What is the ruling regarding the prescribed punishment (Hadd) when a man forces a woman into Zina (unlawful sexual intercourse)?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
When a man forces a woman into Zina, the prescribed punishment (Hadd) falls solely upon him, and not upon the woman because she is considered excused. Malik and Al-Shafi'i hold this view. The proof is that this intercourse occurred outside of legitimate ownership (milku), which results in the removal of the Hadd from the person penetrated. Since the penetrator is liable for compensation regarding her, her Mahr (dowry) must be paid by him, similar to intercourse based on a misunderstanding (shubha). Furthermore, if the woman was a willing slave, her Mahr is due because it is a right belonging to her master and is not waived by her consent. If she was a free woman, the Mahr is not due to her because her consent was connected to the cause necessitating the act, thus not obligatory, analogous to her consenting to the amputation of her hand or the destruction of part of her body.
Supporting text
Abu Hanifa maintains that the Mahr is not obligatory because it is intercourse that necessitates the Hadd, and thus Mahr is not required, just as if she had consented willingly. A narration from Ahmad, reported by Ibn Mansur and favored by Abu Bakr, states that a previously married woman (thayyib) is not entitled to Mahr even if forced.