with his sister—may Allah protect us—or his paternal aunt, maternal aunt, mother-in-law, or stepdaughter with whose mother he has consummated the marriage, and the like. This is because such a private part can never be lawful, whether through a marriage contract or otherwise, and because this is an enormity of the gravest kind.
His statement, “a living human being,” excludes the dead. That is, if someone commits fornication or adultery with a dead woman—and this does occur—he is not subject to the prescribed punishment. They said: because one’s natural disposition recoils from and detests it, the natural deterrent is deemed sufficient in place of the prescribed punishment. Nevertheless, he must be subjected to discretionary punishment.
It was also said that one who has intercourse with a dead woman commits fornication or adultery with her and is liable to two prescribed punishments: one for fornication or adultery, and one for violating the sanctity of the deceased. For a living woman may be the object of desire and pleasure, unlike a dead woman. Imam Ahmad—according to one narration, if it is not the final one—inclined toward this view: that he is liable to two prescribed punishments because of the heinousness of this act. Undoubtedly, it is an act of the utmost repulsiveness. At the very least, the dead woman should be treated like the living woman in light of the generality of the evidences:
“Let the woman who fornicates or commits adultery and the man who fornicates or commits adultery each be given a hundred lashes.” [al-Nur 24:2]
The texts are general: this man is a fornicator or adulterer, even though the woman is not; but this is not a condition. Thus, if he commits fornication or adultery with an insane woman, the prescribed punishment is obligatory upon him but not upon her. The two punishments are not necessarily inseparable.
If a previously married man commits fornication or adultery with a virgin, he is stoned, while she is lashed. Thus, for the prescribed punishment for fornication or adultery to be carried out, it is not a condition that the two offenders receive the same punishment.
The conditions, then, are:
First: the complete insertion of the original glans.