The jurists then disagreed over the conditions of iḥṣān.

Mālik said that they are: puberty, Islam, freedom, sexual intercourse within a sound marriage contract, and the fact that the intercourse took place at a time when intercourse was lawful. The only intercourse he deems unlawful for this purpose is intercourse during menstruation or while fasting. Thus, if someone commits adultery after having had intercourse that meets these requirements—and is still described by them—Mālik rules that the ḥadd for him is stoning.

Abū Ḥanīfah concurred with Mālik on these conditions except regarding the unlawful intercourse. He also stipulated that freedom must apply to both spouses, meaning that both the adulterer and the adulteress must be free.

Al-Shāfiʿī did not require Islam. His chief proof is the ḥadīth that Mālik narrated from Nāfiʿ, from Ibn ʿUmar (agreed upon):

“The Prophet—peace and blessings be upon him—stoned the Jewish man and the Jewish woman who committed adultery,”

because the Jews had brought their case to him. He also cites the verse:

“And if you judge between them, then judge with justice” (Q 5:42).

Mālik’s principal argument, based on meaning, is that iḥṣān in his view is a mark of honor, and there is no honor without Islam. This rests on the premise that intercourse within a valid marriage is recommended; such is the ruling for the previously married person (thayyib).

As for virgins, the Muslims are unanimously agreed that the ḥadd for a virgin who commits zina is one hundred lashes, by His words:

“The adulteress and the adulterer—flog each of them one hundred lashes” (Q 24:2).

They differed, however, on whether banishment accompanies the lashing. Abū Ḥanīfah and his companions said that no banishment is to be imposed at all. Al-Shāfiʿī held that banishment must accompany the lashing of every adulterer, male or female, free or slave. Mālik maintained that the man is banished but the woman is not; al-Awzāʿī said the same. Mālik also ruled that slaves are not to be banished.

The main evidence of those who impose banishment across the board is the previously cited ḥadīth of ʿUbādah ibn al-Ṣāmit, which states:

“The virgin with the virgin—one hundred lashes and a year’s exile.”

They likewise invoke what the compilers of the sound collections narrated from Abū Hurayrah and Zayd ibn Khālid al-Juhanī, who said:

“A Bedouin man came to the Prophet—peace and blessings be upon him—and said, ‘O Messenger of Allah, I adjure you by Allah to judge between us only according to the Book of Allah.’ The other litigant, who had greater understanding than he, said, ‘Yes, judge between us by the Book of Allah, and allow me to speak.’ The Prophet—peace and blessings be upon him—said, ‘Speak.’

He said, ‘My son was working for this man and committed adultery with his wife. I was told that my son deserved stoning, so I ransomed him with one hundred sheep and a slave girl. Then I consulted the scholars, and they informed me that my son’s penalty is one hundred lashes and a year’s banishment, and that this man’s wife is to be stoned.’

The Messenger of Allah—peace and blessings be upon him—said, ‘By Him in whose hand is my soul, I shall certainly judge between you according to the Book of Allah. As for the slave girl and the sheep, they are to be returned to you. Your son shall receive one hundred lashes and be banished for a year. And you, Unays, go to this man’s wife; if she confesses, stone her.’

Unays went to her the next morning; she confessed, so the Prophet—peace and blessings be upon him—ordered that she be stoned.”