Chapter One: The kinds of claims that render liʿān obligatory and the conditions governing each.
The claims that oblige liʿān take, in the first instance, two basic forms:
- An accusation of adultery.
- The denial of pregnancy.
An accusation of adultery is either “observed”—meaning that the husband alleges he actually saw her commit the act, as a legal witness would testify—or it is a bare, unqualified accusation.
Likewise, the denial of pregnancy is either absolute, or accompanied by the claim that he has not had intercourse with her after her womb was cleared (istibrāʾ). These are four simple situations, and every other claim is merely a combination of them, such as accusing her of adultery while denying the pregnancy, or acknowledging the pregnancy while still accusing her of adultery.
There is no disagreement that liʿān is obligatory when the husband slanders her with adultery and claims to have witnessed it; the Mālikīs stipulate, in addition, that he must maintain he has not cohabited with her thereafter.
With respect to the obligation of liʿān for a mere accusation, the majority allow it—al-Shāfiʿī, Abū Ḥanīfah, al-Thawrī, Aḥmad, Dāwūd, and others. The famous view reported from Mālik, however, is that liʿān is not permissible on the basis of a bare accusation, although Ibn al-Qāsim held that it is, and this opinion is also transmitted from Mālik himself.
The majority base their position on the general wording of the verse:
“And those who accuse their wives…” (Sūrat al-Nūr 24:6).
The verse assigns no particular description to the accusation of adultery, unlike the verse that establishes the hadd for slander. Mālik’s evidence is the apparent sense of the prophetic traditions on the subject. Among these are his words in the ḥadīth of Saʿd, “Tell me, if a man were to find another man with his wife…,” and the ḥadīth of Ibn ʿAbbās, in which he said:
“The Messenger of Allah—peace and blessings be upon him—arrived, and I declared, ‘By Allah, O Messenger of Allah, I saw with my own eyes and heard with my own ears.’ The Messenger of Allah—peace and blessings be upon him—disliked what I had said and was greatly troubled, whereupon the verse was revealed: ‘And those who accuse their wives…’ (24:6).”
Moreover, any claim must be supported by proof, just as testimony requires evidence.
There is a subsidiary issue in this chapter over which Mālik’s statements differ: if she is found to be pregnant after liʿān, two reports from Mālik exist—one that the pregnancy is disassociated from him, and another that the child is attributed to him.
So far as I know, the scholars agree that one of the conditions for a claim necessitating liʿān on the basis of witnessing adultery is that the woman remain under his marital authority. They disagree, however, about a man who slanders his wife with adultery and then divorces her with a triple divorce: must liʿān still be carried out? Mālik, al-Shāfiʿī, al-Awzāʿī, and a number of others say that it must; Abū Ḥanīfah says there is no liʿān between them unless he also denies paternity of a child, in which case no hadd applies; whereas Makḥūl, al-Ḥakam, and Qatādah hold that he incurs the hadd punishment and no liʿān is performed.
As for the denial of pregnancy, we have said it presents two possibilities. One is that he claims to have carried out istibrāʾ and has not touched her afterward, and on this point there is no disagreement.