What is the ruling concerning a ravisher (Wati') of a female captive taken as spoils of war (Ghanimah) if the captor has a right of ownership or partial ownership in her?
General Chapter
Al-Mughni
Book of Jihad
Primary text
If the ravishing man is among the captors or one whose offspring has a right in the captive, the prescribed Hadd punishment for fornication is averted from him because ownership is established for the captors in the spoils of war. Thus, the ravisher has a right in the captive, however small, which creates a doubt (Shubha) that wards off the Hadd. This view is held by Abu Hanifa and Al-Shafi'i. The primary evidence is that the man has a semblance of ownership, which prevents the Hadd, analogous to the case of having sexual relations with a jointly owned female slave. The Quranic verse regarding the punishment for adultery (Quran 24:2) is considered specific to cases where no such doubt exists.
Supporting text
Malik and Abu Thur hold that the Hadd is obligatory because he is a Zani (fornicator), committed the act intentionally while knowing the prohibition, and acted without possessing her fully, similar to violating another man's female slave. Al-Awza'i states that the milder of the two punishments applies: one hundred lashes. Some jurists deny full ownership in the spoils until distribution is made, citing that relinquishing one's share causes forfeiture, which would not happen if full ownership were established, like an heir's property.