Jam.J.Sci.Tech. 26, 17-20, 2015
Scientific Research Council Publication
ISSN: 1016-2054
Investigating the Incest and Marriage-bound in Adultery in Hanafi
Jurisprudence
AiTai Paghe1,2, Mohammad Hassan Hassani*3, Gholamreza Abdoli4
1. Department of Criminology and Penal, Shahrood Science and Research Branch, Islamic Azad University,
Shahrood, Iran.
2. Department of Criminology and Penal, Shahrood Branch, Islamic Azad University, Shahrood, Iran.
3. Department of Criminology and Penal, Dameghan Branch, State University, Dameghan, Iran.
4. Department of Private Law, Shahrood Branch, Islamic Azad University, Shahrood, Iran.
Corresponding Author: Hassani M.
Abstract: In different types of adultery guilt, there is disagreement between Hanafi jurisprudence scholars and each of both
views present different evidences to justify their opinion and each has taken a logic for it. Research methodology was library
method with direct reference to resources and opinions of Hanafi jurisprudence. Disagreement in Hanafi jurisprudence is such
that in some issues that some scholars reject the opinions of Abu-Hanife which is their religious leader and Imam. By looking
Abu-Hanife opinions in this regard and stating verdict like lack of religious punishment of marrying a man with his incest,
knowing the prohibition of this act and other problems which has conflict in opinions, it is inferred that Hanafi has leniency
toward it. In different periods, Hanafi jurisprudence have presented different opinions in jurisprudence books about punishment
of adultery but this research, for the first time, has critically dealt with opinions of Hanafi scholars about incest and its
punishment and marriage-bound conditions which are prerequisite for adultery with stoning punishment.
Key words: adultery, incest, marriage-bound
INTRODUCTION
The topic of this paper is investigating incest
and marriage-bound and its condition from
Hanafi scholars view. In criminal
jurisprudence of Islam, punishments are
divided in fact into four groups: legal
punishment, retribution, compensation and
suspensions. (Odeh, Abdul, Altshry Aljnayy
al, 1991). Adultery was concerned in opinions
and sayings of scholars in each society with
every religion and because this crime is
studied in Islam and Sunni jurisprudence
books ad because this is Hudodallah, this
crime has been studied and described with
scrutiny to distance the Islamic society from
it. Questions of this research are: what is the
sentences of incest in Hanafi jurisprudence?
And, what conditions marriage-bound has in
Hanafi jurisprudence? The purpose of this
paper is investigating incest and its sentences
and similarities and difference in Hanafi
jurisprudence.
Theoretical frameworks
Opinions of Sunni scholars about adultery
In this paragraph, we present jurisprudence
definition of adultery in four-sects of Sunni.
Therefore, in Hanafi jurisprudence in
definition of adultery they say “intercourse in
the vagina by man without having possession
and doubt. (Al-Moseli, Ibn Modoud, alEkhtiar Le-Ta’lil al-Mokhtar, 1998).
Samarghandi, another Hanafi scholar in the
Tohfe-al-Foghaha defines adultery as
“intercourse without having possession and
marriage and lack of doubt about possession
and marriage doubt. (Nvrbha, R, 2003). Sunni
scholar, Taj-al-Sharie presents similar
definition and states that “adultery in the
intercourse by vagina by man without having
possession and doubt. (Haeri, Shahbagh Ali,
1974). As seen, Hanafi scholars consider
intercourse by vagina as adultery not
intercourse from the back. Maliki religion
says “adultery in intercourse of Muslim man
in the vagina of women which is not his
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Paghe, A. Hassani, M. and Abdoli, Gh. 2015. Investigating the Incest and Marriage-bound in Adultery in Hanafi Jurisprudence. Jam.J.Sci.Tech.
26, 17-20, 2015.
possession. This is consensus of Maleki
scholars. ( Haeri, Shahbagh Ali, 1974).
Shafei religion defines adultery as entering
penis or genital organ of man in women who
is forbidden for him and he believes that there
is no doubt to error. (Nvrbha, R, 2003).
Hanabele define adultery as “intercourse with
a woman without doubt about it. (Muhammad
Dahimi and Yusuf Tarafi Saedavi, 2014).
Incest
A.relative incest
If we want to define this type of adultery, we
should describe incest that who are relatives.
Exclusion divided into two relative and causal
that relative are those individual that marriage
with them is forbidden such as mother,
daughter, sister and niece, and causal relatives
like daughter of woman and mother-in-law
which has not this verdict. (Hosainy
Moghadam Asgari, 2012).
Incest that its punishment is killing means that
a man commit adultery with one of his relative
women which marriage with them is
forbidden. But adultery with others is notincest adultery that there is no incest between
those who commit adultery.
By forbidden, it mean main forbidden and not
causal sanction like menstruation, pilgrimage
or fast and intercourse in these condition has
no sentences but because it is Haram, it has
punishment. (Mohammadi, A. 1995).
But in Sunni schools, Abo-Hanife and Tori
believe that “one who marries an incest
woman and have intercourse with her, is not
sentences but punishment and Abo-Yosef and
Mohammad, other Hanafi scholars say “if he
knows it is forbidden, he will sentenced” and
also Malik said “sentence is implemented for
this person and Abo-Hanife believes that “if
they marry, they will not sentences even if he
knows that it is haram and even he has married
his mother. (Haeri, Shahbagh Ali, 1974).
Therefore, he considers that marriage is
sufficient for lack of sentence and there is no
difference between knowing and not-knowing
forbidden.
Abodelrahman al-Jaziri in his famous book,
mentions the opinion of all Sunni scholars that
scholars have consensus that one who
commits incest, his punishment is death
because he is out of human nature. (Montazeri
Hussein Ali. 2008).
But it is not same in Hanafi jurisprudence but
Hanafi scholars state that “knowing that this
act is haram, this act has sentences unless he
says that I think she was halal but this is
against the opinion of Abu-Hanife because as
we said knowing it is haram, because he has
purchased, he has no sentence. Regarding that
in incest, all know each other and his
justification was not accepted, we should
thought about the saying of Abu-Hanife.
(Parsley Langroodi, MJ., 1991). Therefore,
Abodl-ghader Odee mentions the general
opinion of Sunni that intercourse with
relatives is incest and it has sentence and this
opinion is accepted by all Sunni sects
including Shafeii, Hanbali, and Maleki,
except Hanafi.
But the opinion of Hanafi about incest,
regarding that marriage with incest is haram,
is rare and interesting. Sarakhsi says “if a man
marries with a woman and has intercourse
with him, he has no sentence even if he knows
it is forbidden, but he will sentenced
according to Abu-Hanife. (Alhralamly,
Sheikh Mohammad, 1993).
B. causal relatives
Causal relatives is created by marriage;
therefore, they are not sentenced to death in
adultery. But Ibn-Ghodame says “there is
disagreement in this issue such as Ahmad
Hanbal considers him death sentence but
Malik and Shafei believe in stoning. Hanafi
scholars did not consider incest with causal
relatives with death sentences.
C. Foster relatives
Foster relatives means those who gain privacy
by suckling the milk of a woman which are
called foster relationship.
But the discussion in Hanafi opinion is that if
someone has intercourse with a women with
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Paghe, A. Hassani, M. and Abdoli, Gh. 2015. Investigating the Incest and Marriage-bound in Adultery in Hanafi Jurisprudence. Jam.J.Sci.Tech.
26, 17-20, 2015.
wrong marriage such that she was her foster
sister or marriage with her is forbidden, he has
no sentence. (Haeri, Shahbagh Ali, 1974).
Ihsan
Ihsan is condition that one who commits
adultery will be sentenced to stoning by
having it and there is no difference between
man and woman in this regard. First, we study
the lexical meaning of Ihsan and then, we
define it. Ihsan means prevention. God has
said “prevent yourself from damage and “in
stable villages” and in the religion, it means
maturity, freedom, marriage, continence and
intercourse. (Mohammadi, 1991).
Ihsan has defined in the book “review on
problems” as Ihsan in stoning means that a
free, wise, mature and Muslim man has
intercourse with correct marriage and in
stoning, the condition is that man and woman
be marriage-bound. Regarding these cases, it
is stated in the Sunni books that “most Sunni
scholars believe that one who is marriagebound has intercourse with a marriage-bound
women, i.e. one who is free, mature, wise and
married and Muslim, both of them have
committed adultery and they should be stoned
to death.
Condition of marriage-bound
Seven conditions for marriage-bound in
Hanafi jurisprudence are:
1. Be mature
2. Be wise
3. Be Muslim
4. Be free
5. Be in correct marriage
6. Committed intercourse
7. Intercourse without ejaculation.
In the case of adultery, it was mentioned that
in Sunni jurisprudence, a woman has
committed adultery with the conditions of
“free, mature, wise, having intercourse and
being marries”.
A. Intercourse in correct marriage
In Ihsan condition with correct marriage,
wrong marriage conditions fade like marriage
without witness; therefore, there is no Ihsan
with wrong marriage. (Alhralamly, Sheikh
Mohammad, 1993). Sunni scholars have
rejected temporary marriage and consider it
haram, and in the case of one who commits
adultery, they consider his marriage with his
wife permanent.
B. intercourse leading to immersion
without ejaculation
Intercourse is entering penis in the vagina and
ejaculation is not necessary. This holds for
immersion because by entering penis, one
becomes satisfied Hanafi scholars say that
“intercourse that leads to immersion even
without ejaculation. (Mehrpour, Hossein,
2000).
C. puberty and wisdom
Another condition of Ihsan is that the man or
woman has intercourse with his spouse when
s/he is matured and then committed adultery;
therefore, if a boy who is not reached to
puberty has intercourse with a halal woman,
they did not commit adultery and if he
commits adultery after puberty, the marriagebound is not hold even his marriage with that
women continues. And it is so when he was
sane at the time of intercourse with his wife;
then, if we marries a woman in sane condition
and then goes insane and has intercourse with
her and commits adultery in sane condition, he
is not marriage-bound. This is same for the
woman. Therefore, Hanafi believe that
puberty at the time of adultery and intercourse
is necessary to hold adultery. (Al-Abdul
Rahman; Alfqhy Ali Almzahb Alarbh, C
2005).
D. Islam
Another condition for Ihsan is that one who
commits adultery be Muslim. This condition
is mentioned only by Sunni scholars.
According to Hasri, “the condition of Islam is
disagreed by religious scholars that AboYosef reject the condition of Islam in Ihsan
and Safeite did not consider is as conditions.
Therefore, if a pagan commits adultery with a
free virgin girl, Hanif considers sentence
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Paghe, A. Hassani, M. and Abdoli, Gh. 2015. Investigating the Incest and Marriage-bound in Adultery in Hanafi Jurisprudence. Jam.J.Sci.Tech.
26, 17-20, 2015.
enough but Abu-Yosef and Sahfei consider
stoning. Malik believe lie Hanife. (Haeri,
Shahbagh Ali, 1974).
Research methodology
This is a library research and it is conducted
based on the similar thesis and articles. It is
descriptive and tries to study adultery from
different views.
CONCLUSION
Regarding above discussion, we can say that
adultery is obscene in all religions and has
severe sentence. By investigating incest, we
can conclude that Hanafi jurisprudence,
unlike other Sunni sects, did not consider
death for incest and only considers sentence.
But other Sunni sects considers death for
incest. Therefore, we can say that the opinion
of Abu-Hanife about incest in leniency but
about Ihsan and its condition, we can refer to
Islam condition which is presented in Hanafi
jurisprudence that unlike other religions
including Imamie, only Hanafi speaks about
Islam in Ihsan.
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Paghe, A. Hassani, M. and Abdoli, Gh. 2015. Investigating the Incest and Marriage-bound in Adultery in Hanafi Jurisprudence. Jam.J.Sci.Tech.
26, 17-20, 2015.