Islamic Fiqh > Penalties (hudud) > Fornication: proof, conditions and punishment > Ihsan and its conditions
Contents
Updated on 27 September 2026 at 3:52 AM
Ihsan is the state of the married fornicator who has consummated his marriage: it is what raises the punishment of zina from flogging to stoning. The sheets on this page list its conditions (maturity, freedom, Islam, consummation in a valid marriage, completeness in both spouses), treat the punishment of the pregnant woman and the questions of exile: does it target the man and the woman, and is it added to flogging?
Every ruling is reported as the sheet attributes it, with the Quranic references, the cited hadiths and their grade, and the books mentioned.
The conditions that carry the punishment of zina, stoning or flogging, against the doer and the one subjected to it, are as follows: when they come together, the punishment is established against the fornicator; if one falls, the punishment falls; some concern stoning only, others stoning and flogging. The first condition is maturity: the jurists agree that a child who commits zina before puberty incurs no punishment but is corrected and rebuked; and if he committed zina as a child and then reached puberty, he is not thereby married and consummated (muhsan); Ibn Qudamah said this is the view of most scholars.
The sheet first recalls the foundation of stoning: the hadith of Umar, the Prophet having stoned, who said: stoning is a right in the Book of Allah against whoever committed zina once married (reported by al-Bukhari (6441)); and the hadith of A'ishah: the blood of a Muslim who testifies that there is no god but Allah and that Muhammad is the Messenger of Allah is not lawful except in three cases: the married and consummated man who commits zina and is stoned, the one who goes out warring against Allah and His Messenger and is killed or crucified or exiled from the land, and the one who kills a life for a life (an authentic hadith, reported by Abu Dawud (4353)).
Ibn Qudamah said: the punishment of the male and female slave is fifty lashes, virgin or married, in the view of most jurists. And in Ibn 'Abbas's view and others, the slave's ihsan is her marriage, he who said: the slave girl has no punishment until she has married.
The jurists differ: is Islam a condition of ihsan? The Hanafis, the Malikis and Ahmad in one narration: Islam is a condition of ihsan in zina, and stoning is not established against the dhimmi who commits zina, by the hadith: whoever associates partners with Allah is not married and consummated (a hadith the sheet grades weak, reported by ad-Darqutni (3295)), meaning he is not in the complete state, stoning targeting only the complete state. Other arguments: ihsan is a legal ruling granted by the virtue of Islam, not granted to the unbeliever; the punishment there regards ihsan, so it must regard Islam, like the punishment of slander; the deficiency of unbelief is greater than that of slavery, which already bars ihsan; and more conditions accompany greater virtue: the free man undergoes the full punishment, not the slave, and the Prophet's wives were threatened with a doubled punishment. It is likewise deduced that what is required through favor presupposes the favor of believing in the prohibition, which presupposes Islam. The duty toward the non-Muslim who commits zina is flogging, by "the fornicatress and the fornicator, flog each of them with a hundred stripes" (surah an-Nur 2), the text not separating the believer from the unbeliever; stoning is thereby excluded outright; and the unbeliever's zina does not equal the Muslim's as a crime. The Hanafis answer the hadith of the two stoned Jews that it may precede the flogging verse, abrogated by it, or that abrogating a single report is lighter than abrogating the Book. The Shafi'is and the Hanbalis of the madhhab, and it is reported from Abu Yusuf: Islam is not a condition of ihsan; if a dhimmi fornicator meets the conditions of the Muslim's ihsan, stoning applies; and if a Muslim marries a dhimmi woman and consummates, both become married and consummated, by the hadith of Abdallah ibn Umar: the Prophet stoned two married and consummated Jews, and I am among those who stoned them, and I saw him shielding the woman from the stones (an authentic hadith, reported by Ibn Majah (2556) and Ibn Hibban (4431)). Al-Bukhari (3436) reports the detailed version: the Jews came to the Prophet, Abdullah ibn Salam had the stoning verse in the Torah uncovered, one of them had covered it with his hand, they agreed to the truth, and the Prophet ordered their stoning; only the married one is stoned, which proves Islam is not a condition. Another argument: the crime is equal in the Muslim and the dhimmi, so the punishment must be equal. To the objection (the Prophet stoned them by the Torah's judgment, by "the prophets judged by it those who submitted to it" (surah al-Ma'ida 44)), the sheet answers: he judged by what Allah revealed to him, by "judge between them by what Allah sent down" (surah al-Ma'ida 48), and he was not permitted to judge by another Law; he had the Torah read to show them that its judgment matches his and that they abandon their own; and if Allah's judgment were not incumbent on them, why would the Prophet have established it? Nor can the ihsan of slander be compared, which requires chastity.
The sheet opens this point with the discussion of the unbeliever: the punishment whose cause he believes sacred is established against him like the Muslim, flogging and cutting and death in retribution, unlike the drinker's punishment whose cause he does not believe sacred; what is required in ihsan is required for the gravity of the crime, and gravity is measured by belief in sanctity: the unbeliever who holds it sacred in his religion is in a state of restraint like the Muslim, so he is married and consummated; and Islam cannot be required as a virtue nor as an aggravation, unbelief deserving aggravation more, Islam having come to lighten and restrain.
The scholars agree: the stoning of the married fornicator requires that he have penetrated the vagina within a marriage. If he contracts a marriage without consummating it and then commits zina, he is not married and consummated: stoning does not apply but flogging does, by the scholars' agreement. The proof is the Prophet's word: the virgin against the virgin, one hundred lashes and exile; the married one against the married one, stoning (reported by Muslim (1690)): the married state is reached by consummation in the vagina. Imam Ibn al-Mundhir said: the scholars agreed that the marriage contract alone does not make one married and consummated before intercourse. Imam Ibn Hazm said: ihsan in the Arabic language and the Law is known only in two senses: marriage with consummation, and this is a consensus without disagreement. Imam Ibn Qudamah said: there is no disagreement that the contract without intercourse yields no ihsan, whether seclusion occurred, or intercourse outside the vagina, or in the anus, or none of that; a penetration with the glans disappearing in the vagina is required, which is the limit of intercourse to which its rulings attach. And there is no disagreement: zina and intercourse over a doubt yield no ihsan, nor touching.
The jurists differ: does intercourse in an invalid marriage yield ihsan? Ibn Qudamah cites the view of most scholars, among them 'Ata, Qatadah, Malik, al-Shafi'i and the people of opinion: the marriage must be valid. Abu Thawr said: ihsan is obtained by intercourse in an invalid marriage, and it is reported from al-Layth and al-Awza'i, for the valid and the invalid are equal in most rulings, like the dower, the waiting period, the prohibition of the stepdaughter and the wife's mother, and lineage; so with ihsan. The sheet gives the answer: it is intercourse outside ownership, yielding no ihsan like intercourse over a doubt; nor do we concede the rulings they allege, which attach to the marriage as such, while ihsan attaches to every intercourse entering it, the marriage here being only a doubt making the intercourse a doubtful one.
The jurists agree: when the qualities come together in both, each of them adult, sane and Muslim, the punishment applies. They differ: is completeness required in both at the moment of intercourse, or does completeness in one suffice, the punishment applying to him alone? The Hanafis, the Shafi'is in one view and the Hanbalis: both spouses must be, at the moment of penetration, in the state of ihsan; if the free adult sane Muslim man penetrates his wife while she is a little girl, insane, a slave (or a scriptuary by the Hanafis), and then she grows up, recovers, is freed or converts, he is not married and consummated until a new intercourse occurs, even if he commits zina before: the meeting of the qualities in both signals the complete state and the satisfaction of desire on both sides, which remains limited with the little girl, the insane woman, the slave and the non-Muslim; the Prophet told Hudhayfah, who wanted to marry a Jewish woman: leave her, she will not make you married and consummated (a hadith the sheet grades weak, cited earlier). Ibn Qudamah phrases it: completeness is required in both at the moment of intercourse, the free adult sane man penetrating a sane free woman; and this is Abu Hanifah's view and his companions', and the like view of 'Ata, al-Hasan, Ibn Sirin, an-Nakha'i, Qatadah, al-Thawri and Ishaq regarding the slave.
Malik said: if one of the two is complete, he becomes married and consummated, except the little boy who penetrates the grown woman, who does not make her so; a like view reported from al-Awza'i. Two views are reported from al-Shafi'i, one being: the complete one becomes married and consummated, as Ibn al-Mundhir holds; some restrict the disagreement to the little boy, the complete slave becoming married and consummated by agreement. The sheet gives the answer: it is an intercourse by which neither becomes so, so not the other, like touching; and if one is incomplete, the intercourse is not complete and yields no ihsan, as if both were incomplete. Ibn Muflih said: in any case, completeness is required in both at the moment of intercourse; the qadi reports that Ahmad stated that intercourse in menstruation, fasting or ihram yields no ihsan, a view adopted in al-Irshad; in al-Muharrar: the adolescent makes the adult married and consummated, and the adolescent girl the adult; in at-Tarhib: if one is a little boy, insane or a slave, no ihsan in the soundest view. The answer: it is an intercourse that makes neither of the two so, so not the other; if one condition falls in one of them, he has no ihsan, for what depends on conditions is not realized without them. The Malikis in the correct view: if the conditions of ihsan are found in one without the other, ihsan is established in the one who has them: the free man who penetrates his slave wife, the Muslim his scriptuary wife, the sane man his insane wife, the adult the little girl able to bear intercourse; all that is an ihsan for the man without the woman, and the reverse for the woman, except the little boy who penetrates the grown woman, neither then being married and consummated. The proof: he is free and liable, he penetrated his wife in a valid marriage by a lawful act, so he becomes so; and the base is that both be complete. The Shafi'is in the correct view say likewise; the second view: he does not become so, for it is an intercourse by which neither does, like intercourse over a doubt. Al-'Amrani phrases it the same, with the two views; and Abu Hamid specifies: the free sane husband becomes married and consummated by agreement when the wife is a slave, and the free adult sane wife likewise when the husband is a slave; if one is a free adult sane person and the other a child or insane, two views. Imam an-Nawawi said: ihsan is not obtained by intercourse with a wife before liability and freedom in the soundest view of the majority, the apparent sense of the text: whoever penetrated in a valid marriage while a little boy, insane or a slave, then committed zina after his completeness, is not stoned; a third view restricts it to the little boy, a fourth to the slave; and if the intercourse occurs in the state of completeness, must the other be complete? Three views, the most apparent being: no, the complete one becomes married and consummated; the second: no if the other is incomplete; the third: if the other's deficiency is slavery, the complete one becomes so, but not if it is childhood or insanity; the imam specifies that the disagreement concerns the very small boy or girl whom the other sex does not desire, while for the adolescent ihsan is certainly obtained.
The scholars agreed: the punishment is not executed on the pregnant woman, for zina or anything else, before she gives birth, by the hadith of the woman of Ghamid: the Prophet told her: wait until you deliver what is in your belly; a man of the Ansar took charge of her, and when she had given birth the Prophet said: we will not stone her and leave her child without a nurse; an Ansari offered to nurse it and he had her stoned (reported by Muslim (1695)). Another reason: the punishment in pregnancy would cause her death and the abortion, both forbidden, stoning or otherwise. Imam Ibn al-Mundhir said: they agreed that the woman who confesses zina while pregnant is not stoned before giving birth. Ibn Battal said: the scholars agreed that the one pregnant by zina is not stoned before giving birth. After birth, when does stoning apply? Malik said: as soon as she delivers, if a nurse is found for the child; otherwise she waits until she nurses him and weans him, for fear of his death. Al-Shafi'i said: she is not stoned until she has weaned him, as the Prophet did with the stoned woman according to what Malik reports in al-Muwatta. The Kufans say: she is stoned after delivery, by the account of Imran ibn Husayn: a woman came to the Prophet, confessed zina, he ordered her to sit until she gave birth; she gave birth, returned, and he ordered her stoning and prayed over her (reported by al-Bukhari in his Sahih). Imam Ibn Hazm said: they agreed that the punishment is not executed on the pregnant one. Imam an-Nawawi said: the pregnant woman is not stoned before giving birth, whether her pregnancy is from zina or otherwise, consensus; and if her punishment is flogging, she is not flogged by consensus before delivery; a woman is stoned if she commits zina married and consummated like the man, and the hadith of the woman of Ghamid is carried as her state; whoever incurs retribution while pregnant is not subjected to it before delivery, consensus; then the pregnant fornicatress is neither stoned nor subjected to retribution after delivery before nursing her child until it can do without her; pregnancy is known and judged by. Ibn Qudamah said: the punishment is not executed on the pregnant woman before delivery, whether the pregnancy is from zina or otherwise, no disagreement known.
The sheet also treats the woman's exile: the principle is that she is not exiled alone, as the treatment of the sheets above on the man's and the woman's exile shows; the sheet specifies that the exiled woman must be accompanied by her mahram, failing which the exile lapses, as the pilgrimage lapses without a mahram; exile would be an enticement to vice for her and an exposure to temptation. Az-Zarkashi said: the man is exiled to the distance of the castle; the woman too if her mahram accompanies her; failing him, two narrations: up to the castle's distance, or less, by the hadith: a woman does not travel a day's distance without a mahram; al-Khatib holds both narrations in the absolute, and Abu al-Barakat restricts them to the case where her mahram accompanies her.
The jurists who hold exile differ: does it target the man and the woman, or the man only? The Malikis: exile is specific to the man, no exile of the woman, by "the fornicatress and the fornicator, flog each of them with a hundred stripes" (surah an-Nur 2), which does not mention exile; the man's exile punishes him by cutting him from his children, his family and his livelihood, and the woman loses nothing there requiring her preservation and the bar on travel; the woman needs to be protected and kept more than the man, and exiling her would expose her to the very harm the exile claims to punish: that would be an enticement, not a deterrent. Added to it is the Prophet's word: a woman does not travel a day and a night without a mahram: exiling her alone would contradict the hadith. The Mudawwana reports: Malik said: no exile of women nor of slaves; the boy and the girl are both imprisoned in the place of exile, the fornicator a year, the one warring against Allah until his repentance is known. The Shafi'is and the Hanbalis of the madhhab: no difference between the free man and the woman in exile, by the generality of the hadith: the virgin against the virgin, one hundred lashes and a year's exile (reported by Muslim (1690)), and because what is a punishment for the man is one for the woman, like flogging and stoning; but the woman is not exiled alone in the soundest view among them, she is exiled with a mahram, by the hadith: it is not lawful for a woman who believes in Allah and the Last Day to travel a day's distance without a mahram (an authentic hadith by the sheet); if the mahram refuses to go out, he is not compelled, and he does not sin by refusing, though he is compelled in one view, for the need to fulfill the obligation; she is exiled alone in the view opposed to the soundest of the Shafi'is and one Hanbali view, for it is an obligatory journey resembling emigration; the point of disagreement is the safety of the road. Ibn Qudamah said: her mahram goes out with her, settles her, then returns if he wishes once assured of her safety, or stays until her exile ends; if he refuses to go out, his fare is paid to him, say our companions, from her money, for that is part of her travel costs; in another view, that fare comes from the public treasury; if she has no mahram, she is exiled with trustworthy women, and the ruling on the fare of the woman accompanying her follows that of the mahram; if none is found, Ahmad and al-Shafi'i say she remains without a mahram, there being no way to delay the punishment, like the journey of emigration and pilgrimage when the mahram dies on the road.
The sheet first recalls the consensus on flogging the unmarried fornicator: Ibn Hazm said they agreed that the free fornicating man and woman who are not married and consummated incur one hundred lashes; Ibn Rushd said the Muslims agreed on the hundred lashes of the virgin; an-Nawawi, Ibn Qudamah and al-'Ayni confirm it. Then it treats the disagreement: is exile added to flogging? The Hanafis: the punishment of the free unmarried fornicator is one hundred lashes, without exile, by the same verse that orders flogging without mentioning exile; whoever adds it exceeds the Book of Allah, and exceeding is an abrogation that a single report cannot effect; flogging is there named the retribution, and a retribution is not completed by something else; the punishments are known measures, and exile has no measure in distance; exile would open to the woman the door of zina, far from her clan, and cut off the goods of the man who abstains out of modesty among his people; the Companions' practice is carried as discretionary correction: Umar exiled a man who joined the Byzantines and said: I will never exile again; 'Ali said: exile suffices as a trial; and the hadith: the Prophet flogged and exiled, Abu Bakr flogged and exiled, Umar flogged and exiled (an authentic hadith, reported by at-Tirmidhi (1438)) is carried as the ruler's discretionary correction, and this report was not widely transmitted like the other punishments, which proves it is not a fixed one. As for the hadith: the virgin against the virgin, one hundred lashes and a year's exile, the later verse abrogated it, or it is a single report adding nothing to the Book. The majority (Malikis, Shafi'is, Hanbalis and most scholars): a year's exile is added to the flogging, by the many hadiths of the Prophet and his rightly guided caliphs: take from me, the virgin against the virgin one hundred lashes and a year's exile, the married against the married one hundred lashes and stoning (reported by Muslim (1690)); the hadith of the Bedouin who had ransomed his son with a hundred sheep and a slave girl, to whom the Prophet returned the slave girl and the sheep and established one hundred lashes and a year's exile (reported by al-Bukhari (2549, 2757) and Muslim (6770)); and the hadith: the Messenger of Allah judged for the one who committed zina without being married a year's exile and the establishment of the punishment against him (reported by al-Bukhari (6444)). Imam Ibn al-Mundhir said: they agreed on the virgin's exile, an-Nu'man and Ibn al-Hasan alone saying they are not exiled. Ibn Hazm said: it is established that Umar flogged a woman who committed zina with one hundred lashes and exiled her for a year, and the like is reported from 'Ali and other Companions without contradiction, except the report from 'Ali: the mother of the child is not exiled; and the hadith of Ibn 'Abbas: whoever commits zina is flogged and sent away, which Abu Muhammad explains as being sent to another land. The sheet answers Umar's objection: he meant exile in the affair of wine in which the trial erupted. Among the Malikis, a year's exile comes with imprisonment in the land of exile; the exile place of a man settled in the land where he committed zina is another land; the stranger who commits zina on arrival is flogged and imprisoned on the spot, which is already an exile for him. The Shafi'is and the Hanbalis: exile is to the distance of the castle in the soundest view, since less than that counts as residence; the exile is not imprisoned in the land of exile; and the stranger who commits zina in the land where he was exiled is exiled from it to another, the command of exile following him wherever he is, all the more as he has grown familiar with the land.
The sheets show that stoning targets only the fornicator adult, free, Muslim in the view of some schools, married and actually consummated, every missing condition falling back to flogging; and that exile, added or not to flogging by the schools, is itself bounded: no exile of the woman alone, the delay of pregnancy then of nursing. The reader finds there the complete picture of the conditions of ihsan, reported school by school with their proofs.