Self-Confession of Fornication

12 Malik related to me from Zayd ibn Aslam that a man confessed to fornication in the time of the Messenger of Allah, may Allah bless him and grant him peace. The Messenger of Allah, may Allah bless him and grant him peace, called for a whip, and he was brought a broken whip. He said, " Above this, " and he was brought a new whip whose knots had not been frayed yet. He said, " Below this, " and he was brought a whip which had been used and was flexible. The Messenger of Allah, may Allah bless him and grant him peace, gave the order and he was flogged. Then he said, " People! The time has come for you to observe the limits of Allah. Whoever has had any of these ugly things befall him should cover them up with the veil of Allah. Whoever reveals his wrong action to us, we will perform what is in the Book of Allah against him."

13 Malik related to me from Nafi' that Safiyya bint Abi 'Ubayd informed him that a man who had had intercourse with a virgin slave-girl and made her pregnant was brought to Abu Bakr as-Siddiq. He confessed to fornication and he was not muhsan. Abu Bakr gave the order for him to be flogged with the hadd punishment. Then he was banished to Fadak (thirty miles from Madina).

Malik spoke about a person who confessed to fornication and then retracted his confession, saying, " I didn't do it. I said that for such-and-such a reason, " and he mentioned the reason. Malik said, " That is accepted from him and the hadd is not imposed on him. That is because the hadd is what is for Allah, and it is only applied by one of two means, either by clear evidence which establishes guilt or by a confession which is persisted in so that the hadd is imposed. If someone persists in his confession, the hadd is imposed on him."

Malik said, " I have not seen the people of knowledge exiling slaves who have committed adultery."

The Hadd for Fornication

14 Malik related to me from Ibn Shihab from 'Ubaydullah ibn 'Abdullah ibn 'Utba ibn Mas'ud from Abu Hurayra and Zayd ibn Khalid al-Juhani that the Messenger of Allah, may Allah bless him and grant him peace, was asked about a slave-girl who committed fornication and was not muhsana. He said, " If she commits fornication, then flog her. If she commits fornication again, then flog her, and if she commits fornication yet again, then sell her, if only for a rope."

[cf Bukhari 2046]

Ibn Shihab added, " I don't know whether it was three or four times."

15 Malik related to me from Nafi' that a slave was in charge of the slaves in the khumus* and he forced a slave-girl among those slaves against her will and had intercourse with her. 'Umar ibn al-Khattab had him flogged and banished him, but he did not flog the slave-girl because the slave had forced her.

* The fifth of the booty for the amir.

16 Malik related to me from Yahya ibn Sa'id that Sulayman ibn Yasar informed him that 'Abdullah ibn 'Abbas ibn Abi Rabi'a al-Makhzumi said, " 'Umar ibn al-Khattab gave me orders about the slaves of Quraysh and we flogged some of the slave-girls in the Muslim lands fifty times for each act of fornication."

Rape

Malik said, " The position with us about a woman who is found to be pregnant and has no husband and she says, 'I was forced, ' or she says, 'I was married, ' is that it is not accepted from her and the hadd is inflicted on her unless she has clear evidence of what she claims about the marriage or being forced or if she comes bleeding if she was a virgin or she calls out for help so that someone comes to her and she is in that state or what resembles of it of the situation in which the violation occurred." He said, " If she does not produce any of those, the hadd is inflicted on her and whatever such claims she makes are not accepted from her."

Malik said, " A raped woman cannot marry until she has proved to be free of pregnancy by three menstrual periods."

He said, " If she doubts her periods, she does not marry until she has freed herself of that doubt."

41.5 The Hadd for Slander, Denial of Paternity and Insinuation

17 Malik related to me that Abu'z-Zinad said, " 'Umar ibn 'Abd al-'Aziz flogged a slave with eighty lashes for slander."

Abu'z-Zinad said, " I asked 'Abdullah ibn 'Amir ibn Rabi'a about that and he said, 'I saw 'Umar ibn al-Khattab, 'Uthman ibn 'Affan, the Khalifs, and so on, and I did not see any of them flog a slave with more than forty lashes for slander."

18 Malik related to me from Zurayq ibn Hakim al-Ayli that a man called Misbah asked his son for help and he thought him unnecessarily slow. When the son came, his father said to him, " O fornicator." Zurayq said, " So the son asked me to help him against the father. When I wanted to flog him, his son said, 'By Allah, if you flog him, I will acknowledge that I have committed fornication.' When he said that, the situation was unclear for me, so I wrote to 'Umar ibn 'Abd al-'Aziz who was the governor at that time, and I mentioned it to him. 'Umar wrote me to permit his pardon."

Zurayq said, " I also wrote to 'Umar ibn 'Abd al-'Aziz asking, 'What do you think about a man who is slandered or his parents are slandered and both or only one of them are dead? ' 'Umar wrote to me, 'If he forgives, his pardon is permitted for himself. If his parents are slandered and one or both of them are dead, take the judgement of the Book of Allah for it unless he wants to veil it.' "

Yahya said, " I heard Malik say, 'That is because the slandered man might fear that if it is unveiled about him, a clear proof might be established. If it is according to what we have described, his pardon is permitted."

19 Malik related to me from Hisham ibn 'Urwa that his father said that there was only one hadd against a man who slandered a group of people.

Malik said, " If they are on separate occasions there is still only one hadd against him."

Malik related to me from Abu'r-Rijal Muhammad ibn 'Abd ar-Rahman ibn Haritha ibn an-Nu'man al-Ansari, of the Banu'n-Najar from his mother, 'Amra bint 'Abd ar-Rahman, that two men cursed each other in the time of 'Umar ibn al-Khattab. One of them said to the other, " By Allah, my father is not an adulterer and my mother is not an adulteress." 'Umar ibn al-Khattab asked advice about that. One person said, " He has praised his father and mother." Another said, " His father and mother have praise other than this. We think that he should be flogged with the hadd." So 'Umar flogged him with the hadd of eighty lashes.

Malik said, " There is no hadd in our view except for slander, denial of paternity or insinuation in which one sees that what the speaker intends by that is denial of paternity or slander. Then the full hadd is imposed on the one who said that."

Malik said, " What is done in our community when a man denies that another man is his father's child is that such a person should receive the hadd. If the mother who is the subject of the denial is a slave, then he should receive the hadd as well."

41.6 That For Which There is No Hadd

Malik said, " The best of what is heard about a slave-girl with whom a man has intercourse while he has a partner in her is that the hadd is not inflicted on him and the child is connected to him. When the slave-girl becomes pregnant, her value is estimated and he gives his partners their shares of the price and the slave-girl is his. That is what is done among us."

Malik, speaking about a man who made his slave-girl halal to a man, said that if the said that if the one for whom she was made halal had intercourse with her, her value was estimated on the day he had intercourse with her and he owed that to her owner whether or not she conceived. The hadd was averted from him by that. If she conceived the child was connected to him.

Malik said about a man who had intercourse with his son's or daughter's slave-girl, " The hadd is averted from him and he owes the estimated value of the slave-girl whether or not she conceives."

20 Malik related to me from Rabi'a ibn Abi 'Abd ar-Rahman that 'Umar ibn al-Khattab spoke about a man who went out wih his wife's slave-girl on a journey and had intercourse with her and then the wife became jealous and mentioned it to 'Umar ibn al-Khattab. 'Umar questioned him about it. He said, " She gave her to me." 'Umar said, " Bring me clear evidence or I will stone you."

Rabi'a added, " The wife admitted that she had given her to him."

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