Hudud

Malik related to me from Nafi that Abdullah ibn Umar said, “The Jews came to the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, and mentioned to him that a man and woman from among them had committed adultery. The Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, asked them, ‘What do you find in the Torah about stoning?’

They said, ‘We make their wrong action known and flog them.’ Abdullah ibn Salam said, ‘You have lied! It has stoning for it, so bring the Torah.’ They spread it out and one of them placed his hand over the ayat of stoning. Then he read what was before it and what was after it.

Abdullah ibn Salam told him to lift his hand. He lifted his hand and there was the ayat of stoning. They said, ‘He has spoken the truth, Muhammad. The ayat of stoning is in it.’ So the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, gave the order and they were stoned.

‘ Abdullah ibn Umar added, ‘I saw the man leaning over the woman to protect her from the stones.’ Malik commented, ‘By leaning he meant throwing himself over her so that the stones fell on him.’’”

He told him the same as he had said to Abu Bakr, and Umar told him the same as Abu Bakr had said to him. His self was still not settled so he went to the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, and said to him, “I have committed adultery,” insistently. The Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, turned away from him three times.

Each time the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, turned away from him until it became too much. The Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, questioned his family, “Does he have an illness which affects his mind, or is he mad?”

They said, “Messenger of Allah, by Allah, he is well.” The Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, said, “Unmarried or married?”

They said, “Married, Messenger of Allah.” The Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, gave the order and he was stoned.

He said, “Speak.” He said, “My son was hired by this person and he committed fornication with his wife. He told me that my son deserved stoning, and I ransomed him for one hundred sheep and a slave-girl.

Then I asked the people of knowledge and they told me that my son deserved to be flogged with one hundred lashes and exiled for a year, and they informed me that the woman deserved to be stoned.” The Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, said, “By him in whose Hand myself is, I will judge between you by the Book of Allah.

As for your sheep and slave girl, they should be returned to you. Your son should have one hundred lashes and be exiled for a year.” He ordered Unays al-Aslami to go to the wife of the other man and to stone her if she confessed. She confessed and he stoned her.

He said, ‘People! Sunan have been laid down for you. Obligations have been placed upon you. You have been left with a clear way unless you lead people astray right and 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 of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, stoned, so we have stoned. By He in Whose Hand my self is, had it not been that people would 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-grown woman, stone them absolutely.’

We have certainly recited that.’” Malik said, “Yahya ibn Said said Said ibn al-Musayyab said, ‘Dhul-Hijja had not passed before Umar was murdered, may Allah have mercy on him.’

‘ Yahya said that he had heard Malik say, ‘As for 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.’’’”

He said, “If she doubts her periods, she does not marry until she has freed herself of that doubt.” Malik related to me from Abuz-Zinad that he said, “Umar ibn Abd al-Aziz flogged a slave with eighty lashes for slander.”

Abuz-Zinad said, “I asked Abdullah ibn Amir ibn Rabia about that. He said, ‘I saw Umar ibn al-Khattab, Uthman ibn Affan, the Khalifs, and so on, and I did not see any of them flog a slave more than forty lashes for slander.’”

Zurayq said, “I wrote to Umar ibn Abd al-Aziz also, ‘What do you think about a man who is slandered or his parents are slandered and both or only one of them are dead?’

He said, Umar wrote to me, ‘If he forgives, his pardon is permitted for himself. If his parents are slandered and one or both of them are dead, take the judgement of the Book of Allah for it unless he wants to veil it.’

‘ Yahya said, ‘I heard Malik say, ‘That is because the slandered man might fear that if that is unveiled about him, a clear proof might be established. If it is according to what we have described, his pardon is permitted.’’’”

Another said, “His father and mother have praise other than this. We think that he is to be flogged with the hadd.” So Umar flogged him with the hadd of eighty lashes.

Malik said, “There is no hadd in our view except for slander, denial or insinuation, in which one sees that the speaker intends by that denial or slander. Then the hadd is completely imposed on the one who said it.”

Malik said, “What is done in our community when a man denies that another man is from his father, is that he deserves the hadd. If the mother who is denied is a slave, then he deserves the hadd as well.”

Malik said about a man who had intercourse with his son’s or daughter’s slave-girl, “The hadd is averted from him and he owes the estimated value of the slave-girl whether or not she conceives.” Malik related to me from Rabia ibn Abi Abd ar-Rahman that Umar ibn al-Khattab spoke about a man who went out with his wife’s slave- girl on a journey and had intercourse with her and then the wife became jealous and mentioned that to Umar ibn al-Khattab.

Umar questioned him about it. He said, “She gave her to me.” Umar said, “Bring me a clear proof or I will stone you.” Rabia added, “The wife confessed that she had given her to him.”

The slave was asked about it and confessed. Aishah, the wife of the Prophet (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, gave the order and his hand was cut off.

Aishah said, ‘A thief’s hand is cut off for a quarter of a dinar and upwards.’ ‘ Malik said, ‘The limit I prefer above which cutting off the hand is obliged is three dirhams, whether the exchange is high or low. That is because the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, cut off the hand of a thief for a shield whose value was three dirhams, and Uthman ibn Affan cut off the hand of a thief for a citron which was estimated at three dirhams. This is what I prefer of what I have heard on the matter.’’”

‘ Yahya related to me from Malik that he had heard that al- Qasim ibn Muhammad and Salim ibn Abdullah and Urwa ibn az-Zubayr said, ‘When a runaway slave steals something for which cutting off the hand is obliged, his hand is cut off.’

Malik said, ‘The way of doing things amongst us about which there is no dispute is that when the runaway slave steals that for which cutting off the hand is obliged, his hand is cut off.’’”

He said, “O Allah! You are responsible for the one who invaded the people of this good house by night!” They found the jewelry with a goldsmith. He claimed that the maimed man had brought it to him. The maimed man confessed or it was testified against him. Abu Bakr as-Siddiq ordered that his left hand be cut off.

Abu Bakr said, “By Allah! His dua against himself is more serious, as far as I am concerned, than his theft.” Yahya said that Malik said, “What is done among us about the person who steals several times and is then called to reckoning, is that only his hand is cut off for all he stole when the hadd has not been applied againsthim.

If the hadd has been applied against him before that, and he steals what obliges cutting off, then the next limb is cut off.”

Malik said about some one who stole something for which cutting off the hand was obliged and then what he stole was found with him and he returned it to its owner, “His hand is cut off.”

Malik said, “If someon says, ‘How can his hand be cut off when the goods have been taken from him and returned to their owner?’, it is because he is in the same position as the wine drinker when the smell of the wine is found on his breath and he is not drunk. He is flogged with the hadd.

‘The hadd is imposed for drinking wine even if it does not make the man intoxicated. That is because he drank it to become intoxicated. It is the same as that with cutting off the hand of the thief for theft when it is taken from him, even if he has not profited from it and it was returned to its owner. When he stole it, he stole it to take it away.’

Malik said that if some people came to a house and robbed it together, and then they left with a sack or box or a board or basket or the like of that which they carried together, and when they took it out of its guarded place, they carried it together, and the price of what they took reached that for which cutting off the hand was obliged, and that was three dirhams and upwards, each of them had his hand cut off.

‘If each of them takes out something by himself, whoever of them takes out something whose value reaches three dirhams and upwards must have his hand cut off. If any of them takes out something whose value does not reach three dirhams, he does not have his hand cut off.’

Yahya said that Malik said, ‘What is done among us is that when a man’s house is locked and he is the only one living in it, cutting off the hand is not obliged against the one who steals something from it until he takes it out of the house completely. That is because all of the house is a place of custody. If someone other than him lives in the house and each of them locks his door, and it is a place of custody for each of them, whoever steals anything from the apartments of that house must have his hand cut off when he leaves the apartment and goes into the main house.

He has removed it from its place of custody to another place and he must have his hand cut off.’ Malik said, ‘What is done in our community about a slave who steals from the property of his master is that if he is not in service and among those trusted in the house and he enters secretly and steals from his master something that for which cutting off the hand is obliged, his hand is not cut off.

It is like that with a slave-girl when she steals from her master’s property. Her hand is not cut off.’ Malik then spoke about a slave who was not in service and not one of those trusted in the house, and he entered secretly and stole from the property of his master’s wife that for which cutting off the hand was obliged.

He said, ‘His hand is cut off.’ ‘It is like that with the wife’s slave-girl when she does not serve her or her husband nor is she trusted in the house and she enters secretly and steals from her mistress’s property that for which cutting off the hand is obliged. Her hand is not cut off.’

‘It is like that with the wife’s slave-girl who is not in her service and is not trusted in the house and she enters secretly and steals from the property of her mistress’s husband something for which cutting off the hand is obliged. Her hand is cut off.’ It is like that with the man who steals from his wife’s goods or the wife who steals from her husband’s goods something for which cutting off the hand is obliged.

If the thing which one of them steals from his spouse’s property is in a room other than the room which they both lock for themselves, or it is in a place of custody in a room other than the room which they are in, whichever of them steals something for which cutting off the hand is obliged, their hand should be cut off.” Malik spoke about a small child and a foreigner who does not speak clearly.

He said, “If they are robbed of something from its place of custody or from under a lock, the one who stole it has his hand cut off. If the property is outside of its place of custody or locked room (when it is stolen), the one who robbed them does not have his hand cut off. It is then in the position of sheep stolen from the mountain and uncut fruit hanging on the trees ‘ Malik said, ‘What is done among us about a person who robs graves is that if what he takes from the grave reaches what cutting off the hand is obliged for, his hand is cut off.

That is because the grave is a place of custody for what is in it just as houses are a place of custody for what is in them. ‘ Malik added, ‘Cutting off the hand is not obliged for him until he takes it out of the grave.’’’’”

The man said, “Marwan ibn al-Hakam has taken a slave of mine and wants to cut off his hand. I would like you to go with me to him so you can tell him what you heard from the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace.” So, Rafi went with him to Marwan ibn al-Hakam.

He said, “Did you arrest a slave for this?” He said, “Yes.” He said, “What will you do with him?” He said, “I want to cut off his hand.” Rafi said to him, “I heard the Messenger of Allah (sallallahu alayhi wa sallam), may Allah bless him and grant him peace, say, ‘The hand is not cut off for dates or palm pith.’ Marwan therefore ordered the slave to be released.”

He had said, “Yes.” She said, “Amra says to you not to cut off the hand except for a quarter of a dinar and upwards.” Abu Bakr added, “So I let the Nabatean go.” Malik said, “The generally agreed on way of doing things among us about the confession of slaves is that if a slave confesses something against himself, the hadd and punishment for it is inflicted on his body.

His confession is accepted from him and one does not suspect that he would inflict something on himself.” Malik said, “As for the one of them who confesses to a matter which will incur damages agains this master, his confession is not accepted against his master.”

Malik said, “One does not cut off the hand of a hireling or a man who is with some people to serve them, 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 does not have his hand cut off.”

Malik said about a person who borrows something and then denies it, “His hand is not cut off. He is like a man who owes a debt to another man and denies it. He does not have his hand cut off for what he has denied.”

Malik said, “The generally agreed-on way of dealing among us, with the thief who is found in a house and has gathered up goods and has not taken them out, is that his hand is not cut off. That is like the man who places wine before him to drink it and does not do it. The hadd is not imposed on him. That is like a man who sits with a woman and desires to have haram intercourse with her and does not do it and he does not reach her.

There is no hadd against that either.” Malik said, “The generally agreed-on way of doing things among us is that there is no cutting off the hand for what is taken by chance, openly and in haste, whether or not its price reaches that for which the hand is cut off.”