Islamic Fiqh > Marriage and family > Lian (mutual imprecation) > No difference between a wife whose marriage has been consummated and one whose has not
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Updated on 25 September 2026 at 3:23 PM
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The li'an, or mutual imprecation, is the procedure the Lawgiver instituted between a husband and his wife when the husband accuses her of zina (unlawful intercourse) without having four witnesses. The jurists of the four schools have defined its conditions, the formula to be pronounced, its effects on the marriage and on lineage, and the points of dispute between the spouses. This page faithfully presents, sheet by sheet, the li'an chapter of the fiqh encyclopedia: school positions, Quranic and prophetic proofs, exact figures, and classical references.
Imam Ibn Rushd, may Allah have mercy on him, said: they agreed, as far as I know, that one of the conditions of the claim that entails li'an, namely the accusation of zina, is that the wife be in a marriage that protects her ('isma) ("Bidayat al-Mujtahid", 2/87).
Imam Ibn Qudama, may Allah have mercy on him, said: there is no li'an between anyone other than the two spouses. If a man slanders a chaste woman unrelated to him, he is flogged and li'an is not carried out against him; if she is not chaste, he incurs a discretionary punishment and likewise no li'an, and there is no disagreement on this. This is because Allah the Exalted said:
"And those who accuse chaste women and then do not bring four witnesses, flog them with eighty stripes."
Surah An-Nur, 4
Then He singled out wives from the generality of this verse by His saying:
"And those who accuse their own wives."
Surah An-Nur, 6
Everything concerning other women therefore remains governed by the generality of the first verse ("al-Mughni", 8/44).
There is no difference between a wife whose marriage has been consummated and one whose has not: Imam Ibn al-Mundhir, may Allah have mercy on him, said: the chapter of li'an between the two spouses applies even if the husband has not consummated the marriage, including regarding the mahr due to her. All the scholars of the regions from whom transmission has reached us agreed that if a man slanders his wife before consummating the marriage, he performs the li'an with her. This is the view of 'Ata ibn Abi Rabah, al-Hasan, al-Sha'bi, al-Nakha'i, 'Amr ibn Dinar, Qatada, Malik and the people of Medina, al-Thawri, the people of Iraq, as well as al-Shafi'i and his companions.
Their proof is the apparent meaning of His saying: "And those who accuse their own wives" (Surah An-Nur, 6) and what follows. And she is indeed his wife in everyone's view.
The jurists, however, differed over the mahr due to her if he performs the li'an against her. One group said: she has the full mahr; this is the view of Abu Zinad, al-Hakam and Hammad ibn Abi Sulayman. A second group said: she has half of the mahr; this is the view of al-Hasan al-Basri, Sa'id ibn Jubayr, Qatada and Malik. Abu Bakr said: she has half; and al-Zuhri said: she has no mahr ("al-Ishraf", 5/320-321).
Imam Ibn Qudama said: there is no difference between a wife whose marriage has been consummated and one whose has not, in that the husband performs the li'an against her. Ibn al-Mundhir said: all the scholars of the regions from whom transmission has reached us agreed on this, among them 'Ata, al-Hasan, al-Sha'bi, al-Nakha'i, 'Amr ibn Dinar, Qatada, Malik and the people of Medina, al-Thawri, the people of Iraq and al-Shafi'i, on the basis of the apparent meaning of Allah's saying: "And those who accuse their own wives" (Surah An-Nur, 6). If she is not a wife whose marriage has been consummated, she has half of the mahr, because it constitutes a portion of it; this is the view of al-Hasan, Sa'id ibn Jubayr, Qatada and Malik.
Another transmission exists: she has no mahr, because the separation occurred through their mutual li'an, so that this separation resembles a defect affecting one of the two spouses ("al-Mughni", 8/41).
Second condition: the marriage must be valid. The jurists differed concerning a man who marries a woman through an invalid marriage and then slanders her: is his li'an valid or not? This is after their agreement on the validity of li'an in a valid marriage when its conditions are met.
The Shafi'is and the Hanbalis: whoever married a woman through an invalid marriage, then slandered her while a child has resulted from their union and he wishes to deny it, may perform the li'an to deny it, with no hadd applied to him. If there is no child between them, the hadd is applied to him and there is no li'an between them. This child is indeed attached to him by virtue of the marriage contract: he may therefore deny it as if the marriage were valid. And he separates from her if there is no child, because he has no need for the slander, she being a woman unrelated to him.
He is permitted to slander women unrelated to him, because their children are not attached to him and he therefore has no need to slander them. He slanders his wife because he needs to slander her in the absence of a child, since she betrayed him, angered him and corrupted his bed. If he has a child from her, the need is present in both respects; and when he performs the li'an, the hadd falls, for it is a li'an instituted for denial, which drops the hadd as does the li'an in a valid marriage ("al-Mughni", 8/45).
The Hanafis: whoever married a woman through an invalid marriage and then slandered her does not perform the li'an against her, because of the absence of the marital bond; an invalid marriage is not, in truth, a marriage. The child is attached to him and he has no right to deny it. And because the severing of lineage occurs only after the completion of the li'an, and there is no li'an without its prior obligation, and there is no obligation because its condition, namely the marital bond, is absent ("Bada'i' al-Sana'i'", 3/141).
The Malikis: when a man has married a woman through an invalid marriage that the two spouses cannot in any way affirm, he may perform the li'an, whether or not there is a lineage to deny. For it is a marriage through which the marital bed is established, so that the li'an is permitted in it as in a valid marriage. It is also one of the causes that entail the li'an in a valid marriage, so it must entail it in the invalid marriage, as with the denial of lineage ("al-Ishraf 'ala Nukt al-Masa'il al-Khilaf", 3/517, no. 1343; "al-Taj wa-l-Iklil", 3/159; "Sharh Mukhtasar Khalil", 4/124; "Sharh al-Kabir" with al-Dasuqi's glosses, 3/393; "al-Tahbir", 3/303).
Third condition: that the two spouses be adults of sound mind. The people of knowledge agreed that among the conditions of the li'an is that it take place between two spouses who are adults of sound mind. If the two spouses, or one of them, are a child or an insane person, and one slanders his wife, no li'an rests upon him.
Imam al-Kasani, may Allah have mercy on him, said: the consideration of sanity and maturity lies in the fact that the child and the insane are not among the people qualified for testimony and oath; they are therefore not, by consensus, among the people of the li'an ("Bada'i' al-Sana'i'", 3/242). Imam Ibn Rushd said: they agreed that sanity and maturity are among its conditions, that is, the conditions of the li'an ("Bidayat al-Mujtahid", 2/89).
Imam al-Shirazi, may Allah have mercy on him, said: as for the child and the insane, their li'an is not valid, for it is a statement that brings about separation; it is therefore not valid from a child or an insane person, like divorce ("al-Muhadhdhab", 2/124).
Imam Ibn Qudama said: if one of the two spouses is not legally accountable (mukallaf), there is no li'an between them. For it is a statement by which separation is obtained, and it is not valid from one who is not accountable, like divorce; or it is an oath, which is not valid from one who is not accountable, like other oaths. The one who is not accountable may be the husband, the wife, or both.
If it is the husband, there are two situations: either he is a child, or he is an adult deprived of reason. If he is a child, his slander is not valid and no hadd rests upon him through it, because accountability is lifted in his case and his word is not considered. If his wife gives birth to a child, we examine: if he is less than ten years old, the child is not attached to him and is denied as his; it is certain that the child is not his, for Allah has not established the custom that a child be born to him before that. The child is therefore excluded from him, as if his wife gave birth to a child less than six months after her marriage.
If he is ten years old or more, Abu Bakr said: it is attached to him only after maturity as well, for the child is created only from the water of the man and the woman, and had he emitted, he would have reached maturity. Ibn Hamid said: it is attached to him. The Qadi said: this is the apparent meaning of Ahmad's words, and it is the madhhab of al-Shafi'i, because the child is attached on the basis of mere possibility, even if it contradicts appearance. Hence, if a woman gives birth to a child six months after the contract, the child is attached to the husband, even against appearance.
Likewise, it is attached to him if she gives birth to a child after four years, despite its rarity; the husband has no right to deny it immediately, until his maturity is established by one of the causes of maturity. It is then permitted for him to deny the child and disavow it. If it is said: by attaching the child to this man you have judged his maturity; why do you not accept his denial and his li'an? We answer: the attachment of the child is satisfied by possibility, whereas maturity is established only by an apparent cause; and the attachment of the child is a right resting upon him, whereas the li'an is a right in his favor: nothing is therefore established amid doubt.
If it is said: if he is not an adult, the child is excluded from him; if he is an adult, it is the li'an that is excluded. We answer: it is because it is not permitted to initiate the oath amid doubt as to its validity; it therefore falls because of the doubt surrounding it.
Second situation: if he is deprived of reason by madness, his slander has no effect, because accountability is lifted in his case as well. If his wife gives birth to a child, the lineage is attached to him by possibility, and there is no way to deny it so long as his reason is lost. When he regains his reason, he may deny the child at that point and disavow it. If he claims that he was deprived of reason at the time he slandered her, and she denies it, and one of the two brings proof of what he asserts, his word is established. If neither has proof and no loss of reason is known of him, the word is that of the wife, with her oath, the default state and appearance being health and soundness. And if madness is known of him with no recovery known, the word is his, with his oath.
If madness is known of him and recovery likewise, there are two views. The first: the word is that of the wife. The Qadi said: it is the analogy with the view of our companions regarding the wrapped item (matluf): if someone strikes it and damages it, then claims it was already dead while the guardian says "it was alive". The second view: the word is his, because the default state is his innocence of liability to the hadd, which is not required amid doubt, and because the hadd falls with doubt. This case does not resemble the wrapped item: it is known that the latter was alive and no contrary is known of it; its analogue in our question would be that a recovery be known without any contrary being known. But in our question, a state of madness preceded, and it may have persisted until the moment of his slander ("al-Mughni", 8/41, 43; "al-Bayan", 10/408-409).
Then he said, may Allah have mercy on him: as for the case where the wife is not legally accountable and her husband slanders her, we examine: if she is a little girl whose physical union is inconceivable, no hadd rests upon the one who slandered her. For it is a statement whose falsehood is known with certainty, and her innocence of this accusation is certain; no hadd is therefore required by it, as if he said "the people of this world are all fornicators". But he incurs a discretionary punishment for the insult, not for the slander; this punishment requires no prior demand, for it is instituted for his discipline, and the imam may apply it if he witnesses it. If she is a little girl whose physical union is conceivable, such as a girl of nine, the hadd falls upon him (a position contrary to the view of the majority, according to whom no hadd rests upon one who slanders a non-adult child, male or female, as will be set out in the chapter on slander, if Allah wills).
Neither her guardian nor she may demand it before she reaches maturity. When she has reached it, she demands and obtains the hadd, and he may cancel it through the li'an. He is not permitted to perform her li'an before her maturity, for the li'an is sought to cancel the hadd or to deny the child; yet no hadd rests upon him before her maturity, nor is there any child to deny. If she gives birth to a child, her maturity is judged, for pregnancy is one of the causes of maturity: it occurs only from the woman's reproductive fluid, which necessarily implies its emission, and that is a cause of her maturity.
If he slanders his insane wife with zina by attributing it to a state of recovery, or slandered her while she was sane and then retracted (hanatha), she cannot demand, any more than her guardian, before her recovery. For this constitutes his means of exculpation, and the guardian does not stand in for it, as in retribution (qisas). When she regains her reason, she may demand the hadd, and the husband may cancel it through the li'an. If he wishes to perform her li'an during her madness and there is no child to deny, this is not permitted to him, for there is no need: no hadd is directed at him that he could cancel, nor any lineage he could deny. If there is a child he wishes to deny, the madhhab entails that he does not perform the li'an and the child is attached to him, for the child is excluded only by the li'an of both spouses, and the li'an is not valid from her. Ahmad explicitly ruled regarding the deaf-mute woman that her husband does not perform the li'an: this insane woman is all the more so.
Al-Khiraqi said regarding the sane woman: it is not presented to him (the li'an) so long as his wife has not demanded it. This is the view of the people of opinion (ashab al-ra'y), for she is one of the two spouses: the li'an was therefore not instituted with her madness, unlike the husband. And the husband's li'an alone does not exclude the child: its legislation would therefore serve no purpose. The Qadi said: he may perform the li'an to deny the child, for he needs to deny it, and a path to that denial has therefore been instituted for him. Al-Shafi'i said: he may perform the li'an, and the apparent meaning of his madhhab is that he may perform hers even in the absence of a child, for he falls under the generality of His saying: "And those who accuse their own wives" (Surah An-Nur, 6). He is a legally accountable husband slandering his wife, whose kind is one that can bear children: he may therefore perform her li'an as if she were of sound mind ("al-Mughni", 8/41, 43; "al-Bayan", 10/408-409).
Imam al-'Amri, may Allah have mercy on him, said: if he slanders his young wife, if she is a child whose physical union is inconceivable, such as a girl of seven or younger, his slander is not valid. The slander is valid only if it is possible that he be truthful or a liar; yet it is known with certainty that a girl of seven cannot be penetrated and that he is lying. The discretionary punishment for the lie falls upon him, and he is not permitted to perform the li'an to cancel that punishment, for his lie is established: his li'an therefore has no meaning. Shaykh Abu Hamid said: the discretionary punishment is applied against him only after her maturity, for she cannot demand it, and her guardian does not stand in for her in this demand.
If she is a little girl whose physical union is conceivable, such as a girl of nine or more, his slander is valid, for what he says may be true or false. No hadd falls upon him for slandering her, for she is not a woman in the sense of ihsan: it is the discretionary punishment only. May the husband perform the li'an to cancel this punishment? Two views exist. The first: some of our companions said it is not permitted to him, for the li'an is sought to deny the lineage or to cancel what falls upon him of hadd or discretionary punishment for slandering her, which is not required before her demand. The second: Abu Ishaq said he may perform the li'an to cancel the discretionary punishment, in its apparent sense, even without its having been demanded of him, just as he may pay in advance a deferred debt before its due date ("al-Bayan", 10/409).
The Malikis said: if he slanders his young wife with zina by saying "I saw her commit zina", while her physical union is conceivable, he performs the li'an without her and she remains his wife, for he performed the li'an to cancel the hadd that rested upon himself. If she becomes pregnant, the child is not attached to him: she performed the li'an and they were separated. If she thereafter commits the act (nakl), she is flogged with the hadd of the virgin and remains his wife; she is flogged with the hadd of the virgin because her maturity cannot be affirmed before that act, until the marriage renders her muhsana (legally married). If her physical union is not conceivable, no hadd rests upon her husband, nor any li'an, for his slander of her did not expose her to disgrace ("al-Taj wa-l-Iklil", 3/167; "Sharh Mukhtasar Khalil", 4/134; "Sharh al-Kabir" with al-Dasuqi's glosses, 3/407; "al-Tahbir", 3/318).
Fourth condition: that the two spouses be Muslims. The jurists differed concerning the li'an: is it required that the two spouses be Muslims, or is it valid between a Muslim and a woman of the Book, or between non-Muslims when they bring their dispute before us?
The Hanafis, and Ahmad in one transmission, held that the li'an is valid only between two Muslims. The li'an consists of testimonies confirmed by an oath, coupled with the imprecation and with anger; on the husband's side it stands in place of the hadd of slander, and on the wife's side, of the hadd of zina. Whoever belongs to the people qualified for testimony and oath therefore belongs to the people of the li'an, and whoever does not, does not.
Proof: the saying of Allah the Exalted:
"And those who accuse their own wives, having no witnesses other than themselves: the testimony of one of them shall be four testimonies by Allah."
Surah An-Nur, 6
The argument drawn from this noble verse rests on two points. The first: Allah described those who slander their wives as witnesses, for He excepted them from the witnesses by His saying "having no witnesses other than themselves" (Surah An-Nur, 6), and the excepted belongs to the kind of that from which it is excepted. The second: He named the li'an a testimony explicitly by His saying "the testimony of one of them shall be four testimonies by Allah"; the fifth means: the fifth testimony. And He said concerning her: "and it shall avert the punishment from her that she testify four times by Allah" (Surah An-Nur, 8); the fifth, that is, the fifth testimony, except that He named it a testimony by Allah to confirm the testimony by the oath. The word "I testify" (ash-hadu) constitutes the testimony, and "by Allah" constitutes the oath.
Al-Kasani said: such is our madhhab: testimonies confirmed by the oath, which is more fitting than what the opponent said. For this reading acts upon both terms in two meanings, whereas the opponent carried both terms to a single meaning; what we have said is therefore more fitting. The proof that it is a testimony: Allah required in it the word "testimony" and the presence of the judge. As for the objection "if it were a testimony, the woman's would have to count as half of the man's", we answer: it is a testimony confirmed by the oath; consideration is therefore given both to the meaning of testimony and to the meaning of oath. We gave consideration to the meaning of testimony by requiring the word "testimony", and the meaning of the oath appears in the equality between man and woman in number, acting upon both aspects at once.
They have no proof in the hadith, for it is reported in some versions: "were it not for the testimonies that have already passed"; this is proof against them, since he called it a testimony. We then say, by virtue of that same wording, that it is an oath; but that does not negate its being a testimony: it is a testimony confirmed by the oath. As for disbelief, the disbeliever is not among the people of testimony against a Muslim, even though the Muslim is among the people of testimony against a disbeliever. And if both are disbelievers, the disbeliever, though among the people of testimony against a disbeliever, is not among the people of the oath by Allah the Exalted, for he is not among the people of its ruling, namely the expiation. This is why the dhihar of the dhimmi is not valid according to us: the li'an, in our view, consists of testimonies confirmed by the oath; whoever is not among the people of the oath is not among the people of the li'an ("Bada'i' al-Sana'i'", 3/242).
They also argued by what is reported from the Messenger of Allah, peace and blessings be upon him:
Four persons between whom and their wives there is no li'an: no li'an between the Muslim and the disbelieving woman, the slave and the free woman, the free man and the slave woman, the disbeliever and the Muslim woman.Reported by al-Daraqutni (no. 3384) and al-Bayhaqi in "as-Sunan al-Kubra" (no. 18074)
In this wording, this tradition has no authenticated source; the two reporters transmitted it with a very weak chain, according to the wording: "Four women have no mutual imprecation with their husband: the Christian woman with the Muslim, the Jewish woman with the Muslim, the slave woman with the free man, and the free woman with the slave."
Its concrete scenario: the wife of a disbeliever embraces Islam, and before Islam is presented to her husband, he slanders her with zina ("Bada'i' al-Sana'i'", 3/242-243; see "Sharh Fath al-Qadir", 4/278; "al-'Inaya", 6/57; "al-Mughni", 8/40; "al-Kafi", 3/227; "al-Mubdi'", 8/82; "al-Insaf", 9/242-243).
The majority of jurists, namely the Malikis (with a detail among them to follow), the Shafi'is and the Hanbalis in the madhhab, held that the li'an is an oath and not a testimony. It is therefore valid between any married couple, whether they are Muslims or disbelievers, or whether the husband is a Muslim and the wife a woman of the Book. The proof that the li'an is an oath: what the Prophet, peace and blessings be upon him, said concerning the wife of Hilal ibn Umayya when she came with her child bearing the disapproved description:
"Were it not for the oaths, there would be a matter between her and me."Reported by Abu Dawud (no. 2256) and by Imam Ahmad in his "Musnad" (no. 2131)
He called the li'an an oath. Moreover, a man is not permitted to testify for himself, though he is permitted to swear for himself; yet each of the two spouses performs the li'an concerning a right that is his own: it is established that it is an oath, not a testimony. And if it were a testimony, its repetition four times would not be required, for testimony is not repeated, whereas the oath may be repeated. Testimony includes neither imprecation nor anger, whereas the woman is not the equal of the man in testimony but is so in the oath, and in the li'an she is the equal of the man. Finally, the formula of the li'an consists in saying "I testify by Allah", and there is no disagreement that saying, outside the li'an, "I testify by Allah" constitutes an oath: it is the same in the li'an.
The proof that the li'an is valid from disbelievers: the generality of His saying "And those who accuse their own wives" (Surah An-Nur, 6), without distinction. Every husband whose divorce is valid, his li'an is valid, like the free Muslim man. Everything by which the husband escapes from his slander, if he belongs to the people of testimony, allows him to escape from the slander if he has with him no people of testimony, such as proof. That by which separation occurs between two Muslim spouses brings about separation between two disbelievers and between two slaves, like divorce. The li'an serves to avert the punishment required by slander and to deny lineage, and in this the disbeliever is like the Muslim. The husband needs to deny the child: a path to that denial is therefore instituted for him, as if his wife were one of those whose slander entails the hadd ("al-Hawi al-Kabir", 11/12, 14; "al-Muhadhdhab", 2/124; "al-Mughni", 8/40; "al-Kafi", 3/227; "al-Mubdi'", 8/82; "al-Insaf", 9/242-243; "Kashshaf al-Qina'", 5/460; "Sharh Muntaha al-Iradat", 5/568).
The Malikis, however, said: the li'an is valid between a Muslim and his Jewish or Christian wife, but his li'an aims at the denial of the pregnancy or the child, not at the accusation. For the woman of the Book performs the li'an to repel the disgrace from herself; if she refuses, she is not flogged but disciplined, and she remains the wife. If he thereafter commits the act (nakl), he too is disciplined and not flogged; and if the two revile each other, the separation takes place. If the two spouses are disbelievers, the li'an is not valid between them; but if they come to us and accept our rulings, we judge between them according to the rules of the Muslims: they then perform the mutual imprecation, and the flogging is required of her if she thereafter commits the act, because of the invalidity of their marriage; and if he commits the act, the hadd is required of him by agreement ("al-Taj wa-l-Iklil", 3/159; "Sharh Mukhtasar Khalil", 4/124; "Sharh al-Kabir" with al-Dasuqi's glosses, 3/393-394; "al-Tahbir", 3/304-305).
Imam Ibn Rushd said: as for the description of the two spouses who perform the mutual imprecation, some people said: the li'an is permitted between any married couple, whether both are free or both slaves, or one free and the other a slave, whether both have incurred the hadd or are upright, or one of them, whether they are Muslims or the husband is a Muslim and the wife a woman of the Book; and there is no li'an between two disbelievers unless they bring their dispute before us. Malik and al-Shafi'i hold this view. Abu Hanifa and his companions said: no li'an, except between two free and upright Muslims. In sum, the li'an is permitted, in their view, only to one who belongs to the people of testimony.
The proof of the holders of the first view is the generality of His saying: "And those who accuse their own wives, having no witnesses other than themselves" (Surah An-Nur, 6), with no condition attached. The main argument of the Hanafis is that the li'an is a testimony: what is required in testimony is therefore required in it, since Allah named them witnesses by His saying "the testimony of one of them shall be four testimonies by Allah" (Surah An-Nur, 6). They say: there is no li'an except between those upon whom the hadd is required for the slander that occurred between them ("Bidayat al-Mujtahid", 2/89).
It is reported that they agreed that the slave does not incur the hadd for his slander, and likewise the disbeliever. They therefore likened the one upon whom the li'an rests to the one upon whom the hadd of slander rests, since the li'an was instituted only to avert the hadd while denying the lineage. They sometimes argued by what 'Amr ibn Shu'ayb reported from his father and his grandfather, that the Messenger of Allah, peace and blessings be upon him, said: "No li'an between four: the two slaves and the two disbelievers" (reported by al-Daraqutni, no. 3384, and al-Bayhaqi in "as-Sunan al-Kubra", no. 18074, with a very weak chain; this wording has no authenticated source).
The majority holds that it is an oath, even if it is named a testimony: no one testifies for himself. As for the fact that testimony is sometimes expressed by the oath, this appears in His saying: "When the hypocrites come to you, they say: we testify that you are indeed the Messenger of Allah", then: "they took their oaths as a shield" (Surah Al-Munafiqun, 1-2) ("Bidayat al-Mujtahid", 2/89).
Fifth condition: that the two spouses be upright and have not incurred the hadd of slander. The jurists differed concerning the two spouses who perform the mutual imprecation: is their probity required, such that the li'an is not valid between two sinners (fasiq) nor between two men who have incurred the hadd of slander, nor if one of them has? Or is it valid between any married couple, even if they are sinners or have incurred the hadd, or if one of them has? The disagreement is the same as the preceding one concerning the li'an of the disbeliever.
The cause of the disagreement: is the li'an a testimony confirmed by the oath, coupled with the imprecation and with anger, such that whoever belongs to the people of testimony and oath belongs to the people of the li'an, and whoever does not, does not? Or is the li'an an oath uttered with the word of testimony, coupled with the imprecation and with anger, such that whoever belongs to the people of the oath belongs to the people of the li'an, whether or not he belongs to the people of testimony?
The Hanafis, and the Hanbalis in one transmission, held that it is required that the li'an take place between two upright spouses. It is therefore not valid between two sinners, nor between two men who have incurred the hadd of slander, nor if one of them has. For the one who has incurred the hadd of slander no longer has testimony, Allah having repudiated his testimony forever (ta'bid). Moreover, any slander that would not entail the hadd if the perpetrator were unrelated does not entail the li'an if the perpetrator is a spouse: the li'an holds, in the case of the spouse, the place of cause of the slander, as the hadd holds that place for the unrelated person. Now the slander of each of those we have mentioned does not entail the hadd were he unrelated: if he is a spouse, it therefore does not entail the li'an.
Allah the Exalted moreover named as witnesses those who slander their wives in the verse of the li'an, excepting them from the witnesses of the verse of slander: "never accept their testimony again: they are the defiant sinners" (Surah An-Nur, 4), and none of those we have mentioned escapes this. The li'an being a testimony, it is therefore not valid if both are such, or if one of them is ("Bada'i' al-Sana'i'", 3/242-243; "Sharh Fath al-Qadir", 4/278; "al-'Inaya", 6/57; "al-Mughni", 8/40; "al-Kafi", 3/227; "al-Mubdi'", 8/82; "al-Insaf", 9/242-243).
Ibn Qudama said: the Qadi mentioned in "al-Mujarrad" that the husband of the one whose slander does not entail the hadd, namely the slave woman, the dhimmi woman and the one who has incurred the hadd of zina, may perform her li'an only to deny the child, and not to cancel the slander or the discretionary punishment. For the hadd is not required, and the li'an is instituted only to cancel a hadd or to deny a child: if neither is present, the li'an is not instituted ("al-Mughni", 8/40-41).
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis in the madhhab, held that the li'an is valid between any married couple: Muslims or disbelievers, or one a Muslim and the other a disbeliever; upright, sinners or having incurred the hadd of slander, or if one of them has. This is by the generality of His saying: "And those who accuse their own wives" (Surah An-Nur, 6), without distinction, and because every husband whose divorce is valid, his li'an is valid. The li'an serves to avert the punishment required by slander and to deny lineage, and the upright and the sinner are equal in this. The husband needs to deny the child: a path to that denial is therefore instituted through the li'an, as if his wife were one of those whose slander entails the hadd ("Bidayat al-Mujtahid", 2/89; "al-Taj wa-l-Iklil", 3/159; "Sharh Mukhtasar Khalil", 4/124; "Sharh al-Kabir" with al-Dasuqi's glosses, 3/393-394; "al-Tahbir", 3/304-305; "al-Hawi al-Kabir", 11/12, 14; "al-Muhadhdhab", 2/124; "al-Mughni", 8/40; "al-Kafi", 3/227; "al-Mubdi'", 8/82; "al-Insaf", 9/242-243; "Kashshaf al-Qina'", 5/460; "Sharh Muntaha al-Iradat", 5/568).
Sixth condition: spoken expression, that is, the li'an of the mute and the blind. The people of knowledge agreed on the validity of the li'an of the blind man. Imam Ibn Battal, may Allah have mercy on him, said: they agreed that the blind man performs the li'an although his sight has no standing: his li'an is valid only by his physical union with his wife ("Sharh Sahih al-Bukhari", 7/465). Imam Ibn Rushd said: they agreed on the permissibility of the li'an of the blind man ("Bidayat al-Mujtahid", 2/89).
They differed, however, concerning the li'an of the mute: is it valid or not? The Malikis, the Shafi'is and the Hanbalis in the madhhab held that the li'an is valid from the mute man, as is his slander, if he comprehends gesture, grasps writing, knows what he says, and others understand from him, by gesture or writing, what is within him. These two means hold, in his case, the place of speech for the one who speaks, and not that of testimony: he needs them, unlike testimony, which those capable of speech produce. What prevails in the li'an is the meaning of the oath, not that of the testimony; either of the two therefore suffices even if he is capable of the other, and he repeats in writing four times the word of testimony.
As for the conditions specific to the accuser for the li'an to be established: the absence of the establishment of proof. The jurists differed concerning the husband who slanders his wife with zina and brings proof: is the li'an valid from him, or is it valid only if he proves unable to establish the proof?
The Hanafis held that the li'an is valid only if the accuser failed to establish the proof, for Allah the Exalted conditioned it in the verse of the li'an: "And those who accuse their own wives, having no witnesses other than themselves: the testimony of one of them shall be four testimonies by Allah" (Surah An-Nur, 6) and what follows. Even if he brings four witnesses testifying to the wife's zina, the li'an is not established and the hadd of zina is applied against her, for her zina has become apparent through the testimony of the witnesses. If four persons testify, among them the husband, and he had not slandered before, their testimony is accepted and the hadd is applied against her: his testimony is more worthy of acceptance than that of an unrelated person, further removed from suspicion. For custom dictates that a man conceal what concerns his wife and would bring shame upon himself: he is therefore not suspect in his testimony, which is accepted, like the testimony of a father for his son.
If the husband first slandered her, then brought three other men with him and they testified, they are all slanderers and are flogged, and the li'an rests upon the husband. For the slander having preceded him, the li'an became obligatory upon him: through his testimony he was established as the one who pushes harm away from himself, and his testimony is therefore not accepted. Zina is not established by the testimony of three persons: they thus become slanderers and incur the hadd of slander, and the husband performs the li'an for having slandered his wife.
If he testifies with three others that she committed zina, without their probity being verified, no hadd rests upon her, for her zina was established only by the testimony of sinners; and no hadd rests upon them, for the sinner belongs to the people of testimony. Allah indeed commanded suspension (tawqif) in His statement: yet the coming of four witnesses has been established; how then should the hadd be required of them? And no li'an rests upon the husband, for he is a witness and not a slanderer. If they testify with him while he is blind, he is flogged and they are flogged as well: the husband undergoes the li'an and they incur the hadd of slander, for the blind definitively have no testimony: their word therefore has no standing, and they become slanderers. The husband performs the li'an, for the husband's slander entails the li'an if he does not bring four witnesses, and he did not bring them ("Bada'i' al-Sana'i'", 3/240-241; "'Umdat al-Qari", 19/76; "Bahr al-Ra'iq", 4/122; Ibn Abidin's glosses, 3/483).
The Malikis and the Hanbalis held that if the husband slanders his wife with zina and establishes the proof of her zina by bringing four witnesses, he is given the choice between his li'an and the establishment of the proof. For both constitute proofs: he may therefore adopt whichever of the two he wishes, like the one whose debt has been proven by two witnesses, or by one witness and two women. Each of the two obtains what the other does not: through the li'an the denial of the false lineage is effected, which proof does not effect; and through the proof her zina is established and the hadd applied against her, which the li'an does not effect. If he performs her li'an and denies her child, then wishes to establish the proof, that is permitted to him. Once he has established it, the cause of the li'an and that of the proof are both established. If he first establishes the proof, the zina and its cause are established, but the child is not excluded from him, for the existence of the child does not follow from the zina. If he then wishes to perform her li'an while there is no child between them to deny, this is not permitted to him, for the hadd has already been excluded by the establishment of the proof: there is no longer any need for the li'an. Ibn Qudama said: if there is between them a child he wishes to deny, according to the Qadi's view, he may perform the li'an ("al-Mughni", 8/50-51; "Kashshaf al-Qina'", 5/466).
Ibn Qudama also said: if the husband wants the li'an without a prior demand, we examine: if there is no lineage he wishes to deny, he is not permitted to perform the li'an. The same applies to every case in which the hadd has been dropped, as if he had established the proof of her zina, or she had cleared him of his slander or of a hadd, and he then wished to perform her li'an while no lineage is there to be denied: the li'an is not instituted. This is the view of most of the people of knowledge, and we know of no opponent. Only some of al-Shafi'i's companions said: the mutual imprecation is permitted to him to dissolve the marital bed; the sound position among them resembles the view of the group, for the dissolution of the bed is possible through divorce, and permanent prohibition is not a purpose for which the li'an would be instituted: it occurs only incidentally.
If there is a child to deny, the Qadi said he may perform the li'an to deny it, and this is the madhhab of al-Shafi'i. For when Hilal ibn Umayya had slandered his wife and came to the Prophet, peace and blessings be upon him, he sent to her and had the li'an performed between them, without her having demanded it. The husband needs this denial: a path to it is therefore instituted for him, as if she had demanded it. The denial of the false lineage is a right in his favor, which does not fall by her consent, just as it does not fall if she demands the li'an and then settles for the child. It is also possible that the li'an is not instituted here, as if he had slandered her and she had confirmed him: this is the view of the people of opinion, for he is one of the two causes of the slander, and it is therefore not instituted without a demand, like the hadd ("al-Mughni", 8/49).
Qadi Abd al-Wahhab, may Allah have mercy on him, said: the husband may perform the li'an even if he is able to establish the proof, contrary to some. For through the li'an is obtained what the proof does not obtain: the denial of the child and the dissolution of the marital bed. The need calls to it even in the presence of the proof, as it calls to it in its absence: it is therefore valid in both cases ("al-Ishraf", 3/509-510, no. 1334).
As for the Shafi'is, Imam al-'Amri said: if he slanders his wife and establishes against her four witnesses testifying to her zina, the hadd of slander falls from him, by His saying: "And those who accuse chaste women and then do not bring four witnesses, flog them with eighty stripes" (Surah An-Nur, 4) and what follows. It indeed follows that, if he brings four witnesses, he is not flogged. If there is no child attached to him from her, he is not permitted to perform the li'an, for the li'an serves to avert the hadd or to deny the lineage, and neither is present. If there is a child attached to him from her, he may perform the li'an to deny it, for it is not excluded from him by the proof. If it is a child already born, he may perform the li'an concerning it; if it is a pregnancy, he may wait with the li'an until she gives birth. May he perform the li'an to deny it before the birth? Two views, as in the preceding case.
And if he slanders his wife with zina and she confirms him, the hadd of slander does not fall upon him. If there is a child attached to him from her, it is not excluded from him by her confirmation of the zina, and he may perform the li'an to deny it: if it is a child already born, he may perform the li'an concerning it; if it is a pregnancy, may he perform the li'an to deny it before the birth? Likewise two views ("al-Bayan", 10/440-441).
Conditions relating to the wife: three conditions are required for the obligation and validity of the li'an that refer back to the wife.
First condition: the wife's denial of zina on her part. The Hanafis stated explicitly that the wife's denial of zina is among the conditions for the obligation of the li'an: even if she confirms it, the li'an is not obligatory and the hadd of zina becomes required of her, namely flogging if she is not muhsana, and stoning if she is, for her zina became apparent through her confession ("Bada'i' al-Sana'i'", 3/241; "al-Tajrid" of al-Quduri, 10/5239-5240; "'Umdat al-Qari", 19/76).
The Malikis said: if he slanders her with zina and she confirms him, she is flogged and the hadd of slander does not fall upon him. If there is a lineage to deny, he performs the li'an, for he needs the li'an to repel the lineage after her confirmation, as he needed it before. The li'an is therefore permitted to him in both cases; if there is no lineage, he does not perform the li'an ("al-Ishraf", 3/523-524, no. 1352).
The madhhab of al-Shafi'i concerning the woman who confirms her husband who asserted the zina: either she confirms him before his li'an or after it. If she confirms him after his li'an, the rulings of the li'an are thereby established: the separation of the spouses, the permanent prohibition and the denial of the lineage. Her admission of the zina after the husband's li'an has no effect except to prevent her from performing her own imprecation thereafter, for her li'an serves to cancel, through the husband's li'an, the hadd of zina that rested upon her; yet the one who admits the zina incurs the hadd by her confession, and it does not fall through the li'an. If she retracts, the hadd becomes required of her again through the li'an, not through her confession, for retraction in the confession of zina is accepted for the falling of the hadd; and she may perform the imprecation to cancel the hadd that becomes required of her through the husband's li'an.
If she confirms him on the zina before his li'an or during its repetitions, the hadd of slander falls from the husband through her confirmation. If he has a child to deny, he may perform the li'an to deny it: just as he was permitted to deny the child of the one who called him a liar and appeared chaste, it is more fitting that he deny the child of the one who confirmed him and appears dissolute. If there is no child, two views exist on the permissibility of his li'an. The first: it is not permitted to him, for the li'an is designated for the falling of the hadd and the denial of the lineage; yet the hadd has already fallen through her confirmation, and there is no child to deny. The second: it is permitted to him, for the separation of the spouses and the permanent prohibition. The wife, however, cannot perform the imprecation after his li'an so long as she maintains her confession of zina; if she retracts from it, she performs the li'an ("al-'Umm", 5/295; "al-Hawi al-Kabir", 11/77; "Hilyat al-'Ulama", 7/210).
The Hanbalis held that, among the conditions of the li'an, is that the wife deny him, and that this persist until the completion of the li'an. If the wife confirms him once or several times regarding what he accuses her of in zina, or remains silent, or pardons him, or her zina is established by four other witnesses, or he slanders a deaf-mute woman, or a woman capable of speech who has become deaf-mute or deaf without her gesture being understood, the lineage is attached to him. For the child belongs to the marital bed, which is annulled only by the li'an, whose condition is absent; there is likewise no hadd, because of her confirmation or the absence of demand; and no li'an, for the li'an, like the proof, is established only with the denial.
If her confession amounts to less than four times, no hadd rests upon her; and if her confession amounts to four times and she then retracts, no hadd rests upon her either, for retraction in the confession that entails the hadd is accepted. If her confirmation took place before his li'an, there is no li'an between them for the hadd, because of her confirmation, nor for the denial of the lineage, for the child is denied only by the li'an of both, which has become impossible on their part. If her confirmation took place after his li'an, she does not herself perform the imprecation, because of her confession.
If one of the two spouses dies before the li'an, or during the imprecation of one of them, or if one dies before her imprecation, his counterpart inherits from him. For the separation is effected only by the completion of the li'an, and the child's lineage is attached to the husband: only the li'an severs the marriage, like divorce. There is no li'an, for its condition is the wife's demand, made impossible by death. But if she demanded during her lifetime, her guardians stand, in her place, in demanding the hadd of slander: he then inherits from her. If the hadd is demanded of him, he may cancel it through the li'an, as if she were alive ("Kashshaf al-Qina'", 5/465).
Imam Ibn Qudama said: when the man slanders his wife, she confirms him and admits the zina once, twice or three times, no hadd falls upon her, for it is established only by a confession of four times, as will be set out in the legal punishments. If her confirmation took place before his li'an, there is no li'an between them, for the li'an, like the proof, is established only with the denial; and if it took place after his li'an, she does not herself perform the imprecation, for she does not swear while admitting: her status is that of a woman who had abstained without confession. Abu Hanifa said this. Al-Shafi'i said: if she confirms him before his li'an, the hadd falls upon her, and he is not permitted to perform the li'an unless there is a lineage to deny: he then performs the li'an alone, and the lineage is denied by the mere fact of his li'an. If she confirmed him after his li'an, the lineage is already denied and the hadd becomes required of her, on the basis that the lineage is denied by the husband's li'an alone: the separation takes place and the hadd becomes required, it being required by a single confession; most of these principles have already been set out.
If she confesses four times, the hadd falls upon her, and there is no li'an between them if there is no lineage to deny. If she retracts, the hadd falls from her without any disagreement that we know of; al-Shafi'i, Abu Thawr and the people of opinion say this, for retraction in the confession that entails the hadd is accepted. The husband cannot perform the li'an for the hadd, for it was not required of him, because of her confirmation. If he wishes to perform his li'an to deny a lineage, the apparent meaning of al-Khiraqi's view is that it is not permitted to him in all these scenarios; this is the view of the people of opinion ("Kashshaf al-Qina'", 5/465).
As for the answer to an objection raised: physical union is forbidden because there is no marriage; what exists is only the resemblance of marriage (shubhat al-nikah). The hadd should therefore be required of her, but it falls because of this resemblance. It is thus more fitting that the hadd and the li'an both fall from the accuser, given the truth of the situation ("Bada'i' al-Sana'i'", 3/241; "al-Jawhara al-Nayyira", 4/558-559).