Rape is not fornication: The Practicality of Penal system in Sharee’ah
By : Ashique Nilambur
Rape: A violation against Divinity and Humanity
The recent incident of rape in Muzaffarnagar in UP had put the Islamic law under public scrutiny again after the Imrana case in 2005, where a 28- year old woman filed a petition against her father- in- law for the crime of rape. The Jamiat Ulema al Hind stated that the rapist have become the husband of the women and should divorce her current husband[i]. The woman was sexually assaulted at gun point and impregnated by her father- in- law while her husband was in Dubai. A case was filed in the District Magistrate to arrest her father- in- law and punish him. This is where the clerics jumped into and issued the fatwa making the woman’s future in bleak. The statement given by the Jamiat Ulema al Hind, along with the misinterpretation of Islamic legal system by some people has brought wide range of misunderstanding regarding Islam and its legal system.
A discussion on the ruling on the topic discussed in the ‘fatwa’[ii]is not the objective of this article, rather, the article tries to concentrate more on the Islamic ruling on rape, which is misunderstood and made misunderstood by many people. After all a ‘fatwa’ is an opinion of a scholar that which should be scrutinized under the Islamic law, where Qur’an, the prophetic tradition, the consensus of the scholars are scales for legalization. Before going in to the details of the Islamic ruling on rape, it should be reminded that according to the Indian legal system crimes like rape do not come under any personal laws as it is a criminal offence and could never take priority over criminal law[iii].
The ruling of rape in Islam
Rape in the Islamic legal system is considered as an act of ‘zina’ (fornication) along with the context of ‘istikrah’ (coercion) and thus violating the right of God and interpersonal right of a woman[iv]. Violating the right of God, which means transgression against the moral boundaries of God (Hudud), that which brings destabilization of the society, is considered a major crime. In rape the violation of a human being is in the form of sexual misappropriation and thus comes under ‘ightisab’ (usurpation of sexual property). The punishment for crimes like ‘hudud’ are very strong considering the great danger that can result from crimes of aggression against the sanctity of the lives, honour and wealth, and the threat to public security. The punishment for ‘hudud’ is as stated in the Qur’an “that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land”. In addition, a monetary compensation has to be given by the rapist for illegitimately utilizing her body and sexuality[v].
Many have accused Islam claiming that the Islamic legal system demands four eye witnesses for proving a rape case, which makes it impractical. But, the Sharia considering this impracticality has judged that there is no need for a rape victim to summon four eye witnesses to prove the case. Still, evidence is required and should be proven. The contemporary scholars are of the view that any method in the current era that serve for proving crimes like rape can be the substantial evidence. It should be also noted that there is no Islamic precedence for punishing the victim[vi] of sexual infringement, even if the assault is not proven, the only exception being, if the woman is found to have deliberately and falsely accused an innocent person.
[ii] As far as from the news reports, the ‘fatwa’ suggests the ruling on the baby in the womb. The ‘Mufthi’ does not comment anything on the ruling on rapist and I think he don’t have to, especially when crimes like rape does not come under Muslim Personal law, rather it is subjected to Criminal law, where the religious rule does not have any role. The case is upon the Police to advance with. At the same time I wish the ‘Mufthi’ could have stated the Islamic ruling on rape.
[iii] There are many cases reported especially in northern India where crimes have been judged with injustice by a few ‘Khap Panchayath’ (What I meant here is local governing system), and worse is it when the Police hesitate to interfere in such cases.
[iv] These terminologies are used to bring a ‘ruling’ (hukm) regarding an issue and does not necessarily mean. when we use Igthisab, usurpation of sexual property, it does not mean that woman is a sexual property, rather means that the infringement was done on the sexual property of a woman.
[v] There is a difference of opinion among scholars regarding monetary compensation. Imam Hanafi’s (r) school of thought (Madhhab) is on the view that there is not monetary compensation. Sufyan al Thawri (r) also is of this view. While scholars from Imam Malik’s (r) school of thought are of the view that monetary compensation is to be given. Imam Maalik (r), in his famous al-Muwatta has said: “In our view the man who rapes a woman, whether she is a virgin or not, if she is a free woman he must pay a “monetary compensation” like that of her peers,…..The punishment is to be carried out on the rapist and there is no punishment for the woman who has been raped, whatever the case”. The Shafi (r) school of thought as well agrees on monetary compensation with Malikis. Since there is two violations happened as in the case of rape, a judgment of both punishments is reasonable. Details taken from a fatwa of Shaykh Munajjid
[vi] During the time of Caliph Umar a women accused of being raped by a man while she was asleep and couldn’t resist the rapist, the man confessed his guilty, Umar ordered him to be executed and the release the woman. (Related by Ibn Abi Shaybah)
The views expressed in this article are the author’s and do not necessarily reflect those of wisdomislam.org