They cite in support the Prophet’s saying, “A parent is not subject to retaliation on account of his child,” along with the unanimous agreement that the hand is not cut for stealing from one’s own child’s property.
Hence they say: the slave-girl is to be appraised against him—whether she has conceived or not—for she has become forbidden to his son, and it is as though he had consumed her entire value.
Another of their proofs is the consensus that, were a grandfather to kill his own grandson, the father would have no right to exact retaliation from him, and likewise for every person for whom that son is the lawful heir.
A further case is that of a man who has intercourse with his wife’s slave-girl. The jurists differ here along four lines:
- Mālik and the majority hold that the full ḥadd is due.
- A second group rules that no ḥadd applies; instead the slave-girl is appraised against him. If she consented, he must pay her value to his wife; if he forced her, she is appraised as a free woman, and he must pay that value. This is the position of Aḥmad, Isḥāq, and Ibn Masʿūd. The first opinion is attributed to ʿUmar, and Mālik transmits it from him in the Muwaṭṭaʾ.
- Others say he is to be given one hundred lashes only, whether he is muḥṣan or not.
- Still others prescribe discretionary punishment (taʿzīr).
Those who impose the ḥadd reason that he had intercourse without full ownership, without a shared ownership, and without a valid marriage; therefore the ḥadd becomes obligatory.
Those who avert the ḥadd rely on the established ruling that “the Messenger of Allah, peace and blessings be upon him, judged concerning a man who had intercourse with his wife’s slave-girl: if he forced her, she is free and he must provide her mistress with another like her; if she consented, she becomes his property and he must give her mistress another like her.”
They further argue that he has a doubtful claim in her wealth, as indicated by the ḥadīth, “A woman is married for three reasons …,” in which her wealth is mentioned. This reasoning gains strength according to those who hold—Mālik among them—that a woman’s financial disposition beyond one-third of her wealth is restricted by her husband.
Among the doubtful cases is Abū Ḥanīfah’s view that the ḥadd is averted from the man who has intercourse with a hired woman; the majority disagree. His opinion is weak and generally rejected, for he seems to regard this particular benefit as akin to any other benefit for which she was hired, thus introducing doubt and resembling a temporary marriage (mutʿah). Also debated is whether the ḥadd is dropped for the one who simply refrains.
In short, defective marriages fall under this heading, and most of them, according to Mālik, avert the ḥadd—except any union contracted with a person permanently forbidden by kinship, such as one’s mother and the like, in which ignorance is no excuse.
[Chapter Two: The Categories of Adulterers and Their Punishments]
Adulterers whose penalties vary are divided into four classes: those who are previously married (muḥṣan), virgins, free persons, and slaves—both male and female.
The Islamic ḥudūd are three: stoning, lashing, and banishment.
As for free adulterers who are previously married