Rape, Zina and Incest

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Rape, Zina and Incest
Sisters in Islam shares theconcern expressed by theDeputy Prime
Minister that the absence of a definition on rape in syariah law has
led to victims of rape being charged for zina (illicit sex).
Throughout the history of Islam, differing humaninterpretations and
understanding of the word of God had always existed. We as a society
must debate and discuss in a rational and informed manner which
interpretation will serve the best interest of our multi-ethnic,
multi-religious, industrialising and modernising society.
In Pakistan, it is reported that three out of four women in prison
under its Hudud laws, are rape victims. Because rape is equated with
zina under Hudud law, rape victims are required to produce four pious
male witnesses. It is of course nearly impossible for the rape victims
to produce the four male witnesses required to prove their allegation.
Therefore their police report of rape was taken as a confession of
illicit sex ontheir part and they were duly found guilty.
In the real world, rape is unlikely to occur in the open, such that
four pious males can observe the act of penetration. If they actually
did witness such an act, and have notsought to prevent it,
thentechnically they are abettors to the crime. In reality, unless the
rapist confesses to the crime, women can never prove rape at all if
rape is placed under syariah jurisdiction.
It is because of such grossinjustice and abuse of the law that Sisters
in Islam objected to several provisions which discriminated against
women in the Hudud Enactment of Kelantan in 1993. The enforcement
ofsuch laws leaves rape victims who are unable to provide four male
eye witnesses liable to prosecution for illicit sex.
In Malaysia, rape is a crime under the Penal Code. There is therefore
no necessity for a new crime of rape under the Syariah criminal
offences legislation as this would lead to a further conflict of
jurisdiction between civil and syariah law. All citizens, whether
Muslimsor non-Muslims, who commit the crime of rape, which includes
incest, should be prosecuted under the Penal Code. According to the
Federal Constitution crime is a federal matter and effort must be made
to minimise areas of overlapping of jurisdiction between civiland
syariah law which have already led to numerous cases of conflict that
must be addressed by the authorities in consultation with NGOs.
We feel there are adequate provisions in the Penal Code to deal with
the Deputy Prime Minister's concern of sexual abuse at home. Even
though the crime of incest is not defined in the Penal Code, the
perpetrator could be charged for rape and the judge should take into
consideration the aggravating circumstances of a family relationship
and impose a higher sentence on the rapist.
Incest, however, is a specific crime under the Syariah Criminal Code.
In an unprecedented case in Kelantan recently, a 17-year-old daughter
was charged for incest with her father under theKelantan Syariah
CriminalCode. Sisters in Islam views this development with deep
concern.
That the Syariah prosecutors regarded thegirl as a willing partner in
the commission of the crime and therefore an offender, rather than a
victim, is totally against the grain of justice. The girl is a
juvenile under the authority and controlof her father. The failure of
the Syariah judicial officers to understand the dynamics of power
relationship led to the prosecution of a daughter, a victim of sexual
abuse by the father, as if she was an equal perpetrator and willing
partner in the crime.
In this case, the cause of justice would have betterbeen served if the
father was charged with rape under the Penal Code where he is liable
to imprisonment for not lessthan five years and not more than 20
years. This sentencing properly reflects the gravity of the crime
committed and society's abhorrence of such a crime. However, under the
Kelantan Syariah Criminal Code, the person who commits incest is
liable only to a fine not exceeding$3,000 or to imprisonment for a
term not exceeding two years, or both.
In the Kelantan case, society would regard the daughter as the victim,
not the offender. She is regarded as a minor under civil law and
should have been given the professional care andsupport she so
necessarily needed to help her overcome the trauma of an incestuous
relationship. She should not have been treated as a criminal.
Sisters in Islam urges the Government to form a committee which
includes women's groupsand other NGOs to reviewthe Syariah Criminal
Law and its many provisions which conflict or overlap with civil law,
which conflict with constitutional provisions on fundamental liberties
and which discriminate against women and marginalised communities./-
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Rape & Incest: Islamic Perspective

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Religious Wisdom - II

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Rules Pertaining to Religious Wisdom
1- Religious wisdom is either obligatory or recommended to use. When
this term is mentioned, many people think it refers to details of
religious wisdom and avoiding doubtful matters. Therefore, they think
that religious wisdom is not an obligation and that it is specifically
for people who have been selected and righteous, and that it is not
obligatory on every individual. Shaykhul-Islam Ibn Taymiyyah said,
The religious wisdom that is recommended in the Sharee'ah and with
which Allaah The Almighty sent His Prophet Muhammad is refraining
fromwhat might make a person deserve to be dispraised or punished,
even though there is nothing in the Sharee ' ah that prohibits these
acts in the absence of what contradicts it. This includes performing
obligations and acts which seem to be obligatory, and avoiding
prohibitions and acts which seemto be prohibited. Also, if the
unfavorable acts are preformed then it may be a cause of imperfection
and punishment.
Obligatory religious wisdom is refraining from all that results in
dispraise and punishment. In other words, performing obligations and
avoiding prohibitions. The difference between the recommended and
obligatory forms of religious wisdom is in relation to the acts that
seem to be obligatory but not evidently and the acts that seem to be
prohibited but not evidently.
2- There is no religious wisdom inmatters that are absolutely and
patently permissible. Rather, religious wisdom in these matters is an
undue form of exaggeration. Ibn Taymiyyah said, "Religious wisdom does
not include avoiding absolutely permissible acts, just as there is no
religious wisdom in committing acts that are absolutely
impermissible."
3- Just as refraining from certain acts is considered to be religious
wisdom, performing certain acts is also regarded as religious wisdom,
as some people believe that it only includes refraining from
particular acts. Shaykhul-Islam Ibn Taymiyyah said,
People may misunderstand religious prudence from three aspects: first,
many people think that it is concerned with avoidingcertain acts only.
In other words, they believe that religious wisdom requires refraining
from prohibitions, not performing obligations. Many religious and wise
people have this misunderstanding, and you may see them refraining
from uttering a lie, or gaining a Dirhamwhich is not for certain
lawfully obtained as it came from the property of an oppressor or a
corrupt transaction; or that he refrains from inclining to wrongdoers
due to their religious innovations and wicked people; while he does
not observe the acts that are either individual or communal
obligations that have become an individual duty on him. For example,
maintaining ties of kinship, observing the rights of the neighbor, a
needy person, a friend, an orphan, or the rights ofa Muslim, a person
in authority orof knowledge. He may also neglect enjoining good and
forbidding evil, or the obligation of performing Jihaad or other
obligatory acts that benefit Muslims in their religion and life. He
might perform these acts sometimes, not as acts of worship dedicated
to Allaah The Almighty, but as a duty on him, or something to that
effect.
4- Religious wisdom depends upon evidence from the Quran and Sunnah .
Ibn Taymiyyah said,
The second aspect of misunderstanding religious wisdom is that when
the person performs the obligations and acts that appear to be
obligatory and refrains from prohibitions and the acts that appear to
be prohibited, this obligation or prohibition should be based on
evidence from the Quran and Sunnah and knowledge, and not on one's
whims. In fact, many people are repulsed by things that are done out
of habit or custom, so that they become strongly prohibited or
doubtful to them. Some of them may even live in fantasies and false
assumptions based on invalid religious wisdom and in such cases would
be among those whom Allaah The Almighty Says concerning them(what
means): } They follow not except assumption and what [their] souls
desire. { [Quran 53:23]
This includes the type of religiouswisdom that the Prophet dispraised
in an authentic Hadeeth. When the Prophet consented to particular acts
and knew that some people refrainedfrom them, he said: "Why do some
people deny themselves what I have made permissible formyself? I hope
that I am the most knowledgeable and fearful of Allaah The Almighty
amongst you." In another narration, the Prophet said : "I am the
person who fears Allaah The Almighty most and is most awareof what He
has made prohibited and permissible for them." Also, there is the
Hadeeth of the man who kissed his wife while he wasfasting and became
very angry, even though he was informed that the Prophet used to kiss
his wives while fasting. Therefore, the religious person who is wise
needs a great deal ofknowledge of the Quran and Sunnah and
understanding of religion. If he fails to do this, his invalid
religious wisdom may ruinhim more than benefitting him. This is the
case with the disbelievers and religious innovators from the Khawaarij
and Raafidhah and others.
5- Religious wisdom is not fulfilled except with sincerity. Perhaps
there are certain considerations that drive a person to be religiously
wise. He may have a particular status or consideration with which he
feelsthat it is not proper for someone of his rank to do certain
things. In this case, ostentation is his motive. The motive might also
bethe person's needs or desires or any other urge. Like all acts of
worship that man offers to AllaahThe Almighty, religious wisdom
requires sincerity. Shaykhul-IslamIbn Taymiyyah said, "Religious
wisdom does not benefit man or grant him a reward except with him
attainingsincerity."
6- Strictness in matters related toreligious wisdom is exclusive to
selected people and not just anyone. Al-Haafith Ibn Rajab said,
There is an important issue that people should be aware of, whichis
strictness in refraining from doubtful matters, as this is only for
those whose actions are steadfast and for those whose deeds are
similar while in a state of piety and religious wisdom.However, it
does not befit the person who violates the obvious prohibitions of
Allaah The Almighty and who wants to refrain from doubtful matters.
Rather, he should be rebuked for this attitude.
Such is the state of some pretentious people who exaggerate in their
behavior. For instance, a man from the people of Iraq asked Ibn 'Umar
about the blood of mosquitoes. He answered, "They are asking me about
the ruling of the blood of mosquitoes while they have murdered
Al-Husayn ! I heard the Prophet saying: 'They [Al-Hasan and Al-Husayn]
are my fragrant flowers in this world.' "
Ibn Rajab compiled many traditions from the righteous predecessors to
this effect, and added that Bishr ibn Al-Haarith was asked about a man
whose mother ordered him to divorce his wife. He replied, "If heis
dutiful to his mother in everything except in her order to divorce his
wife, let him divorce her. However, if he wants to be dutiful to his
mother by divorcinghis wife but he beats his mother, he should not
divorce her."
Imaam Ahmad was asked about a man who bought greens and demanded to
pay the price ofthe band that these greens were tied with. Imaam Ahmad
said: "What a strange issue!" People replied: "It is Ibraaheem ibn Abu
Nu'aym who does so." Hesaid: "If it is Ibraaheem ibn Abu Nu'aym, then
it is not strange for him to do so [as he was known for his religious
wisdom.]" Imaam Ahmad denounced such issues from people whose actions
do not resemble that of Ibraaheem.
Imaam Ahmad himself used to follow such religious wisdom, as he used
to order the person who bought grease for him to return the paper in
which the grease was put on back to the seller. Likewise, he did not
used to take ink from the inkwell of his companions, but would only
use his own inkwell. Once a man asked his permission to use his
inkwell to write something and Imaam Ahmad said: "Write, for this is
invalid religious wisdom." Another man asked thesame request, but
Imaam Ahmad smiled and said: "Your religious wisdom and mine do not
reach this level." Imaam Ahmad said so out of modesty, since he
himself used to follow such religious wisdom. On the other hand, he
would denounce it when it was adoptedby a person who had not
reachedsuch a high level of righteousness, and who committed acts that
are clearly unfavorable and continuously committed doubtful acts.
This is an important matter that we should learn carefully when
reading some narrations on the religious wisdom of the righteous
predecessors. This is necessary in order to avoid making mistakes,
which negatively affect our souls. We are in desperate need of
following the obligatory form of religious wisdom. We also need to
avoid clearly prohibited acts, and try to reform our hearts. If we
occupy ourselves with such tiny details of religious wisdom, they
would negatively affect us. For instance, we may feel proud and hold
people in contempt. This would cause us to view people as lacking
religious wisdom and this would distract the person from doing more
significant acts such as reformingthe heart and following the
obligatory form of religious wisdom./-
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Religious Wisdom 1

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praise is due to Allaah The Almighty; we praise Him, ask His help and
forgiveness and repent to Him. We seek refuge with Allaah The Almighty
from the evil of our souls and the consequences of our evil deeds. No
one can mislead a person whom Allaah The Almighty guides, and no one
can rightly guide a person whom Allaah The Almighty misguides. I
testify that there is no deity worthy of worship but Allaah Alone, who
has no partner; and I testify that Muhammad, sallallaahu 'alayhi wa
sallam , is His slave and Messenger.
Religious wisdom is a well-known term. Those who read or study the
biographies of our righteous predecessors or listen to their
instructions frequently hear about it. Some people might read their
biographies and feel as if they arereading about a historical matter
that does not concern them. Also, when we read the biographies of the
righteous predecessors and narrations concerning their religious
wisdom, asceticism as well as inspiring narrations, we may judge them
as being weak or fabricated, or may even accuse their narrators of
overstating or extremism; likewise, we might even think they are
incorrect, despite the fact that some of these narrations are true and
correct. Rarely do we blame ourselves for failing to understand these
meanings; likewise, many hearts may not bepure enough to comprehend
thatthe state of the righteous predecessors was a result of theirfear
of Allaah The Almighty. Their state was also the result of their
following the guidance of the Prophet, sallallaahu 'alayhi wa sallam ,
and those who preceded them.
In truth, I hesitated before writing about this topic to the extent
that while I was reading and collecting its references I decided not
to talk about it at all.This decision was not because the topic is not
significant or important but because I felt that only the people known
for their religious wisdom should talk about it; just as only those
who are humble, pious and truthful should talk about truthfulness.
A person who pretends to have something that he does not own is
blameworthy, just like a personwho wears two stolen
garments,therefore, I will talk about religious wisdom, but with no
comparison to my own state. My role will only be to convey the sayings
and words of wisdom excerpted from the biographies of the righteous
predecessors of this Ummah (Muslim nation), and try to connect them
with our reality. We ask Allaah The Almighty to grant us righteousness
and piety as well as religious wisdom. If we cannotattain their lofty
status, let us at least try to imitate them, for the person who
imitates a particular group is one of them. Indeed, imitating noble
people brings about success.
Religious wisdom is a prophetic term found in the Sharee'ah .
AbuHurayrah, may Allaah be pleased with him, narrated that the
Prophet, sallallaahu 'alayhi wa sallam , instructed him, saying: "Be
religiously wise so that you would be the most devoted person in
worship; be content so that you would be the most grateful person;
love for people what you love for yourself so thatyou would be a
believer; act kindly towards your neighbors sothat you would be a
Muslim; and do not laugh too much, for this makes the heart wither."
[Al-Bayhaqi]
In a Hadeeth on the authority of Huthayfah, may Allaah be pleasedwith
him, that the Prophet, sallallaahu 'alayhi wa sallam , said: "The
merit of knowledge is dearer to me than the merit of worship.
Religious wisdom is the best act in Islam." [Al-Bazzaar, Al-Haakim,
At-Tabaraani in Al-'Awsat and Al-Haakim on the authority of Sa'd, may
Allaah be pleased with him]
In these authentic texts, the Prophet, sallallaahu 'alayhi wa sallam ,
mentioned the term "religious wisdom" , thus, it is a prophetic term
related to the Sharee'ah , even though such terms are not necessarily
required to be explicitly mentioned by the Prophet, sallallaahu
'alayhi wa sallam . As long as there is no contradiction between these
terms and the texts of the Sharee'ah, there is noproblem in using
them.
There is plenty of evidence in the Quran and Sunnah of the Prophet,
sallallaahu 'alayhi wa sallam , supporting the meaning of religious
wisdom. For example, there is a comprehensive and great Hadeeth that
many scholarsconsider to be a pillar on which Islam stands. In a
Hadeeth on the authority of An-Nu'maan ibn Basheer, may Allaah be
pleased with him, he heard the Prophet, sallallaahu 'alayhi wa sallam
, say: "Both lawful and unlawful matters are evident, but betweenthem
are certain doubtful [suspicious] things which many people have no
knowledge of. Thus, whoever guards against these doubtful things keeps
his religion and his honor safe. On the other hand, whoever indulges
in these doubtful things [will eventually] indulge in unlawful
matters, just as a shepherd who grazes his cattle near the Hima
[private pasture] ofsomeone else and at any moment is liable to stray
into it."
This Hadeeth is well-known and memorized by people of all ages and is
mentioned in the books of Sunnah with many narrations. This Hadeeth
also establishes a rule for doubtful matters, where a person should be
religiously wise. Avoiding doubtful matters is only one aspect of
religious wisdom that has a much wider meaning.
Another Hadeeth in this regard is what An-Nawwaas ibn Sam'aan, may
Allaah be pleased with him, narrated that the Prophet, sallallaahu
'alayhi wa sallam , said: "Righteousness is good morals, and vice is
what rankles in your chest and you fear that it might be revealed to
people."' [Muslim] Also, there is a narrationwhen Waabisah ibn Ma'bad,
may Allaah be pleased with him, cameto the Prophet, sallallaahu
'alayhi wa sallam , who said: "Have you come to ask about
righteousness?" Waabisah said, "Yes." The Prophet, sallallaahu 'alayhi
wa sallam , said: "Consult your heart; righteousness is whatyour soul
and heart are assured of. Whereas, vice is what rankles in your heart
and chest, even if people tell you again and again that it is
permissible." [Ahmad and Ad-Daarimi] There is another Hadeeth , which
was narrated by Ahmad on the authority of Tha'labah, may Allaah be
pleased with him, that supports this Hadeeth .
This Hadeeth indicates how highlysensitive the righteous slaves of
Allaah The Almighty are; to the extent that their souls become
reassured and comforted by virtue, while at the same time they are
repulsed by misdeeds, even if the people tell them that they are
permissible acts. This Hadeeth definitely encourages us to refrain
from doubtful matters and to perform what the hearts are assured of.
It also describes the state of the righteous people and their hearts
that follow the truth by virtue of the light given to them by Allaah
The Almighty. Such hearts are comforted by virtue, guidance, piety and
righteousness. On the other hand, they feel repulsed and doubtful
about sins and all that cause them, even if people gave them different
opinions that permit them to commit these sins. Only the true slaves
of AllaahThe Almighty can make this distinction between virtue and
vice, and perhaps we can use thisas a way to test our hearts; whether
they are comforted by virtue, righteousness and piety orare averse to
disobedience and evil deeds. They would be righteous hearts – Allaah
Willing. Otherwise, their hearts would require refinement and
purification. Obviously, this does not concern the rejecters whose
hearts are totally covered, as their souls have become fettered by
their fancies and desires and their souls are only comforted by
disobedience of Allaah The Almighty and harming His righteous
believers.
There are many people whose judgments are no longer sound and who view
misdeeds to be good deeds and vice versa. Therefore, such distinction
between virtue and vice is only given to righteous people whose hearts
have totally turned to Allaah The Almighty. Such a heart loves no one
except for the sake of Allaah The Almighty, and hatesno one except for
the sake of Allaah The Almighty. It turns to Allaah Alone and faces
Him without deviation, just as the person turns towards the Qiblah
during his prayers and stands before Allaah The Almighty five times a
day. Thus, Allaah The Almighty is his sole direction. This person
loves no one except Allaah The Almighty, and turns towards Him Alone.
Such a soul has no will that contradicts the orders and Sharee'ah of
Allaah The Almighty. For that reason, such a heart has attained a high
degree and is comforted by virtueand repulsed by vice.
Accordingly,Allaah The Almighty confers on him this light and
criterion to make the distinction between right and wrong. Allaah The
Almighty Says (what means): } O you who have believed, if you
fearAllaah, He will grant you a criterion [to judge between right and
wrong] and will remove fromyou your misdeeds and forgive you. { [Quran
8:29]/-
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