Can a master implement flogging if the female slave is married to another man?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The prevailing view, supported by a narration from Ibn Umar that if a female slave is married, the matter is referred to the Sultan, dictates that the master cannot implement the Hadd on a married female slave. This position is supported by the argument that the slave's benefit (sexual access) is wholly owned by another (the husband), making her situation analogous to a jointly owned slave. Furthermore, the general command to establish Hadd on slaves is specific to cases similar to fornication (i.e., flogging), and the slave's body, the subject of the Hadd, is also the subject of the husband's right of enjoyment, which the master does not fully own.
Supporting text
Malik and Al-Shafi'i permit the master to implement Hadd on a married female slave based on the generality of the Hadith and because the husband only possesses a partial benefit from her, resembling a rented slave. It is also considered that implementing Hadd might lead to forfeiture of the renter's right if the slave were rented, applying the same reasoning to the married state. A similar debate exists regarding a mortgaged female slave.