Second: The absence of a doubt, so the hadd is not applied for intercourse with a slave woman in whom he has a share, or with his son’s, or with a woman he thought was his wife or his concubine, or in a marriage contract he believed to be valid
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The Shaykh : His statement "The second condition is the absence of a doubt" means that there is no doubt in this act of zina.
Doubt is of two types: doubt in the contract, and doubt in the belief. Doubt in the contract is when a man has intercourse with a woman under a defective contract without knowing it, or under an invalid contract while believing it to be valid. This is doubt in the contract. For example, if a man marries his milk-sister without knowing she is his milk-sister, and it is revealed later, he has had intercourse with her under a marriage that is invalid by consensus, but in his belief the contract was valid. As for doubt in the belief, it is when a man has intercourse with a woman he thinks is his wife. This is called doubt in the belief, because the original contract had no doubt; it was a valid contract with no issue. But he found a woman in his house, or he called a woman by his wife’s name and another woman with that name came and he had intercourse with her thinking she was his wife. In this case, we call it doubt in the belief. If either of these two doubts occurs, the hadd is not applied to him.
So what is the evidence? The evidence is that the hadd is a punishment for what? For a sin. So this sin must be established for us to apply this punishment. As for punishing someone we suspect of committing the crime, this is not permissible. It means we are establishing something for a probable, unconfirmed matter. This would be a judgment based on suspicion, and Allah Mighty and Majestic says:[Al-Hujurat 49:12] Especially since such a punishment would lower the person’s reputation among people and his integrity. So the matter is not light. Accordingly, if any doubt exists that serves as an excuse for this fornicator, it is not permissible for us to apply the hadd to him. As for the hadith , it is a weak hadith, and no argument is established by it. How often the negligent rely on it in applying hudud! Whenever hudud come up, which may be as clear as the sun, they say the Prophet (peace and blessings be upon him) said , until they make what is not a doubt into a doubt. And if it were authentic, we would need two things: our reliance on the hadith requires two things: first, the establishment of the hadith, and second, the verification of the point of application: is this a doubt or not? But the cause we mentioned is clear: it is not permissible to impose a punishment for a crime we suspect is a crime, because this is a judgment based on suspicion and harm to a Muslim, lowering his status and reputation. It is not permissible except with something clear to rely on. So, the absence of doubt. Then the author gave examples of doubt and said "so the hadd is not applied for intercourse with a slave woman in whom he has a share". This is a man who shares a slave woman with another man. Can a slave woman be shared? Can a wife be shared? Students: No. So, can a slave woman be shared? Yes, like a beast. Meaning, this slave woman was bought for ten thousand riyals, each man paid five thousand riyals, so now she is shared. So, is she lawful for either of them? No, not even by marriage. If one of them said, "I want to marry her," and the other allowed it and contracted it for him? It is not lawful for him, neither by concubinage nor by marriage. Yes. So, if his partner marries her, do we say it is lawful for him to have half of her by marriage? It cannot be divided. In any case, she is not lawful for either of them, neither by marriage nor by concubinage. But she is lawful for someone else by marriage. If they agreed to marry her to a person, that is permissible. So, this woman is not lawful for this master or for the owner of a share of her, neither by concubinage nor by marriage. And she is a beautiful, young slave woman. So his soul, which commands evil, led him to commit zina with her, and he did. We say the hadd is not applied to him. Why? Because he has a share in her, so there is a doubt of ownership. They said the hadd is not applied to him, even if he knew she was not lawful for him and that this intercourse was forbidden. We say the doubt of ownership prevents the application of the hadd. This is one case.
The second case, he said "or with his son’s". This is further removed, meaning he committed zina with a slave woman in which his son has a share. So, does the father own her? He does not own her, but he has the right to acquire ownership, meaning he has the right to acquire what his son owns of this slave woman. So, since he has the right to acquire ownership, his zina with this slave woman in which his son has a share is a doubt, so the hadd is not applied to him.
So, does the son have only one out of ten thousand shares in her? Even if so? Yes, even if so, due to the generality of his statement "in whom he has a share, or with his son’s". So, what about his brother’s? Is that possible? Meaning, it is not a doubt. What about his father’s? It is not a doubt. Meaning, if he committed zina with his father’s slave woman, the hadd is applied to him, because that is not a doubt, since a son does not have the right to acquire ownership from his father’s wealth, unlike the reverse.
The author said "or with a woman he thought was his wife or his concubine". He had intercourse with a woman he thought was his wife, or he thought she was his concubine. What is the difference between a wife and a concubine? A wife is one he owns by the marriage contract, and a concubine is one he owns by the contract of ownership. Ownership. This is a man who had intercourse with a woman he thought was his wife. Is this conceivable?
The questioner : Yes.
The Shaykh : How is it conceivable?
The questioner : For example, if he came to his bed and there was a woman sleeping in it, and he had intercourse with her thinking she was his wife.
The Shaykh : Yes, this is possible. And likewise, if he thought she was his concubine, that is possible. The important thing is that if he thought so, the matter is the same. But if he claims this thought, do we accept it from him? Or do we look at the circumstances?
The questioner : We look at the circumstances.
The Shaykh : It is necessary to look at the circumstances. If he grabbed a woman in the market and did this to her and said, "I thought she was my wife," and she is screaming, saying, "I am not your wife, and there is no connection between me and you," what is this? Is his claim that she is his wife accepted? It is not accepted. The important thing is that there must be a circumstance supporting his claim, just as we say, first among the conditions of hudud, that he must know the prohibition. So if he claims ignorance of the prohibition, do we accept it from him? We do not accept it from him, otherwise everyone would say, "I did not know that zina was forbidden, I did not know that theft was forbidden." So there must be circumstances testifying to the truth of what he said. So, "or in a marriage contract he believed to be valid". An invalid marriage is one in which scholars agreed on its defectiveness. This is the invalid marriage. And the defective one is one in which they differed. And we, the Hanbalis, do not distinguish between invalid and defective. The rule for us in fiqh or in the principles of jurisprudence, on the most correct view, is that there is no difference between invalid and defective except in two chapters of knowledge. The first chapter is in the chapter of rituals. They say the invalid one is one in which a person apostatized, and the defective one is one in which he had intercourse before the first exit from the state of ihram. Do you understand? I do not know, it seems like... before the first exit from the state of ihram. Do you understand now?
The questioner : Yes.
The Shaykh : Or it is not clear, it does not contradict. This is a man who entered the state of ihram for Hajj and went to 'Arafah. During the standing at 'Arafah, he mocked the religion, he mocked the religion of Allah. Is that disbelief? Yes, it is disbelief. We say now your ihram is invalid. That’s it, go. You can no longer proceed with your rituals because it is invalid. Yes.
But another man entered the state of ihram for Hajj, and at 'Arafah he had intercourse with his wife? This Hajj is defective. He continues in it and makes it up in the second year. So this is the difference between them. Likewise, in the chapter of marriage, they said the defective one is one in which scholars differed, and the invalid one is one in which scholars agreed on its defectiveness. If scholars agreed on the defectiveness of this contract, we say it is invalid. For example, if a man marries his milk-sister without knowing, this marriage is invalid, because it is forbidden by the consensus of Muslims.
And an example of a defective one is a man who married a woman who was breastfed by his mother three times. Is this defective?
The questioner : Yes.
The Shaykh : Because scholars differ on whether three breastfeedings prohibit marriage or not. Yes. And like a man who married a woman without a guardian. It is defective because scholars differ on it. And like a man who married a woman without witnesses. It is also defective because it is a matter of difference. And like a man who married a woman and the witnesses were her brothers? If you say it is defective, it is not correct. If you say it is valid, it is not correct. Be attentive to this. There is a detail, but what is the detail? We say if the witnesses are her brothers, if the one contracting the marriage is their father, their testimony is not valid. And if the one contracting the marriage is one of them, the testimony of the others is valid. Is that clear?
This is a man who married his daughter, and his three sons were present at the contract. We say the testimony is not valid. Why? Because the witnesses are from the descendants of the guardian. And if the witnesses are from the descendants of the guardian, their testimony is not valid. This is according to the madhhab.
The father is not present. One of the three brothers married his sister in the presence of the others. Is the contract valid?
The questioner : It is valid.
The Shaykh : The contract is valid. So, if someone were to ask, “What do you say about a marriage contract where the witnesses are the woman’s brothers?” If you said it is valid, you would be wrong, and if you said it is defective, you would be wrong. If the one who contracted the marriage is the father, it is not valid. If the one who contracted it is one of the brothers, the marriage is valid. However, this is based on the school of jurisprudence. The correct view is that the testimony of ascendants and descendants is valid and accepted. Yes.
Doubt is of two types: doubt in the contract, and doubt in the belief. Doubt in the contract is when a man has intercourse with a woman under a defective contract without knowing it, or under an invalid contract while believing it to be valid. This is doubt in the contract. For example, if a man marries his milk-sister without knowing she is his milk-sister, and it is revealed later, he has had intercourse with her under a marriage that is invalid by consensus, but in his belief the contract was valid. As for doubt in the belief, it is when a man has intercourse with a woman he thinks is his wife. This is called doubt in the belief, because the original contract had no doubt; it was a valid contract with no issue. But he found a woman in his house, or he called a woman by his wife’s name and another woman with that name came and he had intercourse with her thinking she was his wife. In this case, we call it doubt in the belief. If either of these two doubts occurs, the hadd is not applied to him.
So what is the evidence? The evidence is that the hadd is a punishment for what? For a sin. So this sin must be established for us to apply this punishment. As for punishing someone we suspect of committing the crime, this is not permissible. It means we are establishing something for a probable, unconfirmed matter. This would be a judgment based on suspicion, and Allah Mighty and Majestic says:
O you who have believed, avoid much [negative] assumption
يا أيها الذين آمنوا اجتنبوا كثيرا من الظنWard off the hudud (fixed Qur'anic punishments) from Muslims by means of shubhah (a doubtful matter) as much as you can
ادرؤوا الحدود عن المسلمين بالشبهات ما استطعتمWard off the hudud (fixed Qur'anic punishments) by means of shubhah (a doubtful matter)
ادرؤوا الحدود بالشبهاتThe second case, he said "or with his son’s". This is further removed, meaning he committed zina with a slave woman in which his son has a share. So, does the father own her? He does not own her, but he has the right to acquire ownership, meaning he has the right to acquire what his son owns of this slave woman. So, since he has the right to acquire ownership, his zina with this slave woman in which his son has a share is a doubt, so the hadd is not applied to him.
So, does the son have only one out of ten thousand shares in her? Even if so? Yes, even if so, due to the generality of his statement "in whom he has a share, or with his son’s". So, what about his brother’s? Is that possible? Meaning, it is not a doubt. What about his father’s? It is not a doubt. Meaning, if he committed zina with his father’s slave woman, the hadd is applied to him, because that is not a doubt, since a son does not have the right to acquire ownership from his father’s wealth, unlike the reverse.
The author said "or with a woman he thought was his wife or his concubine". He had intercourse with a woman he thought was his wife, or he thought she was his concubine. What is the difference between a wife and a concubine? A wife is one he owns by the marriage contract, and a concubine is one he owns by the contract of ownership. Ownership. This is a man who had intercourse with a woman he thought was his wife. Is this conceivable?
The questioner : Yes.
The Shaykh : How is it conceivable?
The questioner : For example, if he came to his bed and there was a woman sleeping in it, and he had intercourse with her thinking she was his wife.
The Shaykh : Yes, this is possible. And likewise, if he thought she was his concubine, that is possible. The important thing is that if he thought so, the matter is the same. But if he claims this thought, do we accept it from him? Or do we look at the circumstances?
The questioner : We look at the circumstances.
The Shaykh : It is necessary to look at the circumstances. If he grabbed a woman in the market and did this to her and said, "I thought she was my wife," and she is screaming, saying, "I am not your wife, and there is no connection between me and you," what is this? Is his claim that she is his wife accepted? It is not accepted. The important thing is that there must be a circumstance supporting his claim, just as we say, first among the conditions of hudud, that he must know the prohibition. So if he claims ignorance of the prohibition, do we accept it from him? We do not accept it from him, otherwise everyone would say, "I did not know that zina was forbidden, I did not know that theft was forbidden." So there must be circumstances testifying to the truth of what he said. So, "or in a marriage contract he believed to be valid". An invalid marriage is one in which scholars agreed on its defectiveness. This is the invalid marriage. And the defective one is one in which they differed. And we, the Hanbalis, do not distinguish between invalid and defective. The rule for us in fiqh or in the principles of jurisprudence, on the most correct view, is that there is no difference between invalid and defective except in two chapters of knowledge. The first chapter is in the chapter of rituals. They say the invalid one is one in which a person apostatized, and the defective one is one in which he had intercourse before the first exit from the state of ihram. Do you understand? I do not know, it seems like... before the first exit from the state of ihram. Do you understand now?
The questioner : Yes.
The Shaykh : Or it is not clear, it does not contradict. This is a man who entered the state of ihram for Hajj and went to 'Arafah. During the standing at 'Arafah, he mocked the religion, he mocked the religion of Allah. Is that disbelief? Yes, it is disbelief. We say now your ihram is invalid. That’s it, go. You can no longer proceed with your rituals because it is invalid. Yes.
But another man entered the state of ihram for Hajj, and at 'Arafah he had intercourse with his wife? This Hajj is defective. He continues in it and makes it up in the second year. So this is the difference between them. Likewise, in the chapter of marriage, they said the defective one is one in which scholars differed, and the invalid one is one in which scholars agreed on its defectiveness. If scholars agreed on the defectiveness of this contract, we say it is invalid. For example, if a man marries his milk-sister without knowing, this marriage is invalid, because it is forbidden by the consensus of Muslims.
And an example of a defective one is a man who married a woman who was breastfed by his mother three times. Is this defective?
The questioner : Yes.
The Shaykh : Because scholars differ on whether three breastfeedings prohibit marriage or not. Yes. And like a man who married a woman without a guardian. It is defective because scholars differ on it. And like a man who married a woman without witnesses. It is also defective because it is a matter of difference. And like a man who married a woman and the witnesses were her brothers? If you say it is defective, it is not correct. If you say it is valid, it is not correct. Be attentive to this. There is a detail, but what is the detail? We say if the witnesses are her brothers, if the one contracting the marriage is their father, their testimony is not valid. And if the one contracting the marriage is one of them, the testimony of the others is valid. Is that clear?
This is a man who married his daughter, and his three sons were present at the contract. We say the testimony is not valid. Why? Because the witnesses are from the descendants of the guardian. And if the witnesses are from the descendants of the guardian, their testimony is not valid. This is according to the madhhab.
The father is not present. One of the three brothers married his sister in the presence of the others. Is the contract valid?
The questioner : It is valid.
The Shaykh : The contract is valid. So, if someone were to ask, “What do you say about a marriage contract where the witnesses are the woman’s brothers?” If you said it is valid, you would be wrong, and if you said it is defective, you would be wrong. If the one who contracted the marriage is the father, it is not valid. If the one who contracted it is one of the brothers, the marriage is valid. However, this is based on the school of jurisprudence. The correct view is that the testimony of ascendants and descendants is valid and accepted. Yes.