Another view is that it does not lapse, giving precedence to Allah Most High’s right [أ/ق 67], because there is no equivalence, as with all other prescribed penalties. This is the position of Abū Hanīfa and one report from Ahmad (1).

The prescribed penalty for false accusation of fornication is due only when the accused possesses the requisite legal inviolability—that is, when the person is Muslim, free, and chaste. No prescribed penalty is imposed for accusing someone notorious for sexual immorality, nor for accusing a disbeliever or an enslaved person (2); the accuser is, however, subject to discretionary punishment.

This applies to anyone other than a husband, for he has no need to make such an accusation, even if he is telling the truth. Allah Most High says:

“Indeed, those who love to see immorality spread among the believers will suffer a painful punishment in this world and the Hereafter. Allah knows, while you do not know.” [al-Nūr: 19]

As for (3) the husband, he may accuse his wife if she commits fornication but does not become pregnant by it. If she becomes pregnant by it and gives birth, he must accuse her and disclaim paternity of the child, lest someone who is not his be ascribed to him and thereby become regarded as blood kin to his relatives and as an unmarriageable relative of his womenfolk.

Once he accuses her, she will either confess to fornication or deny it. If she denies it, he may proceed with mutual imprecation against her, as Allah has stated in the Book and as is mentioned in the sunnah.

If the accuser is enslaved, he is liable to half the prescribed penalty imposed on a free person. The same applies to flogging (4) for fornication and drinking, because Allah Most High said concerning enslaved women: “They shall receive half the punishment prescribed for free women.” [al-Nisāʾ: 25] If the required punishment is death or amputation of the hand, however, it cannot be halved.