Adultery in Islam and among the Ottomans

NIKI GAMM

In “The Big Wedding,” one of the two main characters in the Turkish shadow play Karagöz is getting married. In a rather lengthy prologue, the entire dowry is paraded in front of the audience with appropriately witty remarks that send everyone into gales of laughter. Then the big night comes and instead of offering Karagöz a night of pleasure, his new bride gives birth to a baby boy who swears and blasphemes as soon as he is born. Or take another instance in which Hacivat, the other main character in Turkish shadow plays, informs Karagöz that his wife is being unfaithful. In order to find out, Karagöz tells his wife he’s going on a long trip and then hides to see her flirting with a dandy.

Neither shadow play ends in punishment, although adultery in Islam is to be punished by flogging according to the Quran, not by stoning or some other type of other capital punishment as some would maintain.

“The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah, if you believe in Allah and the Last Day, and let a party of believers witness their chastisement,” [Quran 24:2]. Flogging at the time of the Prophet Muhammad and afterwards was carried out by stick, hand or shoes; the person to be punished was not required to be naked but only take off any heavy clothes, according to Maulana Muhammad Ali’s notes on this verse in his translation of the Quran.

In order to ensure that women were not wrongfully accused, the accuser is required to produce four witnesses of good standing who had actually observed the act of intercourse as it was happening. If the witnesses can’t be found, then the accuser has to be flogged 80 stripes and their evidence never accepted. Those who can’t find witnesses need to swear four times that they are telling the truth and a fifth time in which they will risk the wrath of Allah if they’re lying. The same applies if the wife is accusing the husband.

Adultery among the Ottomans

The Ottoman criminal code did not distinguish between fornication and adultery; zina was the word used for both, according to Uriel Heyd in “Studies in Old Ottoman Criminal Law.” Of particular importance was whether or not an accusation could be proven in the shariah court.

There were two sets of laws among the Ottomans – kanuns which were decrees issued by the sultan and the shariah rules as laid down in the Quran and supplemented by the sayings of the Prophet. The kanun was supposed to take care of instances that were not covered by shariah law. But such imperial decrees and kanun rules that clashed with the shariah were promulgated quite frequently.

Depending on the circumstances and presumably the people involved, the death sentence (stoning) might be approved. But as often happened, the Ottoman code prescribed fines in place of actual physical punishment, in spite of the clear command in the Quran. These fines were graded according to the married offender’s financial situation, so the poorest person paid approximately only 15 percent of the largest fine. If, however, the offender was unmarried, the poorest was only fined about 5 percent of the largest amount that could be levied. If a widow or a girl were to commit fornication, she would be fined as an unmarried man. And so on.

If a girl or boy is abducted, the perpetrator of the act would be castrated. If the perpetrator and the girl marry, the person who married them will have his beard cut off and be subject to whipping.

In circumstances in which the husband found his wife having sex with another person, he could kill both of them and, provided that he could call people to his house to serve as witnesses, he would not be punished or required to go to court with the heirs of those killed. If the husband merely wounded the intruder and could call in witnesses, he also would not be punished.

If the death penalty was given as the result of a conviction among the Ottomans, the method by which the miscreant was to be executed was not specified. “Stoning to death (recm), though prescribed in many Ottoman [fatwas] as the required penalty for certain cases of fornication, seems to have been inflicted only in very rare cases,” (Heyd, “Studies in Old Ottoman Criminal Law”). In fact stoning was carried out in only one instance, during the reign of Mehmed IV (r. 1648 – 1687) and even the use of stoning was seriously debated at the time since such a punishment is not laid down in the Quran. It relies on a statement by the Caliph Umar who claimed that the Prophet had pronounced such a punishment but it somehow was forgotten and not written down.

A different version is given for the adoption of stoning and depends on the Quran (4:15) where adulterous women are to be kept in houses until they die. This penalty is later converted to stoning. Reuben Levy in “The Social Structure of Islam” states, “An authority of the second century of the hijra reports that a woman once confessed her adultery. ‘Ali, Muhammed’s son-in-law, and one of his ‘successors’ [Khalifa or Caliph], imprisoned her until her child was born; he then dug a pit, into which she was let down as far as her breasts, and cast a stone at her, after which he commanded the bystanders to stone her.”

As for the legitimacy of a child, and especially a boy child, there may be a question mark under certain circumstances. For instance, a woman may give birth even though her husband has been away during the time that she conceived.

“If, however, a husband, suspecting that a child borne by his wife is none of his, does not wish to acknowledge it, he must denounce it immediately it is born, and follow up his denunciation with an accusation of adultery against his wife… He cannot, however, denounce the child simply on the ground that it does not resemble him in appearance,” (Levy, “The Social Structure of Islam”).