The conditions of the qadhf hadd

The hadd of qadhf only becomes due once precise conditions are met: a clear wording of accusation, a slandered person who is genuinely chaste of zina, and a responsible slanderer. This chapter sets these conditions school by school, then the quantity of the penalty, the case of an accusation brought against a group, and the status of a husband who accuses his wife without performing the li'an (the li'an procedure itself is covered in the section devoted to it).

The form of the accusation: explicit, allusion, insinuation

Qadhf takes three forms: the explicit (sarih), the allusion (kinaya) and the insinuation (ta'rid). The explicit is the wording that admits no meaning other than the accusation, such as "O zani (adulterer)", "O zaniyya (adulteress)", "O ahir (fornicator)"; the origin of this last term is the man who came by night to a woman for debauchery, then the word came to designate the zani, whether he went to her or she came to him, by night or by day. "Your private part committed zina" also counts as explicit, admitting no other meaning, and so does the denial of lineage. The jurists agree that qadhf through an explicit wording of zina entails the hadd with its conditions (Bada'i' al-Sana'i' 7/42; al-Dhakhira 12/90; al-Umm 5/131, 132; Kashshaf al-Qina' 6/139).

On allusion and insinuation, the Hanafis and the Shafi'is hold that they do not entail the hadd: an allusion is ambiguous, the hadd does not apply in the presence of a doubt, all the more in the presence of two possible meanings. Al-Shafi'i, may Allah have mercy on him, said: "No li'an and no hadd is applied except through an explicit accusation." He cites the man who says to his wife: "I did not find you a virgin of intercourse", while the loss of virginity can come from intercourse as from another cause: the case is suspended; if he meant zina, hadd or li'an; otherwise he swears and nothing is due from him. He then reports the story of the Fazari woman who gave birth to a black boy: the husband mentioned her only in suspicion, and the Prophet's answer, peace and blessings upon him, shows that his words were a suspicion rather than an accusation; no hadd and no li'an is due when the wording keeps another meaning, even if the listener leans toward accusation. He argues from the word of Allah: Allah permitted the insinuation of a marriage proposal and forbade its explicit form (Surah al-Baqara 235), so the two rulings differ. Likewise the report of the man who said: "O Messenger of Allah, my wife does not refuse the hand of a toucher": "divorce her"; "I love her"; "keep her": an insinuation that did not make him a slanderer. To the objection that "toucher" means the seeker of her wealth, the answer is that this contrary interpretation fails for two reasons: he would have said "the hand of a seeker", and he would not have been ordered to divorce her but to restrict her spending. Similarly the Jews used to say to the Prophet: "we disobeyed al-Mudhammam and disobeyed our father", and he replied: "See how Allah protected me from them: they insult al-Mudhammam, and I am Muhammad"; he did not treat their insinuation as explicit. By meaning too: every allusion valid in pleasure is valid in anger, like the allusions of divorce; and what, said about oneself, would not be a confession of zina is not, said about another, an accusation of zina (al-Umm 5/131, 132; al-Hawi al-Kabir 11/131, 132).

Al-Mawardi said: the allusions of qadhf and its insinuations constitute qadhf only with intention, in anger as in pleasure: this is the view of Abu Hanifa and most jurists; and the Prophet, peace and blessings upon him, did not treat that man's insinuation as explicit.

The Malikis and the Hanbalis hold instead that the allusion of qadhf and the insinuation understood as intended count as explicit and entail the hadd: this is known from the circumstances of the situation and the turns of speech; if the meaning does not appear, there is neither hadd nor insinuation, as with one who answers "O zani" with "May Allah bless your morning" or "you are generous and noble". The people of language call insinuation that from which the meaning of the explicit is understood, even if the words state the opposite: thus the people of Shu'ayb said "you are certainly the forbearing, the rightly guided" (Surah Hud 87) meaning the opposite; thus two quarrelling men, one of whom says "O zani" while the other answers "you are not a zani, and his mother is none but the chaste one": the visible signs show that he is the target, and this is understood from circumstances, as one distinguishes the "there is no god but Allah" uttered as a lesson, in veneration, in wonder, in the call or in quotation. Their opponents moreover acknowledge that "I intended by this qadhf" makes the act a qadhf: it must therefore be understood from him, otherwise that ruling would rest on inner intention alone. This was also the practice of Umar ibn al-Khattab, Uthman ibn Affan, Urwa and al-Zuhri.

Ibn al-Qayyim said: it reached us from Umar, through several channels, that he applied the hadd for insinuation: Ma'mar reported from al-Zuhri, from Salim, from his father: "Umar used to apply the hadd for insinuation of obscenity"; Ibn Jurayj reported from Ibn Abi Mulayka, from Safwan and Ayyub, from Umar, that he applied the hadd for insinuation; Abu Umar mentions that Uthman did the same; and Umar ibn Abd al-Aziz held the hadd for insinuation: this is the view of the people of Medina and of al-Awza'i. It is pure reasoning: divorce, manumission, the waqf and zihar operate through the explicit as through the allusion, and the word was coined only to convey a meaning; when the meaning appears fully, changing the wording brings little benefit (I'lam al-Muwaqqi'in 3/129).

Ibn Rushd said: the qadhf that entails the hadd is agreed upon on two paths: one, to accuse the person of zina; the other, to deny him his lineage when his mother is a free Muslim woman. If she is a disbeliever or a slave, they differed: Malik holds the hadd in all cases; Ibrahim al-Nakha'i holds that there is no hadd when the mother of the accused is a slave or a Scripture woman, by the analogy of the view of al-Shafi'i and Abu Hanifa. They agree that qadhf, when made through an explicit wording, entails the hadd (Bidayat al-Mujtahid 2/330).

The wordings retained by each school

Al-Shafi'i, Abu Hanifa, al-Thawri and Ibn Abi Layla hold that there is no hadd for insinuation; Abu Hanifa and al-Shafi'i apply the ta'zir to it; Ibn Mas'ud, among the Companions, held their view. Malik and his companions hold that the hadd applies to insinuation: the case arose in the time of Umar, he consulted the Companions, they differed before him, and he held the hadd. Malik's basis is that the allusion can, through the custom entrenched among people, stand in place of the explicit text, even if the word is used outside its proper place; the basis of the majority is that the possibility dwelling in the borrowed term is a doubt, and penalties are averted by doubt. The sound position is that the allusion sometimes stands for the text and is sometimes too weak: it depends on how frequent its use is (Bidayat al-Mujtahid 2/330). Al-Dhakhira states the rule of the chapter: "the meanings entrenched by custom and the circumstances at hand: once either of the two disappears, one swears and the other undergoes the hadd; if the custom shifts or dies, the hadd dies, and this varies across eras and lands": it follows that "O son of the one at the banner" no longer entails the hadd today, and that a wording without consequence could entail one if its usage became entrenched (al-Dhakhira 12/94).

The Hanafis detail:

• Explicit are "O zani", "you committed zina", "you are a zani": the hadd applies, for he produced an explicit qadhf of zina. The emphatic-letter form ("O zani'", "you committed zina' on the mountain") also entails the hadd, and the excuse "I meant climbing the mountain" is not credited: common people do not distinguish the emphatic letter from the soft one.
• "O son of a zani": he accuses the father; "O son of a zaniyya": the mother; "O son of the zani and the zaniyya": both parents. "O son of zina", "O child of zina": qadhf, the entrenched meaning being "you were born of the water of zina". "O son of two zaniyyat", "O son of a hundred adulteresses", "O son of a thousand adulteresses": an accusation of the mother, and the chastity counted is that of the woman who bore him, not of the grandmother: if the mother is a Muslim, the hadd applies though the grandmother is a disbeliever; if the mother is a disbeliever, there is no hadd though the grandmother is a Muslim, for the mother is truly his parent while the grandmother is so only figuratively.
• "O son of a qahba": no qadhf, the term also designating the woman prepared and ready for zina without committing it; no qadhf in the presence of a possibility. "O son of a da'iyya" (a woman attached to a tribe without lineage from them): no qadhf, her lineage being able to be established through another channel.
• Two men quarrel and one says "my father is no zani nor my mother an adulteress": no qadhf, the wording denying zina on its face, even if used to insinuate.
• He says to a woman "O zaniyya" and she answers "I committed zina with you": no hadd on the man, who was confirmed, and the woman undergoes the hadd, her wording being explicit without confirmation from him. If she answers "I committed zina in your presence": no hadd on either of them, the answer meaning either "with you" or "in your presence".
• The husband says to his wife "O zaniyya" and she answers "no, it is you": the woman undergoes the hadd of qadhf, and the course for the husband is the li'an; each accused the other spouse, the woman's accusation entails the hadd of qadhf and the husband's against his wife the li'an, both being established penalties. If she answers "I committed zina with you": neither hadd nor li'an, the answer meaning either "before the marriage" (a confession entailing the hadd) or "none but you ever possessed me: if this is zina, then zina [it is]" (a confirmation of the husband entailing the li'an); the double possibility bars both.
• "You are more inclined to zina than I", "the most inclined to zina of people", "more than so-and-so": no hadd, the comparative possibly meaning capacity for zina or notoriety in it.
• "You committed zina and so-and-so with you": he accuses both, the conjunctive waw of totality making him the informer on the zina of each.
• "You commit zina" (in the present): no hadd, the wording serving the present as the future. "You commit zina and I strike the penalty": a proverb of self-astonishment, as in the word of Allah:

No soul bears the burden of another soul.

Surah al-Isra 15

• "I have never seen an adulteress better than you", or to a man "a zani better than you": no qadhf, he made her the best among the women of zina without affirming zina in her.
• "Your husband committed zina before marrying you": he is a slanderer, he attributed zina to the husband in a connected statement.
• "So-and-so had unlawful intercourse with you", "he possessed you unlawfully", "he exposed you", or to a man "you possessed so-and-so unlawfully": no hadd, he did not accuse of zina but of unlawful intercourse, which can exist without zina, as with intercourse under a semblance of legality (shubha).
• He orders another to insult: the sender is not a slanderer, he ordered without accusing. If the messenger does it on his own initiative, he is the slanderer and the hadd applies to him. If he relays ("so-and-so sent me and ordered me to tell you O zani"), no hadd: he reported another's qadhf. "I was told you are a zani", "I was made a witness to that": not a slanderer either.
• "O luti": no qadhf by consensus, a mere attribution to the people of Lut, peace upon him, implying no practice of their deed. If he states it plainly ("you practice the deed of the people of Lut") naming it: no qadhf for Abu Hanifa, and his two companions hold him a slanderer, that deed being for them of the meaning of zina.
• To "O zani", the other answers "you spoke the truth": the slanderer undergoes the hadd, not the confirmer, whose words are a qadhf by allusion. "You spoke the truth, it is as you said": the hadd, this standing for the explicit.
• "Your brother is a zani", and the other answers "no, it is you": the second undergoes the hadd, the "no" reinforcing the affirmation. The first undergoes no hadd if the man has brothers besides him; if he has only one brother, that brother may demand the hadd, the man addressed not being able to.
• "You are not your father's": he accuses the mother, in anger as in pleasure, this statement being said only to deny paternal lineage. "This is not your father" or "you are not the son of so-and-so" said to the father, or "you are the son of so-and-so" said to a stranger: qadhf in anger, no qadhf otherwise, the statement possibly meaning a resemblance of character, and no qadhf in the presence of doubt.
• "O son of Muzayqiya", "O son of the water of the sky": qadhf in anger, not in pleasure. Two Arab lords bore these names: 'Amir ibn Haritha, called "the water of the sky" for his purity and generosity, and 'Amr ibn 'Amir, called "Muzayqiya" for tearing up each evening a new garment out of pomp and pride; the state of mind decides: in anger the denial of lineage appears, in pleasure the praise.
• "You are the son of my uncle", "of my maternal uncle", "of my mother's husband": no qadhf, the paternal uncle, the maternal uncle and the mother's husband being called fathers. "You are not the son of your grandfather": no slander, the grandfather being a father only figuratively.
• "O Nabatean" said to an Arab, or "you are not of Banu so-and-so" said to a man of his tribe: no qadhf by the generality of scholars. "O son of the tailor", "O son of the saffron-stained man", "O son of the Black", and likewise "O son of the maimed", "O son of the one-eyed", when the father is nothing of the kind: he is a liar, not a slanderer, like saying "O blind one" to a sighted man.
• Qadhf in any language, Arabic or not, entails the hadd: its meaning is the attribution of zina, realized in every tongue. "Your private part committed zina": the hadd, zina being realized through the private part.
• "You committed zina with a horse, a donkey, a camel or a bull": no hadd, since one may understand access given to the animal, or a price paid for the zina, as with "with dirhams, dinars or garments". "You committed zina under coercion, an imbecile, mad or asleep": no qadhf but a lie, these states excluding zina. To a woman who moved from disbelief to Islam, "you committed zina as a disbeliever": qadhf, and the hadd applies.
• "You are not your mother's": no hadd, a pure lie, motherhood being certain; likewise "you are not your parents'".

The Malikis detail: the insinuation understood of one of the three things, zina, liwat and the denial of lineage from the father or the grandfather, counts as explicit. Saying "I am not a zani" equals "O zani"; saying "as for me, my father is known" equals "your father is unknown"; the hadd follows, prose or verse alike.

• These entail the hadd: "I am not a zani", "I was told you are a zani", "your private part committed zina", "your hand", "your eye"; to a foreign woman "you committed zina under coercion" when she denies it; "I am chaste in my private part", on account of the mention of the private part; "I am chaste" without that mention does not entail it (chastity may mean eating), unless a circumstance turns the meaning toward the private part.
• The husband who says to his wife "you committed zina under coercion" performs the li'an, otherwise she undergoes the hadd, unless he establishes the coercion by evidence.
• "You are not free" said to a man of Arab origin, "O Rumi", "O Persian" and the like: hadd, the lineage being cut. Conversely "O Arab" said to a Persian or a Rumi: no hadd, he did not cut the lineage but referred to the virtues of the Arabs, who preserve their genealogy. Attributing a man to his paternal uncle: hadd, a cutting of lineage; to his paternal or maternal grandfather: no hadd, the grandfather being called a father, insult or not: the view of Ibn al-Qasim.
• Describing oneself as "corrupt of lineage", "born of zina", or attaching oneself to a clan other than one's own: hadd, for one accuses one's mother; the same for whoever attributes so another. "O qahba" said to a proven adulteress: hadd, wife or stranger, like "O fajira", "O ahira". "Qarnan (you are horned)": hadd, for he makes him an accomplice of another over his wife, and the hadd belongs to the wife if she demands it. "O son of Munzilat al-rukban", "O son of Dhat al-raya": hadd, an insinuation of the mother's zina in the times of ignorance. "I did it in her folds (the folds of the belly)": hadd, being stronger than insinuation.
• "O mabun": hadd, the term literally meaning one afflicted in the rear, and by extension one who speaks like women; if he really speaks that way, no hadd falls on the slanderer, but a correction is given. "O son of the Nazarene", "of the Blue one", "of the one-eyed" and the like, when his fathers are nothing of the kind: hadd, the mother being thereby attributed to zina, Arab or not. "O son of the weaver" and the other crafts: if the man is of Arab origin, one distinguishes (no hadd if his fathers practiced the craft, hadd otherwise); if he is not an Arab, no hadd at all.
• "O mukhannath (effeminate)": hadd, unless he swears he did not intend qadhf. "O transgressor", "O debauchee", "O wine drinker", "O son of a debauchee", "O eater of riba", "O donkey", "O swine" and the like: correction, no hadd.
• He says to a foreign woman "you committed zina" and she answers "with you": two hadds upon her, that of qadhf and that of zina for her confirmation; if she retracts the confession, the hadd of qadhf alone; if she meant to answer his accusation, the hadd of qadhf applies only to him. To "O zani", the other answers "you are more inclined to zina than I": no hadd on the first, who accused a man not chaste, and the second undergoes the hadd of zina and of qadhf.

The Shafi'is detail: explicit are "you committed zina", "O zani", "O zaniyya"; describing the insertion of a glans into a vagina while qualifying it as forbidden, or insertion into the anus, is explicit by entrenched custom: the vagina can be lawful or unlawful, the anus never is, for man or woman. "O luti" is an allusion for some (the religion of the people of Lut), and an explicit wording for others, that possibility being too remote.

• Allusion and insinuation: "O debauchee", "O transgressor", "O khabith (vile)"; to a woman "you love seclusion", "you do not refuse the hand of a toucher"; to his wife "I did not find you a virgin", "I found a man with you"; if he denies the intention to accuse, he is credited on oath. "O son of the lawful one" and "as for me, I am not a zani": insinuation without qadhf, even if he intended it.
• "I committed zina with you": a confession of zina and a qadhf at once.
• The husband says "O zaniyya", the wife answers "I committed zina with you" or "you are more of a zani than I": he is the slanderer and undergoes the hadd for his explicit wording, and she is credited on oath about her intention: the first answer may deny zina (as with "did you lunch? I lunched with you"), and the second mean "none but you ever possessed me: if I am a zani, you are more so, for I grant access while you act". If she says, in answer or on her own initiative, "I am an adulteress and you are more of a zani than I": confession and explicit accusation, one hadd for zina and one for qadhf, beginning with that of qadhf, a right of a human being; if she retracts, the hadd of zina falls without the hadd of qadhf falling, a right of a human being.
• "You are more of a zani than so-and-so" said to the husband: an allusion, unless the zina of so-and-so is established and she knows it: the wording becomes explicit and she a slanderer. If she does not know: an allusion, she is credited on oath in her ignorance, excused and without hadd.
• "Your private part committed zina", "your member", "your mouth", "your anus": qadhf, these organs being the instrument or the seat of the act. "Your hand", "your eye" and, to his own child, "you are not of me", "you are not my son": allusion. To another's child, "you are not the son of so-and-so": explicit, except for one denied through a li'an.

The Hanbalis detail: the wordings of qadhf divide into explicit and allusive, like those of divorce. Explicit is what admits nothing else: "O manyuk" as long as he does not interpret it (if he interprets it, no qadhf), "O zani", "O ahir"; "O luti", which by custom designates the one who comes to males, the deed of the people of Lut: explicit, like the explicit divorce. "You are not the son of so-and-so" is qadhf of the mother of the one addressed, and likewise if he denies him of his tribe, following the report of al-Ash'ath ibn Qays: "No man shall be brought to me saying: Kinana is not of Quraysh, but I flog him" (mawquf: Ibn Majah 2612; Ahmad 5/211). Allusive are the wordings that follow, the zina of these organs not entailing the hadd, according to the hadith:

The two eyes commit zina and their zina is the looking; the two hands commit zina and their zina is the striking; the two legs commit zina and their zina is the walking; and the private part confirms that or denies it.

narrated by al-Bukhari (6243) and Muslim (2657)

• Allusive are: "your hands committed zina", "your legs", "your hand", "your body"; "O mukhannath", "O qahba", "O fajira", "O khabitha"; to someone's wife: "you disgraced your husband, covered his head, made horns grow, hung children of another upon him, spoiled his bed": none of this is explicit in qadhf.
• If he intended by these wordings the reality of zina, the hadd applies: allusion joined by intention or circumstance equals the explicit in establishing the ruling. If he interprets it by a meaning other than qadhf, he undergoes the ta'zir, a sin without hadd or expiation: the mukhannath means one who adopts feminine natures, the qahba the woman exposed to zina without committing it, the fajira the liar.

The chastity of the slandered person

Ibn Rushd said: the accused person must combine five qualities: puberty, freedom, chastity, Islam, and possession of the instrument of zina; if one is missing, the hadd does not become due. The majority of jurists condition in general the freedom of the accused, though a disagreement there is possible, and Malik measures a woman's age by her capacity for intercourse (Bidayat al-Mujtahid 2/330). The jurists further agree that the accused person must be chaste of zina: whoever accuses a man known for his zina by evidence or confession entails no hadd, by the word of Allah:

Those who accuse chaste women and then fail to produce four witnesses, flog them with eighty lashes and never accept their testimony after that: they are the transgressors.

Surah an-Nur 4

and by His word:

Indeed, those who accuse chaste, unaware and believing women are cursed in this world and in the hereafter, and theirs will be a mighty punishment.

Surah an-Nur 23

The muhsanat are free women, and the ghafilat those chaste of zina; the hadd having been made due upon whoever accuses without producing four witnesses, it follows that whoever produces four witnesses upon his zina incurs nothing. And the hadd is only due to repel disgrace: one who has no chastity to preserve suffers no disgrace from the accusation.

Al-Kasani defines chastity: the accused person never had in his life unlawful intercourse outside ownership or marriage, nor within a marriage corrupted by a unanimous corruption; if he did, his chastity fell, whether the intercourse was a punishable zina or not. The three imams require actual chastity; Ahmad suffices with apparent chastity: one whose zina is not established by evidence or confession, and who was not punished for zina, is chaste; then, if the accusation denies lineage, the hadd applies by agreement (Bada'i' al-Sana'i' 7/41, 42). He deduces cases: intercourse under a semblance of legality (shubha), when a woman other than his wife is brought to him in marriage and he possesses her, drops his chastity (unlawful intercourse outside ownership and marriage), without hadd because of the apparent licit-inducing indicator; intercourse with the menstruating woman, the one bleeding after birth, the fasting one, the one in consecration, the free woman over whom he declared zihar, or the married slave woman, does not drop his chastity (real ownership or marriage, the impediment having another cause); marrying another's wife in her waiting period, an already married woman, a Zoroastrian, or his milk-sister drops his chastity per Abu Hanifa whether he knew or not, and per his two companions only if he knew; kissing a woman with desire or looking at her private part with desire then marrying her daughter or her mother does not drop his chastity per Abu Hanifa, and drops it per his two companions; marrying without witnesses then possessing her drops his chastity, the corruption of that marriage being unanimous among the predecessors, Malik's disagreement not being counted; finally no hadd falls upon whoever accuses a woman already punished for zina, a woman who has beside her a child of unknown father, or a woman who performed a li'an with a child: the indicator of zina is apparent, she is therefore not chaste.

Al-'Imrani specifies the ruling of the unlawful intercourse itself, which is of four kinds: pure unlawfulness (zina, or possessing one's mother or sister through a marriage contract knowing the prohibition, or possessing the pledged woman, one's father's slave, or the woman he ceded to his wife, knowingly): this intercourse entails the hadd upon its doer and cancels his ihsan, so no hadd falls on his slanderer; unlawfulness through a temporary impediment (possessing his menstruating, bleeding, fasting or consecrated wife): no hadd upon him, his ihsan does not fall, and the hadd applies to his slanderer; unlawfulness in all cases but within ownership (possessing one's mother or sister while owning them): if the hadd applies, his ihsan falls and his slanderer escapes; otherwise the hadd applies to his slanderer; unlawfulness outside ownership but disputed (marriage without guardian or witnesses, the shighar marriage, the mut'a marriage, the slave shared between partners): no hadd upon its doer, and on the falling of his ihsan two views: it falls (unlawful intercourse outside ownership, like zina) or it does not (like intercourse with the menstruating wife).

The quantity of the penalty: 80 lashes, 40 for the slave

Once qadhf is established with its conditions, through the slanderer's confession or two witnesses, his flogging becomes due if he is free, sane, adult and Muslim: eighty lashes, without increase, and forty if he is a slave: this by the Book and by consensus. By the Book, the word of the Most High already cited (Surah an-Nur 4). Ibn Hazm said in Maratib al-Ijma': they agreed that the free, sane, adult, Muslim and uncoerced man who accuses a free, sane, adult, Muslim and chaste man, or a free, adult, sane, Muslim and chaste woman not denied through a li'an, through an explicit wording, outside the territory of war, at the demand of the accused person in person, owes eighty lashes; that the slanderer who is not free owes forty lashes; and that there is nothing beyond eighty (Maratib al-Ijma', p. 134). Ibn Rushd said: they agreed on the eighty lashes for the free slanderer, by the word of the Most High: "eighty lashes" (Surah an-Nur 4).

On the slave who accuses a free man, the majority of the jurists of the great cities hold half the penalty of the free man, forty lashes: this is reported from the four caliphs and from Ibn Abbas. A group holds the penalty of the free man: Ibn Mas'ud among the Companions, Umar ibn Abd al-Aziz, Abu Thawr, al-Awza'i, and Dawud with the Zahiris. The basis of the majority is the analogy between his hadd of qadhf and his hadd of zina; the Zahiris cling to the generality, and as they also agree that the hadd of the Scripture man is eighty, the slave is more worthy of it still.

Ibn Qudama said: the quantity of the penalty is eighty when the slanderer is free, by the verse and by consensus, man or woman, with the conditions of adulthood, sanity and non-coercion, conditions of every hadd (al-Mughni 9/77). Shams al-Din Ibn Qudama said: the scholars agreed on the obligation of the penalty upon whoever accuses a muhsan, eighty lashes if he is free; if he is a slave, his penalty is forty, they agreed on its obligation through the generality of the verse. It is reported from Abdallah ibn Amir ibn Rabi'a: "I accompanied Abu Bakr, Umar, Uthman and the caliphs after them, and I never saw them inflict on a slave slanderer more than forty lashes." Khilas reports that Ali said, about a slave who had accused a free man: "upon him is half the penalty." Abu Bakr ibn Muhammad ibn Amr ibn Hazm flogged a slave slanderer with eighty lashes, as did Qabisa and Umar ibn Abd al-Aziz, applying the generality of the verse; he was blamed for it, Abdallah ibn Amir ibn Rabi'a saying: "I saw no one flog a slave with eighty lashes before him"; Sa'id reports from Abd al-Rahman ibn Abi al-Zinad from his father: I attended Umar ibn Abd al-Aziz flogging a slave with eighty lashes for a slander, and those present, jurists and others, blamed him for it; Abdallah ibn Amir ibn Rabi'a said to him: "By Allah, I saw Umar ibn al-Khattab, and I never saw anyone flog a slave for a slander beyond forty." The sound view is the first, by the consensus reported from the Companions, the penalty being a deterrent one in which the slave stands at half that of the free man, as in zina; this specifies the generality of the verse. Al-Khiraqi said: the slave's whip is lighter than the free man's, the number having been lightened, so was the whip; the apparent reading of their shaykh is a whip identical to the free man's, so that the halving is realized (al-Sharh al-Kabir 10/211, 212).

Who accuses a group with a single wording

The jurists differed on one who accuses a group with a single wording: does he undergo one hadd for all, or for whoever demands it, or a hadd for each? The majority of jurists, the Hanafis, the Malikis, the Shafi'is in one view and the Hanbalis in the school, hold that only a single hadd is due from him, for all of them or for whoever demands it: whether he accuses them with one wording ("O people of zina") or with separate wordings ("Zayd, you are a zani; Amr, you are a zani; Khalid, you are a zani"), only one hadd is applied to him per the Hanafis, the Malikis and the Hanbalis in one view. Proof: the word of the Most High fixes eighty lashes upon each of the slanderers (Surah an-Nur 4), so the slanderer of a group of chaste persons receives no more than eighty lashes, and whoever makes more than one hadd due from him contradicts the ruling of the verse. He made no distinction between one accused and a group, nor between one wording and several. And the hadd is only due because the accusation imposes disgrace upon the accused: a single hadd exposes the slanderer's lie and removes the disgrace, unlike the case where he accuses each one separately, the lie in one accusation not entailing the lie in the other, and the disgrace not being removed from one by the penalty paid for another (Mukhtasar Ikhtilaf al-'Ulama' 3/321, 322; Ahkam al-Qur'an 5/113, 114; al-'Inaya 7/301; al-Jawhara al-Nayyira 5/357; al-Ifsah 2/194; al-Mughni 9/88, 89; al-Furu' 6/98).

The Shafi'is in the school and the Hanbalis in a narration hold that he owes a hadd to each one: it is a human right sought by each, and the disgrace reaches each of them; thus "O daughter of two zanis" accuses both parents, and "you are people of zina" (al-Umm 7/153; al-Hawi al-Kabir 11/119, 120; Asna al-Matalib 3/379; al-Kafi 4/223, 224). The Hanbalis specify: whoever accuses a group whose collective zina is unthinkable, like the inhabitants of a large town, incurs nothing: the slander is denied there by evidence and no disgrace follows; if he accuses a group whose zina is possible through multiple wordings, a hadd is due for each; if he accuses them with one wording, three narrations: a single hadd, for the single statement exposes the lie and removes the disgrace from all (whoever demands it benefits, and if one renounces it, the right of the others remains, like the guardianship of marriage); a hadd for each one; or, if they demand it together, a single one, and if they demand it separately, once for each claimant. "So-and-so committed zina with you", said to a woman, follows the same ruling: a single zina, averted by a single evidence, or by a single li'an if she is his wife.

The husband who accuses his wife without li'an

The jurists agree that the husband who accuses his wife and then performs the li'an incurs nothing, as covered in the section devoted to the li'an. They differed on the case where he accuses her without performing the li'an. The Hanafis hold that the li'an then becomes obligatory upon him: the wife takes him before the judge and demands it, he is compelled, and if he refuses he is imprisoned, like one who refuses to repay a debt, until the li'an or his retraction; and the refractory wife is imprisoned until the li'an or the confession of zina, by the word of the Most High which made repeated testimony the ruling of the accusation between spouses (Surah an-Nur 6): the text made the li'an the consequence of accusing wives, whoever applies the hadd there contradicts the text, and the refusal to swear does not expose the lie, the hadd not applying in the presence of a doubt, all the more in the presence of two possible meanings.

The majority of jurists, the Malikis, the Shafi'is and the Hanbalis, hold that the husband who accuses his wife of zina owes what the slanderer of a stranger owes: the hadd of qadhf if she is muhsana, the ta'zir otherwise, with the quality of transgressor (fisq) if he does not perform the li'an. He can avert this penalty through evidence of zina, through the li'an, or through her confirmation of him; the verse of qadhf is general for wives and for others, and the li'an was instituted for them in place of the testimony of four persons. The Prophet, peace and blessings upon him, said to Hilal ibn Umayya: "The evidence, or the hadd upon your back", before the verse of the li'an descended (narrated by al-Bukhari 4470). As for one who accuses a non-muhsana woman (a Scripture woman, a slave, a madwoman, a child), he undergoes the ta'zir, having imposed disgrace through his accusation, without a full hadd because of their deficiency, without fisq or rejection of testimony, the hadd not being involved; per the qadi (Ibn Qudama), this ta'zir is not lifted by the li'an, the li'an being for the denial of lineage or to avert a hadd, and neither exists here; al-Shafi'i holds that it is lifted, one who can lift the full hadd can the lesser one; the qadi answers that the lawfulness of averting the greater harm does not entail that of averting the lesser, as with the accusation of a child, where the ta'zir of insult is not lifted by the li'an.

Ibn Rushd adds the chapter of withdrawal (nukul): if the husband withdraws after his accusation, the majority holds that he undergoes the hadd, and Abu Hanifa that he is not punished but imprisoned; the proof of the majority is the generality of the verse of qadhf, the hadith of Hilal ("the evidence, or the hadd upon your back"), his words "the punishment of this world is lighter than that of the hereafter", said before the li'an, and the fact that were he to perform the li'an and then deny himself, the hadd would fall due: his accusation is therefore a cause of the hadd, which he can avert through the li'an. For the wife who withdraws after her confession, al-Shafi'i, Malik, Ahmad and the majority hold the hadd: stoning if penetration occurred with the conditions of ihsan, otherwise flogging; Abu Hanifa holds imprisonment until the li'an, the shedding of blood not being justified in his view by the withdrawal. They agree that if the husband denies himself after the li'an, he is flogged, and the child is attached to him if he had disowned one (Bidayat al-Mujtahid 2/89, 90; Zad al-Ma'ad 5/373, 374; al-Mughni 8/48, 49).

Practical note

In practice: the judge requires a wording that admits no meaning other than the accusation, taking into account the entrenched usage of the era and the land (the Malikis and the Hanbalis hold the hadd for the allusion made clear by circumstances, the Hanafis and the Shafi'is the ta'zir); the accused person must be chaste of zina, adult, free, Muslim and capable; the penalty is eighty lashes for the free slanderer, forty for the slave, without increase; whoever accuses a whole group undergoes only one hadd per the majority; between spouses, the course of the li'an averts the hadd, and the husband who withdraws after his accusation or denies himself after the li'an undergoes the penalty per the majority.