cases of adultery or fornication if the baby that is born due to the act is allowed to be used as a sole evidence of the woman's guilt. There has been a recent case in Nigeria where the woman was convicted and the man was acquitted because no one saw the couple do the act, but the baby was used as evidence against the woman. It seems at first that this would be unfair to the women. Please let me know what the ruling is. Jazakum Allah khayran.|
AnswerWa`alykum As-Salaamu Warahmatullahi Wabarakaatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear questioner, thanks for your question, reflecting the great confidence you place in us. We implore Allah Almighty to help us serve His cause and render our work for His Sake.
In his well-known book, Fiqh As-Sunnah, Sheikh Sayyed Sabiq states:
"The majority of scholars are of the view that pregnancy cannot stand as an independent proof for the establishment of the crime of Zina. The crime cannot be established save with confession or testimony. This view is based on the Hadiths that call for fending off Hudud (Islamic fixed penalties) by the mere occurrence of suspicion. Caliph Ali, may Allah be pleased with him, is reported to have asked a pregnant woman, 'Have you been raped?' 'No,' she replied. Thereupon he said, 'So, maybe someone raped you while you were sleeping.'
`Umar, is also said to have accepted the statement of a woman who claimed to have the habit of sleeping like a log and that someone, whom she could not recognize, had raped her while she was sleeping.
However, Imam Malik and his followers are of the view that if an unmarried woman gets conceived with no any claim of rape, then she is to be punished. However, if the woman claims that she has been raped, then the onus of proof is on her. The same applies if she claims that she has got married"
The prominent Muslim scholar and Da`iyah, Sheikh `Abdul-Khaleq Hasan Ash-Shareef, concludes:
"First and foremost, I want to state that the crime of Zina is proved by one of two means: the evidence of four reliable witnesses or the confession of the adulterer or the fornicator.
However, other things such as pregnancy and the like are merely signs or indications and are not qualified enough to serve as a legal proof. For instance, pregnancy does not necessarily denote fornication or adultery. Therefore, it should not be taken as evidence to prove the crime. The scholars state that the Hudud are to be fended off for mere suspicion or doubt."
Based on this, it is clear that pregnancy is not an independent proof for establishing the crime of Zina. The crime can only be established through the testimony of four witnesses or the confession of the accused. As far as we know the woman in the Nigerian case admitted the crime while the man denied it. That is why he was acquitted, for his denial clouds the whole atmosphere with doubt in the sense that no certainty can be established as regards the culpability of the man.
Addressing this point, Sheikh Faisal Mawlawi, Deputy Chairman of the European Council for Fatwa and Research, states:
"As for the man whom the woman accused of adultery but he denied and she could not bring four witnesses, the legal ruling is that he will get rid of the worldly punishment but this does not mean that he will escape the punishment on the Hereafter. It is up to the judiciary to decide and according to the evidence that indicate that he committed the crime, he will be subject to discretionary punishment (Ta`zeer) left for the judge to decide according to the conditions of each case. According to some scholars it may reach the level of the prescribed punishment.
Therefore, the establishment of the crime and the punishment is subject to judicial discretion, not subject to mere accusation. This means that we should focus on the point of establishing justice. We need to know the significance of emphasizing on four witnesses before accusing the man of the crime. We need to ask: What if the woman in question, for any reason, accused another an innocent man, of being the one who committed adultery with her, without having any cogent proof on her side? Will justice be achieved by punishing the accused here for mere accusation without any evidence?
The issue then is a matter of proving the crime beyond reasonable doubt. If it is proved, then the punishment must be implemented whether on the man or the woman. If the evidence is lacking, then the accused must be freed, regardless of whether he is a man or a woman."