Explanation of the Book of Inheritance, Fixed Punishments, and Blood Money-09a
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The reciter: Abdullah ibn Yusuf narrated to us, Malik informed us, from Ibn Shihab, from 'Ubayd Allah ibn 'Abd Allah ibn 'Utbah, from Abu Hurayrah and Zayd ibn Khalid (may Allah be pleased with them both): Sahih al-Bukhari 6837, 6838
Ibn Shihab said: "I do not know if it was after the third or the fourth time"
The Shaykh : Here he said, "Flog her," and he left the flogging unspecified, not defining it as one hundred or more or less. So it is said, "Flog her with a flogging that deters her from what she did," because the purpose of this flogging is reform. If she is reformed by any number of lashes, that is what is sought. And if she is not reformed and commits unlawful sexual intercourse again, she is flogged and flogged. In the third or fourth instance, she is sold. But is it "if she is sold" or "if she is sold"? There are three linguistic forms. Is there reform in her if she is sold? We say yes, there is reform in it, because a change of masters is bound to change her. Perhaps she will be sold to a master who is stronger than her first master, because the fact that she commits unlawful sexual intercourse three times and is flogged by her master may indicate his weakness. So she is transferred to a new master, and in this there is reform for her.
The verdict of Allah's Messenger (ﷺ) was sought about an unmarried slave girl guilty of illegal intercourse. He replied, "If she commits illegal sexual intercourse, then flog her (fifty stripes), and if she commits illegal sexual intercourse (after that for the second time), then flog her (fifty stripes), and if she commits illegal sexual intercourse (for the third time), then flog her (fifty stripes) and sell her for even a hair rope."
أن رسول الله صلى الله عليه وسلم سئل عن الأمة إذا زنت ولم تحصن؟ قال: إذا زنت فاجلدوها، ثم إن زنت فاجلدوها، ثم إن زنت فاجلدوها، ثم بيعوها ولو بضفيرIbn Shihab said: "I do not know if it was after the third or the fourth time"
The Shaykh : Here he said, "Flog her," and he left the flogging unspecified, not defining it as one hundred or more or less. So it is said, "Flog her with a flogging that deters her from what she did," because the purpose of this flogging is reform. If she is reformed by any number of lashes, that is what is sought. And if she is not reformed and commits unlawful sexual intercourse again, she is flogged and flogged. In the third or fourth instance, she is sold. But is it "if she is sold" or "if she is sold"? There are three linguistic forms. Is there reform in her if she is sold? We say yes, there is reform in it, because a change of masters is bound to change her. Perhaps she will be sold to a master who is stronger than her first master, because the fact that she commits unlawful sexual intercourse three times and is flogged by her master may indicate his weakness. So she is transferred to a new master, and in this there is reform for her.