Hudud

Yahya related to me from Malik that Yahya ibn Said said that AbuBakr ibn Muhammad ibn Amr ibn Hazm informed him that he had taken aNabatean who had stolen some iron rings and jailed him in order to cutoff his hand. Amra bint Abd ar-Rahman sent a girl mawla to him calledUmayya. Abu Bakr said that she had come to him while he was among thepeople and said that his aunt Amra sent word to him saying, "Son of mybrother! You have taken a Nabatean for something insignificant whichwas mentioned to me. Do you want to cut off his hand?" He had said,"Yes." She said, ''Amra says to you not to cut off the hand except fora quarter of a dinar and upwards."

Abu Bakr added, "So I letthe Nabatean go."

Malik said, "The generally agreed on way ofdoing things among us about the confession of slaves is that if aslave confesses something against himself, the hadd and punishment forit is inflicted on his body. His confession is accepted from him andone does not suspect that he would inflict something on himself."

Malik said, "As for the one of them who confesses to a matterwhich will incur damages agains this master, his confession is notaccepted against his master."

Malik said, "One does not cutoff the hand of a hireling or a man who is with some people to servethem, if he robs them, because his state is not the state of a thief.His state is the state of a treacherous one. The treacherous one doesnot have his hand cut off."

Malik said about a person whoborrows something and then denies it, "His hand is not cut off. He islike a man who owes a debt to another man and denies it. He does nothave his hand cut off for what he has denied."

Malik said,"The generally agreed-on way of dealing among us, with the thief whois found in a house and has gathered up goods and has not taken themout, is that his hand is not cut off. That is like the man who placeswine before him to drink it and does not do it. The hadd is notimposed on him. That is like a man who sits with a woman and desiresto have haram intercourse with her and does not do it and he does notreach her. There is no hadd against that either."

Malik said,"The generally agreed-on way of doing things among us is that there isno cutting off the hand for what is taken by chance, openly and inhaste, whether or not its price reaches that for which the hand is cutoff."

Malik related to me from Nafi that Abdullah ibn Umar said, "TheJews came to the Messenger of Allah, may Allah bless him and grant himpeace, and mentioned to him that a man and woman from among them hadcommitted adultery. The Messenger of Allah, may Allah bless him andgrant him peace, asked them, 'What do you find in the Torah aboutstoning?' They said, 'We make their wrong action known and flog them.'Abdullah ibn Salam said, 'You have lied! It has stoning for it, sobring the Torah.' They spread it out and one of them placed his handover the ayat of stoning. Then he read what was before it and what wasafter it. Abdullah ibn Salam told him to lift his hand. He lifted hishand and there was the ayat of stoning. They said, 'He has spoken thetruth, Muhammad. The ayat of stoning is in it.' So the Messenger ofAllah, may Allah bless him and grant him peace, gave the order andthey were stoned . "

Abdullah ibn Umar added, "I saw the manleaning over the woman to protect her from the stones."

Malikcommented, "By leaning he meant throwing himself over her so that thestones fell on him."

Malik related to me from Yahya ibn Said from Said ibn al-Musayyabthat a man from the Aslam tribe came to Abu Bakr as-Siddiq and said tohim, "I have committed adultery." Abu Bakr said to him, "Have youmentioned this to anyone else?" He said, "No." Abu Bakr said to him,"Then cover it up with the veil of Allah. Allah accepts tawba from hisslaves." His self was still unsettled, so he went to Umar ibn al-Khattab. He told him the same as he had said to Abu Bakr, and Umartold him the same as Abu Bakr had said to him. His self was still notsettled so he went to the Messenger of Allah, may Allah bless him andgrant him peace, and said to him, "I have committed adultery,"insistently. The Messenger of Allah, may Allah bless him and grant himpeace, turned away from him three times. Each time the Messenger ofAllah, may Allah bless him and grant him peace, turned away from himuntil it became too much. The Messenger of Allah, may Allah bless himand grant him peace, questioned his family, "Does he have an illnesswhich affects his mind, or is he mad?" They said, "Messenger of Allah,by Allah, he is well." The Messenger of Allah, may Allah bless him andgrant him peace, said, "Unmarried or married?" They said, "Married,Messenger of Allah." The Messenger of Allah, may Allah bless him andgrant him peace, gave the order and he was stoned.

Malik related to me from Yahya ibn Said that Said ibn al-Musayyabsaid, "I have heard that the Messenger of Allah, may Allah bless himand grant him peace, said to a man from the Aslam tribe called Hazzal,'Hazzal, had you veiled him with your cloak, it would have been betterfor you.' "

Yahya ibn Said said, "I related this hadith in anassembly among whom was Yazid ibn Nuaym ibn Hazzal al-Aslami. Yazidsaid, 'Hazzal was my grandfather. This hadith is true.' "

Malik related to me that Ibn Shihab informed him that a manconfessed that he had committed adultery in the time of the Messengerof Allah, may Allah bless him and grant him peace, and he testifiedagainst himself four times, so the Messenger of Allah, may Allah blesshim and grant him peace, gave the order and he was stoned.

Ibn Shihab said, "Because of this a man is to be taken for his ownconfession against himself."

Malik related to me from Yaqub ibn Zayd ibn Talha from his fatherZayd ibn Talha that Abdullah ibn Abi Mulayka informed him that a womancame to the Messenger of Allah, may Allah bless him and grant himpeace, and informed him that she had committed adultery and waspregnant. The Messenger of Allah, may Allah bless him and grant himpeace, said to her, "Go away until you give birth." When she had givenbirth, she came to him. The Messenger of Allah, may Allah bless himand grant him peace, said to her, "Go away until you have suckled andweaned the baby." When she had weaned the baby, she came to him. Hesaid, "Go and entrust the baby to someone." She entrusted the baby tosomeone and then came to him. He gave the order and she was stoned.

Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullahibn Utba ibn Masud that Abu Hurayra and Zayd ibn Khalid al-Juhaniinformed him that two men brought a dispute to the Messenger of Allah,may Allah bless him and grant him peace. One of them said, "Messengerof Allah! Judge between us by the Book of Allah!" The other said, andhe was the wiser of the two, "Yes, Messenger of Allah. Judge betweenus by the Book of Allah and give me permission to speak." He said,"Speak." He said, "My son was hired by this person and he committedfornication with his wife. He told me that my son deserved stoning,and I ransomed him for one hundred sheep and a slave-girl. Then Iasked the people of knowledge and they told me that my son deserved tobe flogged with one hundred lashes and exiled for a year, and theyinformed me that the woman deserved to be stoned." The Messenger ofAllah, may Allah bless him and grant him peace, said, "By him in whoseHand myself is, I will judge between you by the Book of Allah. As foryour sheep and slave girl, they should be returned to you. Your sonshould have one hundred lashes and be exiled for a year." He orderedUnays al-Aslami to go to the wife of the other man and to stone her ifshe confessed . She confessed and he stoned her.

Malik related to me from Suhayl ibn Abi Salih from his fatherfrom Abu Hurayra that Sad ibn Ubada said to the Messenger of Allah,may Allah bless him and grant him peace, "What do you think I shoulddo if I were to find a man with my wife? Should I leave him thereuntil I had brought four witnesses?" The Messenger of Allah, may Allahbless him and grant him peace, said, "Yes."

Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullahibn Utba ibn Masud that Abdullah ibn Abbas said, "I heard Umar ibn al-Khattab say, 'Stoning is in the Book of Allah for those who commitadultery, men or women when they are muhsan and when there is clearproof of pregnancy or a confession.' "

Malik related to me from Yahya ibn Said from Sulayman ibn Yasarfrom Abu Waqid al-Laythi that a man came to Umar ibn al-Khattab whilehe was in ash-Sham . He mentioned to him that he had found a man withhis wife Umar sent Abu Waqid al-Laythi to the wife to question herabout that. He came to her while there were women around her andmentioned to her what her husband had mentioned to Umar ibn al-Khattab, and informed her that she would not be punished on his wordand began to suggest to her by that, that she should retract. Sherefused to retract and held firm to confession. Umar gave the orderand she was stoned.

Malik related to me that Yahya ibn Said heard Said ibn al-Musayyab say, "When Umar ibn al-Khattab came from Mina, he made hiscamel kneel at al-Abtah, and then he gathered a pile of small stonesand cast his cloak over them and dropped to the ground. Then he raisedhis hands to the sky and said, 'O Allah! I have become old and mystrength has weakened. My flock is scattered. Take me to You withnothing missed out and without having neglected anything.' Then hewent to Madina and addressed the people. He said, 'People! Sunan havebeen laid down for you. Obligations have been placed upon you. Youhave been left with a clear way unless you lead people astray rightand left.' He struck one of his hands on the other and then said,'Take care lest you destroy the ayat of stoning so that one will say,"We do not find two hadds in the Book of Allah." The Messenger ofAllah, may Allah bless him and grant him peace, stoned, so we havestoned. By He in Whose Hand my self is, had it not been that peoplewould say that Umar ibn al-Khattab has added to the Book of Allah ta-ala, we would have written it, "The full-grown man and the full-grownwoman, stone them absolutely." We have certainly recited that.'"

Malik said, "Yahya ibn Said said Said ibn al-Musayyab said,'Dhu'l-Hijja had not passed before Umar was murdered, may Allah havemercy on him.' "

Yahya said that he had heard Malik say, "Asfor his words 'The full-grown man and the full-grown woman' he meant,'The man and the woman who have been married, stone them absolutely.'"

Malik related to me that he had heard that Uthman ibn Affan wasbrought a woman who had given birth after six months and he orderedher to be stoned. Ali ibn Abi Talib said to him, "She does not deservethat. Allah, the Blessed, the Exalted, says in His Book, 'Theircarrying and weaning is thirty months,' (Sura 46 ayat 15) and he said,'Mothers suckle their children for two full years for whoever wishesto complete the suckling.' (Sura 2 ayat 233) Pregnancy can then be sixmonths, so she does not deserve to be stoned." Uthman ibn Affan sentfor her and found that she had already been stoned.

Malikrelated to me that he asked Ibn Shihab about someone who committedsodomy. Ibn Shihab said, "He is to be stoned, whether or not he ismuhsan."

Malik related to me from Zayd ibn Aslam that a man confessed tofornication in the time of the Messenger of Allah, may Allah bless himand grant him peace. The Messenger of Allah, may Allah bless him andgrant him peace, called for a whip, and he was brought a broken whip.He said, "Above this," and he was brought a new whip whose knots hadnot been cut yet. He said, "Below this," and he was brought a whipwhich had been used and made flexible. The Messenger of Allah, mayAllah bless him and grant him peace, gave the order and he wasflogged. Then he said, "People! The time has come for you to observethe limits of Allah. Whoever has had any of these ugly things befallhim should cover them up with the veil of Allah. Whoever reveals to ushis wrong action, we perform what is in the Book of Allah againsthim."

Malik related to me from Nafi that Safiyya bint Abi Ubaydinformed him that a man who had had intercourse with a virgin slave-girl and made her pregnant was brought to Abu Bakr as-Siddiq. Heconfessed to fornication, and he was not muhsan. Abu Bakr gave theorder and he was flogged with the hadd punishment. Then he wasbanished to Fadak, (thirty miles from Madina).

Malik spokeabout a person who confessed to fornication and then retracted it andsaid, "I didn't do it. I said that for such-and-such a reason," and hementioned the reason. Malik said, "That is accepted from him and thehadd is not imposed on him. That is because the hadd is what is forAllah, and it is only applied by one of two means, either by a clearproof which establishes guilt or by a confession which is persisted inso that the hadd is imposed. If someone persists in his confession,the hadd is imposed on him."

Malik said, "I have not seen thepeople of knowledge exiling slaves who have committed adultery."

Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullahibn Utba ibn Masud from Abu Hurayra and Zayd ibn Khalid al-Juhani thatthe Messenger of Allah, may Allah bless him and grant him peace, wasasked about a slave-girl who committed fornication and was notmuhsana. He said, "If she commits fornication, then flog her. If shecommits fornication again, then flog her, and if she commitsfornication again, then sell her, if only for a rope."

IbnShihab added, "I don't know whether it was three or four times."

Malik related to me from Nafi that a slave was in charge of theslaves in the khumus and he forced a slave-girl among those slavesagainst her will and had intercourse with her. Umar ibn al-Khattab hadhim flogged and banished him, and he did not flog the slave-girlbecause the slave had forced her.

Malik said, "The position with us about a woman who is found tobe pregnant and has no husband and she says, 'I was forced,' or shesays, 'I was married,' is that it is not accepted from her and thehadd is inflicted on her unless she has a clear proof of what sheclaims about the marriage or that she was forced or she comes bleedingif she was a virgin or she calls out for help so that someone comes toher and she is in that state or what resembles it of the situation inwhich the violation occurred." He said, "If she does not produce anyof those, the hadd is inflicted on her and what she claims of that isnot accepted from her."

Malik said, "A raped woman cannotmarry until she has restored herself by three menstrual periods."

He said, "If she doubts her periods, she does not marry until shehas freed herself of that doubt."

Malik related to me from Abu'z-Zinad that he said, ''Umar ibn Abdal-Aziz flogged a slave with eighty lashes for slander."

Abu'z-Zinad said, "I asked Abdullah ibn Amir ibn Rabia about that. Hesaid, 'I saw Umar ibn al-Khattab, Uthman ibn Affan, the Khalifs, andso on, and I did not see any of them flog a slave more than fortylashes for slander.' "

Malik related to me from Zurayq ibn Hakim al-Ayli that a mancalled Misbah asked his son for help and he thought him unnecessarilyslow. When the son came, his father said to him, "O fornicator."Zurayq said, "So the son asked me to help him against the father. WhenI wanted to flog him, his son said, 'By Allah, if you flog him, I willacknowledge that I have committed fornication.' When he said that, thesituation was confused for me, so I wrote about it to Umar ibn Abd al-Aziz who was the governor at that time, and I mentioned it to him.Umar wrote me to permit his pardon."

Zurayq said, "I wrote toUmar ibn Abd al-Aziz also, 'What do you think about a man who isslandered or his parents are slandered and both or only one of themare dead?' He said, Umar wrote to me, 'If he forgives, his pardon ispermitted for himself. If his parents are slandered and one or both ofthem are dead, take the judgement of the Book of Allah for it unlesshe wants to veil it.' "

Yahya said, "I heard Malik say, 'Thatis because the slandered man might fear that if that is unveiled abouthim, a clear proof might be established. If it is according to what wehave described, his pardon is permitted."