Islamic Fiqh > Marriage and family > Lian (mutual imprecation) > Third condition for the obligation of the li'an: the woman's demand
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Updated on 25 September 2026 at 3:23 PM
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Third condition for the obligation of the li'an: the woman's demand. The jurists of the four schools agreed that, when the man slanders his wife, the wife's demand is among the conditions of the validity of the li'an. The hadd is therefore not applied to him, nor the li'an demanded of him, so long as his wife has not requested it. For this is a right in her favor: it is through the li'an that the disgrace of zina is repelled from her; her demand is therefore necessary, as for other rights ("al-Hidaya", 2/23; "al-'Inaya", 6/59; "Tabyin al-Haqa'iq", 3/15; "al-Jawhara al-Nayyira", 4/559; "al-Lubab", 2/134; "al-Bayan", 10/408; "al-Najm al-Wahhaj", 8/118; "Mughni al-Muhtaj", 5/79-80; "al-Mughni", 8/49; "al-Kafi", 3/277; "Sharh al-Zarkashi", 2/519; "al-Mubdi'", 8/90; "Kashshaf al-Qina'", 5/467).
Al-Kasani said: it is better for the woman to abandon the dispute and the demand, because of the exposure of infamy they involve; her renunciation belongs to grace and generosity, Allah the Exalted having said: "And do not forget graciousness between you" (Surah Al-Baqara, 237). If she does not renounce and pursues him in litigation before the judge, it is fitting for the latter to invite the two spouses to renounce, saying to her: "Leave it and turn away from this." For it is an invitation to conceal the infamy, and it is a recommended practice (mandub).
First situation: there is no lineage the husband wishes to deny. The jurists differed concerning the husband who slanders his wife without her demanding the li'an and without there being a child to deny: is he permitted to perform the li'an or not?
The majority of jurists, namely the Hanafis, the Malikis, the Shafi'is in the most correct view, and the Hanbalis, held that, if there is no lineage 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. Ibn Qudama said: 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 ("al-Mughni", 8/49; "Sharh al-Zarkashi", 2/519-520; "al-Mubdi'", 8/90; "Kashshaf al-Qina'", 5/467).
Al-Buhuti, may Allah have mercy on him, said: if there is no child to deny, he is not permitted to perform the li'an, without any disagreement that we know of, because of the absence of need ("Kashshaf al-Qina'", 5/467).
The Shafi'is, in the view contrary to the most correct one, held that he may perform the li'an, for he thereby obtains the severing of the marriage, the permanent separation, the repelling of the disgrace of lying and the establishment of the hadd of zina ("al-Bayan", 10/408; "al-Najm al-Wahhaj", 8/118; "Mughni al-Muhtaj", 5/79-80).
The jurists nevertheless differed: if he accuses her of zina without performing the li'an, does the hadd fall upon him or not? Likewise, if he accuses her and the woman refuses the li'an, is the hadd applied to her or not? Two issues clarify this.
First issue: does the husband incur the hadd if he slanders his wife? The jurists agreed that, if he slanders his wife and performs the li'an, nothing rests upon him, as has been set out. They differed, however, over the case where he slanders her without performing the li'an: is he flogged with the hadd of slander, or imprisoned until he performs the imprecation?
The Hanafis held that, if the husband slanders his wife, the li'an becomes obligatory upon him, and the woman may pursue him before the ruler and demand the li'an from him. When she demands it, he is compelled; if he refuses, he is imprisoned for his refusal to fulfill what is due from him, like the one who refuses to pay a debt: he is imprisoned until he performs the imprecation or declares himself a liar. Likewise, if a man reviles a woman with zina, she is compelled to the li'an; if she refuses, she is imprisoned until she performs the imprecation or admits the zina. Proof: His saying: "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), that is: let one of the two testify four testimonies by Allah. Allah made the li'an the cause of the slander of wives: whoever renders the hadd obligatory therefore contradicts the text.
Moreover, the hadd is required only for the appearance of his lie in the slander, and his refusal of the li'an does not make his lie appear: not everyone who refuses a testimony or an oath thereby has his lie appear. He may have refused to protect himself from the imprecation and from anger; yet the hadd is not required amid doubt: how could it be amid mere possibility? For possibility, in the matter of the oath, is substitution and permission; and permission has no place in the legal punishments: the one who permitted the ruler to establish the hadd against him cannot have it established.
As for the verse of slander, it is said that the cause of the slander, at the outset, was the hadd, for unrelated women as for wives all alike; then it was abrogated for wives, and the li'an was established as the cause of their slander by the verse of the li'an.
We were sitting in the mosque on a Friday night when a man of the Ansar came and said: "O Messenger of Allah, what do you think of a man who finds a man with his wife: if he kills him, you kill him; if he speaks of him, you flog him; and if he restrains himself, he restrains himself in anger." Then he kept saying: "O Allah, decide." And the verse of the li'an descended.Narration of Abdallah ibn Mas'ud, may Allah be pleased with him
His saying "if he speaks of him, you flog him" indicates that the cause of the slander of the wife was the hadd before the descent of the verse of the li'an; the latter thereafter abrogated it for wives. The later specific thus abrogates the earlier general to the extent of its scope.
As for His saying: "and it shall avert the punishment from her" (Surah An-Nur, 8), it constitutes no proof, for the repelling of the punishment implies that the punishment be directed, not that it be obligatory; otherwise it would be a lifting, not a repelling. It may nevertheless be understood by the punishment imprisonment, imprisonment being called punishment: Allah the Exalted said, in the story of the hoopoe: "I will surely punish him with a severe punishment" (Surah An-Naml, 21), and the interpretation said: "I will imprison him". For punishment, in the language, conveys the sense of prevention. Our madhhab is therefore that, if she refuses the li'an, she is imprisoned until she performs the imprecation or admits the zina; the punishment, that is, the imprisonment, is then repelled from her through the li'an. This is how we speak, by virtue of the noble verse ("Bada'i' al-Sana'i'", 3/238-239; "al-Hidaya", 2/23; "al-'Inaya", 6/59; "al-Jawhara al-Nayyira", 4/559).
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis, held that, when the husband slanders his wife with zina, what befalls the one who slanders an unrelated woman befalls him: the hadd of slander if she is muhsana, the discretionary punishment if she is not, and he is declared a sinner. If the hadd or the discretionary punishment is demanded of him, he may cancel it of himself by establishing the proof of the zina, or cancel it through the li'an, or if the woman confirms him. If he performs the imprecation, no hadd rests upon him; if he brings no proof, the woman does not confirm him and he does not perform the li'an, the hadd of slander is applied to him if she is muhsana, and the discretionary punishment otherwise. Proof: 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, a verse general for wives as for others. She is a free and chaste woman whom he slandered without establishing it: the hadd must therefore be applied for her, its origin being the unrelated woman.
Allah singled out the wives by making their li'an the equivalent of the testimony of four witnesses concerning others, by His saying: "And those who accuse chaste women and then do not bring four witnesses..." (Surah An-Nur, 4) and what follows.
Ibn Abbas, may Allah be pleased with them both, reported that Hilal ibn Umayya slandered his wife before the Prophet, peace and blessings be upon him, concerning Sharik ibn Sahma'. The Prophet said:
"The proof, or a punishment upon your back." Hilal replied: "O Messenger of Allah, if one of us sees a man upon his wife, shall he go seeking the proof?" The Prophet kept saying: "The proof, otherwise a punishment upon your back." Hilal said: "By Him who sent you with the truth, I am truthful, and Allah will surely send down what will clear my back of the punishment." Jibril descended and brought: "And those who accuse their own wives" (Surah An-Nur, 6), and he recited until: "if he is among the truthful" (Surah An-Nur, 9). The Prophet rose, sent for the wife; Hilal came and testified, while the Prophet said: "Allah knows that one of you two is a liar: is there among you two anyone who repents?" Then she rose and testified. At the fifth testimony, they made her hesitate, saying that it entailed the punishment. Ibn Abbas said: she hesitated and drew back, to the point that we thought she would retract. Then she said: "I will not shame my people today," and she went away. The Prophet said: "Watch her: if she gives birth to a child with dark eyes, broad hips and fleshy legs, he is of Sharik ibn Sahma'." She gave birth to a child so described, and the Prophet said: "Were it not for the passages of the Book of Allah already revealed, there would be a matter between her and me."Reported by al-Bukhari (no. 4470)
The decisive point is the Prophet's saying, peace and blessings be upon him: "The proof, or a punishment upon your back": he is a slanderer upon whom the hadd would fall were he to declare himself a liar; it therefore falls upon him if he brings no lawful proof, like the unrelated person.
If he slanders one other than her, such as a woman of the Book, a slave woman, an insane woman or a little girl, he incurs for it a discretionary punishment, for he exposed them to disgrace through his slander. The full hadd is not applied on their account because of their deficiency, and it entails for him neither declared sinfulness nor the repudiation of his testimony, for it does not give rise to the hadd. Ibn Qudama said: the Qadi said he is not permitted to cancel this discretionary punishment through the li'an, for the li'an serves either to deny the lineage or to avert the hadd, and neither is present here. Al-Shafi'i said: he may cancel it through the li'an, for if he can cancel the full hadd through the li'an, cancelling what is beneath it is more fitting. The Qadi may say: the fact that the li'an is instituted to repel the hadd, whose harm is greater, does not entail that it be instituted to repel that whose harm is lesser; as if he slandered a little girl whose physical union is inconceivable: he incurs the discretionary punishment of insult and harm, without being able to cancel it through the li'an. It is thus here as well.
If one of these women has a child to deny, the Qadi said he may perform the li'an to deny it, and this is the view of al-Shafi'i; it is also the apparent meaning of Ahmad's words regarding the slave woman and the woman of the Book, whether or not they have a child ("al-Mughni", 8/48-49; see "al-Ishraf", 3/507-508; "al-Ma'una", 1/611-612; "al-Qawanin al-fiqhiyya", p. 162; "al-Fawa'id al-Dawani", 2/52; "al-Bayan", 10/404-406; "Jawahir al-'Uqud", 2/141; "al-Ifsah", 2/191; "Sharh Muntaha al-Iradat", 5/563-564; "Kashshaf al-Qina'", 5/454-455; "Manar al-Sabil", 3/145).
Imam Ibn Rushd said: fourth chapter, on the ruling on the retraction (nakl) of one of the two, or his turning back. If the husband retracts, the majority said he is flogged. Abu Hanifa said he is not flogged but imprisoned. The proof of the majority is the generality of His saying: "And those who accuse chaste women" (Surah An-Nur, 4) and what follows, a verse general for the unrelated person and the husband, the husband's imprecation standing in place of witnesses. If he retracts, he is therefore assimilated to the one who slandered without witnesses, that is, he is flogged. There is also what is reported from Ibn Umar and others, in the story of the man of the family of 'Ajlan: "If I kill, I am killed; if I speak, I am flogged; and if I remain silent, I remain silent in anger."
The second party argued that the verse of the li'an did not include the obligation of the hadd against him upon retraction: any allusion to its obligation would be an addition to the text, and an addition to the text amounts, in their view, to an abrogation; abrogation is not valid, however, by analogy nor by solitary reports. They said: if the hadd were obligatory, the imprecation would not benefit him and would have no effect in cancelling it, for the imprecation is an oath, and the hadd does not fall by an oath for the unrelated person: the same applies to the husband. The truth is that the mutual imprecation is a particularized oath, which must therefore have a particular ruling. It was explicitly stated concerning the woman that the oath averts the punishment from her: the discussion therefore concerns what the punishment averted from her by the oath is.
Because of the ambiguity of the name "punishment", they also differed over what befalls the woman if she retracts. Al-Shafi'i, Malik, Ahmad and the majority said she is flogged: stoning if he consummated the marriage and the conditions of ihsan are met, otherwise flogging. Abu Hanifa said: if she retracts, imprisonment becomes obligatory upon her until she performs the imprecation. His proof is the Prophet's saying, peace and blessings be upon him:
The blood of a Muslim man is not lawful except for one of three things: zina after a valid marriage (ihsan), disbelief after faith, or the killing of a soul for a soul.Hadith of the Prophet, peace and blessings be upon him
Moreover, shedding blood for a retraction is a ruling repudiated by the principles: if many jurists do not require monetary compensation for a retraction, it is more fitting that the shedding of blood not be required by it either. In sum, the principle that bloods, in the Law, are not shed except by an upright proof or by a confession must not be particularized by an ambiguous name. Abu Hanifa is therefore, in this issue, the most deserving of being followed, if Allah wills. Abu al-Ma'ali moreover acknowledged, in his book "al-Burhan", the strength of Abu Hanifa's position in this issue, and he is a Shafi'i. All agreed that, if he declares himself a liar, he is flogged and the child is attached to him if he had denied one ("Bidayat al-Mujtahid", 2/89-90).
Imam Ibn al-Qayyim, may Allah have mercy on him, said: if it is said: and if the husband retracts from the li'an after his slander, what is the ruling on his retraction? We answer: he is flogged with the hadd of slander, according to the majority of scholars of the early and later generations; this is the view of al-Shafi'i, Malik, Ahmad and their companions. Abu Hanifa differed: he is imprisoned until he performs the imprecation or the wife confesses. This disagreement rests upon the following question: is the cause of the husband's slander of his wife the hadd, as in the slander of an unrelated woman, a hadd he may cancel through the li'an? Or is its cause the li'an itself? The first view is that of the majority, the second that of Abu Hanifa.
It was argued against him by the generality of His saying: "And those who accuse chaste women and then do not bring four witnesses, flog them with eighty stripes" (Surah An-Nur, 4); by His saying to Hilal ibn Umayya: "The proof, or a punishment upon your back"; and by His saying: "The punishment of this world is lighter than the punishment of the Hereafter", which he addressed to him before he embarked upon the li'an. If the hadd were not required by his slander, these words would have no meaning: it is the slander of a free and chaste woman, and the law of retribution applies between her and him; he is therefore flogged for slandering her, like the unrelated person. And if he performs the li'an and then declares himself a liar after his imprecation, the hadd becomes required of him: this indicates that his slander is the cause of the obligation of the hadd, a hadd he may cancel through the li'an; for were it not its cause, the hadd would not be required by his self-accusation after the li'an.
Abu Hanifa says: his slander of his wife is a claim that entails one of two things: his li'an, or her confession. If he does not perform the li'an, he is imprisoned until he performs it, unless she admits, which removes the cause of the claim. This differs from the slander of an unrelated woman: he has no right over the slandered woman, and he is therefore a pure slanderer. The majority says: his slander is an aggression against her honor, whose cause is the hadd as for the unrelated person. But since a shade of a claim against her is mingled with it, because she ruined his right and betrayed it, he acquired the right to cancel, through his li'an, what the slander gives rise to of hadd. If he does not perform the li'an while having the capacity and ability for it, the cause of the slander produces its effect and suffices by itself to render the hadd obligatory, with nothing opposing it ("Zad al-Ma'ad", 5/373-374).
Second issue: the status of the wife if she retracts from the li'an. The jurists differed concerning the wife whom her husband slandered with zina or regarding the denial of the child, and who performed the li'an and then retracted: is the hadd applied to her, is she imprisoned, or is she left free?
The Hanafis held that, when the husband performs the li'an, the li'an becomes obligatory upon the wife according to the text. If she refuses, the ruler imprisons her until she performs the imprecation or confirms him; the li'an is then no longer necessary. The hadd of zina does not fall upon her either, for its condition is that she confess it four times. If she confirms him before the ruler four times, she is likewise not flogged, for the confirmation is not an intentional confession: it is not taken into account for the obligation of the hadd, but for its cancellation, so that the li'an repels it and the hadd is not required. If she confirms him regarding the denial of the child, there is neither hadd nor li'an, for it is the child of them both: they cannot invalidate his right intentionally, and the lineage is denied only by the li'an, which is absent ("Bada'i' al-Sana'i'", 3/238; "al-Ikhtiyar", 3/206; "al-Jawhara al-Nayyira", 4/559; "al-Lubab", 2/134; "al-'Inaya", 6/59; "Bahr al-Ra'iq", 4/125; "Majma' al-Anhar", 2/130; Ibn Abidin's glosses, 8/8).
The Malikis, the Shafi'is and the Hanbalis, in one view, held that, if the husband performs the li'an and the wife refuses, she is flogged with the hadd of zina: stoning if he consummated the marriage and the conditions of ihsan are met, otherwise flogging.
Imam al-Mawardi, may Allah have mercy on him, said: the free Muslim woman and the woman of the Book incur the hadd of zina if they do not perform the imprecation. If she is a virgin, one hundred lashes and the exile of a year; if she is muhsana, stoning. Such is the explanation of our madhhab regarding the obligation of the hadd of zina upon the wife through the husband's li'an, so long as she does not perform the imprecation.
Abu Hanifa said: what befalls her is the li'an, not the hadd. If she refuses, she is imprisoned until she performs the imprecation, without being flogged. He argues by the transmission of Uthman ibn Affan, may Allah be pleased with him, that the Prophet, peace and blessings be upon him, said:
The blood of a Muslim man is not lawful except for one of three traits: disbelief after faith, zina after a valid marriage (ihsan), or killing without a soul.Reported by Uthman ibn Affan, may Allah be pleased with him
This report forbids killing her outside these three traits, and the obligation of the hadd against her through the husband's li'an leads to her execution if she is muhsana: it would establish what the report negates. Moreover, it is a statement by which the hadd is not required of anyone other than the wife: it should therefore not be required of the wife by it, like the oath, and unlike the testimony. They said: the li'an, according to al-Shafi'i, is an oath, and he does not rule retraction against her; yet the hadd she would incur for her refusal of the li'an would amount to ruling retraction against her: it would be a contradiction in the statement.
Our proof is His saying: "and it shall avert the punishment from her that she testify four times by Allah that he is indeed among the liars" (Surah An-Nur, 8). The mention of the punishment with the definite article entails carrying it to a kind or to the known; carrying it to the kind of punishment is not permitted, for it is not required: it must therefore be carried to the known, namely the hadd, as in His saying: "And let a group of the believers witness their punishment" (Surah An-Nur, 2).
If it is said: the kind is known in the punishment of the one who withholds a right, we answer that it is not permitted to carry it to the kind, for two reasons. The first: the kind is not named "punishment" in the usage of the Law, whereas the hadd is, as in His saying: "if they commit immorality, half the punishment that befalls the married women befalls them" (Surah An-Nisa, 25), the hadd being meant: carrying it to the usage of the Law is therefore more fitting. The second: Allah made her li'an avert from her the punishment required by the husband's li'an, whereas imprisonment is not required by the husband's li'an but by her refusal: the carrying is therefore not permitted. For that by which the husband escaped from his slander may entail the hadd against his wife, like the proof; what is established by the husband's proof is established by his li'an, like imprisonment. She is one of the two spouses: the hadd must therefore be averted from her by her li'an, as for the husband. Whoever swears concerning a thing, his truthfulness therein is obtained, as for the two spouses who perform the mutual imprecation. The husband's li'an comprises the establishment of the zina and the denial of the child: when the denial of the child attached itself to his li'an, the establishment of the zina must attach itself to it, it being one of the two aims of the li'an; and the establishment of the zina entails the hadd against her.
As for the answer to his argument by the report, we speak by virtue of it: it comprises her execution for her zina after a valid marriage; it is by it that she is killed, not otherwise. As for the saying "what does not require the hadd for others than the wife does not require it for the wife", it is not permitted to consider, in the li'an, the wife's status as that of others, the li'an being specific to spouses. The meaning of the oath is distinct from the li'an in the denial of lineage: they are therefore distinct in it regarding the obligation of the hadd. As for their saying "her hadd is a ruling of retraction that al-Shafi'i does not recognize", this is not correct: we flog her through the husband's li'an, not through her retraction from the li'an, for her li'an cancels the hadd after its obligation ("al-Hawi al-Kabir", 11/29-31).
Qadi Abd al-Wahhab, may Allah have mercy on him, said: we say that "the hadd transfers to the woman" for what we have mentioned, for the li'an is like the proof. This follows from His saying, after the husband's li'an: "and it shall avert the punishment from her that she testify four times by Allah" (Surah An-Nur, 8), that is, the cancellation of the hadd, it being known. Once that is established, she may free herself through the mutual imprecation: if she curses, the hadd falls from her; if she retracts, she is flogged, by stoning if she is muhsana, or by flogging if she is a virgin. Abu Hanifa said: no hadd rests upon her. Our proof is His saying: "and it shall avert the punishment from her that she testify four times by Allah" (Surah An-Nur, 8) and what follows: He mentioned the husband's li'an, then announced what averts from her the punishment directed at her through his li'an, namely that she curse. This indicates that the hadd was imposed upon her through his li'an, and that she can free herself from it by performing the imprecation. It is a meaning heard in the verification of the slander: the hadd may therefore be required through it, as through the proof ("al-Ma'una", 1/612-613).
Ibn Rushd, may Allah have mercy on him, said: they also differed over what befalls the woman if she retracts. Al-Shafi'i, Malik, Ahmad and the majority said she is flogged: stoning if he consummated the marriage and the conditions of ihsan are met, otherwise flogging. Abu Hanifa said: if she retracts, imprisonment becomes obligatory upon her until she performs the imprecation; his proof is the hadith of the three cases, and the fact that shedding blood for a retraction is a ruling repudiated by the principles. In sum, the principle that bloods are not shed except by an upright proof or a confession must not be particularized by an ambiguous name: Abu Hanifa is the most deserving of being followed in this issue, and Abu al-Ma'ali acknowledged it in "al-Burhan" ("Bidayat al-Mujtahid", 2/89-90; see "al-Ishraf", 3/507-508; al-Sawi's glosses on "al-Sharh al-Saghir", 6/27; "al-Ifsah", 2/191-192).
As for the Hanbalis, the madhhab contains three transmissions. The most reliable is that, if the wife retracts from the li'an, no hadd rests upon her, for her zina is not established. Were her zina established by the husband's li'an, her imprecation would not be heard, as if the proof had established it; and it is not established by her retraction, for the hadd is not ruled by retraction: it turns away through doubts, and doubt is firmly established in it. She is nevertheless imprisoned until she curses or confesses. Ahmad said: I compel her to the li'an, by His saying: "and it shall avert the punishment from her that she testify four times by Allah that he is indeed among the liars" (Surah An-Nur, 8); if she does not testify, the punishment must not be averted from her. The lineage does not fall except through their mutual imprecation complete, for the marital bed remains and the child belongs to the bed.
According to Imam Ahmad, a transmission indicates that she is left free, and this is the choice of Abu Bakr: what would render the hadd required is not established against her, so she is left free, as if the proof were incomplete. If she confirms him regarding what he slandered her with, the hadd becomes required of her only if she confesses four times, for the hadd is not established without a confession of four times; her status is that of a woman who had retracted, and there is no li'an between them, for the li'an takes place only with her denial: no one is made to swear to deny what he admits.
The child is attached to him, for the wife's retraction is equivalent to her confession, and it is known that no hadd rests, for her zina is not established. Umar supported this view by saying: "Stoning applies to the one who commits zina while married, if there is a proof, or a pregnancy, or a confession," without mentioning the li'an. Ahmad said: if she refuses to curse after the husband's imprecation, I compel her to the li'an, and I fear ruling stoning against her; for had she confessed with her tongue, I would not have stoned her had she retracted: how could I if she refuses the li'an? A third opinion, held by al-Jawzajani, Abu al-Faraj and Shaykh Taqi al-Din, says she is flogged. He said in "al-Furu'": it is the soundest view, by His saying: "and it shall avert the punishment from her" ("al-Kafi", 3/291-292; "al-Mubdi'", 8/89; "Kashshaf al-Qina'", 5/467).
Fourth pillar: the formula, or the words pronounced. The discussion of this pillar concerns the exposition of the manner of the li'an and the formula by which it is performed.
The manner of the li'an: its origin is what came in the Book of Allah:
"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, if he is among the truthful; and the fifth: that the curse of Allah be upon him if he is among the liars. And it shall avert the punishment from her that she testify four times by Allah that he is indeed among the liars; and the fifth: that the wrath of Allah be upon her if he is among the truthful."
Surah An-Nur, 6-9
And likewise the hadith of Ibn Abbas, may Allah be pleased with them both, that Hilal ibn Umayya slandered his wife before the Prophet, peace and blessings be upon him, concerning Sharik ibn Sahma'. The Prophet said: "The proof, or a punishment upon your back." Hilal replied: "O Messenger of Allah, if one of us sees a man upon his wife, shall he go seeking the proof?" The Prophet kept saying: "The proof, otherwise a punishment upon your back." Hilal said: "By Him who sent you with the truth, I am truthful, and Allah will surely send down what will clear my back of the punishment." Jibril descended and brought: "And those who accuse their own wives" (Surah An-Nur, 6), and he recited until: "if he is among the truthful" (Surah An-Nur, 9). The Prophet sent for the wife; Hilal came and testified, while the Prophet said: "Allah knows that one of you two is a liar: is there among you two anyone who repents?" Then she rose and testified. At the fifth testimony, they made her hesitate, saying that it entailed the punishment. Ibn Abbas said: she hesitated and drew back, to the point that we thought she would retract. Then she said: "I will not shame my people today," and she went away. The Prophet said: "Watch her: if she gives birth to a child with dark eyes, broad hips and fleshy legs, he is of Sharik ibn Sahma'." She gave birth to a child so described, and the Prophet said: "Were it not for the passages of the Book of Allah already revealed, there would be a matter between her and me" (reported by al-Bukhari, no. 4470).
In the transmission of Ikrima from Ibn Abbas, may Allah be pleased with them both:
Hilal ibn Umayya, one of the three whose repentance Allah had accepted, returned one evening from his land and found a man with his family. He saw with his eye and heard with his ear, without driving him away until morning. He then went to the Messenger of Allah, peace and blessings be upon him, and said: "O Messenger of Allah, I came to my family in the evening and found a man with them: I saw him with my eyes and heard him with my ears." The Messenger of Allah was displeased by what he brought, and the matter weighed heavily upon him. Then descended: "And those who accuse their own wives, having no witnesses other than themselves: the testimony of one of them" (Surah An-Nur, 6), the two verses together. The news reached the Messenger of Allah and he said: "Rejoice, O Hilal: Allah has made for you a relief and a way out." Hilal said: "I had hoped for that from my Lord." He said: "Send for her." She came, and the Messenger of Allah recited before them, admonished them and told them that the punishment of the Hereafter is harder than the punishment of this world. Hilal said: "By Allah, I have been truthful concerning her." She said: "He has lied." He said: "Perform the mutual imprecation between them." Hilal was told: "Testify." He testified four times by Allah that he was among the truthful. At the fifth, he was told: "O Hilal, fear Allah: the punishment of this world is lighter than that of the Hereafter, and this is the one that entails the punishment against you." He said: "By Allah, Allah will not punish me for it, just as He did not flog me for it." And he testified the fifth: that the curse of Allah be upon him if he was among the liars. Then she was told: "Testify." She testified four times by Allah that he was among the liars. At the fifth, she was told: "Fear Allah: the punishment of this world is lighter than that of the Hereafter, and this is the one that entails the punishment against you." She hesitated for a moment, then said: "By Allah, I will not shame my people," and she testified the fifth: that the wrath of Allah be upon her if he was among the truthful. The Messenger of Allah separated them, ruled that the child would be claimed by no father, that she would not be slandered nor her child, and that whoever slandered her or her child would incur the hadd. He ruled that there would be no dwelling for her with him, nor provision from him, the two of them separating without divorce or death. He said: "If she gives birth to a child with reddish curly hair, marked shins and slender legs, he is of Hilal; if she gives birth to a child with a swarthy complexion, woolly crinkled hair, fleshy legs and broad hips, he is of the one against whom the accusation was made." She gave birth to a child with a swarthy complexion, woolly crinkled hair, fleshy legs and broad hips. The Messenger of Allah said: "Were it not for the oaths, there would be a matter between her and me." Ikrima said: he later became governor of Egypt, and no father claimed her child.Reported by Abu Dawud (no. 2256)
The scholars nevertheless hold some disagreements over this formula, all of them close to one another. Here is their exposition:
References of this sheet: "Mukhtasar Ikhtilaf al-'Ulama", 2/503; "Tuhfat al-Fuqaha", 2/220-221; "Bada'i' al-Sana'i'", 3/237; "al-Hidaya", 2/24; "Tabyin al-Haqa'iq", 2/17; "al-Ikhtiyar", 3/207; "al-Jawhara al-Nayyira", 4/561-562; "al-Lubab", 2/136; "al-Mudawwana al-Kubra", 6/105; "al-Tamhid", 6/203-204; "al-Istidhkar", 6/92-93; "al-Kafi", p. 288; "al-Taj wa-l-Iklil", 3/164-165; "Sharh al-Kabir" with al-Dasuqi's glosses, 3/402-404; "al-Tahbir", 3/313-314; al-Sawi's glosses on "al-Sharh al-Saghir", 6/15, 19; "Rawdat al-Talibin", 5/680-681; "al-Najm al-Wahhaj", 8/103-104; "Mughni al-Muhtaj", 5/67-68; "Tuhfat al-Muhtaj", 9/726-729; "Nihayat al-Muhtaj", 7/132-134; "al-Dibaj", 3/534-535; "Bidayat al-Mujtahid", 2/89.
Second point: if he replaces the word "I testify" with a formula of the oath. The majority of jurists, namely the Hanafis, the Malikis, the Shafi'is in the most correct view, and the Hanbalis in the madhhab, held that the word "I testify" is required in the li'an. If he replaces the expression "I testify" with a formula of the oath, saying "I swear," "I take an oath" or "I pledge," it is not taken into account. For that to which the word of testimony is bound cannot be replaced by anything else, like the testimonies in rights. The li'an moreover aims at solemnization, and the consideration of the word of the testimonies is more eloquent in solemnization: one therefore cannot dispense with it. This is why it is not permitted to swear by Allah without a word that stands in place of "I testify" ("al-Jawhara al-Nayyira", 4/562; "Sharh Mukhtasar Khalil", 4/131; "Sharh al-Kabir" with al-Dasuqi's glosses, 3/404; "Rawdat al-Talibin", 5/681; "al-Najm al-Wahhaj", 8/104-105; "Mughni al-Muhtaj", 5/69; "Nihayat al-Muhtaj", 7/133-134; "al-Dibaj", 3/536; "al-Mughni", 8/70; "al-Kafi", 3/283; "Kashshaf al-Qina'", 5/445-456; "Sharh Muntaha al-Iradat", 5/564).
The Shafi'is, in the view contrary to the most correct one, and the Hanbalis in one aspect, held that it is taken into account, for he expressed the meaning, like what precedes it ("Rawdat al-Talibin", 5/681; "al-Najm al-Wahhaj", 8/104-105; "Mughni al-Muhtaj", 5/69; "al-Mughni", 8/70).
Second condition: the order, in that the husband begins the li'an. The jurists differed: is it required that the husband begin the imprecation before the wife, or is the wife permitted to begin before the husband?
The majority of jurists, namely the Malikis in the most famous view, the Shafi'is and the Hanbalis, held that, for the validity of the li'an, the husband must begin. If the woman performs the imprecation before the husband, it is not taken into account, for one has come to the li'an contrary to that by which the Quran and the Sunna made it known: it is therefore not valid, as if one limited oneself to a single formula. Allah the Exalted said: "and it shall avert the punishment from her that she testify four times by Allah that he is indeed among the liars" (Surah An-Nur, 8), which entails that the punishment have already become obligatory upon her through the husband's li'an, so that she may avert it through her imprecation. The man's li'an is his proof establishing his wife's zina and denying her child, whereas the woman's is a denial: the proof of establishment is therefore presented first, as the witnesses are presented before the oaths. The woman's li'an serves to avert from her the punishment, which concerns her only through the man's li'an: if she presents her imprecation before that of her husband, she anticipates it, and it is not valid, as if she anticipated it before the slander ("al-Ishraf", 3/518, no. 1345; "Sharh Mukhtasar Khalil", 4/132; "Sharh al-Kabir" with al-Dasuqi's glosses, 3/405; "al-Tahbir", 3/316; "al-'Umm", 5/289; "al-Ishraf", 5/333; "Rawdat al-Talibin", 5/682; "al-Najm al-Wahhaj", 8/105; "Mughni al-Muhtaj", 5/69; "Nihayat al-Muhtaj", 7/135; "al-Dibaj", 3/537; "al-Mughni", 8/57; "Kashshaf al-Qina'", 5/445-456; "Sharh Muntaha al-Iradat", 5/564).
The Hanafis, and the Malikis in one view, said that if the judge errs by beginning with the woman and then with the man, it is fitting that he repeat the li'an: for it is a testimony, and one begins with the testimony of the claimant and then that of the defendant, by way of denial; this is why one begins with the man. If he errs, rectification by repetition becomes necessary. If he does not repeat their mutual imprecation and separates them, the separation is effective, for it is a judgment falling within juristic effort: in the view of some of them the li'an is an oath, and in a mutual alliance it is permitted to place the oath of either one first. The li'an having occurred from both, this resembles the case in which the order had been observed ("Tuhfat al-Fuqaha", 2/222-223; "Bada'i' al-Sana'i'", 3/237; "al-Muhit al-Burhani", 4/66; "al-Jawhara al-Nayyira", 4/563; "Durrar al-Hukkam", 4/384; "Majma' al-Anhar", 2/131; "al-Fatawa al-Hindiyya", 1/516; "Sharh Mukhtasar Khalil", 4/132; "Sharh al-Kabir" with al-Dasuqi's glosses, 3/405; "al-Tahbir", 3/316).
Third condition: that the li'an take place before the ruler or his deputy. The people of knowledge agreed that the li'an takes place only before the authority or its deputy. Imam Ibn Battal, may Allah have mercy on him, said: the mutual imprecation takes place only before the authority, or before the one it has delegated among the governors; this is a consensus of the scholars ("Sharh Sahih al-Bukhari", 7/465). Ibn Rushd said: they agreed that one of the conditions of its validity is that it take place under the judgment of a ruler ("Bidayat al-Mujtahid", 2/89).
The Shafi'is, in the most correct view, and the Hanbalis held that it is recommended that an assembly be present comprising at least four persons, by His saying: "And let a group of the believers witness their punishment" (Surah An-Nur, 2). The punishment is the hadd, and the li'an is likewise, for it attaches itself to it; the proof of the zina for which the li'an was instituted consists of four witnesses. The li'an was moreover reported by young companions, such as Ibn Abbas, Ibn Umar and Sahl ibn Sa'd al-Sa'idi, may Allah be pleased with them: no young man appears in the assembly of command and judgment except with multiples of elders. Finally, the gathering of the people is more intimidating and more deterrent, and they constitute a proof should the two spouses contradict one another ("al-Hawi al-Kabir", 11/45; "Sharh Sahih Muslim", 10/121; "al-Najm al-Wahhaj", 8/110-111; "Mughni al-Muhtaj", 5/72-73; "Tuhfat al-Muhtaj", 9/735; "Nihayat al-Muhtaj", 7/138; "al-Mughni", 8/68; "al-Insaf", 9/239; "Kashshaf al-Qina'", 5/458; "Sharh Muntaha al-Iradat", 5/556-567; "Matalib Uli al-Nuha", 5/535; "Manar al-Sabil", 3/146).
As for the solemnization of the li'an in times, places and the standing position, it is not obligatory according to the generality of jurists. Ibn Muflih, may Allah have mercy on him, said: it is not obligatory, without any disagreement that we know of, in the venerated times and places ("al-Mubdi'", 8/78).
Ibn Qudama, may Allah have mercy on him, said: it is recommended that they perform the mutual imprecation standing: the husband begins and performs the imprecation standing, then, when he has finished, the woman rises and performs hers standing. This is based on what is reported from the Prophet, peace and blessings be upon him, who said to Hilal ibn Umayya: "Rise and testify four testimonies." And because, when he stands, the people witness him: the notoriety is thereby greater; hence the recommendation of a large gathering, without it being obligatory. All of this was said by Abu Hanifa and al-Shafi'i, and I know of no opponent.
Chapter: the Qadi said it is not recommended to solemnize the li'an by a place or a time, and Abu Hanifa said the same, for Allah the Exalted issued the command in absolute terms, without restricting it to a time or a place: it can be restricted only by proof. The Prophet, peace and blessings be upon him, ordered the man to bring his wife without specifying a time; had he specified it, it would have been transmitted, not neglected. Abu al-Khattab said: it is recommended that they perform the imprecation in the venerated times and places; this is the madhhab of al-Shafi'i, who holds two views on solemnization by place. The first: it is recommended, like the time. The second: it is obligatory, for the Prophet performed the imprecation near the minbar: his act explains the li'an. Solemnization by place means that, if they are in Mecca, the imprecation is performed between the Corner and the Station, the noblest of places; if they are in Medina, near the minbar of the Messenger of Allah; in Jerusalem, near the Rock; and in other lands, in their great mosques.
As for the time, it is after the asr, by Allah's saying: "Detain them after the prayer, and let them both swear by Allah" (Surah Al-Ma'ida, 106), the exegetes having agreed that the prayer meant is the asr. Abu al-Khattab said: in a place, or between the two calls (adhan), for supplication between them is not repelled. The sound position is the first view: had it been recommended, the Prophet would have practiced it; and had he practiced it, it would have been transmitted, and it would not have been permitted to neglect and disregard it.
As for their saying "the Prophet performed the imprecation between them near the minbar", this is found in no famous hadith. And even were it established, it may have been by coincidence, his assembly being there, and he performed the imprecation in his assembly. If the li'an takes place between two disbelievers, the ruling is that of the li'an between Muslims; it may be solemnized by place, according to what is said in "al-Ayman" (the oaths): "If they have places they venerate and in which they fear to swear falsely, they are made to swear in them." The imprecation is thus performed in their venerated places: the Christian in his church, the Jew in his synagogue, the Magian in the fire temple. If they have no venerated places, the ruler makes them swear in his assembly, solemnization by place being impossible.
If the Muslim woman is menstruating and we hold that the li'an between them takes place in the mosque, she stands at its door without entering it: it is the nearest of places ("al-Mughni", 8/68-69; see "al-Insaf", 9/239; "Kashshaf al-Qina'", 5/458; "Sharh Muntaha al-Iradat", 5/556-567; "Matalib Uli al-Nuha", 5/535; "Manar al-Sabil", 3/146; "al-Najm al-Wahhaj", 8/107-110; "Mughni al-Muhtaj", 5/70-72; "Tuhfat al-Muhtaj", 9/733-734; "Nihayat al-Muhtaj", 7/137).