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If a person brings a woman on compensation to commit adultery there is no Hadd (prescribed punishment) on such a perso. so, as though, the Imam, by rejecting the Hadd has opened the door for adultery - And that adultery is permissible according to the Hanafis. This is the objection raised by the ghair muqallideen, they keep relating this in different styles and places, sometimes they write it , sometimes they’ll lecture it. So in brief they raise this objection.
Listen to the answer.
The text they present is from “Fatawa Qadhi Khan” - "If a person takes a woman for adultery, at a comensation, then commits adultery with her according to the ruling of Imam Abu Hanifah R.A, there is no Hadd on such a person." Apparently, a person gets very disturbed by this, what a strange ruling! Adultery is generally committed when women are hired for it. So this means that, those sitting in brothels, people commit this crime by paying them, they are exempt from it, the doors to adultery has really been opened!
We say, understand the real issue, the two are separate matters. One is, the being a sinner of such an adulterer, second is, to enact the Hadd (prescribed punishment) or Tazeer (legal retribution).The issue of Hadd and Tazeer is separate from the issue of sin and virtue.
From the Ahnaf, Imam Abu Hanifa R.A is a great; he is the imam of imams, he is the master of the jurists but even the lowest of the jurists have not brought a justification for such an adulterer, that for such a person it is permissible to hire a woman for adultery; no one ever has done that.
Further, whether there will be a Hadd sentenced or not, that is a separate issue. A fundamental principle is that Hudood (prescribed punishments) are annulled by the most trivial of doubts. If you understand the entire issue then no misgivings will remain.
It says in the Quran 3:24: When you marry a woman, and enjoy her after marriage pay that woman her compensation, that is, her dower. The Quran has equated the dower with the word "ujarat" or “compensation”. The Quran has equated the dower with the word ‘ajar” (compensation) with “Ujarat” (wage). When you derive benefit from that woman, pay her the compensation. What is meant by compensation, it is the dower. What is the word used for dower? It is “compensation”. Here this man has brought the woman at a compensation (Ujarat) and the Quran has used the word “ujarat” (compensation). On bringing her on “ujarat” it becomes similar to the dower a doubt is now raised regarding a dower, as though he has given a dower, when a doubt is created regarding a dower that ends the ‘ujarat” (compensation) that was in our mind. Due to this created doubt, the Hadd is voided. The requirement for Hudood is “Hudood has to be free of doubts” (references), it is written by many scholars, you all understand it. Do you understand the doubt? The Quran has used the word compensation for the dower. Now due to the doubt of it being a dower it seemed as though this is not a compensation (wage) but a dower. If a person takes a woman and gives her the dower, Hadd is not executed on such a person, due the doubt raised here the Hadd is voided. Now a question will be raised in one’s mind, that compensation is used as the term for dower so there is doubt between “dower” and “compensation” but the question now is how is there a doubt between adultery and marriage? Do you understand? Similarity exists between compensation and dower because the word “ajar” is used but this is adultery and not marriage. How is there a doubt of marriage that the Hadd is not decreed.
Understand this!
Imam Malik R.A does not require a witness for Nikah “marriage” - Imam Malik R.A does not have a requirement of a witness for Nikah “marriage”, Allama Mohammad bin Abdul Rehman as-Shafi’i R.A. writes in “Mercy on the Ummah the disagreements of the Imams” on pg.205 that Imam Malik R.A does not require a witness for Nikah “marriage”. Now if a witness is not present and a person contracts Nikah with a woman and stipulates a compensation on it, so compensation becomes akin to dower there were no witness and they both agreed, this becomes akin to a Nikah.
The doubt of a nikah is present and the doubt of a dower is also present in this. When doubts are created, Hudood is voided. That’s why Imam Abu Hanifa says that Hadd will not be implemented on him, as there is doubt created of a nikah and a doubt of a dower. If a Nikah is invalid and a doubt is present and the Hadd is not enacted, this is proven by the Prophet S.A.W and by a rightly guided Khalifah. This is not an objection on Imam Abu Hanifa R.A. One will have to make this type of objection on the prophet SAW – Why? Mishkat al Masabih, Chapter of Nikah has a narration that: Hazrat Aysha R.A. says that if a woman marries a man without her guardian then the Nikah is invalid, the nikah is invalid, the nikah is invalid, this is the saying of the Prophet SAW, not once but thrice she said it is invalid. Now tell me if the Nikah is invalid, what will the coming together of a husband and wife be? It will be adultery right? If the husband and wife come together, what will you call it? You will either call it marriage or call it adultery. The Prophet SAW says the nikah is invalid. It goes on, even with this invalid nikah if the husband has sexual intimacy with the wife - man has sexual intimacy with the woman, there will be a dower for this woman. Why? Because the private parts of this woman are now permissible for this man.
If the Nikah is invalid then why the dower? There should have been a Hadd on it. The Prophet declares the Nikah as invalid and he sets a dower on it and he does not decree a Hadd on it. If there is no Nikah, the nikah is invalid and one still receives a dower and no Hadd is implemented on it either, this is proven by the saying of the Prophet SAW.
So this objection is not limited to Imam azam Abu Hanifa R.A
A second matter.
Urwa bin Zubair R.A narrates that Hazrat Khaula bint Hakim R.A came to Umar R.A. and said that Ribiyya bin Umayya has contracted “muta” (temporary marriage) with a woman and she is now expecting a child. Umar R.A ran in a disturbed state, left hurriedly, Without gathering his sheet - He has committed such a big crime! When he got there he said – Have you contracted muta'a? Had I related the issue of the prohibition of temporary marriage today I would have stoned you to death.
Umar R.A considers muta as prohibited and he is convinced of the punishment by stoning but he still does not implement the Hadd on this person. Why is he not implementing it? A doubt is created, since muta'a used to be permissible and was laterprohibited, this person might not have known of the prohibition. He might have contracted the muta'a think it still to be permissible. Though it was prohibited but due to the doubt whether he knew Umar R.A did not implement the Hadd on him, Umar R.A himself is stating that "Had I related the issue of the prohibition of muta'a earlier I would have stoned you." Why didn’t he stone him? Either I had not explained it to you earlier or I had not communicated it to the public.
Now is this objection on the Imam R.A or is it also on Umar R.A.
Imam Abu Hanifah is not calling it permissible. He is saying there is no Hadd (prescribed punishment) on it. To take having no Hadd as being permissible is a great injustice.
Abdullah bin Abbas R.A says that there is no Hadd on one who has sex with an animal. Does that mean having sex with an animal is permissible?
Having no Hadd is a separate issue and for it to be sinful is a separate issue both issues are separate. Have you understood the answer? Hudood are annulled by doubts.The Imam R.A is not convinced of the Hadd due to the doubt.
Second Answer:
The Hadd of adultery being inapplicable on him does not man there is no Tazeer (retribution) for him either. Sometimes Tazeer is harsher than the Hadd. If Hadd is inapplicable does that mean that Tazeer is also inapplicable, this is not the case. There is no Hadd but there is Tazeer, Tazeer is harsher than the Hadd. If this person is a bachelor and commits adultery and Hadd is implemented, 100 lashes will be implemented as Hadd, if Tazeer is carried out then the judge can even sentence him to death. So that in future no one dares to commit this crime, these brothels are shut down, these women on hire come to an end. In Tazeer a person can be put to death. Hadd is less harsh than Tazeer. He has disallowed Hadd but he hasn’t disallowed Tazeer.
Third answer:
The third answer is that, just as is the issue that there is no Hadd according to the Ahnaf due to the doubt, there is the issue that there IS a Hadd on this and the fatwa (ruling) is that the Hadd has to be implemented. That is the ruling of the Hanafi school, it is stated in Durr e Mukhtaar, just as you would have hired a woman for domestic help and then commit adultery with her, as there is a Hadd on this, likewise if a woman is hired just for committing adultery the same Hadd will apply. Durr e Mukhtar, Vol 6, chapter of Hudood pg.46. When our ruling is that of Hadd so what is the objection with us? There were so many proofs that there not be a Hadd, but we still rule that Hadd be implemented, And they say that the Hanafi school doesn’t believe in Hadd here.
They open the doors to adultery. They don’t open the doors to adultery instead, they close the doors to adultery.
Do you understand the issue?
