Is the prescribed punishment (Hadd) obligatory for sexual intercourse with a female slave jointly owned with another person?

General Chapter

Al-Mughni

Book of Ḥudūd (Prescribed Penalties)

Book 51 · Issue 1 · Bab 1

Open in Qurani

Primary text

The prescribed punishment (Hadd) for sexual intercourse is not obligatory when the act is committed with a female slave jointly owned by the perpetrator and another individual. This ruling is held by Malik, Al-Shafi'i, and the Ashab al-Ra'y (Hanafi school). The evidence supports this because the female slave's private part is a property in which the perpetrator holds a share of ownership, and thus, the perpetrator is not subject to Hadd for having intercourse with her, similar to the ruling concerning a female slave who has contracted for her freedom (Mukataba) or one held in pawn (Marhuna).

Supporting text

Abu Thawr held the opinion that the prescribed punishment (Hadd) is obligatory in this situation.