Professor Shahul Hameed says:

Salam, Faiz

Thank you for your question.

The Qur’an most certainly does prescribe corporal punishments for certain serious social crimes. The Shari`ah punishment for a married person for zina is sangsar (Urdu word for stoning).

Punishment in Islam has a social purpose in that it should dissuade others from committing the same crime. The nature of the punishment depends on the seriousness of the crime in question. Many people nowadays, especially Westerners, may be opposed to the Islamic punishment for zina, not necessarily because they are opposed to the idea of punishing anyone who violates the social norms of sex or family life, but because they see it as disproportionate or too harsh a punishment for the crime.

The basic problem here is the different standards by which the severity of the crime is measured. Islam views zina as a very serious crime, because it undermines the very foundation of the family system upon which the whole superstructure of the society stands. Extra-marital sex is the main cause of the breakdown of the family. The collapse of the family tells upon the nurture and care of the young. The physical and moral health of the coming generation depends on the kind of care they get from their parents and parents can look after their children properly only within the framework of the family.

Thus we can see that illicit sexual relationships undermine the family and bring about the breakdown of the system. Family breakdown imperils the physical and mental health of the future generation; which in turn leads to a vicious circle of decadence, dissipation, and dissolution. Therefore, it is imperative that all measures must be taken to protect the family. That is why Islam lays great stress on drastic steps to protect the family by imposing severe punishments on all activities that tend to subvert the foundation of the institution of the family.

For this reason, Islam’s provisions of the Shari`ah are not intended “to plunge the society into darkness,” but to protect it by all means. A number of Western writers say that ‘unless Islam is prepared to relax its legal provisions of the Shari`ah, there can and will be no accommodation, only a continuation of Western rejection of Islam.’

The Western point of view of man-woman relationships is in keeping with its view of a permissive society, a society that accepts extramarital and illicit relationships as normal. The predatory capitalism prevalent in the West has unleashed a driving passion among the people for more money, more comforts, and more pleasure, particularly carnal pleasure. Hence, the phenomenal growth in the West of the porn businesses, partying, carnivals, and sex tourism. The most important casualty of this situation is the family. The result is a profusion of single parents, gay and lesbian couples, latch-key children, and what not. In spite of it all, they call the Islamic Shari`ah provisions “harsh” or even “primitive.” I hope you see the difference in the world views.

Now these are the essential conditions for the implementation of the Shari`ah punishment for zina:

First, only a proper Islamic government, legitimately running its affairs on the principles of Shari`ah, has the right to implement the Shari`ah punishments. There is no overstating the fact that Islamic punishments are only a part of a vastly larger integrated whole. They cannot be implemented in isolation. The need to implement the Shari`ah should arise from the taqwa (piety) of a people or their sincere and profound desire to avoid what displeases Allah and accept what pleases Him.

Second, the Islamic government should establish justice as its core value in all its affairs so that the social and cultural environment of the country should be congenial for a moral life for all its people. The government should see that there is no enticement drawing people to do immoral things. In other words, there must be an atmosphere that makes doing good easy and doing bad difficult.

It is only after a minimum of the above two conditions have been fulfilled that a government is entitled to implement the Shari`ah punishments in a country.

Any case that comes before the court for judgment must be investigated thoroughly and proper evidence must be brought before the court to satisfy all the conditions of Shari`ah. Only then does a Shari`ah court gain the authority to judge a case according to its provisions.

You have also asked the question, “Is there any tawbah (repentance) permissible for a person guilty of zina?”

No doubt, a person guilty of zina, or any other crime or sin has the right to repent and seek Allah’s forgiveness. Of course, it is Allah’s privilege to forgive that person or not. But for obvious reasons, an open expression of repentance need not be taken by the court as an expiation for a crime or an excuse to annul the due punishment.

And Allah knows best.

Sister Dalia Salaheldin, Editor of Ask About Islam, adds:

Salam, brother Faiz.

I need to highlight a point here. The proof of such a crime that would take the person to court and physical punishment isn’t actually an easy proof to fulfill. This is a detailed Shari`ah issue that you may study more through our Shari`ah Corner. Yet I can tell you the minimum, which is, for example, that you cannot simply accuse a couple of such a crime and expect the court to fulfill the punishment. Proof that will be accepted by the court for such crime is very much detailed and includes many conditions among which is —for example— the existence of at least four witnesses who have to have visually seen the crime taking place. Of course, for this to happen in front of witnesses is a rare exception!

Why do you think such conditions for the proof of such crimes exists? It is simply because our Creator’s goal is not to punish His weak servants. The punishment is there for the very same reasons that Professor Hameed has stated, but the fulfillment of the punishment doesn’t always take place due to the difficulties of proving the crime. God is Merciful and He knows how weak His creation is. He knows that people sin sometimes out of weakness and not because they want to defy God by their sins and by breaking His rules.

This is by no means a call to simplify the rudeness and vulgarity of the act. It is an act that contradicts the peaceful submission of a Muslim to his or her Creator. It is an act that corrupts the society. It is an act that breaks the family ties and it is an act that shatters children and brings them to a homeless and nameless situation. Yet, we can never tell sinners not to repent, that they will not be accepted or forgiven except if they get their worldly physical punishment!

On the contrary, we should tell sinners that if they do not get this physical punishment in this world due to the fact that Shari`ah is not applied or for other reasons, they should not go around exposing their sinful souls. They should simply repent sincerely in silence. They should go back to God, asking for forgiveness and having hope in His mercy. As long as they are sincere, they should count on His mercy and not think that they won’t be forgiven because they were not physically punished.

Many times, Allah has mentioned in the Qur’an that He *{forgives for whom He wills}*. So, if a person regrets and repents seriously and sincerely, it is for God to decide whether this person is to be forgiven or not. He is the Only One Who knows if this sinner is honest and sincere in his or her repentance or not.

Mercy is the essence of Shari`ah, not punishments and penalties. God has issued such punishments out of His mercy towards society, families, and children. The aim of such laws is not to torture people, but to alert people to the results of such act.

During the time of Prophet Muhammad, who is the mercy sent to all creation, there was a woman who committed such crime. She was not discovered by others, thus she could have hidden her crime. But she went to the Prophet (peace be upon him) and confessed to him, asking for her physical punishment. She was already pregnant.

The Prophet did not order her punishment immediately, he told her to wait until she gave birth. Then, after she gave birth, she came back to the Prophet asking for her punishment. Again, the Prophet did not order her punishment, he told her to wait until she finished breastfeeding her child. Throughout this long period, which probably took around three years, the woman could have changed her mind and never come back. Definitely, the Last Messenger knew that, yet he never seized the chance to punish her.

After she finished breastfeeding her child, she came back to the Prophet asking again for her punishment. The Last Messenger had no alternative but to permit the fulfillment of the punishment. When she died, the Prophet acknowledged that the repentance within her heart was worth that of many other hearts. This story is not to tell you that repentance wouldn’t have worked without punishment, but it is to show you that punishment was not the target of the Last Prophet, who was sent to implement Shari`ah in this life.

The Sunnah does not only advise sinners to repent and ask for God’s forgiveness, it also directs Muslims to have hope in God’s mercy and not to expose themselves. When a person weakens and sins, he or she shouldn’t go around and confess to people. On the contrary, the Sunnah advises us to avoid disgrace and not to expose ourselves.

Thus, if the person is not discovered or taken to court, he or she has no other alternative but to repent sincerely. The process of confession in Islam does not take place between a creation and another creation. It only takes place between a creation and the Creator. It is then for the Creator to decide what to do with His poor, helpless, repenting servant.

I hope my addition is helpful. In case you have any more inquiries, please do not hesitate to contact us again. Thank you and please keep in touch.

Salam.

Useful Links:

Must an Adulterer be Stoned to Death to be Forgiven?

Should a Fornicator Be Punished to Repent for Zina?

Punishment for Zina: Can It Be Replaced?

How Islam Views Adultery

Stoning: Does It Have Any Basis in Shari`ah?