What is the prescribed punishment for sexual intercourse with a close female relative following an invalid marriage contract?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
There are differing reports regarding the punishment. One report, attributed to Ahmad, states that the perpetrator is killed in all circumstances. This is the view of Jabir ibn Zayd, Ishaq, and Abu Ayyub, and Ibn Abi Khaythamah. A narration suggests that a man who married his father's wife (a case of marrying a close relative) is to have his neck struck, and his property confiscated to the public treasury (Bayt al-Mal). This view is supported by the Hadith where the Prophet (peace be upon him) sent someone to execute a man who married his father's wife after him and confiscate his wealth. Another narration, supported by Al-Hasan, Malik, and Al-Shafi'i, mandates the hadd prescribed for the fornicator (*zani*), based on the general meaning of Quranic verses and Prophetic narrations concerning fornication.
Supporting text
The basis for establishing the hadd of fornication stems from general evidence concerning fornication. The justification for the death penalty and confiscation relies on specific narrations concerning the man who married his father's wife, which are considered more specific to this transgression and thus take precedence over general evidence.