Is the prescribed punishment (hadd) applicable when a father has sexual intercourse with his son's female slave?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The father who has sexual intercourse with his son's female slave is not subject to the prescribed punishment (hadd). The majority of scholars, including Malik, the people of Madinah, Al-Awza'i, Al-Shafi'i, and the People of Opinion, maintain this ruling. The evidence supporting the waiver of the hadd is the Prophet's saying: 'You and your property belong to your father.' This hadith attributes the ownership of the son's property to the father, establishing a doubt (shubha) concerning ownership which repels the hadd that is repelled by doubts. Furthermore, the famous nature of this opinion among scholars like Malik and Al-Awza'i without known opposition suggests a scholarly consensus (ijma'). The female slave also does not receive punishment, as the hadd is lifted from the perpetrator due to the doubt related to ownership, and thus is lifted from the object of the act, similar to jointly owned slaves. The ruling is established because ownership is a relational concept; if established for one party, it is established for the other, and the same applies to the doubt thereof.
Supporting text
Abu Thur and Ibn al-Mundhir argue that the hadd is applicable because the act is intercourse outside of ownership, analogous to a father having intercourse with his own father's slave girl. Ibn Abi Musa mentioned an opinion that neither the father nor the mother is subjected to hadd for having intercourse with their child's slave, based on the analogy that one does not have their hand cut off for stealing their child's property. However, the first opinion is considered sounder, supported by the general body of scholars known.