11. CHARGING ONE’S WIFE WITH ADULTERY
Anyone who charges his wife with adultery (in plain words, as when he says, “You adulteress,” or allusively, as when he says, “I did not find you a virgin,”) and who is thereby liable to be punished for accusing another of adultery without witnesses, may prevent the punishment by public imprecation against her (Wan), provided he:
a) has reached puberty;
b) is sane;
c) does so voluntarily; and provided his wife:
d) is legally innocent of adultery (meaning there is neither a confession from her nor four eyewitnesses);
e) and that she is capable of sexual intercourse:
A husband who accuses his wife of adultery is disciplined (ta’zir) by the magistrate and not allowed to imprecate against her when her adultery is already legally established (whether by her own admission, or by proof, meaning that four upright witnesses have looked at her when she was copulating and seen the adulterer’s penis in her vagina), or when (adultery is impossible, such as when) the person accused is a mere infant.
PUBLIC IMPRECATION (U’AN)
Public imprecation consists of the Islamic magistrate (or his equivalent) telling the husband to repeat four times, “I testify by Allah that I am truthful in charging her with adultery” (and it is necessary to identify her by her first and family name, though if she is present, he says, “this wife of mine.” and points to her); and if there is a child. “and that this child [or if absent. “the child she gave birth to from adultery”] is not from me.” The fifth time. after the magistrate warns him. enjoins him to fear Allah (reminding him that the punishment of the hereafter is worse than punishment in the present life). and after he has put his hand in front of the husband’s mouth. the husband adds, “And may the curse of Allah be upon me if I am lying.”
When the husband has done this, he is no longer liable to be punished for accusing another of adultery without witnesses, he has denied paternity of the child, and his wife is divorced from him and unlawful for him to marry, be alone with, or look at, forever. She is now liable to be punished for adultery.
The wife in such a case may avoid being punished for adultery by public imprecation against the husband. Upon being ordered by the magistrate, she says four times, “I testify by Allah that he is lying about what he has charged me with.” The fifth time, after being warned by the magistrate of the severity of the consequences, as described above, she says, “And may the wrath of Allah be upon me if he is telling the truth.” When she has done this, she is no longer liable to be punished for adultery.
(Public imprecation is legally valid in a non-Arabic language even when the speaker knows Arabic, because the imprecation is a kind of oath or attestation, either of which may be given in any language.)
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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