Is Islam a prerequisite for establishing legal marital fidelity (ihsan)?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
Islam is not a condition for ihsan. This view is held by Al-Zuhri and Al-Shafi'i. Consequently, a non-Muslim subject (Dhimmi) is considered established in fidelity. If a Muslim marries a Dhimmi woman and has intercourse with her, both become established in fidelity. The primary evidence is the narration from Ibn Umar regarding the Prophet (peace be upon him) ordering the stoning of a Jewish man and woman who committed adultery, which is agreed upon (Muttafaq 'alayh). Furthermore, since the penalty for Zina is equal for Muslims and non-Muslims, the ruling regarding ihsan should also be equal. The opposing hadith suggesting otherwise is considered not sound, possibly being a narration attributed only up to Ibn Umar, and thus must be interpreted as referring to the ihsan related to slander (qadhf) to reconcile it with the clear narration commanding stoning.
Supporting text
A contrasting view, held by 'Ata, Al-Nakha'i, Al-Sha'bi, Mujahid, and Al-Thawri, asserts that Islam is a condition for ihsan. Consequently, a non-Muslim cannot be established in fidelity, nor can a Dhimmi woman establish ihsan for a Muslim man. Al-Malik also shares this view, except that he permits the Dhimmi woman to establish ihsan for the Muslim man, consistent with his general principle that perfection is not required in both spouses.