Human rights groups say hundreds of women in Afghan jails are victims of rape or domestic violence. This practice has been criticized as leading to "hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of Zina" and incarcerated, and defended as punishment ordained by God.
The zina and rape laws of countries under Sharia law are the subjects of heated debate both inside and outside the Muslim world. Major Muslim scholars vastly disagree on whether extramarital pregnancy should be considered evidence for zina. Imam Abu Hanifa was firm in rejecting the use of extramarital pregnancy as an evidence of zina. Basing his judgment on clear injunctions from the Qur'an and sunnah, he considered pregnancy as mere circumstantial evidence that does not constitute sufficient proof of zina. In his view, the judge has to ask the woman being tried for such accusation to defend herself. If she claims that she was raped, or forced into a sexual relationship, or that she had intercourse with a man to whom she thought she was married, then she would not be liable for hadd punishment.
Abu Hanifa even went so far in his reasoning as to state that an unmarried pregnant woman who claims that she was raped or married does not have to provide clear evidence of her rape or marriage. Her word alone suffices.
However, Imam Malik had a different view on the matter. He stated that an unmarried woman who becomes pregnant is liable to zina punishment unless she proves that she was raped or that she is married. However, Malik did acknowledge the possibility that pregnancy can result from an unwilling sexual act. Therefore, he established a number of safeguards that aim to assure that no innocent is convicted unjustly. First, physical evidence is undeniable proof of rape. If a woman comes bleeding to the judge (or, today, the police) and claims that she was raped, her word is accepted because of her physical state. If somebody hears her asking for help, her testimony is accepted. From this perspective, even if the Pakistani legislators were influenced by the Maliki view, adopting it would allow women to rebut the pregnancy proof by physical/medical evidence that they did not consent to the intercourse.
In short, the Hanafi position states:
- Extramarital pregnancy should not be considered as proof of zina since it could result from a the woman’s wrong belief that she is married to the other party, or rape, or artificial insemination, and so on;
- If a woman claims that she was raped, either to justify her extramarital pregnancy or just to report the assault, she should not be required to prove her accusation. Her word is sufficient evidence.
And the Maliki position states:
- Extramarital pregnancy due to rape or sexual intercourse without consent requires physical or medical evidence as proof.
In all views, there still exists the fundamental Qur'anic principle of adalah (i.e. justice, balance, and equity). The law protects society, its morals and ideals, but without denying to individuals their rights, especially their basic right to life. As many Muslim scholars agree, it is better to let a guilty person get away with his/her sin and face God’s justice later, than to enforce the hadd on an innocent person.
Read more about this topic: Zina
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