Islamic Fiqh > Penalties (hudud) > Conditions for applying the penalties > Impediments to applying the punishments
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
The conditions of the obligation of the fornication penalty, stoning or flogging, upon the active and the passive partner alike: if they come together the penalty is due upon the fornicator; if one of them is missing the penalty falls. Some of these conditions belong specifically to the stoning penalty, others cover stoning and flogging.
Stoning is the right of the married fornicator. Umar (may Allah be pleased with him) used to say:
« Stoning is indeed a right against whoever commits fornication after having been married. »al-Bukhari 6441
And Aisha (may Allah be pleased with her) reports from the Prophet (peace and blessings of Allah be upon him):
« It is not lawful to shed the blood of a Muslim who bears witness to the oneness of Allah and that Muhammad is the Messenger of Allah, except in one of three cases: the married man who commits fornication: he shall be stoned; the man who goes out in brigandage against Allah and His Messenger: he shall be killed, or crucified, or banished from the land; or the man who kills a person: he shall be killed in retaliation. »sahih hadith; Abu Dawud 4353
This hadith grounds the stoning penalty of the married fornicator (al-Mughni 9/41).
The fuqaha agree: the child who commits fornication before his majority undergoes no fixed penalty; he is only rebuked and disciplined. And if he commits fornication as a child then attains majority, that act does not make him a married person in the sense of stoning. Ibn Qudama (may Allah have mercy on him): this is the view of the majority of the scholars (al-Mughni 9/42; see Bada'i' as-Sana'i' 7/38; al-Jawhara an-Nira 5/333; al-Lubab 2/301; Sharh Mukhtasar Khalil 8/81; al-Sharh al-Kabir with al-Dusuqi's commentary 6/312-313; Tahbir al-Mukhtasar 5/341; Rawdat at-Talibin 6/514; an-Najm al-Wahhaj 9/111; Mughni al-Muhtaj 5/439).
Capacity is also assessed between the two partners: the legally responsible woman who introduces the member of a sleeping man into her private part incurs the penalty alone, for the exemption of one of the two partners for a reason specific to him does not entail the exemption of the other (Kashshaf al-Qina' 6/126).
The majority of the scholars hold that knowledge of the prohibition of fornication is a condition of the obligation of the penalty: if the perpetrator does not know the prohibition, no penalty is due to him, for in legal matters the rule is established only after knowledge.
It is reported that a black slavegirl was brought before Umar (may Allah be pleased with him), it being said that she had committed fornication. He struck her a few lashes with the whip and said: « Wretched girl, have you committed fornication? » She said: « Through a deception, for two dirhams », indicating the man who had committed fornication with her and the price he had given her. Umar said: « What do you see? » With him were Ali, Uthman and Abd ar-Rahman ibn Awf. Ali (may Allah be pleased with him) said: « I think she must be stoned. » Abd ar-Rahman said: « I think as your brother saw. » He said to Uthman: « What do you say? » He said: « I see her broaching casually what she did: she sees no harm in it. Allah's penalty falls only upon one who knows Allah's command. » Umar said: « You have spoken the truth. »
Al-Bayhaqi reports from Bakr ibn Abd Allah, from Umar ibn al-Khattab (may Allah be pleased with him): it was written to him concerning a man who was told: « When did you last approach women? » He said: « Last night. » « With whom? » « The mistress of my lodging. » He was told: « You are lost. » He said: « I did not know that Allah forbade fornication. » Umar (may Allah be pleased with him) wrote to have him swear that he did not know Allah forbade fornication, then release him (weak report; al-Bayhaqi 16843). Amr ibn Dinar reports from Sa'id ibn al-Musayyib: a man said: « I committed fornication last night. » He was told: « Allah has forbidden it. » It was written to Umar concerning him; he wrote: « If he knew Allah forbade it, apply the penalty to him; if he did not know, inform him; if he does it again, apply the penalty to him. »
At-Tahawi (may Allah have mercy on him) concludes: he therefore imposed no penalty upon one ignorant of the prohibition, and no companion is known to have differed. And Allah said:
« We never punish a people until We have sent them a Messenger. »
Surah al-Isra, 15
He informs that He punishes no one in what pertains to revelation until the proof of prohibition is established against him. Moreover, the fixed penalties are punishments for violating prohibitions: whoever did not know the prohibition before falling into it is not a deliberate violator of it: no penalty upon him (Mukhtasar Ikhtilaf al-Ulama 3/301).
Imam al-Mawardi (may Allah have mercy on him) presents knowledge of the prohibition as the sixth condition: knowledge of the prohibition is what holds one back from rushing into it; just as one whom the call of Islam has not reached is not bound by its rules, so one who does not know the prohibition of fornication: its rules do not seize him. And one who is ignorant of the prohibition of fornication, despite the explicit text and the consensus of scholars and laymen upon it, is one of three: a madman who recovered after his majority and committed fornication at that moment; a recent convert who does not know the rules of Islam; or a man arriving from a desert where the prohibition had not become manifest. If the fornicator claims ignorance of the prohibition, his situation is examined: if he is one of these three, his word is accepted, and he is not even made to swear, except as a precaution, for that is his apparent state; if he is not one of them, his word is not accepted, for the apparent is the contrary (al-Hawi al-Kabir 13/220-221).
Ibn Qudama (may Allah have mercy on him): no penalty upon one who does not know the prohibition of fornication. Umar, Uthman and Ali: « No penalty except upon one who knows it » (al-Mughni 9/56), and this is the view of the generality of the scholars. If the fornicator claims ignorance of the prohibition and could plausibly be ignorant, like the recent convert or the one raised in the desert, his word is accepted, for he may be truthful. If he is of those among whom it cannot be hidden, like the Muslim raised among Muslims and scholars, his word is not accepted: the prohibition of fornication cannot escape such a man, his lying is thus established. And if he claims ignorance of the invalidity of a defective marriage, his word is accepted: Umar accepted the claim of ignorance of the prohibition of marriage during the waiting period; and such matters are often unknown and escape those who are not scholars (al-Mughni 9/56).
The scholars agree that the woman coerced into fornication undergoes no fixed penalty.
Allah has waived from my community error, forgetfulness and what they are forced to do.hadith qualified sahih in the encyclopedia
A woman was coerced in the time of the Messenger of Allah (peace and blessings of Allah be upon him): the Messenger of Allah waived the penalty from her and applied it to the one who had reached her.at-Tirmidhi 1453; report judged weak in its chain
Imam at-Tirmidhi (may Allah have mercy on him) says: on this the practice of the scholars, companions of the Prophet (peace and blessings of Allah be upon him), and others agrees: no penalty upon the coerced woman. Abd al-Jabbar ibn Wail reports from his father that a woman was coerced in the time of the Messenger of Allah (peace and blessings of Allah be upon him) and that he waived the penalty from her (reported by al-Athram). Umar (may Allah be pleased with him) had to judge slavegirls of the administration whom boys of the administration had coerced: he had the boys flogged and did not flog the slavegirls. And Sa'id reports, through his chain, from Tariq ibn Shihab: a woman was brought to Umar for fornication; she said: « I was asleep, and I woke only with a man fallen upon me. » He released her and did not flog her. For this is an ambiguity, and the fixed penalties are warded off by ambiguities. And there is no difference between coercion by physical force, when he overpowers her, and coercion by threat of death and the like. Ahmad expressly established it concerning a shepherd whom a thirsty woman found, asking him to water her; he said to her: grant me your person. Ahmad: she is one compelled by necessity. It is reported from Umar ibn al-Khattab (may Allah be pleased with him) that a woman asked a shepherd for water and he refused to water her unless she gave herself to him; she did it. The matter was raised to Umar, who said to Ali: « What do you see in it? » He said: « She is compelled by necessity. » Umar then gave her something and left her (al-Mughni 9/57).
Imam Ibn Battal (may Allah have mercy on him) says: the scholars agree that there is no penalty upon a coerced woman; they differed over the dowry due to her. Ata and az-Zuhri: the dowry is due to her; this is the view of Malik, al-Shafi'i, Ahmad, Ishaq and Abu Thawr. Ash-Sha'bi: if the penalty was applied to the man who fornicated with her, the dowry lapses; this is the view of the Kufans (Sharh Sahih al-Bukhari 8/303).
Imam Ibn Abd al-Barr (may Allah have mercy on him) says: the scholars agree that the assaulting rapist incurs the penalty if the evidence is established against him by what obligates it, or if he confesses it; otherwise he incurs disciplinary punishment. And no punishment upon her if it is established that he coerced her and overpowered her: this is known by her screaming, her cries for help, her wailing, and, if she was a virgin, by the blood apparent from her and similar signs that make her situation plain. If none of that appears and a pregnancy shows while she says: « I was coerced », the scholars differed. No disagreement is known among the scholars: the coerced woman undergoes no penalty if her coercion is established by what was described; and the like is reported from Abu Bakr, Umar, the caliphs and the fuqaha of the Hijaz and Iraq (al-Istidhkar 7/146).
The fuqaha differed over the obligation of the dowry upon the rapist. Malik, al-Layth and al-Shafi'i: the dowry and the penalty both. Abu Hanifa, Abu Yusuf, Mohammad, Sufyan ath-Thawri: the penalty without dowry; this is the view of Ibn Shubarma: with them dowry and penalty do not combine. Abu Umar: this follows their views on the thief, in whom the executed amputation gives rise to no compensation; and the thief question is itself disputed. Imam Ibn Rushd (may Allah have mercy on him) says: there is no disagreement among the people of Islam: the coerced woman undergoes no penalty; they differed only over the dowry being due to her. The cause of the disagreement: is the dowry a consideration for the conjugal relation, or a bounty? Whoever says a consideration for the relation obligates it for every relation, lawful or unlawful; whoever says it is a bounty Allah reserved for husbands does not obligate it (Bidayat al-Mujtahid 2/329-330). Imam al-Qurtubi (may Allah have mercy on him): the scholars agree that there is no penalty upon a coerced woman (Tafsir al-Qurtubi 10/185). And Imam Ibn Qudama (may Allah have mercy on him): no penalty upon a coerced woman, according to the view of the generality of the scholars; this is reported from Umar, az-Zuhri, Qatada, ath-Thawri, al-Shafi'i and the partisans of personal opinion, and we know of no opponent; because of the word of the Messenger of Allah (peace and blessings of Allah be upon him): « Allah has pardoned my community for error, forgetfulness and what they did under coercion » (al-Mughni 9/56 and 57).
The fuqaha differed over the man coerced into fornication: is the penalty applied to him or not? Several views.
Imam Abu Hanifa (may Allah have mercy on him) holds that if someone other than the ruler coerced him, the penalty applies; if it was the ruler, it does not apply, even though analogy with Abu Hanifa would require the penalty whether ruler or anyone else coerced; but he left analogy aside for coercion from the ruler. For coercion is inconceivable in fornication: intercourse is possible only with erection, and erection does not occur with fear; it occurs only with pleasure, calm of soul and choice: it is as if he fornicated by his own choice. It is not so for the woman coerced into fornication: she undergoes no penalty, for nothing is required of her but submission, and that occurs under coercion.
His statement on coercion by the ruler carries two meanings. The first: he intends the caliph; if he intended that, he made the penalty fall only because the caliph became corrupt and was deposed from the caliphate by coercing a man into fornication: no one then remains to apply the penalty to him, and the penalty is applied only by the ruler; where there is no ruler, it is not applied, like one who commits fornication in the land of war. The second: he intends one below the caliph; if he intended that, the explanation is that the ruler is commanded to seek the means of warding off the penalty: if he coerces a man into fornication, he is in fact seeking to establish its obligation; he therefore may not apply it himself, and the penalty falls.
As for coercion by someone other than the ruler, the penalty is due. For coercion contradicts consent: what occurs by free choice is not undergone under coercion; and since the person's state attests that consent took place, this indicates he did not act under coercion. The proof from the state: it is known that the state of coercion is a state of fear and mortal peril, and erection and desire are contradicted by fear and dread; since erection and desire came from him in that state, it is known he acted without coercion: had he been coerced and afraid, there would have been from him no erection nor overpowering desire. This proves his act did not occur under coercion: the penalty is therefore due. Abu Bakr al-Jassas (may Allah have mercy on him) sets out the objection: the existence of the erection does not prevent abstaining from the act; so since the act occurred while coercion was apparent, we know he acted under coercion, as with wine, slander and the like. The answer: it is indeed so; but since it is customary that fear for one's person prevents erection, that indicates he acted willingly. Do you not see that one coerced into disbelief who pronounces it willingly becomes a disbeliever, even though coercion exists outwardly? Likewise, the state that attests willingness counts as his confession: the penalty is applied to him (Ahkam al-Quran 5/99; Tuhfat al-Fuqaha 3/275; al-Ikhtiyar 2/130; al-Jawhara an-Nira 6/249-250; al-Lubab 2/518).
The Shafi'is in the relied-upon view of the school, the two companions of Abu Hanifa, Abu Yusuf and Mohammad, and on their view the fatwa rests, the Malikis in a view held by most verifiers of the school such as al-Lakhmi, Ibn Rushd and Ibn al-Arabi, and the Hanbalis in a narration validated by Ibn Qudama: the man coerced into fornication undergoes no penalty, like the woman. Their proof:
« Ward off the fixed penalties by ambiguities. »hadith judged weak; Ibn Asakir in Tarikh Dimashq 68/191
And coercion is among the greatest ambiguities. And since it is coercion into fornication, it must make the penalty fall like the coercion of the woman; and every act for which the penalty falls when the woman is coerced into it, the penalty falls when the man is coerced into it, like theft and wine. As for the answer to the argument drawn from the erection arising from desire: desire is rooted in temperaments and cannot be repelled; what can be repelled is the soul's yielding to it, out of religion or prudence; coercion therefore bears upon the act, not upon desire, and the penalty strikes only the act, not desire (al-Hawi al-Kabir 13/241-242; al-Bayan 12/360; al-Muhadhdhab 2/267; Rawdat at-Talibin 6/522; Mughni al-Muhtaj 5/437; Tuhfat al-Muhtaj 10/704; Tabyin al-Haqa'iq 5/189; al-Bahr al-Ra'iq 8/87; al-Mughni 9/57; al-Mubdi' 9/72).
Al-Haddadi (may Allah have mercy on him) sets out the detail: on coercion by the ruler there are two narrations. The first: the penalty is due; this is Zufar's view, and the explanation is the one given. The second: no penalty upon him, he incurs disciplinary punishment and the dowry is due; for the ruler cannot be resisted nor complained of to another. And it is in al-Bazdawi (large version): if the ruler coerces him into fornication, it is not permitted for him to proceed, for that corrupts the bed and loses progeny: that is tantamount to killing. Abu Yusuf and Mohammad say: the penalty does not devolve upon him, he incurs disciplinary punishment, whether ruler or other coerced; for erection belongs to man's nature: it occurs without his choice, then he is coerced into the act: the coercion is valid, the penalty falls and the dowry is due, for intercourse upon another's domain never lacks either penalty or dowry: the penalty having fallen, the dowry is due, without recourse against the coercer. And if he is coerced by imprisonment, chains or blows whose deadly outcome he does not fear, it is not permitted for him to act; if he acts, the penalty befalls him: for imprisonment and chains are coercion in property and contracts; as for forbidden acts, there is no coercion except by what one fears the loss of life or limb from (al-Jawhara an-Nira 6/249-250).
The Malikis in the widespread view, the Shafi'is in the view opposite the soundest and the Hanbalis in the school view hold that the penalty applies to the coerced man: for intercourse occurs only with erection, and coercion contradicts it; if erection is found, coercion is negated: the penalty devolves upon him, like one coerced into something other than fornication who then commits it (al-Hawi al-Kabir 13/241-242; Hashiyat al-Dusuqi 6/310; at-Taj wa al-Iklil 5/339; al-Mughni 9/57; Kashshaf al-Qina' 6/124-125).
The Malikis detail: does the man coerced into intercourse undergo the penalty or not? The view of the verifiers such as Ibn Rushd, al-Lakhmi and Ibn al-Arabi: no penalty upon him and no rebuke, for he has the excuse of coercion. The majority say the contrary: the penalty applies to him, and it is the view of most adherents of the school; al-Kharshi (may Allah have mercy on him): this is the school view (Sharh Mukhtasar Khalil 8/80). Al-Dardir (may Allah have mercy on him): the majority say the contrary, the penalty applies, and this is the widespread view. Al-Dusuqi specifies: the penalty applies absolutely, with erection or without, as in Ibn Arafa and ash-Shamil; and it follows from his words that the penalty applies according to the majority even if she was the one who coerced him to fornicate with her, and so it is; except that no dowry is due from him if she was the coercer; if someone else coerced him, he guarantees the dowry and recovers it from the coercer. And the place of the disagreement is when he was coerced to fornicate with her while she was consenting, with no husband and no master; otherwise the penalty applies by agreement, in regard for the right of the husband and the master, and because she is weak: it is not permitted for him to advance upon her, even at the cost of his blood.
The people of knowledge agree: the penalty is not applied to the pregnant woman, from fornication or otherwise, until she delivers what she carries.
Sulayman ibn Burayda reports from his father: « A woman of Ghamid, from al-Azd, then came to the Prophet (peace and blessings of Allah be upon him) and said: O Messenger of Allah, purify me. He said: woe to you, go back, ask Allah's forgiveness and repent to Him. She said: I see you want to send me back as you sent back Ma'iz ibn Malik. He said: what is it? She said: I am pregnant from fornication. He said: is it you? She said: yes. He said to her: until you deliver what is in your womb. A man of the Ansar stood surety for her until she delivered. He then came to the Prophet (peace and blessings of Allah be upon him) and said: the Ghamidiyya has delivered. He said: then we shall not stone her and leave her child small, with no one to suckle him. A man of the Ansar rose and said: to me its suckling, O Prophet of Allah. He then had her stoned. »Muslim 1695
And because applying the penalty during pregnancy leads to her destruction and the miscarriage of her child: both are forbidden; and this holds whether the penalty is stoning or another (al-Hawi al-Kabir 13/491).
Imam Ibn al-Mundhir (may Allah have mercy on him): they agree that the woman who confesses fornication while pregnant is not stoned until she delivers (al-Ijma' 635). Imam Ibn Battal (may Allah have mercy on him): the scholars agree that the woman pregnant from fornication undergoes no stoning before delivery. They differed over when stoning becomes due upon her after delivery. Malik: once she has delivered, the penalty is applied if someone is found to suckle the newborn; if none is found, she is deferred until she suckles him and weans him, for fear of his death. Al-Shafi'i: she is not stoned until she weans him, as the Prophet (peace and blessings of Allah be upon him) did with the stoned woman, according to what Malik reports in al-Muwatta. The Kufans: she is stoned after delivery, according to what Imran ibn Husayn reports:
« A woman came to the Prophet (peace and blessings of Allah be upon him) and mentioned that she had committed fornication; he ordered her to remain seated until she delivered. When she had delivered, she came to him; he ordered her stoned, and he prayed over her. »cited in Sharh Sahih al-Bukhari of Ibn Battal 8/456
Imam Ibn Hazm (may Allah have mercy on him): they agreed that the penalty is not applied to her while she is pregnant (Maratib al-Ijma' 131).
Imam an-Nawawi (may Allah have mercy on him) says: the pregnant woman is not stoned until she delivers, her pregnancy being from fornication or otherwise, and this is agreed upon, lest her fetus be killed; likewise, if her penalty is flogging and she is pregnant, she is not flogged, by consensus, until she delivers; and the hadith shows that the woman is stoned if she commits fornication being married, like the man: this hadith concerns her as a married woman, for the authentic hadiths and the consensus agree: none is stoned but the married. It also shows that one who incurs retaliation while pregnant does not undergo it until she delivers: agreed upon. Then, after delivery, the pregnant fornicator is not stoned, and she who incurs retaliation does not undergo it, until she gives her child the first milk and he dispenses with her through another's milk. It also shows that pregnancy is recognized and legally established: this is the sound view in our school (Sharh Sahih Muslim 11/201). And Imam Ibn Qudama (may Allah have mercy on him): the penalty is not applied to a pregnant woman until she delivers, the pregnancy being from fornication or otherwise; we know of no disagreement on it (al-Mughni 9/47).
The fuqaha of the four schools agree: one who confesses fornication then retracts his confession, before the penalty or during it, is released and the penalty is not applied to him; the Malikis however have a detail.
Vizier Ibn Hubayra (may Allah have mercy on him): they agreed that if he confesses fornication then retracts it, the penalty falls from him and his retraction is accepted, except Malik: if he retracts the confession invoking an excusable ambiguity, such as saying: I had intercourse in a void marriage, or I thought her a shared slavegirl, his retraction is accepted like the view of the body of scholars. But if he retracts the confession of fornication without ambiguity: two narrations: one, his retraction is accepted; the other, it is not accepted in any way (al-Ifsah 2/255; see al-Ikhtiyar 4/98; al-Jawhara an-Nira 5/318; at-Taj wa al-Iklil 5/329; al-Sharh al-Kabir with al-Dusuqi's commentary 6/310; Tahbir al-Mukhtasar 5/339; al-Muhadhdhab 2/272; an-Najm al-Wahhaj 9/123; Mughni al-Muhtaj 5/446).
Imam al-Mawardi (may Allah have mercy on him): if the confessor of fornication retracts his confession, his retraction is accepted and the penalty falls from him; this is the view of Abu Hanifa and most fuqaha, whether part of the penalty has begun to be applied to him or not. Al-Hasan al-Basri, Sa'id ibn Jubayr, Malik in one of the two narrations from him, and Dawud ibn Ali: his retraction is not accepted and the penalty does not fall from him, whether the penalty has begun or not. Some Iraqis: his retraction is accepted before the start of the penalty, not after, relying on the word of the Prophet (peace and blessings of Allah be upon him): « Whoever falls into one of these abominations, let him cover himself with the veil of Allah; whoever uncovers his face to us, we apply Allah's penalty upon him »: this indicates that retraction has no effect after the uncovering of the face. They say: and because it is a right established by his confession, it must not fall by his retraction, by analogy with the rights of human beings.
The proof of the majority: the word of the Messenger of Allah (peace and blessings of Allah be upon him): « Ward off the fixed penalties by ambiguities », and his retraction is an ambiguity, for he may be truthful. And because Ma'iz, when he fled from the heat of the stones and they pursued him until they killed him, the Messenger of Allah said: « Why did you not leave him? Perhaps he would repent and Allah would accept his repentance »: if his retraction had no effect, there would be no merit in leaving him after the order to stone him.
It is reported that a man confessed fornication before Umar ibn al-Khattab (may Allah be pleased with him) then retracted it: he left him and said: « It is better to drop a fixed penalty through ambiguity than to apply a fixed penalty upon an ambiguity. » Abu Bakr (may Allah be pleased with him) did the like, and no companion opposed them: it was a consensus. And because it is a penalty of Allah established by his word, it may fall by his retraction, like apostasy; and what is established of Allah's penalties by word must fall by word, by analogy with the witnesses' retraction.
As for the answer to the report of the uncovering of the face: the one who retracts does not uncover his face; he uncovers it only by standing by his confession. And as for the answer to their analogy with the rights of human beings: two distinctions prevent the analogy from holding. The first: Allah's rights are warded off by ambiguities; the rights of human beings are not. The second: for the rights of human beings he is commanded to confess them, and his retraction there is not accepted; for Allah's rights only repentance is due of him, and he is encouraged not to confess them: that is why his retraction is accepted there (al-Hawi al-Kabir 13/210-211).
Mohammad ibn al-Munkadir reports from Ibn Hazzal, from his father, that the Messenger of Allah (peace and blessings of Allah be upon him) said to him:
« Woe to you, O Hazzal: had you covered him with your garment, it would have been better for you. »sahih hadith; Abu Dawud 4377; Ahmad 21942
Imam Ibn Qudama (may Allah have mercy on him): among the conditions of applying the penalty through confession is persistence upon it until its completion; if he retracts his confession or flees, one desists. This is the view of Ata, Yahya ibn Ya'mur, az-Zuhri, Hammad, Malik, ath-Thawri, al-Shafi'i, Ishaq, Abu Hanifa and Abu Yusuf. Al-Hasan, Sa'id ibn Jubayr and Ibn Abi Layla: the penalty is applied to him and he is not left, for Ma'iz fled and they killed him without leaving him; and it is reported that he was saying: « Take me back to the Messenger of Allah (peace and blessings of Allah be upon him): my people deceived me about myself and told me the Messenger of Allah would not kill me; they did not desist until they killed him » (hasan hadith; Abu Dawud 4420); and had his retraction been accepted, his blood money would have been owed by them; and because it is a right made obligatory by his confession, his retraction is not accepted, like the other rights. It is reported from al-Awza'i that if he retracts the fornication confession he is flogged for slander upon himself, and if he retracts the confession of theft or drinking he is beaten less than the fixed penalty.
The proof, Ibn Qudama continues: Ma'iz fled and his case was mentioned to the Prophet (peace and blessings of Allah be upon him), who said: « Why did you not leave him, that he might repent and Allah accept his repentance? » Ibn Abd al-Barr: it is established from the hadith of Abu Hurayra, Jabir, Nu'aym ibn Hazzal, Nasr ibn Dahir and others that Ma'iz, after his flight, had said to them: « Take me back to the Messenger of Allah », and the Prophet said: « Why did you not leave him, that he might repent and Allah accept his repentance? »: this is the clearest of proofs that his retraction is accepted. And from Burayda: « We, companions of the Messenger of Allah (peace and blessings of Allah be upon him), used to say: had the Ghamidiyya and Ma'iz ibn Malik retracted after their confession, or had they not retracted after their confession, he would not have sought them; he only stoned them at the fourth » (reported by Abu Dawud).
And because his retraction is an ambiguity, and the fixed penalties are warded off by ambiguities; and because the confession is one of the two proofs of the penalty: it falls by retraction, like testimony that retracts before the application of the penalty. It differs from the other rights, which are not warded off by ambiguities. And if Ma'iz's blood money was not owed by those who killed him after his flight, it is because his flight is not an explicit retraction.
Once this is established: if he flees, he is not pursued, because of the word of the Prophet (peace and blessings of Allah be upon him): « Why did you not leave him? » If he is not left and is killed, no compensation is due, for the Prophet held no one liable for Ma'iz who killed him, and because his flight is not an explicit retraction. And if he says: « Take me back to the judge », he must be taken back and it is not permitted to complete the penalty; if it is completed, no compensation lies upon the completer, for the reason given about his flight. And if he retracts his confession and says: « I lied in my confession », or « I retract it », or « I did not do what I confessed », he must be left alone; if someone kills him after that, compensation is due, for his confession disappeared through his retraction: he becomes like one who never confessed; and no retaliation upon his killer, for the people of knowledge differed over the validity of his retraction, and their disagreement is an ambiguity warding off retaliation; and because the validity of the confession is hidden: it becomes an excuse preventing the obligation of retaliation (al-Mughni 9/63-64).
At-Tahawi (may Allah have mercy on him): we saw them all transmit from the Messenger of Allah (peace and blessings of Allah be upon him) concerning the confessor of fornication who fled, that the Prophet said: « If only you had let him go »; they held this as proof that his retraction is accepted, and they applied it to all of Allah's penalties: one who confesses any of them then retracts, his retraction is accepted; they did not single out fornication for this apart from the rest of Allah's penalties (Sharh Ma'ani al-Athar 3/169).
The fuqaha agree: it is recommended to suggest to the confessor that he retract his confession in Allah's penalties.
Abu Hurayra (may Allah be pleased with him) reports: « A Muslim man came to the Messenger of Allah (peace and blessings of Allah be upon him) while he was in the mosque and called him: O Messenger of Allah, I have committed fornication. He turned away from him. He moved to face him and said: O Messenger of Allah, I have committed fornication. He turned away from him, until he had repeated it four times. When he had testified against himself four testimonies, the Messenger of Allah called him and said: are you mad? He said: no. He said: are you married? He said: yes. The Messenger of Allah said: take him and stone him. »al-Bukhari 6439; Muslim 1691
Ibn Abbas (may Allah be pleased with them) reports: « When Ma'iz ibn Malik came to the Prophet (peace and blessings of Allah be upon him), he said to him: perhaps you kissed, or touched, or looked? He said: no, O Messenger of Allah. He said: did you penetrate her, without euphemism? It was only then that he ordered his stoning. »al-Bukhari 6438
And Sulayman ibn Burayda reports from his father the complete account of Ma'iz:
« Ma'iz ibn Malik came to the Prophet (peace and blessings of Allah be upon him) and said: O Messenger of Allah, purify me. He said: woe to you, go back, ask Allah's forgiveness and repent to Him. He went back a little way, then came back and said: O Messenger of Allah, purify me. The Messenger of Allah said: woe to you, go back, ask Allah's forgiveness and repent to Him. He went back a little way, then came back and said: O Messenger of Allah, purify me. The Prophet repeated this until the fourth time; then the Messenger of Allah said to him: from what shall I purify you? He said: from fornication. The Messenger of Allah asked: is he mad? He was told he was not mad. He said: has he drunk wine? A man rose and smelled his breath, finding no odor of wine. The Messenger of Allah said: have you committed fornication? He said: yes. He then ordered his stoning. The people split into two camps: some said: he is lost, his sin has encompassed him; others said: there is no repentance better than Ma'iz's repentance: he came to the Prophet, put his hand in his hand, then said: kill me with stones. They remained on that two or three days; then the Messenger of Allah came while they were sitting, greeted, sat and said: ask forgiveness for Ma'iz ibn Malik. They said: may Allah forgive Ma'iz ibn Malik. The Messenger of Allah said: he made a repentance which, were it divided among a whole community, would cover them. »Muslim 1695
Imam an-Nawawi (may Allah have mercy on him) says: the suggestion of retracting the confession in the fixed penalties comes from the Prophet (peace and blessings of Allah be upon him), from the rightly guided caliphs and from those after them, and the scholars agree upon it (Sharh Sahih Muslim 11/195).
Imam Ibn Battal (may Allah have mercy on him) reports from al-Muhallab and others: in this hadith there is proof of the permission to suggest to the confessor, in the penalties, what wards them off from him. Do you not see that the Prophet (peace and blessings of Allah be upon him) said to Ma'iz: « perhaps you touched, or kissed », to ward the penalty off him? For the word fornication applies to the glance of the eye and to all the limbs: Ma'iz having come with an equivocal word, the Prophet did not apply the penalty to him until he knew with certainty what he had done, without ambiguity; for among his rules is warding off the penalties by ambiguities; when he spoke explicitly, he ordered his stoning. Another said: this shows that the penalties are applied only upon explicit statement, not upon allusions; do you not see that if witnesses testify against a man of fornication without saying: we saw him penetrate her, their ruling is that of slanderers, not of witnesses; out of Allah's gentleness with His servants and His veiling over them, so that they repent.
Al-Muhallab: after the Prophet, his rightly guided companions practiced the suggestion. Malik reports from Yahya ibn Sa'id that Umar, while he was in Syria, was approached by a man who mentioned having found a man with his wife; Umar sent Abu Waqid al-Laythi to the woman to ask her about what her husband had said to Umar, and to inform her that she would not be seized by his word; he kept suggesting to her things of that kind that she might retract, but she refused to retract: Umar had her stoned. Ma'mar reports, through his chain, that a man was brought to Umar of whom it was said: he is a thief. Umar said: I see the hand of a man that is not the hand of a thief. The man said: by Allah, I am no thief. He released him. From ash-Sha'bi: Ali was brought a woman named Shuraha, pregnant from fornication. He said: woe to you, perhaps a man coerced you? She said: no. He said: perhaps the act befell you while you slept? She said: no. He said: perhaps your husband is among our adversaries, the people of Syria, and you shrink from denouncing him? She said: no. He kept suggesting this and the like to her, and she kept saying: no. He had her stoned. And from Abu Mas'ud: a thief who had stolen a camel was brought to him. He said: did you find it? He said: yes. He released him.
Al-Muhallab concludes: such is the mode of suggestion by allusion for one who knows the penalty and what it entails for him; as for the suggestion to the ignorant one who does not understand the words, it is explicit statement. Ibn Jurayj reports from Ata: some, before the thief brought, would say: did you steal? say no; did you steal? say no; and my knowledge is that he named Abu Bakr and Umar. Shu'ba reports from Abu ad-Darda': a black slavegirl who had stolen was brought to him. He said to her: did you steal, O Salama? say no. She said: no. He released her. I said to him: you suggest the answer to her? Abu ad-Darda' said: she confessed while she does not know what is intended with her. Al-A'mash said: Ibrahim used to order turning away those who confessed of themselves; and Ahmad and Ishaq saw the suggestion to the thief when he is brought; Abu Thawr said likewise if the thief is a woman, or if he does not know what is done with him or what he says.
Al-Muhallab specifies: this suggestion, across its various degrees, is not a binding Sunna except by the imam's choice; he may refrain from suggesting and from alluding, because of his word: « evidence, or else the penalty upon your back ». As for the forbidden suggestion, it is that of the two litigants in rights disputes and people's claims. Likewise there is no suggesting to the notorious offender known for it, once what he confessed is clear or testimony has been given against him: the imam is bound to apply the penalty (Sharh Sahih al-Bukhari 8/444-446).
Imam al-Kasani (may Allah have mercy on him): it is recommended for the imam to suggest retraction to the confessor by saying: « perhaps you touched her, or kissed her », as the Prophet (peace and blessings of Allah be upon him) suggested it to Ma'iz, and as he suggested it to the male thief and the female thief, saying: « I do not think he stole », or: « did you steal? say no » (hadith judged weak; Abu Dawud 4380; an-Nasa'i 4877; Ahmad 22561). If the confession were not open to retraction, the suggestion would have neither meaning nor use: it was therefore, on his part, a seeking of the penalty's removal, by his command: « Ward off the fixed penalties by ambiguities » and « Ward off the fixed penalties as much as you can ». Retraction also holds for the confession of theft and drinking, for the penalty due through them is a pure right of Allah: retraction of the confession is valid there; except that for theft, retraction holds for the amputation, not for the property: amputation is a pure right of Allah, retraction holds there; as for the property, it is a right of the servant: retraction does not hold there.
This whole regime stands in the rule repeated throughout the encyclopedia: ward off the fixed penalties by doubt. A competent authority; an offender of age, aware of the prohibition, acting without coercion, and not pregnant for the woman; a confession maintained to the end, which the judge himself suggests taking back: at each link, fiqh chooses the reading that protects the accused, and every missing condition makes the penalty fall. The following pages detail the conditions specific to each category of penalty.