Sex with Animals and Islam Part 2/3

Part 2/3

Scholars’ View(Fiqh)

There is a consensus among Fuqahas of Islam that Bestiality is a forbidden act.

Imam Nawawi(d.1277 AD) wrote Encyclopedia of Shafi Fiqh “Al Majmoo”  which is commentary on work of Earlier Shafi Scholar Imam Abu Ishaq Shirazi(b. 393AH). Both sheikhs say that bestiality is prohibited according to Quran 23:5-6 and there are three views about punishment on such crimes but their view is that there should be Ta’zir(Discretionary Punishment). Imam Nawawi explains by citing another shafi scholar  that why there is no capital Punishment or Hudd Punishment on bestiality. He says only an Insane would do such a shame less an act and for insane there is no hudd punishment according to a hadith.

Reference:(Arabic) Al Majmoo>> Volume: 22>> Book: Huddod>> Chapter: Hadd of Fornication>> Bestiality and Order on it>> page 65

Online Source: https://archive.org/details/majmu(PDF)

imam-nawawi-on-bestiality
Imam Abu Ishaq Shirazi’s view Page 65
imam-nawawi-on-bestiality
Imam Nawawi’s view Page 68

Shafi Scholar Ibn Hajar Haytami includes “Bestiality” in his list of enormities along with homosexuality, lesbianism and necrophilia.

Reference: Reliance of the traveler(Umdat as-Salik wa ‘Uddat an-Nasik)>> Haytami>>List of Enormities>> w52.1>> 338-343>> Page 986

Online Source: https://books.google.com.pk/books?redir_esc=y&id=AeFItwAACAAJ&focus=searchwithinvolume&q=338-43

reliance-of-traveler-bestiality

Famous Hanbali Jurist Ibn Qudamah(d. 1223 AD) in his book Al-Mughni which is actually encyclopedia of Hanbali fiqh writes that there is Ta’zir for bestiality.

Reference: Al_Mughni>> Volume 12>> Book: Hudood(Penal Punishment)>> Problem:1557>> Page 351-352

Online Source: http://kapasan-darulfalah.blogspot.com/2014/01/download-kitab-al-mughni-ibnu-qudamah.html(PDF)

mughni-on-bestiality
Snapshot taken from Page 351 of PDF file
mughni-khurqi-on-bestiality
Snapshot taken from page 352 of PDF file

Famous Hanbali Jurist Imam Shams-ud-Deen Muhammad bin Abi Bakr bin Qayyim Al Jawziyyah(d 751A.H.) writes in his book “Spiritual Disease and Its Cure” about earlier scholars view on penalty for Bestiality.
Reference: Spiritual Disease and its cure>> Topic: The punishment for homosexuality>> Sub Topic: The punishment for performing a sexual act on animals>> page 205-206
Online Source: http://www.kalamullah.com/spiritual-disease.html
Text:

The scholars have three opinions regarding this matter:
First, the doer of such act should be disciplined, without receiving any corporal punishment, which is the opinion of Malik, Abu Haneefah, and Shafii in one of his two opinions.
Second, its ruling is that of the adulterer; to be flogged if he is unmarried, and stoned to death if he is married; which was the opinion of Al-Hasan.
Third, its ruling is that of the homosexual, which was the opinion of Imam Ahmad. So the punishment is either irrevocable killing or the set punishment as given to an adulterer.
Those who have said that his punishment should be capital punishment have argued their case with the Hadith reported by Abu Dawud, on the authority of lbn ‘Abbas ~ that the Prophet ~ said: “Kill whoever has sexual intercourse with an animal, and kill the animal with him.
They said that since it is an illegal sexual act, its punishment should be like that of a homosexual. Those who did not consider any prescribed punishment for it have stated that the above Hadith is weak, and that if it were authentic, they would have explained this differently.
Isma’il bin Sa’id Al-Shalanji said: “I asked Ahmad about the one who had sexual intercourse with an animal, but he did not have any opinion. He could not confirm the Hadith of ‘Amru bin Abi ‘Amru (who reported from Ibn ‘Abbas).”
Tahawi has stated: “This Hadith is weak, and Ibn ‘Abbas had already given his opinion that there is no prescribed punishment for the one who had sexual intercourse with an animal.” Abu Dawud said that lbn ‘Abbas’s opinion weakens this Hadith.
There is no doubt that the natural reprimand of having sexual intercourse with an animal is stronger than that of homosexuality, yet it does not mean that both acts are considered the same, regarding people’s nature; in fact, relating one to the other is a wrong way to conduct comparative evaluation.

Online Fatwas:

Penal laws of Muslim countries:

Bestiality is illegal and a crime in all Muslim countries but following countries have specifically mention bestiality in their penal laws.

Pakistan:

In Pakistan, punishment for crime of homosexuality and bestiality is fine and imprisonment of 2 to 10 years.

Reference:  Pakistan Penal Code (Act XLV of 1860)>> CHAPTER XVI-A :OF WRONGFUL RESTRAINT & WRONGFUL CONFINEMENT>> 377

Source: http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html#f156

377. Unnatural offences:
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine.

Iran:

Iran,based on work of Khoemenie gives Tazir punishment of Tazir in first 3 offenses to one who is caught in bestiality. In 4th offense, the offender will be executed.

Reference:  OHCHR>> Table of Capital Offenses in the Islamic Republic of Iran,
and their Sources in Statute Law and Islamic Law>> II: Table of Capital Offenses>>  2: Huddud>>  e:  Vaty-e heyvanat va Mayet-e-insan ( bestiality and necrophilia)>> 21th  offense  and 17th offense in Hudood

Source:  http://www2.ohchr.org/english/bodies/hrc/docs/ngo/NGO_submission_ELEI_Add.1.pdf (PDF)

Text: 

[Capital Punishment on] Fourth conviction of intercourse with  animals (lesser convictions are punished by ta‘zir as determined by the judge). Source: Tahrir Ul Wasela  4/247/3

iran-bestiality
Snapshot taken from PDF file

Bangladesh:

Both Pakistan and Bangladesh penal code is based on 1860 penal code but they have made some ammendments later on.

In bangladesh, Punishment for bestiality is imprisonment of life which may not exceed 10 years.

Refrence: THE PENAL CODE, 1860  (ACT NO. XLV OF 1860)>> CHAPTER XVI
OF OFFENCES AFFECTING THE HUMAN BODY

Online Source: http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=3233

Text:

Unnatural offences
377. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with2[ imprisonment] for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Nation of Brunei, Abode of Peace:

Reference: LAWS OF BRUNEI >>CHAPTER 22(PENAL CODE)>> Chapter XVI: Offences affecting the Human Body Offences Affecting Life

Online Source: http://www.commonlii.org/bn/legis/pc22130/

Text:

Unnatural offences.

377. Whoever voluntarily has carnal intercourse against the order ofnature with any man, woman, or animal, shall be punished with imprisonment for aterm which may extend to 10 years, and shall also be liable to fine.

Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in thissection.

Syrian Arab Republic:

Syrian penal law says imprisonment of upto 3 years on crime of bestiality.

Reference: Law No. 148/1949 on the Syrian Penal Code>>

Online Source: http://www.wipo.int/wipolex/en/details.jsp?id=10918( Arabic,PDF)

Text: 

المادة ٥٢٠كل
مجامعة على خلاف الطبيعة يعاقب عليها بالحبس حتى ثلاث سنوات

Tranlation:

Article 520

“Any unnatural sexual intercourse shall be punished with a term of imprisonment of up to three years.”

Egypt:

.

Reference: Criminal Code of Egypt as of 1992 (English version)

Online Source: https://www.unodc.org/cld/document/egy/1937/criminal_code_of_egypt_english.html?

Text: 

Article 278:

Whoever commits in public a scandalous act against shame shall be punished with detention for a period not exceeding one year or a fine not exceeding three hundred pounds

Reference: Law No. 10/1961, on the Combating of Prostitution

Online Source: http://www.refworld.org/docid/5492d8784.html

Text:

Article 9:

Punishment by imprisonment for a period not less than three months and not exceeding three years and a fine not less than 25 LE and not exceeding 300 LE in the Egyptian administration and not less than 250 Lira and not exceeding 3000 Lira in the Syrian administration or one of these two punishments applies in the following cases:

(a) Whoever lets or offers in whatever fashion a residence or place run for the purpose of debauchery or prostitution, or for the purpose of housing one or more persons, if they are to his knowledge practicing debauchery or prostitution.

(b) Whoever owns or manages a furnished residence or furnished rooms or premises open to the public and who facilitates the practice of debauchery or prostitution, either by admitting persons so engaged or by allowing on his premises incitement to debauchery or prostitution.

(c) Whoever habitually engages in debauchery or prostitution.

Upon the apprehension of a person in the last category, it is permitted to send him for a medical examination. If it is discovered that he is carrying an infectious venereal disease, it is permitted to detain him in a therapeutic institute until his cure is completed.

It is permitted to determine that the convicted person be placed, upon completion of his sentence, in a special reformatory until the administrative agency orders his release. This judgment is obligatory in cases of recidivism, and the period spent in the reformatory is not allowed to be more than three years.

Gambia:

Punishment for crime of bestiality is 14 years in prison.

Reference: Criminal Code 1965>> PART II – CRIMES>> Chapter XV – Offences against Morality

Online Source: http://www.oit.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=75289&p_country=GMB&p_count=43&p_classification=01.04&p_classcount=8

Text:

Article 144: Unnatural offences

(1) Any person who—

(a) has carnal knowledge of any person against the order of nature; or

(b)  has carnal knowledge of an animal; or

(c)  permits any person to have carnal knowledge of him or  her against the order of nature;
is guilty of a felony, and is liable to imprisonment for a term of 14 years.

(2) In this section- “carnal knowledge of any person against the order of nature” includes-

(a) carnal knowledge of the person through the anus or the mouth of the person;

(b) inserting any object or thing into the vulva or the anus of the person for the purpose of simulating sex; and

(c) committing any other homosexual act with the person

Reference: Penal Code of the Federal Islamic Republic of Comoros

Online Source: http://www.icla.up.ac.za/images/un/use-of-force/africa/Comoros/Penal%20Code%20Comoros%201981.pdf

ART.317.- Any person who has committed a contempt for the indecent act will be punished by a prison term of three months to two years and a fine of 15,000 to 150,000 francs.

ART.318.- Any indecent assault or attempted on the person of a child of either sex under the age of fifteen years, will be punished by imprisonment of two to five years. Will be punished with the maximum sentence, the indecent assault committed by any ascendant or any person having authority over the minor victim over the age of fifteen years. Without prejudice to the more severe penalties provided for by the preceding paragraphs or by articles 320 and 321 of the present code, shall be punished by a prison term of one to five years and a fine of 50,000 to 1,000,000 francs, anyone who has committed an indecent act or against  nature with a person of the sex.If the act was committed with a minor, the maximum penalty will be always pronounced.

Palestine:

Reference: The British Mandate Criminal Code Ordinance, No. 74 of 1936>> Section 151

Online Source: https://www.nevo.co.il/law_html/law21/PG-e-0633.pdf

Text:

(2) Any person who:—
( a ) has carnal knowledge of any person against the order of
nature; or
(6) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him
or her against the order of nature,
is guilty of a felony, and is liable to imprisonment for ten years.

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