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In the Name of Allah, Most Gracious, Most Merciful.
All thanks and praise are due to Allah and peace and blessings be upon His Messenger.
Dear brother in Islam, thanks for forwarding your question to us, and we implore Almighty Allah to make our efforts come up to your expectations.
As regards your question, first of all, we want to draw your attention to an important point: Shari`ah as a whole is justice. All its precepts indicate mercy, contrary to what the Westerners claim, brandishing Shari`ah as outdated and barbaric, forgetting the fact that Shari`ah is not a man-made legal system. It’s the law revealed by the Merciful Lord, the Lord of the Universe. That’s why we notice that in regulating people’s affairs, Shari`ah does not hunt for criminal acts in order to subject them to penalties. Rather, it has laid down certain conditions to be met before carrying out the punishment.
Thus, we see that it orders that punishment should never be based on mere suspicion or insufficient proofs. Not only that, Shari`ah also emphasizes that, before carrying out the punishment, the conditions of the culprits must be taken into considerations, and the punishment must not transcend the bound of the accused. This is a sign of mercy with which Shari`ah is characterized. So the issue is not just seeking what may prove the crime; rather, a great caution must be displayed when it comes to carrying out a fixed penalty.
Islam further gives its full weight behind all what may prove the innocence of the accused, as the Prophet, peace and blessing be upon him, did with the man who came to him confessing adultery. The Prophet, peace and blessing be upon him, said to the man “Perhaps you just touched her; maybe you kissed her; maybe you…etc”, in an attempt to give him the chance to recall his confession. Thus, the Prophet, peace and blessing be upon him, says, “Legal penalties should be warded off when there are suspicions.”
This point is clarified in the following fatwa issued by Sheikh Faysal Mawlawi, deputy chairman of the European Council for Fatwa and Research:
“As for your first question, the Shari`ah rulings concerning the adulteress can be delayed until the infant is weaned, to be able to continue life without any difficulty. The Prophet, peace and blessings be upon him, actually stayed the execution of the punishment on an adulteress until she gave birth and then again delayed it until she weaned her baby.
As for the whom the woman accused of adultery but he denied and she could not bring four witnesses, the legal ruling is that he will get rid of the worldly punishment but this does not mean that he will escape the punishment on the Hereafter. It is up to the judiciary to decide and according to the evidence that indicate that he committed the crime, he will be subject to discretionary punishment (Ta`zeer) left for the judge to decide according to the conditions of each case. According to some scholars it may reach the level of the prescribed punishment.
Therefore, the establishment of the crime and the punishment is subject to judicial discretion, not subject to mere accusation. This means that we should focus on the point of establishing justice. We need to know the significance of emphasizing on four witnesses before accusing the man of the crime. We need to ask: What if the woman in question, for any reason, accused another an innocent man, of being the one who committed adultery with her, without having any cogent proof on her side? Will justice be achieved by punishing the accused here for mere accusation without any evidence?
The issue then is a matter of proving the crime beyond reasonable doubt. If it is proved, then the punishment must be implemented whether on the man or the woman. If the evidence is lacking, then the accused must be freed, regardless of whether he is a man or a woman.
But the condition surrounding the crime of adultery makes it self-proved as regards the woman, by becoming pregnant and giving birth to a baby out of wedlock, i.e. illegitimate child. But as regards the man evidence to incriminate him is not somehow self-revealing; it must be shown and proved beyond reasonable doubt, in order to save people from injustice, for it’s easy for an adulteress to point an accusation finger to any man, without having any convincing proof.
Therefore, the issue is connected with the conditions of proving the crime for the implementation of the punishment. It has nothing to do with the principle of equality between man and woman. The rule in Shari`ah and in all positive laws is that an accused person is innocent until he/she is proven guilty.”
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