Does unmarried pregnancy imply the hudud punishment in sharia?

Question

As there are multiple hints to "ward off the hudud as much as possible", and I have not seen "unmarried pregnancy" as one of the conditions for fornication punishments till now. I am just asking this question as my study on this topic might be limited.

1. Does unmarried pregnancy imply the hudud punishment in sharia?
2. If not, What kind of punishment given then?

I am not asking about a pregnant woman confessing

If I state my question in the form of a Scenario: A woman exists in the city (either lives alone or with parents/brother, doesn't matter) and she is unmarried and pregnant. The religious authority/leader come to know about her, she does not confess to zina, What are they supposed to do in the light of Sharia?

Answer 1

Pregnancy might be a result of zina, but not a proof. As zina can only be proven by four witnesses if an accusation was given or four testimonies from a husband who has no witnesses plus a fifth to curse the liar:

• Those who commit unlawful sexual intercourse of your women - bring against them four [witnesses] from among you. ... (4:15)

Without witnesses the proof for a zina is not established.

• And those who accuse their wives [of adultery] and have no witnesses except themselves - then the witness of one of them [shall be] four testimonies [swearing] by Allah that indeed, he is of the truthful. (6)
  And the fifth [oath will be] that the curse of Allah be upon him if he should be among the liars. (24:6-7)

Therefore the majority of scholars hold the opinion that there's no hadd unless one has asked this woman/girl and have either got a confession or a statemenmt that she has been raped, oppressed/forced or had intercourse without knowing that her partner was not her husband ... so if the three later options appear the necessary proof to establish the hadd punishment are not met according to the hanafi, shafi'i and hanbali school of fiqh. Based on a story of a woman at the time of 'Omar ibn al-Khattab whom he found pregnant but didn't apply had on. This narration was reported by al-Bayhaqi, Sa'id ibn Mansur and ibn Shaybah.

أن عمر رضي الله عنه أتي بامرأة ليس لها زوج قد حملت! فسألها عمر؟ فقالت: إني امرأة ثقيلة الرأس وقع علي رجل وأنا نائمة، فما استيقظت حتى فرغ، فدرأ عنها الحد.

The malikis say if the qadi can't find any of the signs of these three options the proof for hadd is established, when this woman is known, if she came from outside not! Their evidence appears also in both sahihs:

Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullah ibn Utba ibn Masud that Abdullah ibn Abbas said, "I heard Umar ibn al- Khattab say, 'Stoning is in the Book of Allah for those who commit adultery, men or women when they are muhsan and when there is clear proof of pregnancy or a confession.' " (al-Muwatta' and Sahih Muslim)

Ibn Taymiyyah said if a woman was found pregnant and no clear reason for pregnancy can't be found had should be established as long as she can't exclaim a doubt.
Doubt here means that she didn't actually actively commit zina, but somebody used her unconsciousness (for example she was sleeping deeply, or was expecting her husband while being sleepy or had taken strong medicine that made her unconscious) to commit it on her. This doubt is what 'Ali () tried to ask about before punishing al-Hamadaniya. As he asked her whether it is possible that a man came and had intercourse with her while she was sleeping, or a man forced her etc. This was reported by al-Bayhaqi and imam Ahmad in his Musnad.

So it is the usual case to clear any doubt and seek a clear confession before applying the hadd of zina! Note that in case of pregnancy the hadd might only be applied after the woman gave birth or even after she stopped breast feeding her child as practiced in the sunnah.

The hadd in case of a proof for zina is either 100 lashes and a banishing for a year, for a non-married woman, note that in case of a woman a mahram should stay in her company (this must be taken in consideration) as else this punishment may lead her to do further sins! Or stoning to death for a married woman. In case of a married woman, whom's husband has no witnesses she can also get free from a worldly punishment by doing the same testimony, but the person who is lying among them might expect a punishment in the hereafter (read 24:8-9).

My sources:

• islamweb #54129 -in Arabic- is pregnancy evidence enough to apply hadd.
• islamweb #28539 -in Arabic- is zina proven by pregnancy.
• islamweb #121413 - in Arabic- the views of scholars on the pregnancy of non-married woman.
• islamqa #198743.
• islamqa #212139 -in Arabic- is had applied on a girl who has been found pregnant.

Answer 2

The evidence for the hadd of zina on which there is consensus is the testimony of four witnesses (Quran 4:15) or confession ( Hadith on the confession of Ma’iz bin Malik and the woman). The Hanafis and Shafis have limited the admissible evidence to this.

The Malikis have also included pregnancy of a woman in the absence of marriage as admissible evidence which can lead to the enforcement of the hadd, and they do not ward off the hadd unless evidence is presented for a valid excuse or doubt.

Below is my personal translation of a relevant section from Jaziri's الفقه على المذاهب الأربعة. Note that the translation is paraphrased, and may contain mistakes and some irrelevant and repeated statements have been omitted.

ظهور الحمل على امرأة لا زوج لها

(Division) Getting pregnant while not being married

الحنفية - قالوا: إذا ظهر على المرأة الحرة حمل، ولا زوج لها، أو كانت أمة لا زوج لها ولا سيد. يسألونها، فإذا قالت: استكرهت على الزنا، أو وطئت بشبهة، يقبل قولها ولا يقام عليها الحد، لأنها بمنزلة من أقر ثم ادعى الاستكراه.

Hanafi: If a free woman who does not have a husband, or a slave-woman who has neither a husband nor an owner, becomes pregnant, then she will be question about it, if she claims that she was forced (raped) or says that someone had intercourse with her by mistake, then her claim will be accepted and the hadd will not be enforced on her. Because her case is similar to a person who confesseses to have committed zina and then says that he was coerced.

واحتجوا على ذلك بما جاء في حديث شراحة، أن الإمام علياً رَضِيَ اللَّهُ عَنْهُ قَالَ لها: لعله استكرهك؟ قالت: لا. قَالَ لعل رجلاً أتاك في نومك؟ وهكذا. ولأن الشرع يحب الستر في الحدود.

And evidence for this includes the narration about Sharaha who was brought before Ali ibn Abi Talib and he asked her: "Maybe somone forced you?", and she denied that and he asked: "Maybe a man came upon you while you were asleep?"

وروي أن سيدنا عمر بن الخطاب رَضِيَ اللَّهُ عَنْهُ أنه قيل له: إن امأة ادعت أنها ثقيلة النوم وأن رجلاً استكرهها ثم تركها فمضى عنها، ولم تدر من هو بعد. فلم يقم عليها الحد، وقبل عذرها، لهذه الشبهة.

And it is narrated that a woman told Umar ibn Khatab that she was a very heavy sleeper and someone had sex with her while she was in such a state and she does not know who it was. And Umar did not enforce the hadd upon her and accepted her excuse .

ولا خلاف بين أهل الإسلام في أن المستكرهة، لاحد عليها، وإنما اختلفوا في وجوب الصداق لها. وسبب الخلاف هو: هل الصداق عوض عن البضع، أو نحلة؟

There is no difference among the Muslims that a person who is forced is not given punishment and the only difference is on the obligation of paying mahr ...

الشافعية - عندهم روايتان أظهرهما، أنها لا تجب عليها الحد، وإن لم تأت في دعوى الاستكراه بأمارة تدل على صدقها، ولم تأت في دعوى الزوجية ببينة، لأن الحد لا يثبت إلا بشهود أو لإقرار، ولم يثبت هنا، ولأن الحدود تقسط بالشبهات، وهذه شبهة فمجرد الحنل لا يثبت به الحد. بل لا بد من الاعتراف، أو البينة.

Shafi: There are two sayings among them and the more widely accepted one is that the hadd is not enforced, even if she can not relate an excuse of being forced or being unable to present witnesses for a marriage. Because the hadd can only be proven and enforced with four witnesses or confession and they are not present and the hadd is warded off in case of doubt ...

المالكية - قالوا: إن كانت المرأة مقيمة بالحي، وليست طارئة، فإنه يقام عليها الحد، ولا يقبل قولها إلا ان يظهر ذلك، بأن تأتي بأمارة على استكراهها أو تقيم البينة على زواجها، أو شيء مما يظهر به صداقها، لأن الحد ثبت بالحمل، فلا يرفع إلا ببينة. أما إذا كانت المرأة طارئة، قبل قولها، لوجود شبهة، وعدم التوثق في ثبوت حدها

Maliki: If a woman lives among her tribe and is not an outsider or foreigner, then the hadd of zina will be enforced on her and her excuse will not be accepted, unless she presents proof. For example if she of how she was forced or she presets witnesseses for her marriage, or says some other thing which makes apparent her truthfulness. Because the hadd is proven and enforced because of pregnancy and not warded off without evidence that exonerates her. However if she is an outsider then her claim will be accepted based on doubt and the hadd will not be proven and enforced.