CHAPTER 4, VERSES 15 - 16
وَاللَّاتِي يَأْتِينَ الْفَاحِشَةَ مِن نِّسَائِكُمْ فَاسْتَشْهِدُوا عَلَيْهِنَّ أَرْبَعَةً مِّنكُمْۖ
فَإِن شَهِدُوا فَأَمْسِكُوهُنَّ فِي الْبُيُوتِ حَتَّىٰ يَتَوَفَّاهُنَّ الْمَوْتُ أَوْ يَجْعَلَ اللَّـهُ لَهُنَّ سَبِيلًا ﴿١٥﴾ وَاللَّذَانِ يَأْتِيَانِهَا مِنكُمْ فَآذُوهُمَاۖ
فَإِن تَابَا وَأَصْلَحَا فَأَعْرِضُوا عَنْهُمَاۗ
إِنَّ اللَّـهَ كَانَ تَوَّابًا رَّحِيمًا ﴿١٦﴾
And as for those who are guilty of indecency from among your women, call to witness against them four (witnesses) from among you, then if they bear witness confine them to the houses until death takes them away or Allah makes some way for them (15). And as for the two who are guilty of it from among you, afflict them both; then if they repent and amend, turn aside from them; surely Allāh is Oft-returning (to mercy), the Merciful (16).
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COMMENTARY
QUR’ĀN:
And as for those who are guilty from among you: Atāh and atā bihi (اَتَاهُ،اَتي بِه = translated here as being guilty) actually means ‘‘doing it’’. al-Fāhishah (اَلْفَاحِشَةُ ) is derived from al-fuhsh (اَلْفُحْشُ = indecency); thus al-fāhishah means indecent behaviour ; it is generally used in the meaning of fornication; it has also been used in the Qur’ān for sodomy or for sodomy and lesbianism both, as Allāh quotes Lūt (a.s.) as saying: Most surely you are guilty of an indecency which none of the nations has ever done before you (29:28).
Apparently this word refers here to fornication, as explained by all the exegetes. They have narrated that when the verse of flogging was revealed, the Prophet said that the flogging is the way Allāh has opened for them when they are guilty of fornication. It is also supported by the style of the verse which clearly shows that this order was to be abrogated soon, as Allāh says: or Allāh makes some way for them; and nobody has said that the penalty of lesbianism was abrogated by any succeeding order, nor that this penalty [of flogging] was meted out to anyone guilty of lesbianism; [all this together shows that this verse is not concerned with sodomy or lesbianism]. The phrase, ‘‘four (witnesses) from among you’’, indicates that the witnesses should be males [because the pronoun used for ‘you’ is of masculine gender].
QUR’ĀN:
then if they bear witness confine them some way for them: The confinement, that is, perpetual imprisonment, depends on the evidence, not on actual guilt without the required evidence - although it might be known; it is one of the mercies of Allāh on the ummah showing His magnanimity and forbearance.
The punishment is perpetual confinement; it is clearly indicated by the prescribed limit, ‘‘until death takes them away’’. But Allāh has not used the word, imprisonment or internment; instead He has said, fa-amsikūhunna (فَاَمْسِكُوهُنَّ ) which literally means, then restrain them; the use of this mild word is another clear indication of His indulgence and tolerance.
The clause, ‘‘until death takes them away or Allāh makes some way for them’’, means: or Allāh opens a way for them to be free from perpetual confinement. The alternative indicates probable abrogation of the order; and it happened when the rule of flogging replaced this order. Everyone knows that the penalty given to fornicating women - since the later period of the Prophet and in practice among the Muslims after him - is the flogging, not confinement to the houses. The verse, supposing that it contains the rule about the fornicating women, has been abrogated by the verse of flogging; and the way mentioned in this verse undoubtedly refers to flogging.
QUR’ĀN:
And as for the two who are guilty of it from among you, afflict them both: The two verses are inter-related, and certainly the pronoun ‘it’ refers to ‘indecency’. It supports the view that both verses deal with punishment of fornication. The second verse therefore completes the order given in the first one; the first one had explained the law only to the extent it affected the women, while the second one describes the rule as it affects both parties - and it is the ‘affliction’. So the two verses together explain the rule of fornicating man and fornicating woman both - that both should be afflicted and the confinement of the women to the houses.
But this explanation does not agree with the following clause: then if they repent and amend, turn aside from them; obviously it does not fit in with the order of confining the women for the life. Therefore, it is necessary to say that turning aside from them refers to discontinuation of their punishment while the confinement continues as before.
That is why sometimes it is said - following some traditions which shall be quoted later - that the first verse speaks about those women who are not virgin while the second one gives the order about the virgins; accordingly the virgins who commit fornication should be punished by confining them to the houses until they repent and amend their behaviour, and then they may be released from the confinement. But this explanation leaves two problems unsolved:
First:
Why should the first verse be reserved for non-virgins and the second one to virgins when there is nothing in the wordings to support this differentiation?
Second:
Why does the first verse speak about the fornicating women only, while the second one talks about both parties: ‘‘And as for the two who are guilty of it from among you ...’’?
It has been said that according to the exegete, Abū Muslim, the first verse ordains the law about lesbianism, and the second one about sodomy, and that both verses are un-abrogated.
But that view too is obviously wrong. As for the first verse, the explanation given by us earlier (for the words, As for those who are guilty of indecency from among your women ...), proves untenability of Abū Muslim’s interpretation. As for his explanation of the second verse, it is rejected by the well-established sunnah that the penalty of sodomy is death. The correct hadīth of the Prophet says: ‘‘Whoever among you commits the sin of the people of Lūt, kill (both) the doer and (the man) done to.’’ This law is either from the beginning (which has not been abrogated); or is a subsequent law which has abrogated the verse; in any case, it refutes Abū Muslim’s views.
Looking at the apparent meaning of the two verses (which come to the mind at once), and at the associations found with them; and keeping in view the difficulties arising out of the given explanations, we may interpret the verses as follows - and Allāh knows better:
The verse lays down the law concerning adultery by married women. Also the fact that the verse mentions only women, and not men, indicates this meaning; the word, ‘women’, is commonly used for ‘wives’ and especially when it appears as first construct of a genitive case where the second construct is ‘men’, as is the position in this verse: ‘‘you [i.e., you men’s] women’’; also Allāh says: And give women their dowries as a free gift (4:4); ...of your women to whom you have gone in (4:23).
Accordingly, the first and temporary order was to confine them to the houses; then stoning was ordained for them. al-Jubbā’ī has used this example to prove that the Book may be abrogated by the sunnah; but it is not so. Abrogation repeals an order which was apprently meant to continue for ever; while this order of confinement contains a clause that points to its temporariness, and it is the words: or Allāh makes some way for them. These words clearly show that there was another order that would be promulgated later. Even if it were called ‘abrogation’, there would be no trouble; because it would not contain those difficulties which were inherent in abrogating the Book with the sunnah - the Qur’ān itself indicates here that this order was to be repealed after sometime; and the Prophet is the one who explains the meaning of the honoured Qur’ān.
The second verse promulgates the rule about fornication (other than adultery), that the parties should be afflicted; that punishment includes confinement, hitting them with shoes, admonishing and shaming them by harsh words or other such ways of hurting them. Accordingly this verse stands abrogated by the verse of flogging in the chapter of ‘The Light’. As for a tradition that this verse speaks about virgin girls who commit fornication, it is a khabaru ’l-wāhid
, apart from being al-mursalah
, and therefore weak. And Allāh knows better. (However, this interpretation is not free from weakness, because prior indication that a certain rule would be abrogated later, does not water down the abrogation.)
QUR’ĀN:
then if they repent and amend, turn aside from them: Repentance is qualified by amendment; it is to establish the reality of repentance, to make it clear that repentance is not mere utterance of some words or just to be carried away by some pangs of conscience; [it requires definite improvement of behaviour and character].
TRADITIONS
It is narrated in at-Tafsīr of al-‘Ayyāshī from as-Sādiq (a.s.) that he said about the word of Allāh: And as for those who are guilty of indecency from among your women ..., that it was abrogated and that the ‘way’ [referred to here] was the laid down penal code. (al-Kāfī)
al-Bāqir (a.s.) was asked about this verse and he said: ‘‘It is abrogated.’’ He was asked: ‘‘How was it?’’ He said: ‘‘When a woman committed indecency [i.e., fornication], and four witnesses stood (to give evidence) against her, she was confined to a house; no one spoke to or talked with her, nor anyone sat with her; she was provided her food and drink - [this was to continue] until she died or Allāh made some way for her.’’ Then he said: ‘‘Making way (for her) is the flogging and stoning.’’ It was said: ‘‘(And what is the meaning of the words of Allāh:) And as for the two who are guilty of it ...?’’ He said: ‘‘It means, when a virgin is guilty of the indecency which was done by this non-virgin.’’ [He was asked the import of the words:] afflict them both. He said: ‘‘She will be confined.’’ (ibid.)
The author says:
The story that the rule in the early days of Islam was to confine them into the houses until death, has been narrated by the Sunnīs through many chains of narrators, from Ibn ‘Abbās, Qatādah, Mujāhid and others. It has been narrated from as-Suddī that confinement into the houses was the rule for non-virgins, and the affliction mentioned in the second verse was the order for unmarried girls and boys.
But you have seen what is to be said in this context.
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Author: Allamah Sayyid Muhammad Husayn Tabatabai
