Comparative Criminal Law and Enforcement: Islam - False Accusation Of Unlawful Intercourse (kadhf )
Law Library - American Law and Legal InformationCrime and Criminal LawComparative Criminal Law and Enforcement: Islam - Hadd Offenses, False Accusation Of Unlawful Intercourse (kadhf ), Drinking Of Wine (shurb), Theft (sariqa)
False accusation of unlawful intercourse (kadhf )
Anyone who is competent and adult, whether male or female, Muslim or not, slave or free, is liable if he falsely charges another person with unlawful intercourse if the slandered party is free, adult, competent, Muslim, and not previously convicted of unlawful intercourse. False accusation (kadhf ) occurs also when one is charged with being illegitimate. Only those who are the objects of the slander (the alleged fornicator or the alleged bastard) or their heirs may bring a charge of kadhf. The prohibition arose in the Qur'an after a man insinuated that an escort of the Prophet's wife A'isha may have engaged in intimate conduct with her.
The hadd punishment for kadhf is eighty lashes for free persons or forty lashes for a slave. Proof is obtained by normal Islamic penal procedure, either by confession (in this case retraction will not be suggested by the judge) or by the testimony of two adult male free Muslims. The person accused of slander may defend himself by proving that unlawful intercourse actually took place, but he would have to produce the four male witnesses as required by the law on zina. Those slanders not falling under the strict rules regarding kadhf are punished under ta'zir.
Islamic law treats as a special case the accusation by a husband of his wife's adultery, either directly or by denying paternity of her child. The procedure is known as li'an. A husband may charge his wife with infidelity without risk to himself if he swears four times by Allah that he is speaking the truth and, at a fifth oath, calls down a curse upon himself if he is lying. The wife may answer the charge similarly by swearing four times by Allah that she has not sinned and, at a fifth oath, by calling down a curse upon herself if she is not speaking the truth.
If the husband makes an accusation of adultery without using the li'an formula, he is liable to the hadd punishment for kadhf. The Hanafi school would imprison the husband until he pronounces the li'an. If he still refuses, he is declared a liar and given the lashes. If, after an accusation by li'an, the wife does not deny the charge by the li'an formula, this is taken as a tacit confession, and she is subject to the hadd punishment for zina. The li'an is the only legal means by which a man may contest the paternity of his child.
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