Is a woman without a husband or master subject to the prescribed punishment (hadd) for pregnancy?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The prescribed punishment for adultery is not incumbent upon a woman who is pregnant without a husband or master. If she claims she was coerced, or violated under a misconception (shubhah), or does not confess to the unlawful act (zina), the hadd is waived. This is the position held by Abu Hanifa and Al-Shafi'i. The primary evidence is the principle that the hadd is waived by misconceptions (shubhat). Furthermore, it is suggested that pregnancy can occur without direct intercourse, such as the entrance of a man's semen into the vagina through her own action or another's, which explains the proven conception of a virgin woman.
Supporting text
Imam Malik holds that the hadd is applicable if the woman is a resident and not a traveler, unless clear signs of coercion appear, such as her arriving in a state of seeking aid or crying out. This is based on the saying of Umar, peace be upon him, that the stoning punishment is obligatory upon all adulterers, male or female, if they are married (muhsan), provided there is clear evidence, pregnancy, or confession. A narration indicates that Uthman ordered the stoning of a woman who gave birth after six months, but Ali interceded, citing the verse concerning gestation and weaning: Quran 2:15, indicating that the punishment was delayed due to the pregnancy.