On Hudud

A person who has sexual intercourse with a dead body shall be dealt with as if it were alive; rather, the punishment will be even more severe. In the case of it being the body of his wife or slave girl, the punishment will be milder. The proof for this is the same as is required for adultery.


Dr Azly Rahman

Something for Malaysians to think about with regard to the debate on “hudud”. I invite readers and scholars to comment on this and  its relevance to multicultural Malaysia.

Penology (hudud)

Under an Islamic government, certain punishments are prescribed for certain crimes, so that the society may be kept healthy and the roots of corruption destroyed. Some of these penalties (hudud) are as follows according to Shi’ah fiqh.

1) The penalties for adultery (zina): If an adult, sane man knowingly and deliberately has sexual intercourse with a woman who is forbidden to him, it is then an obligation on the authorized judge to flog him with a hundred lashes; his head will be shaved and he will be forced to leave the city for a period of one year. If he is “muhsin”, i.e. he is in a position to satisfy his sexual urges in conformity with the shari’ah, he will be stoned to death as well as being given a hundred lashes. If the woman consented, she shall, if also “muhsinah”, be stoned, and if otherwise, she shall be given a hundred lashes. If a man has sexual intercourse with a forbidden woman of his relatives (mahram), or with a woman who has suckled at the same breast as he was (his rida’ih), or with his step mother, or if a dhimmah (a non-Muslim under the protection of a Muslim state) has sexual intercourse with a Muslim woman, he shall be beheaded; and the penalty is the same rape.

The adultery can only be proven by:

1) a confession repeated four times;

2) the witnessing of four just men that they saw him actually in the act of penetration;

3) the witnessing of three just men and two just women.

If the adultery is witnessed by two just men and four women, it shall be deemed proven but the penalty may only be flogging, their being no capital penalty. If the evidence is less than this, it is not considered complete, and, what is more, if less than four men give evidence, they shall be punished for slander (qadhaf). For the evidence to be accepted there must be unanimity between the witnesses, and they must all have seen the actual penetration with their own eyes.

If a man is to be stoned after a confession, but then disavows his confession, he shall not be stoned; and if, after confession, he repents of his deed, the qadi may exercise his discretion. If he repents when four witnesses have seen his act, there will be no alteration in the penalty.

If a person is being punished for the third time for the some offence (adultery), he shall be beheaded. A pregnant woman or a sick person must not receive his or her punishment until the baby is born or the sickness goes away, respectively.

2) The penalties for homosexual acts: The punishment for sodomy between two males (liwat) is more severe than that for any other crime. It is the only case in which the offender may be burnt to death. The qadi may sentence that active partner in the act to one of four penalties: beheading, stoning to death, being thrown from a height so that his bones are all broken up, burning to death. The passive partner, if he is adult and responsible for his actions, is to be beheaded. If he is not yet of the age of puberty, he will be given a reduced punishment (ta’zir). The same conditions of proof hold here as in adultery.

In the female homosexual act (sihaq), both offenders will be given a hundred lashes. If they are married, it is not impossible for them to be stoned to death.

3) The penalty for the procurer: the procurer (qawwad) who arranges for an unlawful sexual act to take place, will be given seventy lashes, his head will be shaved, and he will be expelled from the city. The proof for this is met by the evidence of two just men or by a confession made twice.

4) The penalty for false witnessing and slander: if some one falsely accuses a sane, adult and free Muslim of a crime for which some sentence can be inflicted, for instance, adultery, sodomy or drinking wine, then the false accuser shall be punished with eighty lashes. In case of the proof being admissable on confirmation by the accused person, the sentence against the accuser shall become void. The crime shall be considered proved as long as there is “bayyinah)

(see above).

It is also a punishable offence for a person to call someone else with some undesirable epithet which he does not deserve, e.g. “sinner”, “corrupter”, “leper”, etc. If someone claims to be a prophet, or curses or declares enmity with one of the fourteen pure ones ( the Prophet (s.a.w.), the twelve Imams (a.s.) and Hadhrat Fatima), he shall be beheaded.

5) The penalty for the drunkard: the penalty for anyone who avails himself of any intoxicating beverage of any kind is eighty lashes, to be given on his or her bare neck and arms.

If someone has been punished for three times and he commits the crime a fourth time, he or she shall be beheaded. One who considers wine lawful is liable to the same punishment.

If the dealer in wine repents and leaves his profession, it is well and good, otherwise he too shall be liable to beheading.

6) The penalties for theft: if an adult and sane person steals something from a “safe” place (i.e. somewhere which is locked or family closed, or someplace similar) which is valued at more than a quarter of a mithqal (about 1 gm – 1 mithqal is a little over 4.5 grams) of pure gold, he will have the four fingers of his right hand cut after duly being sentenced by a qadi on the evidence of double confession or “bayyinah” (see above). If he commits the crime a second time, his leg will be cut off under the knee. For the third offence, he shall be sentenced to life imprisonment. And, if he commits theft a number of times before he is subjected to the prescribed punishment, only one penalty shall be inflicted upon him. For children and insane people, there is no hadd only ta’zir (a lenient punishment). The theif must invariably have to pay compensation, and for this, one acknowledgement, or

the evidence and oath of one just witness is sufficient.

The “hands” of the father shall not be cut off for stealing the property of the son. But, if, conversely, the son steals, his “hands” shall be cut off.

7) The penalty for causing fear and terror (muharib): if someone causes fear among the people in a town or in the open country or at sea and/or intimidates them for the purposes of seizing what belongs to them, the qadi is empowered to have him or her executed, crucified, to have his right hand and left foot cut off, or to have him banished from the country.

God, the Most High, has said, “The recompense of those who war against God and His Messenger, and strive in the land spreading corruption, is only that they be slain or crucified or their hands and their feet should be cut off, from the opposite sides, or be banished from the land.” (5:33)

In case of banishment, the people of the place to which the culprit has been deported must be informed in writing, so that they may refuse him entry to their meetings, to their meals, etc., till he repents.

The thief who attacks a house is also a “muharib”. If he is killed, his blood will be considered shed with impurity.

If someone attacks the modesty of a woman or her child, these latter have the right of self-defence. If the assailant is killed in the struggle, (his blood too will have been shed with impunity. Thugs, ruffians and false witnesses (excluding those in 4 above) are liable to reduced punishment. The judge can give them any appropriate punishment.

8) Sundry penalties: anyone who perpetrates an indecent act with a quadruped shall be given a less severe punishment. If he persists in his activities, he may be executed. The meat of the animal (if it is a lawful animal) will become forbidden, and it must be slaughtered and its body burnt. In case it belongs to someone other than the perpetrator of the act, he must be awarded the cost of the cost of the animal. If the animal is of doubtful ownership, it should be decided by lots. If the animal is in any case unlawful, it must be sold in another city, and the price obtained given in charity. If the animal belongs to another, he must be suitably recompensed for his loss. The evidence of two just persons or a double confession is sufficient to prove guilt.

A person who has sexual intercourse with a dead body shall be dealt with as if it were alive; rather, the punishment will be even more severe. In the case of it being the body of his wife or slave girl, the punishment will be milder. The proof for this is the same as is required for adultery.

A person who indulges in masturbation also deserves a mild punishment.

As far as is possible, every person has the right to defend his own person as well as his property and the persons of his family. But he should start by adopting less severe measures, and he should only increase his precautions if necessary.

If someone looks without permission into someone else’s house and the dwellers pelt him with stones causing his death, no penalty may be extracted from them, and his blood is considered shed with impunity.

Murder is the greatest sin and the greatest social crime. “And who so slays a believer wilfully, his recompense is Hell, therein dwelling forever, and God will be worth with him and will curse him, and prepare for him a mighty chastisement.” (4:93) Crimes against the person, whether it causes death, loss of a part of the body, or not, can be divided into three kinds:

1) premeditated or wilful,

2) similar to (1),

3) by accident.

First, (1), premeditated or wilful, needs no explanation. (2) means that the attacker took the initiative, but did not intend to kill. For example, someone beats someone else as a warning, but this results in death, or a person is given some medicine to cure him, but it ends his life. (3) accidental means that there is neither any intention nor any initiative, yet someone is killed; for instance, somebody is aiming at a bird and, by mistake, a human being becomes the victim, or a man is lifting his gun and it accidentally goes off and kills somebody.

More clear examples are the actions of a man who is sleep walking, of an unconscious person, of a mad man or of an innocent child.

It must be clearly observed that as far as the crime and its punishment is concerned, there is no difference between the actual committer of the crime and the person who devised and ordered it to be done; nor does it make any difference if the crime is committed by one or many.

Retaliation (qisas) applies only in the case of wilful or premeditated murder or injury. In (2) and (3) there are only compensation (diyah). There can be no retaliation from the child or the lunatic, nor can there be any retaliation if the murdered person is a child or a lunatic. An adult who kills a child is subject only to the deliverance of compensation. However, some jurists are of the opinion that there is retaliation here, and also for the killing of a lunatic.

Another condition for retaliation is that the culprit was not compelled or under constraint, although this does not apply in tha case of death, for in matter of murder, there is no “taqiyah” (dissimulation). It is also necessary that the person murdered by “without sin”, i.e. not someone whose death is permitted by the shari’ah. There is no retaliating against the father, the grandfather or the great grandfather, if the murder their son, grandson or great grandson, only compensation. A Muslim is subject to retaliation only in the case of the murder of another Muslim. Likewise, retaliation shall be taken against the freedman only for the murder of a freedman.

The blood money or compensation for a free Muslim is: a hundred camels, or two hundred cows, or a thousand sheep, or two hundred items of clothing, each consisting of two parts, or a thousand dinars. If the heirs of the murdered person agree to take the compensation, retaliation is voided, and the murderer must pay the compensation within one year. In (2), the period for payment is two years. In (3), the period is three years, with a third being payable each year.

In cases of parts of the body, retaliation can be extracted if the action was deliberate. The retaliation is like-for-like, i.e. an eye for an eye, an ear for an ear, and a tooth for a tooth.

If the crime is of kinds (2) or (3), there are special compensations: some equivalent to the whole compensation for a man (i.e. 1000 dinars), some a half, and some less than a half. In general, organs and parts of the body which occur singly, such as the nose or the penis, demand the whole compensation). In (1) and (2) the compensation must be paid by the cluprit himself, but in (3) it may be paid by his ‘aqilah (certain near relatives on the father’s side).




DR AZLY RAHMAN, who was born in Singapore and grew up in Johor Baru, holds a Columbia University (New York) doctorate in International Education Development and Master’s degrees in the fields of Education, International Affairs, Peace Studies and Communication. He has taught more than 40 courses in six different departments and has written more than 300 analyses on Malaysia. His teaching experience spans Malaysia and the United States, over a wide range of subjects from elementary to graduate education. He currently resides in the United States.