Failing to produce four witnesses in accusation of rape
Fatwa No: 323002

Question

Assalaamu alaykum dear Brother in Islam. I have the following query: If a woman accuses someone of rape while she does not have four witnesses and the accused does not confess having committed rape or adultery, will the woman be punished for slander of adultery (had-e-quzuf)? Please answer with evidence from the Sunnah. I have researched lots of Fiqh books like Hidaya, Dur Mukhtar and Sihah e-Sittah and am confused. I think she is muddai (one who claims), not a witness, and that she cannot be punished for slander.

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 ʻalayhi wa sallam, is His slave and Messenger. 

The scholars define slander (qathf) as, “Explicit or implicit accusation of committing zina (adultery or fornication) against an individual who is generally known to be chaste”. This definition was underlined by the author of the book on Hanafi Fiqh, Al-ʻInaayah Sharh Al-Hidaayah.

The essence of slander is accusing a person of committing zina, regardless of whether the accuser is a claimant or a witness. If a woman accused a man of forcing her into committing zina and did not bring forth four witnesses to substantiate her claim, then she is liable for the hadd (prescribed punishment) of slander. Al-Lubaab fi Sharh Al-Kitaab (another book on Hanafi Fiqh) reads:

"If a man or a woman accused a chaste man or woman of committing zina explicitly, such by saying, 'You are an adulterer/adulteress' or, 'You have committed zina,' then the accused person has the right to claim subjecting the accuser to the hadd of slander, and the ruler implements the hadd, which is eighty lashes if the offender is free (as opposed to a slave). Allaah, The Exalted, says (what means): {And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes...} [Quran 24:4] The scholars unanimously said that 'accuse' in the verse refers to accusing of Zina.

Some jurists held that the ruling differs based on whether her accusation is made against a righteous person or a dissolute person or a person whose religiosity is unknown to people. Al-Kharashi commented on the following statement of Khaleel, “If a woman claimed that a man forced her into adultery while it is inconceivable for such a man to commit this crime (because he is known for his piety and righteousness) without providing witnesses or physical evidence, then she is subject to the hadd of slander.” Al-Kharashi said:

“This means that if a woman accused a pious man of forcing her into adultery and there were no witnesses to prove her claim and she did not drag him by his clothes (to prove the offense), then she should be subjected to the hadd of slander whether or not she is well-known for chastity she should be subjected to the hadd of zina if she becomes pregnant as a result. The same ruling applies if she is proven non-pregnant unless she retracts her claim. If she drags him by his clothes and reports the crime of her own volition, then the hadd of zina is waived from her even if she is proven pregnant given the public defamation that she brought upon herself by reporting the offense. She is still subject to the hadd of slander and has no right to ask the man whom she accused to take an oath and swear to his innocence of the charge brought against him. On the other hand, if she accused a dissolute man of such a crime and she did not drag him by his clothes, then she is not subject to the hadd of slander or zina unless she is proven pregnant. However, if she dragged him by his clothes, then the hadd of zina is waived from her even if she is proven pregnant and the hadd of slander is waived from her as well. Lastly, if she accused a man whose religiosity is unknown and she did not drag him by his clothes, then she is subject to both the hadd of slander and that of zina. If she dragged him by his clothes, then she is not subject for that to the hadd of slander...

Finally, we could not find evidence in the Sunnah regarding the case mentioned in the question. However, the general indication of the verse applies to it. At-Tabaraani  may  Allaah  have  mercy  upon  him cited the statement of Abu Sakhr  may  Allaah  have  mercy  upon  him in his commentary on the verse that reads (what means): {Why did they (who slandered) not produce for it four witnesses? And when they do not produce the witnesses, then it is they, in the sight of Allaah, who are the liars.} [Quran 24:13] He said, “Whoever accused a Muslim individual of committing adultery and failed to produce four witnesses has committed slander and should be subject to the hadd of slander ...

Allaah knows best.

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