Is a married man with a child from his wife subject to stoning (rajm) if he commits adultery but denies having intercourse with his wife?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The adulterer who has a wife and a child from her, but denies committing the sexual act, is not subject to stoning (rajm). This opinion is held by Al-Shafi'i. The reasoning is that while paternity (the child's lineage) is established based on the possibility and likelihood of intercourse, the establishment of married status (Ihsan) for stoning purposes requires the actual physical act of intercourse. Therefore, establishing something based on possibility (paternity) does not necessitate establishing something requiring certainty (Ihsan), especially when the certainty of non-intercourse is affirmed in the context of establishing Ihsan.
Supporting text
Abu Hanifa holds that the adulterer is subject to stoning. This is because the existence of a child necessitates a prior act of intercourse, thus establishing the act of intercourse by logical necessity in order to affirm the paternity.