A non-Muslim man raping a Muslim married woman in a non-Muslim country
Fatwa No: 132410

  • Fatwa Date:22-2-2010 - Rabee' Al-Awwal 9, 1431
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Question

Assalam alaikum warahmatullahi wa barakatuh.Please give the islamic ruling on the crime of rape. the offender is non muslim and the offended one is a married muslimah. The country and placed where the crime is committed is not a muslim country.
I am praying to Allah ta'ala that you will give an answer on this question. Jazza kallah khairan
sallam
abdullah

Answer

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.

 

Rape refers to Zina (fornication or adultery) which is committed by force against the woman's will. The woman in this case is not sinful and there is no corporal punishment prescribed on her since she is forced (into having sex). It was narrated on the authority of Abu Tharr  may  Allaah  be  pleased  with  him that the Prophet, sallallaahu ‘alayhi wa sallam, said: "Allaah has excused for my Ummah (Muslim Nation) mistakes, forgetfulness and that which they are forced to do." [Ibn Maajah] In “Al-Mughni, Ibn Qudaamah  may  Allaah  have  mercy  upon  him said: "There is no prescribed corporal punishment for a woman who was coerced (into having sex) according to the opinion of the majority of scholars. There is no difference between coercion by forcing her or coercion by threatening to kill her or the like."

The forcing party, i.e. the offender deserves a prescribed corporal punishment which is stoning to death if he is non-virgin, or flogging if he is a virgin.

Of course, being a disbeliever does not prevent the prescribed corporal punishment from being carried out according to the preponderant opinion adopted by the majority of scholars. The Prophet, sallallaahu ‘alayhi wa sallam, was authentically reported to have stoned two Jews who committed adultery. [Al-Bukhari and Muslim] In his commentary on Saheeh Muslim, Imaam An-Nawawi  may  Allaah  have  mercy  upon  him said: "This Hadeeth proves that it is obligatory to carry out the prescribed corporal punishment of adultery on the unbelievers and that his marriage is valid since applying the punishment of stoning to death does not become obligatory except upon a person who is Muhsan (i.e. a person who had intercourse within a valid marriage). Had his marriage become invalid, being Muhsan would not have been established and he would not have been stoned."

This is the Sharee’ah ruling on the crime of rape. However, it should be noted that this crime is not established except by confession or testimony of four trustworthy eye-witnesses. Moreover, the Sharee’ah-authorized ruler is the one who applies the Sharee’ah of Allaah in the lands. So, if the crime is committed in a non-Muslim country, it will not be possible to carry out the punishment.

Also, we alert you that a woman is often raped because of her carelessness or negligence, so the Muslim woman should take her precautions and beware. For further information see Fatwa 89578.

Finally, if the woman got pregnant accordingly, the baby would be attributed to her husband as long as he does not deny him by Li'aan (i.e. when a husband and his wife invoke the Curse of Allaah on the liar amongst them in case he accuses her of having committed adultery) because he is the owner of the bed. The Prophet, sallallaahu ‘alayhi wa sallam, said: "A child is attributed to the owner of the bed (i.e. legitimate husband of the woman)." [Al-Bukhari and Muslim] For further information see Fatwa 91426

Allaah Knows best.

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