The Qadi said: If he establishes evidence for the second, the requirement of the first is remitted. This is the school of al-Shafi'i, because she has become unchaste (ghayr muhsana), so the hadd of the chaste women does not apply to her. Our view is that the fall of her chastity regarding the second does not necessitate its fall regarding what preceded it, just as if he had fulfilled his hadd before establishing the evidence. Perhaps this is based on the case where one accuses a man, but the hadd is not established against the accuser until the accused has committed zina. If he does not establish evidence for either of them, nor does he perform li'an for the second, only one hadd is mandatory. Ahmad stated this explicitly, because they are two hadds of two types that have succeeded one another, and neither of them has been established, so they merge (tadakhala), just as if he had accused her while she was a foreign woman twice. If he accuses his wife, is whipped for her, then repeats his accusation against her for that same act of zina, he is not whipped for her, for the reason we mentioned regarding the repetition of the accusation against a foreigner; however, he is to be disciplined (ta'zir) for the harm and insult. He does not have the right to remit the disciplinary punishment through li'an, because it is a disciplinary punishment for insulting, not for accusing, except according to the narration that obligates the foreigner to a second hadd for repeating the accusation, for then a hadd becomes mandatory upon him here, and he has the right to remit it through li'an. If a child is born to him after his hadd, and he mentions that it is from that act of zina, he has the right to perform li'an to disavow the child, according to both narrations, because he is in need of disavowing him. If he accuses her during the state of marriage twice for two acts of zina, there is only one hadd against him, and one li'an suffices him, because it is an oath; thus, when the two rights belong to one person, one oath suffices, but he needs to say: I bear witness by Allah that I am among the truthful regarding what I accused her of concerning the two acts of zina. This differs from the case where he accuses two wives, where one li'an does not suffice him, because an oath became mandatory for each of them individually, so they do not merge, like all other oaths.
(39) In (A): "built upon" (mabniy). (40) In (B), (M): "and because they are". (41) In (M): "then not" (falam). (42) In (A): "however he". (43) In (B): "for the other" (lil-ukhra). (44) In the original and (A): "haddan" (two hadds). In (B), (M): "haddan" (haddan). (45) In the original and (M): "about" (an). (46) Omitted from: (B). (47) In (A): "to the truthful" (lisadiq). (48) In the original: "his wife" (zawjuhu min).
