What is the ruling for a husband having sexual intercourse with his wife's female slave, with or without her explicit permission?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
If a husband has sexual intercourse with his wife's female slave after she has explicitly permitted it, he is to be flogged one hundred times (jallad mi'a); he is not to be stoned if he is already married (muhsan), nor is he to be exiled if he is unmarried (bikr). If the wife did not permit it, he is considered an adulterer, and the ruling is the same as having intercourse with a stranger's slave girl. The evidence for the hundred lashes when permission is given is the report narrated by Abu Dawud through a sound chain concerning the case of Abd al-Rahman ibn Hunayn, where the Amir al-Kufah, Nu'man ibn Bashir, stated the ruling of the Messenger of Allah (peace be upon him) would be applied: flogging if permission was given, or stoning if it was not.
Supporting text
It is narrated from Al-Nukha'i that the husband should only be chastised (ta'zir) and not receive the hadd, based on the doubt arising from his ownership of the wife. However, reports from 'Umar, 'Ali, 'Ata', Qatadah, Al-Shafi'i, and Malik state that the ruling is identical to having intercourse with a stranger's slave, whether permission was granted or not, because there is no doubt of ownership for him in the slave, analogous to having intercourse with his sister's slave. Additionally, it is an allowance for intercourse with someone forbidden to him, thus establishing no doubt, similar to the allowance of other forbidden persons. Ibn Mas'ud and Al-Hasan narrated that if he forced her, he owes a fine equal to her value and she is manumitted; if she consented willingly, he owes a fine and gains ownership of her.