A lot of people tend to misconstrue the concepts of Adultery and Fornication in the light of the Qu'ran and Sunnah in line with the stipulated penalties for them, but in actual fact, these punishments differ in relation to the gravity of the offence. The word "Zina" in Arabic is used to refer to the act of having illicit sex generally, and the one who engages in it is called a "Zani" or "Zaniyah" for the male and female respectively. Now, the question is what is the difference between adultery and fornication? The dictionary meaning of Fornication is a consensual sexual intercourse between two people not married to each other, while adultery is a voluntary sexual intercourse between a married person and a person who is not his spouse. And along this line of definition the punishments in Islam were spelt out. The adulterer is thus referred to as the "Zani Al-Muhsan" while the fornicator is referred to as the "Zani Ghair Al-Muhsan", in Islamic Jurisprudence.
In the Qur'an, Allah the Almighty states:
وَلَا تَقْرَبُوا الزِّنَى إِنَّهُ كَانَ فَاحِشَةً وَسَاءَ سَبِيلًا (32)
"And come not near to the unlawful sexual intercourse. Verily, it is a Fâhishah [i.e. anything that transgresses its limits (a great sin)], and an evil way (that leads one to Hell unless Allâh forgives him)." (Q17:32)
He also says:
وَالَّذِينَ لَا يَدْعُونَ مَعَ اللَّهِ إِلَهًا آَخَرَ وَلَا يَقْتُلُونَ النَّفْسَ الَّتِي حَرَّمَ اللَّهُ إِلَّا بِالْحَقِّ وَلَا يَزْنُونَ وَمَنْ يَفْعَلْ ذَلِكَ يَلْقَ أَثَامًا (68)
"And those who invoke not any other ilâh (god) along with Allâh, nor kill such life as Allah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. (Q25:68)
Similarly, Allah, in another place in the Qur'an stipulates that:
الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِنْهُمَا مِاْئَةَ جَلْدَةٍ وَلَا تَأْخُذْكُمْ بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ إِنْ كُنْتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآَخِرِ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِنَ الْمُؤْمِنِينَ (2) الزَّانِي لَا يَنْكِحُ إلَّا زَانِيَةً أَوْ مُشْرِكَةً وَالزَّانِيَةُ لَا يَنْكِحُهَا إِلَّا زَانٍ أَوْ مُشْرِكٌ وَحُرِّمَ ذَلِكَ عَلَى الْمُؤْمِنِينَ (3) وَالَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ ثُمَّ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِدُوهُمْ ثَمَانِينَ جَلْدَةً وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا وَأُولَئِكَ هُمُ الْفَاسِقُونَ (4) إِلَّا الَّذِينَ تَابُوا مِنْ بَعْدِ ذَلِكَ وَأَصْلَحُوا فَإِنَّ اللَّهَ غَفُورٌ رَحِيمٌ (5) وَالَّذِينَ يَرْمُونَ أَزْوَاجَهُمْ وَلَمْ يَكُنْ لَهُمْ شُهَدَاءُ إِلَّا أَنْفُسُهُمْ فَشَهَادَةُ أَحَدِهِمْ أَرْبَعُ شَهَادَاتٍ بِاللَّهِ إِنَّهُ لَمِنَ الصَّادِقِينَ (6) وَالْخَامِسَةُ أَنَّ لَعْنَةَ اللَّهِ عَلَيْهِ إِنْ كَانَ مِنَ الْكَاذِبِينَ (7) وَيَدْرَأُ عَنْهَا الْعَذَابَ أَنْ تَشْهَدَ أَرْبَعَ شَهَادَاتٍ بِاللَّهِ إِنَّهُ لَمِنَ الْكَاذِبِينَ (8) وَالْخَامِسَةَ أَنَّ غَضَبَ اللَّهِ عَلَيْهَا إِنْ كَانَ مِنَ الصَّادِقِينَ (9) وَلَوْلَا فَضْلُ اللَّهِ عَلَيْكُمْ وَرَحْمَتُهُ وَأَنَّ اللَّهَ تَوَّابٌ حَكِيمٌ (10)
The woman and the man guilty of illegal sexual intercourse, flog each of them with a hundred stripes. Let not pity withhold you in their case, in a punishment prescribed by Allâh, if you believe in Allâh and the Last Day. And let a party of the believers witness their punishment." (Q24:2). It then goes on to state that for the person to be proven guilty there must be four eye witnesses, and states that anyone accusing someone without providing the witnesses is to be lashed and have their testimony rejected thenceforth (24:4.)
So in the Qur'an it establishes the punishment for the fornicator as a hundred lashes. Although, the verse did not explicitly state whether it were a "Zani Al-Muhan" or " Zani Ghair Al-Muhsan" i.e. the married or unmarried fornicator. But when we go to the Hadith which is the second source of Islamic Law and mostly acts as an explanation and commentary on the verses of the Qur'an, there we find further clarification.
From the Hadith mentioned below we find that the punishment for fornication is one hundred lashes and banishment for a year. The punishment for the one found guilty (by four witnesses, child birth, or confession) of Adultery is one hundred lashes and to be stoned to death. This punishment has been one of the commands of Allah since before the times of Musa (Moses) peace be upon him, and has been re-established as the punishment in the last revelation to mankind.
Narrated Abu Huraira and Zaid bin Khalid:
Two men had a dispute in the presence of Allah's Apostle (peace be upon him). One of them said, "O Allah's Apostle! Judge between us according to Allah's Laws." The other who was wiser, said, "Yes, O Allah's Apostle! Judge between us according to Allah's Laws and allow me to speak. The Prophet said, "Speak." He said, "My son was a laborer serving this (person) and he committed illegal sexual intercourse with his wife, The people said that my son is to be stoned to death, but I ransomed him with one-hundred sheep and a slave girl. Then I asked the learned people, who informed me that my son should receive one hundred lashes and will be exiled for one year, and stoning will be the lot for the man's wife." Allah's Apostle said, "Indeed, by Him in Whose Hand my soul is, I will judge between you according to Allah's Laws: As for your sheep and slave girl, they are to be returned to you." Then he scourged his son one hundred lashes and exiled him for one year. Then Unais Al-Aslami was ordered to go to the wife of the second man, and if she confessed (the crime), then stone her to death. She did confess, so he stoned her to death. (Al-Bukhari 8:78:629)
Narrated Ibn 'Abbas:
'Umar said, "I am afraid that after a long time has passed, people may say, "We do not find the Verses of the Rajm (stoning to death) in the Holy Book," and consequently they may go astray by leaving an obligation that Allah has revealed. Lo! I confirm that the penalty of Rajm be inflicted on him who commits illegal sexual intercourse, if he is already married and the crime is proved by witnesses or pregnancy or confession." Sufyan added, "I have memorized this narration in this way." 'Umar added, "Surely Allah's Apostle carried out the penalty of Rajm, and so did we after him." (Bukhari 8:82:816 & 817).
In a summarized form, the punishments for the fornicator and adulterer are spelt out from both the Qur'an and the tradition of the Prophet (peace be upon him). In the Qur'an, Allah Says, prescribing the punishment for the fornicator:
الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِنْهُمَا مِاْئَةَ جَلْدَةٍ وَلَا تَأْخُذْكُمْ بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ إِنْ كُنْتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآَخِرِ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِنَ الْمُؤْمِنِينَ (2)
Which can be translated as:
"The woman and the man guilty of ‘zina’ (fornication) flog each of them with a hundred stripes: let not compassion move you in their case in a matter prescribed by Allah if ye believe in Allah and the Last Day: and let a party of the believers witness their punishment."
And in the Hadith, the Prophet (peace be upon him) said:
Narrated by Jabir who said: A man from the tribe of Aslam came to the Prophet (May the blessings and peace of Allah be upon him) and confessed that he had committed adultery (illegal sexual intercourse). The Prophet (May the blessings and peace of Allah be upon him) turned his face away from him till the man bore witness against himself four times. The Prophet (May the blessings and peace of Allah be upon him) said to him, "Are you mad?" He said "No." The Prophet (May the blessings and peace of Allah be upon him) asked, "Are you married?" He said, "Yes." Then the Prophet (May the blessings and peace of Allah be upon him) ordered that he be stoned to death, and he was stoned to death at the Musalla (public gathering place). (Sahih Al-Bukhari Hadith 8.810)
Therefore, the prescribed punishment for the sin of ‘zina’ (illegal sexual intercourse) in Shariah depends on the marital status of the person convicted of the crime in a court of Shariah Law:
For fornication: If the man or the woman who is convicted for the crime of ‘zina’ is unmarried (fornication), Shariah Law prescribes a punishment for a 100 lashes in public.
As for adultery: If the man or the woman who is convicted for the crime of ‘zina’ is married (adultery), Shariah Law prescribes that the guilty should be stoned to death in public.
Mind you, there are lot other traditions of the Prophet (peace be upon him) where in the punishment for the adulterer were spelt out.
Respected readers, the laborer who committed the abomination of ‘zina’ (illegal sexual intercourse in the above tradition) with the wife of the other person was unmarried and single…..thus the Messenger of Allah (peace be upon him) prescribed the Shariah punishment for ‘fornication’ which is a hundred lashes for the unmarried man.
And as the woman who committed the abomination of ‘zina’ with the laborer was not single but married, the Messenger of Allah (saws) prescribed the Shariah punishment for ‘adultery’ which is to stone her to death.
Respected brother in Islam, the difference in the punishment prescribed by the Messenger of Allah (peace be upon him) had absolutely nothing to do with the difference of the gender or the sex of the guilty parties; but rather because of the difference of their individual ‘marital’ status! If the woman convicted of ‘zina’ was unmarried, she too would have received the prescribed punishment for ‘fornication’, i.e. 100 lashes; or if the man convicted of ‘zina’ was married, he too would have received the prescribed punishment of ‘adultery’, i.e. being stoned to death!
Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only Source of Strength.