What is the ruling regarding *hadd* (statutory punishment) for sexual intercourse (*watu'*) resulting from a corrupt marriage contract (*nikah fasid*)?
General Chapter
Al-Mughni
Book of Marriage
Primary text
There is no *hadd* prescribed for intercourse resulting from a corrupt marriage contract, regardless of whether the parties believed it to be lawful or unlawful. This is because the issue of the validity of such a contract is subject to scholarly difference of opinion, and *hadd* is averted by doubts (*shubuhāt*), with scholarly difference being the strongest form of doubt. The ruling that no *hadd* is due applies even if the parties believed the contract was unlawful, as demonstrated by the action of 'Umar (may Allah be pleased with him) when he separated a couple married without a guardian (*wali*) and administered corporal punishment (*jald*) to both the man and the one who solemnized the marriage as disciplinary action (*ta'zīr*), not as the prescribed *hadd*. Furthermore, the concept of calling the woman an adulteress (*zāniyah*) based solely on the contract is tenuous, as demonstrated by the Hadith where the Prophet (peace be upon him) stated, "The adulteress is the one who marries herself." Hadith narrated by Al-Daraqutni on the authority of Abu Hurairah regarding the prohibition of a woman marrying herself or another woman. Additionally, the strong stance of 'Ali (may Allah be pleased with him) against marriage without a guardian, which resulted only in corporal punishment, suggests that others among the Companions did not decree *hadd*.
Supporting text
A view attributed to Ahmad suggests that *hadd* is obligatory for intercourse in a marriage lacking a guardian if both parties believed the marriage to be unlawful. This view is favored by Al-Sairafi from the Shafi'i school, supported by a narration concerning 'Ali's severe treatment of such marriages and a narration that the Prophet (peace be upon him) declared, "The adulteress is the one who marries herself." Another report from 'Umar (may Allah be pleased with him) involved him whipping both the man who performed the contract and the one who was contracted in a marriage performed without a guardian, showing disparity from the ruling of *hadd*.