Hadith 1440

حَدَّثَنَا أَبُو سَعِيدٍ الْأَشَجُّ، حَدَّثَنَا أَبُو خَالِدٍ الْأَحْمَرُ، حَدَّثَنَا الْأَعْمَشُ، عَنْ أَبِي صَالِحٍ، عَنْ أَبِي هُرَيْرَةَ، قَالَ : قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ : " إِذَا زَنَتْ أَمَةُ أَحَدِكُمْ فَلْيَجْلِدْهَا ثَلَاثًا بِكِتَابِ اللَّهِ , فَإِنْ عَادَتْ فَلْيَبِعْهَا وَلَوْ بِحَبْلٍ مِنْ شَعَرٍ " . قَالَ : وَفِي الْبَاب , عَنْ عَلِيٍّ , وَأَبِي هُرَيْرَةَ , وَزَيْدِ بْنِ خَالِدٍ , وَشِبْلٍ , عَنْ عَبْدِ اللَّهِ بْنِ مَالِكٍ الْأَوْسِيِّ . قَالَ أَبُو عِيسَى : حَدِيثُ أَبِي هُرَيْرَةَ حَدِيثٌ حَسَنٌ صَحِيحٌ , وَقَدْ رُوِيَ عَنْهُ مِنْ غَيْرِ وَجْهٍ , وَالْعَمَلُ عَلَى هَذَا عِنْدَ بَعْضِ أَهْلِ الْعِلْمِ مِنْ أَصْحَابِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ , وَغَيْرِهِمْ رَأَوْا أَنْ يُقِيمَ الرَّجُلُ الْحَدَّ عَلَى مَمْلُوكِهِ دُونَ السُّلْطَانِ , وَهُوَ قَوْلُ : أَحْمَدَ , وَإِسْحَاق , قَالَ بَعْضُهُمْ : يُرْفَعُ إِلَى السُّلْطَانِ , وَلَا يُقِيمُ الْحَدَّ هُوَ بِنَفْسِهِ , وَالْقَوْلُ الْأَوَّلُ أَصَحُّ .
´Narrated Abu Hurairah:` That the Messenger of Allah (ﷺ) said: "If one of your slave girl commits illegal sexual intercourse, then whip her three times according to the Book of Allah, and if she does it again then sell her, even if it is for a rope made of hair."
Hadith Reference سنن ترمذي / كتاب الحدود عن رسول الله صلى الله عليه وسلم / 1440
Hadith Grading الألبانی: صحيح، ابن ماجة (2565)
Hadith Takhrij «تفرد بہ المؤلف (أخرجہ النسائي في الکبریٰ) ( تحفة الأشراف : 12497) (صحیح)»
Explanation & Benefits
Shaykh Dr. Abdur Rahman Freywai
Explanation:
1:
That is, if the act of fornication has been committed by him three times, then each time he will receive the punishment of flogging, and on the fourth occasion he will be exiled from the city.

2:
Because this is precisely the meaning of the hadith of the chapter: if the owner possesses reliable testimony regarding the immorality of his slave-girl or slave, then the owner himself can establish the prescribed punishment (hadd).
Source: Sunan al-Tirmidhi – Majlis ‘Ilmi Dar al-Da‘wah, New Delhi Edition, Page: 1440
Maulana Dawood Raz
Hadith Commentary:

This is because such an immoral (fahishah) woman cannot remain in the house of a Muslim.

In the Noble Qur’an, Allah the Exalted has said: “Al-khabithaatu lil-khabitheena wal-khabithoona lil-khabithaat” (An-Nur: 26) — that is, impure (fornicating) women are for impure (fornicating) men, and impure (fornicating) men are for impure (fornicating) women.
Source: Sahih Bukhari: Commentary by Maulana Dawood Raz, Page: 2234
Shaykh Abdul Sattar al-Hammad
Hadith Commentary:
(1)
If a slave-girl repeatedly commits fornication, then it is better to get rid of her even if it means giving her away for free.

(2)
It should be noted that the mention of carrying out the prescribed punishment (hadd) in this hadith does not mean that the owner himself should start flogging her; rather, the right to implement the hadd belongs to the court. After the hadd has been carried out, there is no need to further reproach, blame, or say anything to her, because the criminal has paid the expiation for her sin and, according to the law, has received her due punishment.

(3)
The relevance of this hadith to the chapter heading is that the command to sell a slave-girl is general in this hadith, and it includes even a mudabbara (a slave-girl set free upon the owner's death).
Allamah ‘Ayni rahimahullah has objected to this reasoning, stating that in the hadith, the permissibility of selling is conditional upon the slave-girl committing fornication two or three times, whereas according to those who permit the sale of a mudabbara, her sale is valid in all circumstances, whether she commits fornication or not.
(‘Umdat al-Qari: 8/526)
However, this objection by the aforementioned scholar is not correct, because if a mudabbara slave-girl commits fornication two or three times, the permissibility of selling her is understood from this hadith. And those who do not consider the sale of a mudabbara permissible do not accept its permissibility even in the case of fornication; therefore, this hadith is contrary to their position and in agreement with those who permit the sale of a mudabbara. Thus, the mention in the hadith is of a slave-girl in general, and this includes the mudabbara as well.
And Allah knows best.
Source: Hidayat al-Qari: Commentary on Sahih Bukhari, Urdu, Page: 2234
Shaykh Abdul Sattar al-Hammad
Hadith Commentary:
(1)
Some scholars have derived from this hadith the ruling that if a slave-girl (bondwoman) commits fornication (zina), she should not be exiled, because the purpose of exile is to distance her from a corrupt environment, and this purpose is achieved by selling her. Furthermore, if she is exiled, it would become an obstacle to her sale and purchase. However, some scholars hold the view that the slave-girl should not be exiled, but after flogging, a male slave should be banished from the country for six months, because exiling a slave-girl is akin to making a woman travel without a mahram, whereas this difficulty does not arise in the case of a male slave.

(2)
In any case, the position of Imam al-Bukhari rahimahullah is that the slave-girl should be punished, but it is not correct to revile her or to exile her.
(Fath al-Bari: 203/122)
In one narration, it is mentioned that a man came to the Messenger of Allah sallallahu alayhi wa sallam and said:
“O Messenger of Allah! My slave-girl has committed fornication, and her pregnancy has made her fornication evident.”
He (the Prophet) said:
“Flog her with fifty lashes.”
(As-Sunan al-Kubra by an-Nasa’i, Hadith: 7215)
That is, the Messenger of Allah sallallahu alayhi wa sallam instructed that she be flogged with fifty lashes, but did not order her to be exiled. This also supports the position of Imam al-Bukhari rahimahullah.
And Allah knows best.
Source: Hidayat al-Qari: Commentary on Sahih Bukhari, Urdu, Page: 6839
Shaykh Maulana Abdul Aziz Alvi
Hadith Commentary: Benefits and Issues:

(1)
تَبَيَّنَ زنَاهَا:
If her adultery becomes evident through proof, according to the Hanafis, if testimony is established against her, because in their view, only the Imam can carry out the prescribed punishment (hadd). However, according to those (the three Imams) who hold that a master can enforce the hadd on his slave or slave-girl, it is permissible for the master to enforce the hadd upon witnessing this act.

(2)
فَلْيَجْلِدْهَا الحد:
The master should enforce the hadd upon her. The Imams of Hijaz (Malik, Shafi’i, Ahmad) have deduced from this that a master can enforce the hadd on his slave. According to Imam Shafi’i, Imam Ahmad, Ishaq, Abu Thawr, and some Companions such as Ibn Umar, Ibn Mas’ud, and Anas ibn Malik (radi Allahu anhum), the master can enforce all prescribed punishments (hudud) on his slave. However, according to Sufyan al-Thawri and al-Awza’i, he can only enforce the hadd for adultery, and according to Imam Malik and al-Layth, he can enforce the hadd for adultery, false accusation (qadhf), and drinking wine. According to the Hanafis, enforcing any kind of hadd is the responsibility of the Imam; the master cannot enforce any hadd.

(3)
وَلَا يُثَرِّبْ عَلَيْهَا:
Once the hadd has been enforced, it is not permissible to rebuke, reprimand, or blame her afterwards, or merely cursing and scolding is not sufficient; she must be punished. The hadd for a slave-girl is fifty lashes, because due to the humiliation of slavery, such an act was not considered disgraceful among the Arabs for slave-girls, and they did not enjoy the full protection and defense as free women did. Therefore, their honor and dignity were not fully safeguarded due to lack of veiling and general mingling, so leniency in their punishment has been taken into consideration.

(4)
زني فليبعها:
According to the majority, selling her is not obligatory, but a recommended ruling, because the repeated occurrence of this act in the house of one master is evidence that her sexual needs are not being fulfilled there and he cannot properly supervise her. He will sell her after informing the other person of this defect, so that he may consider whether he can fulfill her desire or not, or whether he can control her or not. In this way, the transaction will be made with full deliberation and complete insight. Furthermore, the slave-girl will also know that if she commits this act again, she will be expelled from here as well, and no slave likes to have his master changed repeatedly. According to Imam Abu Thawr and Dawud al-Zahiri, selling her is obligatory.

(5)
وَلَوْ بِحَبْل مِنْ شَعْرٍ:
Even if he has to sell her for a rope made of hair, the purpose is that he should remove such a slave-girl from his house, lest her influence affect others, even if he has to bear a loss or damage in the price.
Source: Tuhfat al-Muslim: Commentary on Sahih Muslim, Page: 4445
Shaykh Umar Farooq Saeedi
Benefits and Issues:
➊ Only the owner of the slave-girl is authorized to carry out the prescribed punishment (hadd) upon her, and it is not sufficient to merely rebuke or shame her to the extent that the prescribed legal punishment is suspended.

➋ The meaning of shaming her can also be that she should not be excessively shamed.
Because sometimes certain temperaments, when shamed in such a manner, become even more brazen, and their negative emotions are stirred up, leading them to deliberately commit sins.
This is a psychological issue.

➌ A slave or servant of corrupt nature should be kept away from oneself.
Source: Sunan Abu Dawood – Commentary by Shaykh Umar Farooq Saeedi, Page: 4470