What is the maximum penalty for adultery? Is it different for a man and a woman? If so, in what way?
Hello, Brother Aneeshm.
The punishment for adultery is the same for men and for women. In fact, the punishment for all crimes is the same for men and women, and there is no situation in which it differs. This applies to both legal rulings in this world, as well as the promised punishment (or reward) in the Hereafter for sins (or good deeds).
The legal punishment for adultery is death by stoning. Some people are so galvanized by this that they fail to read on: the truth of the matter is, the punishment for adultery is very rarely meted out by a
Shariah government. It is only to be administered in the following situations:
1) A person confesses to adultery and seeks the punishment for himself.
2) A person commits sexual acts in public or boasts openly about his sin (i.e. adultery) in public.
If the adulterer fulfills the following conditions, then he CANNOT be punished by law:
1) He/she does not confess to the sin.
2) He/she did not perform the sexual act in public but rather he/she did it in private, and he/she did not boast about it publically. (A sexual act is considered done in public if it is done in front of four witnesses. If it is less than that, then it is considered a private act, and not to be punished.)
This would include the vast majority of adulterers. Such people would not be punished by the law, and instead they are simply advised to ask Allah for repentance. There is a special Prayer of Repentance that they should pray.
Therefore, there are only two situations in which the death penalty is enacted, and this is (1) self-confession, and (2) public sex or boasting publically about it.
The vast majority of cases in which the death penalty is enacted is the first case (i.e. self-confession).
In the lifetime of Prophet Muhammad (s), there is not a single case of adultery being punished except in which the adulterers themselves begged the Prophet (s) for the punishment to be meted out against themselves.
These adulterers who begged the Prophet (s) for punishment were strong believers who felt remorse for what they had done, and wanted expiation for their sins. The Prophet (s) said:
“Give allegiance to me that you will...not steal, not commit fornication, not kill your children (etc)...Whoever among you fulfils this, his reward will be with Allah. Whoever commits any of these sins will be punished in this world and that will be an expiation for him. Whoever commits any of these sins but Allah conceals it, then it will be for Allah to decide: if He wills, He will forgive him, and if He wills, He will punish him.”
Therefore, these adulterers sought the punishment as expiation for their sins so that they would not be punished on the Day of Judgement for that. However, it should be noted that the adulterer has the option of concealing his sin, and in fact, the
Qadi (judge) should constantly advise him to do that.
The general principle in Islam is to avert punishment as much as possible. This of course negates the idea of Westerners that Muslims are blood-thirsty people who seek to chop hands and stone people at whim. Indeed, Prophet Muhammad (s) said:
“Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.”
If we look at the Prophetic Sayings on this matter, we see that the Prophet (s) tried to avert punishment as much as he could, even ignoring the request of those who sought to confess their sin of fornication/adultery.
A man once came upto the Prophet (s) to confess his sin of
Zinnah (illegal sexual intercourse). We read:
A man from amongst the people came to the Messenger of Allah while he was sitting in the mosque, and addressed him, saying “O Messenger of Allah! I have committed Zinnah (illegal sexual intercourse).” The Messenger of Allah turned his face away from him [and ignored him]. The man came to that side to which the Messenger of Allah had turned his face, and said [again]: “O Messenger of Allah! I have committed Zinnah (illegal sexual intercourse).” The Messenger of Allah turned his face to the other side, and the man came to that side. When he confessed four times, the Messenger of Allah called him and said “Are you insane?” He said: “No, O Messenger of Allah!” The Messenger of Allah said: “Are you married?” He said: “Yes, O Messenger of Allah!” The Messenger of Allah said (to the people): “Take him away and stone him to death.” (
Sahih al-Bukhari, no: 6439)
In another instance, also narrated in the Prophetic Sayings, another man confesses to
Zinnah (illegal sexual intercourse), but the Prophet (s) dismisses him by saying:
“Probably you have only kissed (the woman), or touched, or looked at her.” This was the Prophet's attempt to avert the punishment on adultery (which is only to be meted out for the actual sex act itself). The Prophet (s) was trying to give this adulterer an "out", a way to take back his confession. But the man would not relent, and insisted that he be punished, and so the punishment was meted out on him.
Hence, even though Islam allows a person to confess his sin in order to be punished, the
Qadi (judge) is advised to counsel the man to rescind his confession and think twice before he does that. The adulterer must confess four times before it is finally accepted of him, and each time the person confesses, the Qadi (judge) should ask questions such as "are you sure?" or "perhaps you are mistaken", etc.
Shaikh Muhammad ibn Adam al-Kawthari says:
"The punishment of adultery is proven if the perpetrator him/herself confesses to be guilty of the crime. He/she must be sane, adult/mature (baligh) and must confess four separate times in four separate sessions that the crime was committed. The judge will try to wave away the punishment as much as possible by saying to the confessor that 'you may have only touched or kissed' and other such statements...[but if the adulterer confesses] without leaving any doubt or ambiguity, the punishment will be enforced...
"If the confessor takes back his words before the punishment is enforced or during the punishment, he/she will be released and set free. (See: al-Ikhtiyar li ta’lil al-Mukhtar, 2/311-316)"
Shaikh Muhammad ibn Adam al-Kawthari says:
"One should remember that it is not necessary in order for one’s sin to be forgiven that he/she receives the legal punishment (hadd) for the sin committed. The reason being is that one is not obliged to confess that he/she committed adultery; hence one may keep the sin hidden and not inform the Islamic judge about it."
It should be noted that Islam differs with Christianity in one major way: in Islam we are not encouraged to confess our sins or reveal them publically. In Islam, we are to confess our sins only to Allah and Allah alone. This goes for *all* sins. (In the case of adultery, the *only* reason you confess it to a judge is so that he can enforce the punishment upon you.) A Muslim should hide his sins and not boast them, because the worst person is the one who publically boasts about his sins, as is common in today's society. Openly admitting to sins only leads to corruption in society. For example, some Muslims in this thread have openly admitted to drink alcohol. But this is two wrongs they did: the first is drinking alcohol, but the second is admitting it publically. Other Muslims will read these posts and think to themselves "hey, that person is doing it too, so it can't be that bad." (The said Muslims need not have lied but instead they should have remained silent.)
In a society in which sins are openly discussed (and even boasted about), these sins become common place and accepted as the norm. For example, in today's society, so many people admit to illegal sexual intercourse that it isn't even taboo any more, but rather a person who does that doesn't feel bad at all since everyone is doing it.
Furthermore, Islam came to criticize the priests of Christianity who the Quran says took the place of God. Indeed, the priests become very influential and rich based on people confessing their sins to them, even accepting money to expiate sins. Islam discouraged this and called this religious exploitation. And what Islam especially decries are intermediaries to God: the Prayer of Repentance is accepted directly by Allah, and there is no need for an intermediary on earth to accept it or reject it. That is for Allah and Allah alone to accept.
The confession of an adulterer is only necessary so that the punishment can be meted out, not because it is a good thing to confess sins to people. (In fact, we should hide our sins, and reveal them only to Allah.) But in this case, the adulterer confesses to a judge only because no entity except the State can enforce punishments on citizens. A person may not even enforce the penalty on himself, let alone on others. (Therefore, the practise of "honor killings" and other such things are not permitted, considered outlawed vigilante justice, and indeed they are remnants of
Jahili [barbarous Pre-Islamic] society.)
This leads to the second condition in which adultery is punished by law, which is when the sex act is done in public (defined by at least four or more witnesses) or the person publically boasts about his sin (to at least four witnesses).
As for the first case--in which the sex act is done in public--this is of course punishable by death. Adultery is considered sinful, but doing that in public is considered an abomination. Such people must be put to death so that such evil does not become widespread in society. For example, in today's society, we have the open evils of pornography, in which men and women commit illegal sexual intercourse in public. This destroys society and is an abomination. In the modern context, it is *these* people who would be punished with death by the
Shariah (i.e. public fornicators), not those who commit adultery in their own homes under cover of darkness. Those who commit adultery may only be doing so out of weakness of the flesh--and are thus simply advised to repent--but those who flaunt it are the very tools of Satan and they have the desire to spread filth and corruption everywhere.
Prophet Muhammad (s) said:
“All of my Ummah (people) will be forgiven except those who sin openly. It is a part of sinning openly when a man does something at night, then the following morning when Allah has concealed his sin, he says, ‘O So and so, I did such and such last night,’ when all night his Lord has concealed him and the next morning he uncovers what Allah had concealed.”
The last condition is that of the person who publically flaunts his indiscretion and boasts about his adultery. The legal requirement for punishing this is when he boasts about it to four people or more. He will, however, be asked to repent from that and cease from doing that. If he agrees, then such a person will be forgiven and let go.
Shaikh Ibn Uthaymeen says:
"There is a third kind of immoral, rebellious, promiscuous person, who speaks in a boastful manner about Zinnah (fornication/adultery) and tells people that he travelled to such and such a place and committed immoral acts of Zinnah (illegal sexual intercourse) with a number of women, and so on, and he shows off about that. Such people should be asked to repent, and if they do not they should be executed." (
Sharh Riyaad al-Saaliheen, 1/116)
Shaikh Muhammad Salih Al-Munajjid says:
"Speaking about your sin and flaunting it openly in front of your friends is Haram (forbidden), and is a major sin. It is one of the ways of spreading immorality among the Muslims, encouraging evil and tempting others to do similar things. It also means that one does not take sin seriously and regards it as insignificant, and that the sinner is damaging his own reputation and exposing his honour to the slander of others."
This is classified along with the former condition (i.e. public sex act) since they fulfill the same thing. However, people who commit the public sex act are punished swiftly, whereas those who simply boast about their sin are advised to repent and take back their four confessions (i.e. boasting is likened to a confession). If they are obstinate in boasting about it, then they are to be punished.
There *is* one other scenario in which adultery would be punishable by death, and this is if a man/woman accuses his/her spouse of adultery. In this case, he/she must take four sacred oaths against his/her spouse accusing him/her of adultery. If, however, the accused spouse says that this is a lie (and if he/she takes five sacred oaths that it is a lie), then the case is thrown out and no punishment is meted out (unless it was a public sex act in which case the above ruling for public sex acts would be enacted).
If a man/woman rightfully accuses his/her spouse of adultery but his/her spouse lies in court about it, then the accuser can file for divorce and his/her only recourse is to seek his/her spouse's punishment in the Next Life on the Day of Judgement. Allah is Most Just!
As for the spouse that is accused, he/she must take five sacred oaths to testify to their innocence. If he/she is lying, then the Curse of Allah is upon him/her and he/she will be severely punished in the Next Life. Therefore, while there is no heavenly punishment for hiding your sin, there *is* a punishment for
lying about it if your spouse accuses you of adultery. The reason for this is that a spouse has a right to "vengeance" just as do victims of other crimes (i.e. the relatives of a murdered man have the right to seek the death sentence for the murderer).
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You have asked about the "maximum penalty for adultery." However, it should be noted that there are no levels of punishment in this matter: either an adulterer is punished with the death penalty or not. (It should be noted that only adultery is punished by death, not fornication, which is punished by whipping of one hundred lashes.) But in the majority of cases, the legal requirements for punishment are not fulfilled (i.e. self-confession or public sex/boasting), and therefore he is not punished and instead left to ask for forgiveness on his own.
From this, we see that Islam does not seek to punish people but rather it seeks simply to keep the moral fabric of society together by preventing public obscenity. Such societies in which sexual lewdness is publically advocated earn the Wrath of Allah, and it was for this reason that the People of Sodom were uprooted and destroyed. We seek refuge from Allah from that.
The truth is that the punishment for adultery is only a symbolic punishment that would rarely be administered. It is a law of deterrence. If that law was in effect in society, then no person in his right mind would commit sexual acts in public nor would he boast about it (and even if he did that, he would repent and be let go). This is one of the things that Western people do not understand about Islamic Law. They see these laws as simply barbaric and blood-thirsty measures to be administered at whim, as if people are punished for the slightest infraction. But rather, the truth of the matter is that they are laws of deterrence only, and these punishments are almost NEVER administered in a properly functioning Islamic state. Not only this, but these laws are VERY effective in preventing crime.
I close with the words of Shaikh Muhammad ibn Adam al-Kawthari who says:
"There are detailed and stringent conditions for the legal punishment of fornication and adultery to be enforced upon an individual. If these conditions are not met, the punishment will not be enforced.
"One should always keep in mind the objective and spirit of Shariah (Islamic Law) concerning the various legal punishments. The idea is not to enforce the punishment and make people suffer; rather the objective is to prevent harm, corruption and immorality in the society. Thus, legal punishments act as deterrents more than actually get people punished.
"An example of this which comes to mind is that we see speed cameras being placed on many roads and streets (especially here in the UK!) in order to deter people from speeding in their vehicles. The idea behind these speed cameras is not to catch people speeding, rather to prevent people from speeding and causing accidents. If the aim was to catch people speeding, there would be no warning signs indicating that a camera is present. However, we see that whenever a speed camera is placed, many warnings are given that “beware this road has a speed camera”. Many of the times, the camera is not even in operation, hence, the idea is to stop people speeding rather than catch and punish them.
"The same is with the various legal punishments prescribed by Shariah (Islamic Law), in that they are prescribed to prevent people from committing unlawful actions and corrupting the society, yet the rules and conditions for a legal punishment to be enforced are so stringent that very rarely would an individual be punished. The legal punishment is considered a deterrent, but if an individual did involve him/herself in some unlawful activity, the objective now is not to get the individual punished rather to save him/her from the punishment."
Take care, Brother.
