hudood

Rights of Individuals regarding Crimes that Require Hudood

Punishments1

Dr. Abdur-Rahmaan ibn 'Aayd Aal-'Aayd2

1 In Muslim criminal law, the Arabic term hudood (sing. hadd) refers to unalterable

punishments prescribed by canon law, which are considered 'rights of Allah', as opposed to 'rights of individuals', and include, amongst other things, stoning or scourging for illicit intercourse, scourging for falsely accusing a married person of adultery and cutting off the hand for theft. (Translator's Note)

2 Assistant Professor in the Department of Islamic Jurisprudence, College of Sharee'ah, Imaam Muhammad ibn Saud Islamic University, Riyadh, Saudi Arabia.

Rights of Individuals Regarding Crimes that Require Hudood Punishments

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Foreword

All praise is due to Allah, Lord of all the worlds, and may Allah's peace and blessings be upon our Prophet Muhammad, his family and all his companions.

Almighty Allah has perfected religion for the Muslims and legislated for them the final divine law which guarantees them a peaceful and secure life due to the rules this law regulates between a person and his Lord, on the one hand, and between a person and his fellow men, on the other.

In fact, because this divine law attaches great importance to what it considers 'life necessities', it has declared forbidden all types of crimes and prescribed punishments for such crimes with a view to safeguarding these necessities. These punishments include what is commonly known as hudood which have been prescribed for specific crimes. A question that arises in this respect is: Is carrying out the punishment, the limit of which has been defined by the Qur'an or the Sunnah (hadd) and thus subjecting the wrongdoer to the punishment he deserves enough, or does the wronged party still have a certain right? This is the topic of the present paper.

The Importance of the Present Topic Many people believe that by simply carrying out the hudood

punishment, such as stoning a married adulterer to death, scourging a fornicator and cutting off the hand of a thief, justice is done, but they do not realise that there are other things which are required as a result of the commission of a crime which calls for a hadd punishment, hence the importance of the present study.

Reasons for choosing this Topic 1. The importance of the issue under study, as has been mentioned

before, 2. The urgent need to clarify the rights of the wronged party given that

many people are not aware of them, 3. This subject has not been tackled and appropriately discussed

before. Aims and Objectives of the Present Study 1. To present a well-founded juristic study which discusses these

rights and makes people aware of them.

Dr. Abdur-Rahmaan ibn 'Aayd Al-'Aayd

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2. To serve judges and the judiciary at large by presenting rulings relating to these rights after carefully collecting and studying them.

Past Studies on the Topic I have not come across any study which has tackled and clarified these

rights from a juristic perspective as a separate study. There are, however, some studies on hudood punishments but only in terms of their legitimacy, conditions and various forms, and the authors hardly touch on the rights of the wronged party. Furthermore, whenever, such rights are mentioned, the discussion is almost always restricted to the right of a married person who has been accused of adultery to forgive the offender. In fact, this particular case constitutes a separate study in the present paper.

Research Procedures I followed the following procedures in conducting the present

research: 1. I have carefully considered the question under study before

clarifying its ruling. 2. If the question under study is generally agreed upon by Muslim

scholars, I have simply cited its ruling along with the evidence supporting it and the sources taken form it.

3. If the question under study constitutes a controversial issue, I have mentioned the various views expressed in this regard from the major books of the respective school of jurisprudence and then stated the preponderant view and the reason for opting for it.

4. By presenting the various opinions regarding a controversial issue, I have mentioned the opinion, its evidence, the reason for opting for it as well as the objections raised regarding it. The responses or objections raised have been pointed out, whether these are mine or others', then the preponderant view is cited.

5. I have cited the reference or source without making any mention whatsoever of its author unless there are more than sources or references bearing the same title, in which case I have mentioned the authors' different names.

6. I have documented all the Qur'anic verses by citing the Surah's name and number as well as the verse's number.


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7. I have also documented all the Prophetic traditions (ahaadeeth, sing. Hadeeth) the first time they are mentioned in the study, in addition to the degree of their authenticity if they are not mentioned in Saheeh Al-Bukhaaree and Saheeh Muslim or in either of them.

8. I have provided a brief biography of those eminent figures and leading authorities the first time they are mentioned in the study.

9. At the end of the paper, I have included a conclusion in which I have mentioned the main findings of the present study.

Introduction Part I: Definition of the Word 'Haqq'

Linguistic Definition The Arabic word 'haqq' (plural, 'huqooq'3) denotes the correctness and

genuineness of something. In Arabic, it refers to a number of things, including the following:

1. It is one of the names of Almighty Allah4, as the Qur'an says, "Then they are returned to Allah, their true Lord (Al-Haqq). His is the judgment, and He is the quickest of reckoners."5

2. It is also one of the names of the Qur'an, as Allah says, "But when the truth (al-haqq) came to them they said, 'This is magic, and we do reject it.'"6

3. It also refers to the Islamic religion, as the Qur'an says, "And say, 'Truth (al-haqq) has come and falsehood has vanished away. Falsehood does indeed vanish away [fast].'"7

4. It is the opposite of falsehood, as Almighty Allah states, "That is because it is Allah Who is the Truth (Al-Haqq), and that which they call upon besides Him is falsehood, and because Allah is the High, the Great."8

3 Translated here as 'rights'. (Translator's Note) 4 That is, when prefixed with the definite article 'al-', or 'the'. (Translator's Note) 5 Soorat Al-An'aam, 6:62. 6 Soorat Az-Zukhruf, 43:30. 7 Soorat Al-Israa', 17:81. 8 Soorat Al-Hajj, 22:62.


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5. It also refers to anything that has been established and become inevitable or imperative, as the Qur'an says, "If We had so willed, We could certainly have brought every soul its true guidance9, but the Word from me will come true, 'I will fill hell with jinns and men all together.'"10

Muslim jurists use the word 'haqq' in this very sense. Technical Definition Muslim jurists have utilised the word 'haqq' in their books in various

contexts, but I have not come across any technical definition whatsoever of the term under discussion in any of these books. It seems that they have used it in its linguistic sense and then applied it to anything that has been established and become inevitable or imperative. In this context, they mention 'the right to return a commodity if it is faulty', 'the right of pre-emption, or shuf'ah,'11 and 'the right of guardianship, or 'hadhaanah'.12 Mustafaa Az-Zarqaa13, a contemporary jurist, defines it as being "a jurisdiction whereby the Legislator decides a certain authority or duty."14 This definition, however, provides the general sense of the term.

9 The verb 'haqqa' (derived from the noun 'haqq') has been used here instead. (Translator's

Note) 10 Soorat As-Sajdah, 32:13. 11 This right of pre-emption is a power of possessing property which is for sale and is

established upon the teachings of Islam. It applies not to movable property but to immovable property. (Translator's Note)

12 See, for instance Al-Mabsoot, 17/178; Tuhfat Al-Fuqahaa', 3/251; Bidaayat Al-Mujtahid, 2/173; Al-Qawaaneen Al-Fiqhiyyah, p. 175; Rawdhat At-Taalibeen, 3/399; Al-Majmoo', 12/169; Al-Mughnee, 8/358 and Ibn Qudaamah's Ash-Sharh Al-Kabeer, 3/497.

13 Mustafaa Az-Zarqaa was born in Syria in 1097. His teachers include his own father Ahmad Az-Zarqaa and Sheikh Muhammad Al-Haneefee. He taught at Damascus University and then at the Jordanian University and was appointed member in the Council of Jurisprudence in Makkah, Saudi Arabia. His books include Al-Fiqh Al-Islaamee Fee Thawbihi Al-Jadeed and Sharh Al-Qaanoon Al-Madanee As-Sooree. See his biography in 'Ulamaa' Wa Mufakkiroon 'Araftuhum, 2/343.

14 Al-Madkhal Al-Fiqhee Al-'Aamm, 3/10.


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Part II: Definition of the Word 'Hadd'

Linguistic definition The Arabic word 'hadd' (plural, 'hudood') refers to a number of things

including 'prevention', 'obstruction', 'separation between two things', 'bound', and 'limit'.15

Technical Definition Technically, the term 'hadd' means "the punishment prescribed by the

Sharee'ah with regard to a sin in order to prevent the commission of a similar sin."16

Generally, the word 'hadd' is used to refer to crimes which call for the hudood punishment, the limits of which have been defined by the Sharee'ah, as well as the punishment itself. The hudood punishments mentioned by Muslim jurists are those for (1) adultery and fornication, (2) the false accusation of a married person of committing adultery, (3) drinking wine, (4) theft and (5) hiraabah (banditry, highway robbery).

The Maalikites have also included punishments for (6) apostasy and (7) rebelling against the ruler or the state following an interpretation of a religious text (baghi).17

Part III: The 'Right' Intended in the Present Study

The right, or 'haqq' intended in the present study is the personal right of the wronged party against whom a crime has been committed and which calls for one of the hudood punishments. This 'right', therefore, has the following properties:

1. It is an individual right, as opposed to the 'public' right and the 'right of Allah' the Almighty.

15 See Maqaayees Al-Lughah, 2/3; Lisaan Al-'Arab, 3/140; and Al-Qaamoos Al-Muheet, p.

352. 16 See Tabywwn Al-Haqaa'iq, 3/163; Ad-Durr Al-Mukhtaar, 4/3; Al-Fawaakih AdDawaanee,

2/246; As-hal Al-Madaarik, 3/156; Al-Haawee, 13/184, I'aanat At-Taalibeen, 4/143; and Kashshaaf Al-Qinaa', 6/77.

17 See Badaa'i' As-Sanaa'i', 7/33; Majma' Al-Anhur, 1/584; Haashiyat Ad-Dasooqee, 4/298; As-hal Al-Madaarik, 3/156; Al-Wajeez, 2/164; Sharh Muntahaa Al-Iraadaat, 3/336; and Kashf Al-Mukhaddiraat, 2/743.


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2. It is a right which has arisen out of a crime committed against his person, honour or property. In this sense, if the crime which calls for one the hudood punishments has not been committed against an individual it is not included here.

3. This crime requires one of the hudood punishments, in which case Qisaas18 and ta'zeer19 punishments are excluded.

A closer look at the hudood punishments Muslim jurists have mentioned as well as the above-mentioned properties will reveal the following:

1. The rights of Allah the Almighty, such as whipping the fornicator, stoning the adulterer to death, scourging the wine drinker, putting the apostate to death, cutting off the right hand of the thief and applying the hadd punishment on the rebel or bandit depending on the nature of his crime, are not included here, for what is meant here is only the right of the individual.

2. The punishments for apostasy20 and drinking wine are not included here either, as they do not involve any aggression or assault on any individual.

3. The punishment for baghi21 is also excluded, as the assault in this case is committed on a group of people, not on an individual.

4. The right of the perpetrator of the crime is not included either, an example of which is the right of the bandit to have his money returned to him.

From the above, we can define the 'right' under study as "the temporal and personal right of an individual which arises out of a crime committed against him and which calls for the imposition of a hadd punishment."

18 That is, the law of equality in punishment. (Translator's Note) 19 Ta'zeer signifies an infliction undetermined in its degree by the Islamic Law, on

account of the right of either of God or of the individual; and the occasion of it is any offense for which hadd has not been appointed, whether that offense consists in word or deed. (Translator's Note)

20 That is, if we consider that it is indeed one of the hudood punishments, as the Maalikites and the Shaafi'ites maintain.

21 That is, if we consider that it is indeed one of the hudood punishments, as the Maalikites and the Shaafi'ites maintain.


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In this definition, we have stated that the right is merely 'temporal', in which case the 'afterlife' right is excluded. An example of an afterlife right is the right of the victim to take some of the offender's rewards or to overburden him with some of the victim's sins.

By the word 'personal', we have excluded the 'public' right whereby, for instance, a Muslim leader may fight against the rebels.

By the words 'of an individual' we have excluded the rights of Allah, which include, among other things, scourging the fornicator and stoning the adulterer to death.

The expression "which arises out of a crime committed against him and which requires a hadd punishment" simply means that the wronged party has acquired this right as a result of the commission of this crime. This excludes the case where this right arises from an offense which is initiated by a certain crime. An example of this is when a person drinks wine and, as a result, destroys the property of another person. In this case, the wronged party has the right to claim compensation for the destroyed property from the drunken person, because this right has not arisen from the drunken person's drinking but rather from the crime he has committed as a result of drinking.

The words "a crime committed against him" exclude the right of the offender, an example of which is the right of a bandit to have his money returned to him.

The words "which requires a hadd punishment" exclude crimes which require qisaas and ta'zeer punishments.22

Based on this definition, we can therefore state that the right meant in the present study is that of (1) woman forced into adultery (a rape victim) or one with whom adultery has been committed, (2) a person whose money has been stolen, (3) a person who has been falsely accused of committing adultery and (4) a person who has been subjected to highway robbery.

This part consists of four sections, as follows:

22 Refer to the definition of the qisaas and ta'zeer punishments in previous footnotes.

(Translator's Note)


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Section One: The Right of a Victim of Adultery

If a man has committed adultery with a woman, would his victim be entitled to any rights regardless of the hadd punishment inflicted on him? Would she be entitled to a dower? If she is a virgin, would she be entitled to indemnity for defloration? If the offence leads to an ifdhaa'23 incident or to death, would he be liable for any compensations whatsoever? Would the ruling be different if the victim willingly or unwillingly responded to the offender's approaches? I will attempt to answer these questions in the present section which consists of five parts, as follows:

I. An Adultery Victim's Entitlement to a Dower If a man has committed adultery with a woman, would she be entitled

to a dower? Two cases are involved here: First Case: The woman with whom the offender has committed

adultery may have shown willingness to commit the act, in which case Muslim scholars are generally agreed that she is not entitled to any dower whatsoever.24 The evidence they have brought in support of this is that she has willingly allowed the offender to sleep with her without giving her a dower.25

Second Case: The victim may have yielded to the offender's desire against her will, in which case scholars have expressed two opinions as to whether or not she may be entitled to a "dower of equivalence" (mahr al-mithl) .

26

23 Ifdhaa' refers to a state of a woman that her urinary and menstrual tract or her

menstrual passage and rectum, or all three of them have become one. (Translator's Note)

24 See Badaa'i' As-Sanaa'i', 7/319; Haashiyat Ibn 'Aabideen, 6/567; At-Taaj Wal-Ikleel, 6/263; Haashiyat Ad-Dasooqee, 4/278' Al-Haawee, 12/296; Al-Muhadh-dhab, 2/200; Abu Al-Khattaab's Al-Hidaayah, 2/122; and Al-Mughnee, 12/171.

25 See Al-haawee, 12/296 and Al-Muhadh-dhab, 2/200. 26 "Dower of equivalence" (mahr al-mithl) is calculated according to the amount received

by other females in the bride’s family upon their marriage, in addition to consideration of the bride’s beauty, age and virginity. (Translator's Note)


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First Opinion Some scholars maintain that she is entitled to it. This is the view of the

Maalikites, the Shaafi'ites and the Hanbalites.27 The evidence they have brought forward in support of this opinion is that the offender has had intercourse without the victim's permission who is not his wife either. Therefore, he ought to pay the 'dower of equivalence' for having intercourse with her, as is the case with nikaah ash-shubhah (mistaken marriage)28.29

Second Opinion Other scholars hold that she is not entitled to any dower whatsoever

once the hadd punishment has been established against the offender or indemnity has been established for her in full, an example of which is death resulting from the assault or an ifdhaa' incident has occurred and she cannot control her ability to urinate. She would be entitled to the dower only if neither case is confirmed. This is the view of Abu Haneefah30 and Abu Yoosuf31 from amongst the Hanafites.32

27 See Adh-Dhakheerah, 12/369 and 382; Minah Al-Jaleel, 9/124; Rawdhat At-Taalibeen,

7/161; Sharh Al-Muhallaa 'Alaa Al-Minhaaj, 4/142; Al-Mughnee, 12/171 and kash-shaaf Al-Qinaa', 6/56.

28 This occurs when, for instance, copulation mistakenly takes place because the man and woman mistakenly believe themselves to be husband and wife. (Translator's Note)

29 See Al-Haawee, 12/259; Al-Majmoo', 19/126 and Sharh Muntahaa Al-Iraadaat, 3/326. 30 His full name is An-Nu'maan ibn Thaabit, known by his honorary title (kunyah) of Abu

Haneefah. He was born in Koofah, Iraq, in 80 AH. He distinguished himself in Islamic jurisprudence and debates. Ash-Shaafi'ee once said about him, "People are in need of Abu Haneefah in matters relating to Islamic jurisprudence." He was requested to take up the post of a judge, but he declined the offer and was jailed as a result of that. His teachers include 'Ataa' ibn Abee Rabaah, and his disciples include Abu Yoosuf and Muhammad ibn Al-Hasan. He died in 150 AH. See Al-Jawaahir Al-Mudhee'ah, 1/49 and At-Tabaqaat As-Saniyyah, 1/73.

31 His full name is Ya'qoob ibn Ibraaheem ibn Habeeb Al-Ansaaree, generally known by his kunyah of Abu Yoosuf. He was also born in Koofah, Iraq, in 113 AH. He was a close companion of Abu Haneefah and one of his disciples as well as the first person to spread his knowledge. He held the post of judge during the reign of Al-Mahdee and Ar-Rasheed. He narrated Prophetic traditions (ahaadeeth) from Abu Haneefah and Abu Is-haaq Ash-Shaybaanee, and those who narrated traditions from him include Muhammad ibn Al-Hasan and Ahmad ibn Hanbal. His works include Al-Kharaaj, Al-Amaalee and An-Nawaadir. He died in 182 AH. See Wafayaat Al-A'yaan, 6/378 and Al-Jawaahir Al-Mudhee'ah, 3/611.

32 See Al-Mabsoot, 9/76 and Badaa'i' As-Sanaa'i', 7/319.


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The evidence they provide is that it is impossible to inflict the hadd punishment on the offender and also order him to pay the dower.33 In support of this view, they argue that having intercourse with a person who is married to someone else necessitates either the infliction of the hadd punishment or the payment of the dower. As the hadd punishment has been dropped, the dower of equivalence becomes legally binding.34

In my estimation, this evidence has been advanced in conformity with some of their principles which are not acceptable.

In support of the view that the dower does not become binding so long as indemnity has become confirmed, they also argue that the act which necessitates indemnity is one and the same; once indemnity for human life becomes obligatory, anything else that is considered subordinate is definitely included in it.35

In refutation of this argument, it has been maintained that ifdhaa' is a crime that is separate from intercourse; for the dower is paid for the intercourse itself while the indemnity is paid for the tears in the vagina and urethral wall leading to permanent incontinence (ifdhaa').36

Third Opinion Some other scholars maintain that she is not entitled to any dower

whatsoever so long as a hadd punishment has been established against him. If, however, this punishment has not been confirmed, then she is entitled to the dower of equivalence, whether the diyah37 has been confirmed for her or not. This is the view of Muhammad ibn Al-Hasan38 from amongst the Hanafites.39

33 See Badaa'i' As-Sanaa'i', 7/319 and Haashiyat Ibn 'Aabideen, 6/567. 34 See Al-Mabsoot, 9/76 and Tabyeen Al-Haqaa'iq, 3/179. 35 See Al-Mabsoot, 9/76 and Badaa'i' As-Sanaa'i', 7/319. 36 See Al-Mughnee, 12/172. 37 A diyah (plural, diyyaat) is the blood money or compensation paid by one who has

committed murder or has wounded another. (Translator's Note) 38 His full name is Muhammad ibn Al-Hasan ibn Farqad Ash-Shaybaanee, known by

the honorary title (Kunyah) Abu 'Abdullaah. He was born in Waasit in 131 AH and was brought up in Koofah, Iraq. He was well-spoken and well-versed in the Arabic language. He committed the juristic knowledge of Abu Haneefah to paper and disseminated it. He acquired religious knowledge at the hands of Abu Haneefah and then Abu Yoosuf. He also narrated Prophetic traditions from Ash-Shaafi'ee. His works include Al-Jaami' Al-Kabeer, As-Siyar Al-Kabeer, As-Siyar As-Sagheer and Al-Asl. He died


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The evidence brought forward regarding the victim's non-entitlement to the dower of equivalence in case the hadd punishment has been established against the offender or otherwise is the same as that furnished by Abu Haneefah and Abu Yoosuf in the second opinion. In substantiation of her entitlement to the dower even if the diyah has been confirmed for her, they argue that the reason for the necessity of paying the dower and the diyah is different. Payment of the dower, they argue, becomes necessary as a result of destroying the use and function, while that of the diyah becomes necessary as a result of damaging the organ. Therefore, they conclude, they are not interrelated.40

The preponderant view is certainly the first opinion given the cogent evidence furnished by its proponents and the arguments its proponents have provided against their opponents.

II. An Adultery Victim's Entitlement to Indemnity for Defloration

If the adultery victim is a virgin and the offender has deflowered her, would she be entitled to indemnity for defloration?

Muslim scholars are unanimously agreed that if she has expressed willingness to commit the act, she would not be entitled to such indemnity.41

The question that arises here is whether the offender will be responsible for providing the dower as well as being liable for the defloration indemnity in case she has been forced into the act against her will?

Jurists have expressed two different opinions in this regard42, namely:

in Rayy in 189 AH. See Wafayaat Al-A'yaan, 4/184 and Al-Jawaahir Al-Mudhee'ah, 3/122.

39 See Al-Mabsoot, 9/76 and Majma' Adh-Dhamaanaat, p. 201. 40 See Al-Mabsoot, 9/72 and Badaa'i' As-Sanaa'i', 7/319. 41 See Badaa'i' As-Sanaa'i', 7/319; Haashiyat Ibn 'Aabideen, 6/567; At-Taaj Wal-Ikleel, 6/263;

Haashiyat Ad-dasooqee, 4/278; Al-Haawee, 12/296; Ibu Al-Khattaab's Al-Hidaayah, 2/122 and Al-Mughnee, 12/171.

42 I have not come across any views expressed by the Hanafites regarding this particular

issue. They have, however, mentioned that a victim of adultery is indeed entitled to the dower of equivalence without making a mention of defloration indemnity. The reason for not mentioning the latter is that they perhaps consider it included in the former.


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First Opinion: She is entitled to the dower of equivalence but not to the defloration indemnity. This is the view of the Maalikites, one of the opinions expressed by the Shaafi'ites as well as one of the views held by the Hanbalites.43

Proponents of this opinion have advanced the following arguments: 1. Defloration naturally follows intercourse, for it can by no means

take place without it; therefore, it does not have an independent ruling.44 2. A virgin's dower is normally more in value than that of one who

was previously married, and the difference between them in value constitutes the defloration indemnity; therefore, the offender cannot pay it twice.45

Second Opinion: She is entitled to both the dower of equivalence and the defloration indemnity. This is one of the views of the Shaafi'ites as well as one of the views expressed by the Hanbalites.46

Proponents of this opinion have advanced the following arguments: 1. The dower is paid for the utility of intercourse, while the

indemnity is paid for the loss of virginity, both of which constitute two different issues.47

I believe, however, that they cannot be considered two different matters, as the loss of virginity naturally follows intercourse. Therefore, if the offender has paid the intercourse indemnity, he cannot also be liable for the defloration indemnity, as the latter is included in the former.

2. The offender is responsible for the damage he has done and is thus liable for the indemnity, just as he has to pay it in case he caused the damage with his finger.48

In response to this argument, I believe that there is a difference between causing damage following intercourse and with one's finger; for causing the damage with one's finger is totally independent of

43 See Sharh Al-Kharshee, 8/41; Al-Muhadh-dhab, 2/200; Mughnee Al-Muhtaaj, 4/75;

Haashiyat 'Umayrah, 4/142 and Al-Mughnee, 12/171. 44 See Ash-Sharh As-Sagheer, 3/417. 45 See Al-Mughnee, 12/271. 46 See Al-Haawee, 12/296; Rawdhat At-Taalibeen, 7/161; Mughnee Al-Muhtaaj, 4/75 and Al-

Mughnee, 12/171. 47 See Mughnee Al-Muhtaaj, 4/75. 48 See Al-Mughnee, 12/171.


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intercourse, while causing it as a result of intercourse naturally follows the sexual act. Therefore, he cannot be liable for indemnity twice.

The preponderant view which has more evidence in its favour is certainly the first one.

III. The Rights of an Adultery Victim Following an Ifdhaa' Incident

If the offender is involved in an ifdhaa' incident, would the victim of adultery be entitled to any indemnity, and what would be the amount of this indemnity in case she is entitled to it?

A. Definition of Ifdhaa' Scholars have provided three different definitions of ifdhaa'49, namely: First Definition: The Ifdhaa' is the removal of the septum, or divider,

between a woman's urinary and menstrual tracts. This is the opinion of the Hanafites, one of the views expressed by the Maalikites, the Shaafi'ites and the Hanbalites.50 They argue that damaging the divider between the front and back passages is highly unlikely, as this divider is wide enough to resist such damage.51

In my estimation, even though it seems to be unlikely, it cannot be utterly impossible.

Second Definition: The Ifdhaa' is the removal of the septum, or divider, between the front and back passages. This is one of the views expressed by the Hanafites, the Shaafi'ites and the Hanbalites.52

The argument they advance is that the diyah is required only if the entire function has been damaged, and that this can only occur by damaging the divider between the front and back passages. They further argue that the damage affecting the divider between a woman's urinary

49 The Hanbalies call it 'fatq', or rupture. See Al-Mughnee, 9/169 and 171 and Kashshaaf Al-

Qinaa', 3/336. 50 See Badaa'i' As-Sanaa'i', 7/319; Haashiyat Ibn 'Aabideen, 6/567; Adh-Dhakheerah, 12/372;

Ad-Dardeer's Ash-Sharh Al-Kabeer, 4/277; Minah Al-Jaleel, 19/123; Al-Muhadh-dhab, 2/208; Rawdhat At-Taalibeen, 7/160; Al-Haawee, 12/293; Al-Mughnee, 12/169; Al-Insaaf, 10/112 and Kashshaaf Al-Qinaa', 3/336.

51 See Mughnee Al-Muhtaaj, 4/74 and Al-Mughnee, 12/169. 52 See Haashiyat Ibn 'Aabideen, 65/567; Al-Muhadh-dhab, 2/208; Majma' Adh-Dhamaanaat,

p. 202; Rawdhat At-Taalibeen, 7/160; Al-Mughnee, 12/169 and Al-Insaaf, 10/113.


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and menstrual tracts only partially, but not fully, damages the intercourse function and thus a full diyah is not required.53

In refutation of this view, I assume that the entire view is based on the Shaafi'ites's opinion which states that a full diyah must be paid in case of an ifdhaa' incident, and this is a controversial issue.

They also argue that if ifdhaa' really meant the destruction of the septum between a woman's urinary and menstrual tracts, it would have a fellow part in the body, in this case the septum between the front and back passages. Therefore, a full diyah is not required for destroying one part of an organ which has a fellow part in the body.54

In refutation of this, I believe that it is not acceptable to claim that the septum between a woman's urinary and menstrual tracts has a fellow part, namely, he septum between the front and back passages. Were we to accept this argument, this would certainly be based on the view which states that a full diyah becomes due as a result of causing an ifdhaa' incident, which represents a controversial issue.

Third Definition: The Ifdhaa' includes both the removal of the septum, or divider, between a woman's urinary and menstrual tracts as well as the septum between the front and back passages. This is the view held by some scholars amongst the Shaafi'ites and the Hanbalites.55 In support of this opinion, they have argued that:

1. Sexual enjoyment is lacking if either septum is damaged.56 2. In both cases, incontinence cannot be prevented.57 The preponderant view is therefore the third one given the cogent

evidence brought forth and the convincing arguments furnished. B. Indemnity for ifdhaa' If a man commits adultery with a young girl or a woman against her

will and has become involved in an ifdhaa' incident58, he becomes liable

53 See Al-Haawee, 12/293 and Al-Muhadh-dhab, 2/208. 54 See Al-Majmoo', 19/125. 55 See Rawdhat At-Taalibeen, 7/160; Mughnee Al-Muhtaaj, 4/75; Al-Insaaf, 10/113 and

Kashshaaf Al-Qinaa', 3/336. 56 See Rawdhat At-Taalibeen, 7/160; Mughnee Al-Muhtaaj, 4/75 57 See Rawdhat At-Taalibeen, 7/160. 58 See Al-Mabsoot, 9/75; Badaa'i' As-Sanaa'i', 7/319; Haashiyat Ibn 'Aabideen, 6/567; Adh-

Dhakheerah, 2/372; Bulghat As-Saalik, 3/417; Al-Haawee, 12/296; Al-Majmoo', 19/126; Al-Mughnee, 12/171 and Sharh Az-Zarkashee, 6/175.


94 Al-Adl (40)

for the ifdhaa' indemnity, because the ifdhaa' in this case has resulted from an illegal intercourse and against the victim's will. Therefore, he becomes liable for the damage he has caused, as is the case with all offences, even if the victim is a little girl who consents to the act, because her consent is not considered acceptable given her tender age, and thus her right still holds and cannot be waived.59

A question arises here: If the woman with whom adultery has been committed has shown willingness to commit the act, would she be entitled to the ifdhaa' indemnity? Scholars have expressed two different opinions, as follows:

First Opinion: She is not entitled to this indemnity. This is the view expressed by the Hanafites, the Maalikites and the Hanbalites.60

In support of their opinion, they contend that the damage has occurred following her willingness to commit the act; therefore, she is not entitled to the indemnity.61

Second Opinion: She is entitled to the indemnity. This is the view held by the Shaafi'ites.62 In support of this view, they argue that the function of intercourse has fully or partially been damaged, and that the woman's willingness to commit the act was for intercourse and not for ending up with an ifdhaa'case. They also contend that intercourse is separate from the ifdhaa' incident, for her willingness does not necessarily imply her consent to suffering from an ifdhaa' case.63

In reply to this argument, I believe that the offender has done only what he has been permitted to do, and that ifdhaa has occurred as a result of doing an act which he has been allowed to do, and thus he is not liable for the ifdhaa' indemnity.

The preponderant view is definitely the first one as its proponents furnish more cogent evidence in its favour and provide satisfactory refutations of their opponents' views.

59 See Al-Mabsoot, 9/75; Badaa'i' As-Sanaa'i', 7/319 and Al-Mughnee, 12/171. 60 See Badaa'i' As-Sanaa'i', 7/319; Haashiyat Ibn 'Aabideen, 6/567; At-Taaj Wal-Ikleel, 6/263;

Haashiyat Ad-Dasooqee, 4/278; Al-Furoo', 9/460 and Sharh Muntahaa Al-Iraadaat, 3/326. 61 See Badaa'i' As-Sanaa'i', 7/319; Haashiyat Ibn 'Aabideen, 6/567; Haashiyat Ad-Dasooqee,

4/278 and Al-Mughnee, 12/171-172. 62 See Al-Haawee, 12/296; Rawdhat At-Taalibeen, 7/161 and Asnaa Al-Mataalib, 4/65. 63 See Al-Haawee, 12/296; Asnaa Al-Mataalib, 4/65 and Mughnee Al-Muhtaaj, 4/74.


Al-Adl (40) 95

C. The Ifdhaa' Amount If a man commits adultery with a woman and has been consequently

responsible for an ifdhaa' incident, he becomes liable for indemnity, as has been mentioned above. What is therefore the amount of this indemnity? Scholars have expressed three different opinions regarding this point, as follows:

First Opinion: He is liable for one third of the diyah if the victim is incontinent; otherwise, he is liable for the diyah in full. This is the view of the Hanafites and the Hanbalites.64

In support of this view, they have provided the following arguments: 1. Umar ibn Al-Khattaab65 (may Allah be pleased with him)

prescribed one third of the diyah66 for an ifdhaa' offence, and none of the Prophet's companions differed with him over this decision, hence their unanimous agreement in this regard.67

I believe, however, that this report is rather 'weak'.68 2. This offence damages the septum, or divider, between the

urinary and menstrual tracts, and thus one third of the diyah is required, by analogy with that for an abdominal (jaa'ifah)69 wound.70

64 See Al-Mabsoot, 9/75; Badaa'i' As-Sanaa'i', 7/319; Haashiyat Ibn 'Aabideen, 6/567;Abu Al-

Khattaab's Al-Hidaayah, 2/122; Al-Mughnee, 12/170 and Al-Insaaf, 10/113. 65 His full name is 'Umar ibn Al-Khattaab ibn Nufayl ibn 'Abd Al-'Uzzaa, from the

Quraysh tribe, known by his kunyah Abu Hafs. He was born thirteen years after the Year of the Elephant. He was a distinguished notable among the Qurayshites and represented his tribe in other countries before the advent of Islam. He fought at the Battle of Badr as well as the rest of the battles. He was appointed caliph after the demise of Abu Bakr As-Siddeeq. He was the first person in Islamic history to introduce the Islamic calendar, which is based purely on lunar cycles and dating from the Prophet's migration from Makkah to Madeenah. He died in 23 AH. See Al-Istee'aab, 2/450 and Al-Isaabah, 2/511.

66 This reported was narrated by Ibn Abee Shaybah in his Musannaf, Book of Blood Money, 9/238.

67 See Al-Mughnee, 12/170; Sharh Az-Zarkashee, 6/175 and Sharh Muntahaa Al-Iraadaat, 3/325.

68 See Irqaa' Al-Ghaleel, 7/331. 69 A jaa'ifah wound is one which reaches the gut and it is only in the back or abdomen.

(Translator's Note) 70 See Al-Mabsoot, 9/76; Badaa'i' As-Sanaa'i', 7/319; Al-Mughnee, 12/170 and Sharh Az-

Zarkashee, 6/175.


96 Al-Adl (40)

In response to this argument, it has been contended that the analogy holds but a difference exists; for one third of the diyah is required in the case of an abdominal (jaa'fah) wound but only if the wound heals up, otherwise the body will be affected, in which case the diyah is to be paid in full. The ifdhaa', on the other hand, does not normally heal up, in which case the diyah is to be paid in full. Were it to heal up, the diyah would not be to be paid in full, but a juristic assembly (hukoomah) is to be held to estimate the proper diyah to be paid, hence the difference between the two.71

In refutation of this contention, healing up regarding an abdominal (jaa'ifah) wound does not mean to become healthy again but rather the wound does not spread and affect the whole body, in which case a diyah in full is required, and hence its close resemblance to an abdominal (jaa'ifah) wound.

Proponents of this opinion also contend that a full diyah is required in case of incontinence and argue that ifdhaa' is an offence which destroys a certain function which is unique and has an intended benefit in the body, namely the ability to control the bladder (continence); therefore, if such use or function is destroyed, a complete diyah becomes due.72

They also hold that the amount of the diyah is not to be increased and argue that the destruction of a certain organ leads to the destruction of only its uses and thus the offender is liable only for one single diyah. To clarify, if someone cuts off the tongue of another person and the latter loses the ability of speaking and tasting, the offender is liable only for one diyah despite the fact that the act of cutting this organ has resulted in the loss of two uses or functions, namely speech and taste.73

In response to this view, it has been contended that cutting off the tongue requires the payment of only one diyah because the tongue's two functions pertain to the affected organ, and that is why the offender cannot be liable for these functions in addition to his liability for the offence of cutting off the tongue.74

71 See Al-Haawee, 12/294. 72 See Al-Mabsoot, 9/75 and Kash-shaaf Al-Qinaa', 6/56. 73 See Al-Mughnee, 12/171. 74 See Al-Haawee, 12/294.


Al-Adl (40) 97

Second Opinion: He is liable for a complete diyah if he is responsible for an fdhaa' incident and the victim can still control the bladder (i.e. continent). However, if the victim cannot control the bladder, the offender is liable for a diyah and a juristic assembly (hukoomah) is also to be held to estimate an extra amount of diyah. This is the view held by the Shaafi'ites.75

In support of the view that a complete diyah is due as a result of an ifdhaa' case, they state the following:

1. The internal organs of the body are much dearer than the external ones and one fears for their safety more than that one fears for that of the external ones; therefore, a complete diyah is required.76

In refutation of this claim, I believe that the payment of the diyah is not based on whether or not a certain organ is internal or external or whether one fears for its safety more than one fears for that of an external organ. Therefore, it is not acceptable that the destruction of each internal organ requires the payment of a complete diyah.

2. The septum, or divider, between the front and back passages has only one single function in the body, and thus it is similar to organs which have one single member, such as the tongue and the nose, the destruction of each of which requires the payment of a complete diyah.77

In refutation of this argument, I believe that this applies only if incontinence occurs as a result of the destruction of the divider between the two passages. However, we are concerned here with a case where this divider remains intact.

3. The act of ifhaa' negatively affects reproduction, for the sperm does not settle where it should be as a result of having been mixed with urine, and thus it is similar to the act of cutting off the penis and the testicles, which calls for a complete diyah. Ifdhaa' is just the same and also requires a complete diyah.78

In response to this argument, I believe that this cannot be true, for if it really happened, which is highly unlikely, the diyah would certainly be

75 See Al-Haawee, 12/293; Al-Muhadh-dhab, 2/208 and Rawdhat At-Taalibeen, 7/161. 76 See Al-Haawee, 12/294. 77 Ibid. 78 Ibid.


98 Al-Adl (40)

due as a result of having reproduction been negatively affected but not because of the act of ifdhaa' itself.

Regarding the view that a juristic assembly (hukoomah) is to be held to estimate an extra amount of diyah in addition to the diyah for the commission of the ifdhaa' act, they contend that given that the bladder may and may not be controlled (continence and incontinence) in the case of an ifdhaa' incident, it becomes obvious that this occurs in a place other than the one ifdhaa' has taken place, in which case its function has moved somewhere else, an extra amount is to be specified in addition to that of the fdhaa' indemnity, for two functions are involved here.

In refutation of this contention, opponents of this view argue that this is not right, for if proponents of this opinion require the payment of a diyah for the destruction of two functions, they should require the payment of two diyahs instead, one for each damaged function: one for incontinence and the other for ifdhaa'. They further argue that proponents of this view have not stated this but have only required holding a juristic assembly (hukoomah) to estimate the extra amount of diyah.79

Third Opinion: A juristic assembly (hukoomah) is to be held to estimate a diyah for the commission of the ifdhaa' act. This is the view of the Maalikites.80

However, a juristic assembly (hukoomah), according to the Maalikites, is held and a dower is estimated for an ordinary woman and one who has been a victim of ifdhaa'. The difference constitutes the indemnity for ifdhaa'.81

I have not, however, found any evidence whatsoever substantiating this view.

Fourth Opinion: A complete diyah is due as a result of an ifdhaa' incident, whether or not the bladder can be controlled. This is the view of Ibn Al-Qaasim82 from amongst the Maalikites, but the Shaafi'ites consider this view rather weak.83

79 See Al-Mughnee, 12/171. 80 See Al-Mudawwanah, 6/254; Adh-Dhakheerah, 12/372; Mawaahib Al-Jaleel, 6/263; Sharh

Al-Kharshee, 8/41 and Ad-Dardeer's Ash-Sharh Al-Kabeer, 4/277. 81 See Sharh Al-Kharshee, 8/41 and Ad-Dardeer's Ash-Sharh Al-Kabeer, 4/277. 82 His full name is Abu 'Abdullaah 'Abd Ar-Rahmaan ibn Al-Qaasim ibn Khaalid Al-

'Atqee. He was born in 132 AH. He was a leading Maalikite jurist who was known for


Al-Adl (40) 99

In support of their view, they contend that ifdhaa' is bound to cause a woman to become incontinent and deprives her of sexual pleasure as well as conception. These functions, they argue, are dearer to her than having her labia minora and labia majora, the cutting of which require the payment of a full diyah.84

In refutation of this, I argue that this case applies only if she becomes incontinent and cannot control the bladder; otherwise, no diyah is due.

D. The Healing up of the Septum, or Divider If a man commits adultery with a woman and thus becomes involved

in an ifdhaa' incident, and then the septum, or divider, heals up and its function is restored, would he still be liable for ifdhaa' indemnity?

Muslim jurists85 have expressed two main opinions in this regard, as follows:

First Opinion: The diyah is no longer due but a juristic assembly (hukoomah) is to be held to estimate the indemnity. This is one the views expressed by the Shaafi'ites and the Hanbalites.86

In support of their view, they argue that the diyah was only due as a result of the damage caused to the septum, but now that the septum has healed up and its function has been restored, a diyah is no longer required but a juristic assembly is to be held to estimate the indemnity on account of the resultant defect.87

In refutation of this view, it has been contended that the diyah due as a result of causing an abdominal wound (jaa'ifah) is not waived if the wound heals up, for it is imposed on account of the type of wound

piety and erudition. He narrated Prophetic traditions from Maalik, Al-Layth and Ibn Al-Maajishoon. His disciples include Usbugh, Sahnoon and 'Eesaa ibn Deenaar. He actually related Al-Mudawwanah from Imaam Maalik. He died in 191 AH. See Wafayaat Al-A'yaan, 3/129 and Ad-deebaaj Al-Mudhahhaab, 1/465.

83 See Adh-Dhakheerah, 12/372; Ash-Sharh As-Sagheer, 3/417; Minah Al-Jaleel, 9/124 and Rawdhat At-Taalibeen, 7/161.

84 See Haashiyat Ad-Dasooqee, 4/278; Bulghat As-Saalik, 3/417 and Minah Al-Jaleel, 9/124. 85 The Maalikites have not expressed any opinion regarding this issue, for they hold that a

diyah is not due in the case of an ifdhaa' incident but rather a juristic assembly (hukoomah) is to be held to assess the indemnity. See Adh-Dhakheerah, 3/372 and At-Taaj Wal-Ikleel, 6/263.

86 See Al-Haawee, 12/294; Rawdhat At-Taalibeen, 7/162 and Al-Mughnee, 12/171. 87 See Al-muhadh-dhab, 2/208; Mughnee Al-Muhtaaj, 4/75 and Al-Mughnee, 12/171.


100 Al-Adl (40)

caused. Similarly, the diyah for the ifdhaa', which constitutes a similar case here, is not to be waived either if it heals up.88

Second Opinion: The diyah is not to be waived. This is the view of the Hanafites and of the various views expressed by the Shaafi'ites and the Hanbalites.89

In support of this view, they argue that this is similar to the case of an abdominal wound (jaa'ifah) whose diyah has already been decided by the Sharee'ah, and thus the indemnity due on any similar case is not to be waived, in accordance with the general evidence provided by the various juristic texts.90

The preponderant view is unquestionably the second one due to the cogency of the evidence its proponents have advanced and the arguments they have furnished in refutation of their opponents' contentions.

IV. The Right of an Adultery Victim to Retaliation If a man commits adultery with a woman and she dies in the process,

would he be subject to retaliation? Muslim jurists are agreed that if the victim is an adult and is not

physically able to tolerate sexual activity, then no retaliation is due but a diyah is required, for the act of killing here is reduced in this case to manslaughter.91 They have, however, expressed two different opinions if the victim is very young or is not physically able to tolerate sexual activity, as follows:

First Opinion: The act of killing her is certainly intentional and thus he subject to retaliation. This is the view of the Maalikites, the Hanbalites and the correct view according to the Shaafi'ites.92

88 See Al-Muhadh-dhab, 2/208 and Mughnee Al-Muhtaaj, 4/75. 89 See Badaa'i' As-Sanaa'i', 7/324; Al-Bahr Ar-Raa'iq, 8/350; Rawdhat At-Taalibeen, 7/161;

Haashiyat Qayloobee, 4/142; Kash-shaaf Al-Qinaa', 6/56 and Sharh Muntahaa Al-Iraadaat, 3/326.

90 See Kash-shaaf Al-Qinaa', 6/56 and Sharh Muntahaa Al-Iraadaat, 3/326. 91 See Al-Mabsoot, 9/60; Haashiyat Ibn 'Aabideen, 6/567l; Haashiyat Al-'Adawee 'Alaa Al-Al-

Kharshee, 8/41; Al-Haawee, 12/269; Rawdhat At-Taalibeen, 7/160 and Al-Mughnee, 12/170.

92 See Adh-Dhakheerah, 12/349; Minah Al-Jaleel, 9/78; Haashiyat Al-'Adawee 'Alaa Al-Al-Kharshee, 8/41; Rawdhat At-Taalibeen, 7/96; Mughnee Al-Muhtaaj, 2/45; Al-Furoo', 9/461 and Al-Insaaf, 10/113.


Al-Adl (40) 101

In support of this, they contend that killing in this case is more often than not intentional.93

Second Opinion: The act of killing here is not considered intentional and thus he is not subject to retaliation; a diyah, however, is due in this case. This is the view of the Hanafites and one of the views expressed by the Maalikites as well as a view that is considered weak by the Shaafi'ites.94

In support of their opinion, they argue that, generally speaking, intercourse is not meant to cause death and thus it is by no means considered intentional.95

In refutation of this contention, I presume that this act does usually cause death, and even if does not it is has indeed caused death in this case.

The preponderant view is definitely the first one due to the cogency of the evidence its proponents have advanced and the arguments they have furnished in refutation of their opponents' contentions.

V. The Rights of an Adultery Victim Combined I have mentioned above that a victim of adultery is entitled to certain

rights over the adulterer, and the question that arises here is: Can she be entitled to all these rights combined or to some of them or can they be included in one another?"

I have already discussed the issue of the indemnity for defloration and its inclusion in the dower, and there is no need to reiterate it here.

If the woman with whom adultery has been committed suffers from an ifdhaa' case and it has been decided that she is entitled to a dower, would the right to the ifdhaa' indemnity and that of the dower be included in each other so much so they are reduced to one single right?

Jurists have expressed the following two opinions: First Opinion: The two rights are not to be reduced to one single right.

This is the view of Muhammad ibn Al-Hasan from amongst the

93 See Rawdhat At-Taalibeen, 7/96. 94 See Haashiyat Ibn 'Aabideen, 6/567; Majma' Adh-Dhamaanaat, p. 202; Takmilat Al-Bahr

Ar-Raa'iq, 8/350; Haashiyat Al-'Adawee, 8/41 and Rawdhat At-Taalibeen, 7/97. 95 See Rawdhat At-Taalibeen, 7/97.


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Hanafites and one of the various views held by the Maalikites, the Shaafi'ites and the Hanbalites.96

In support of this view, they have provided the following arguments: 1. The dower is paid for the intercourse itself and the diyah is paid

for the offence committed, and so they constitute two different rights which have been due for two different causes.97

2. Just as the dower cannot be included in part of the diyah, it cannot be included in the entire diyah, for the diyah is deferred but the dower is paid instantly, and thus they cannot be included in each other.98

In refutation of this contention, it has been argued that the dower is not included in part of the diyah because payment of the dower is considered as payment for a part; similarly, payment of one third of the diyah is also considered as payment of a part; and payment for one part does not suffice for the payment of the other part. The dower should be included in the diyah because payment of the latter is deemed payment for the whole, in which case, payment for any part whatsoever is naturally included in it.99

I presume, however, that payment for the whole includes payment for the parts but only if they are not different. Payment with regard to the issue under study is required for two things which are totally different.

Second Opinion: If the required amount to be paid is one third of the diyah, then the dower indemnity is not included in it; if, however, the entire diyah is required to be paid, then they are included in each other. This is the view of Abu Haneefah and Abu Yoosuf.100

In support of this view, they argue that if the act which necessitates indemnity is one and the same and the indemnity prescribed for it

96 See Al-Mabsoot, 9/76, Badaa'i' As-Sanaa'i', 7/319; Sharh Al-Kharshee, 8/41; Ad-Dardeer's

Ash-Sharh Al-Kabeer, 4/278; Minah Al-Jaleel, 9/124; Al-Haawee, 12/296; Rawdhat At-Taalibeen, 7/161; Al-Mughnee, 12/171 and Kash-shaaf Al-Qinaa', 6/56.

97 See Badaa'i' As-Sanaa'i', 7/319; Minah Al-Jaleel, 9/125; Al-Haawee, 12/172 and Kash-shaaf Al-Qinaa', 6/56.

98 See Al-Mabsoot, 9/76 and Badaa'i' As-Sanaa'i', 7/319. 99 See Badaa'i' As-Sanaa'i', 7/319. 100 See Al-Mabsoot, 9/76 and Badaa'i' As-Sanaa'i', 7/319.


Al-Adl (40) 103

amounts to that prescribed for human loss (i.e. complete diyah), then anything other than it is included in it.101

I presume, however, that this contention cannot be right for the simple reason that the act which necessitates indemnity could be one and the same; for it is intercourse which necessitates payment of the dower while it is the ifdhaa' act which necessitates the diyah, and thus they can by no means be included in each other due to their different causes.


Section Two: The Right of a Theft Victim to His Stolen Property

Scholars are unanimously agreed that the stolen property is to be returned to its owner if it is still in the thief's possession and has not been subjected to damage. They are also agreed that even if the thief is not subject to having his hand cut off for his commission of theft, he is liable for indemnity whether the stolen property is till in his possession and intact or lost, and whether he is solvent or in straitened circumstances. However, they have expressed different opinions as to whether he is liable for indemnity if his hand has already been cut off, including the following:

First Opinion: The thief is responsible for financial coverage of the stolen property. This is the view of the Shaafi'ites and the Hanbalites.102

To lend support to this view, they have advanced the following arguments:

1. The stolen property must be returned to its owner if it is still in the thief's possession and not destroyed, and the latter becomes liable for indemnity if it lost or destroyed, according to a Prophetic tradition (hadeeth) which states, "A stolen property remains in the thief's custody

101 Ibid. 102 See Al-Umm, 6/151; Al-Haawee, 13/342; Al-Muhadh-dhab, 2/284; Al-Mughnee, 12/454;

Al-Mubdi', 9/143 and Kash-shaaf Al-Qinaa', 6/149.


104 Al-Adl (40)

until he returns it [to its rightful owner or compensates for it if it is destroyed]."103

2. To amputate the hand of the thief represents one of Allah's rights while compensation for the stolen property is the right of an individual or a private claim, both of which are to be observed and can both be combined. A similar case is the killing of game owned by others in the Makkan sanctuary, in which case both the respective penalty and compensation for the game killed are required.104

Second Opinion: The thief does not compensate for the stolen property after his hand has been amputated, whether or not he has been behind the loss or destruction of the stolen property. This is the widely known view held by the Hanafites.105

In support of this view, they have put forward the following arguments:

1. Allah's statement, "As to the thief, Male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in power."106

Here, they argue, Almighty Allah has made the amputation of the hand the sole punishment required for the crime of theft, and He has not mentioned anything else with it. Were compensation required, they further contend, amputation would be considered part of the

103 See Mughnee Al-Muhtaaj, 2/177 and Al-Mughnee, 12/454. This hadeeth was reported by

Abu Daawood in his Sunan, Book of Commercial Transactions, 3/526; At-Tirmidhee in his Sunan, Book of Commercial Transactions, 3/557 and Ibn Maajah in his Sunan, Book of Commercial Transactions, 2/802. This hadeeth is however classified as da'eef (weak) because Al-Hasan Al-Basree, one of its transmitters, is known for being a mudallis (i.e. someone who narrates from someone he met something he did not hear). Here, he is reported to have narrated it from Samurah, but the fact that whether or not he ever heard any traditions from Samurah is highly controversial. The preponderant view is that Al-Hasan Al-Basree narrated only three reports from Samurah, and the one under discussion is not among them. See Nasb Ar-Raayah, 4/167; Tahdheeb Sunan Abu daawood, 9/474-5; At-Talkhees Al-Habeer, 3/53 and Irwaa' Al-Ghaleel, 5/348.

104 See Al-Haawee, 13/343, Nihaayat Al-Muhtaaj, 7/465; Al-Mughnee, 12/454; Sharh Az-Zarkashee, 6/349 and Kash-shaaf Al-Qinaa', 6/149.

105 See Al-Mabsoot, 9/156; Badaa'i' As-Sanaa'i', 7/84 and Tabyeen Al-haqaa'iq, 3/231. 106 Soorat Al-Maa'idah, 5:38.


Al-Adl (40) 105

punishment, a ruling which would serve to abrogate the ruling mentioned in the Qur'an.107

In refutation of this contention, it has been argued that this verse does not in any way indicate that punishment by amputation and compensation are not combined, and thus amputation does not rule out the possibility of compensation or returning the stolen property.108

In addition to this refutation, I presume that Muslim jurists are unanimously agreed that the stolen property has to be returned to its rightful owner if it is still sound and in the thief's possession, and this clearly serves to confute their argument based on the above-mentioned verse.

2. The Prophet (may Allah's peace and blessings be upon him) said, "A thief who has been subjected to a hadd punishment must not be made to pay an indemnity for his theft."109 This provides a clear proof in this regard.110

In refutation of this, the following arguments have been put forward: ONE: The hadeeth quoted above is weak (dha'eef).111 In response, they argue that the hadeeth is authentic (saheeh)112, but I

believe that this is by no means true, for they only classify it as such because of the reliability of one of its transmitters even if this transmitter is known for reporting mursal reports, but the correct view is that a

107 See Al-Mabsoot, 9/157 and Badaa'i' As-Sanaa'i', 7/84. 108 See Al-Haawee, 13/343. 109 This hadeeth was reported by An-Nasaa'ee in his Sunan, Book of Amputating the Hand of

the Thief, 8/93 and Ad-Daaraqutnee in his Sunan, Book of Hadd Punishments and Blood Money, 3/182. This hadeeth is, however, categorized as dha'eef (weak) for the fact that it is mursal (i.e. 'hurried': If the Companion link between a Successor and Muhammad is missing, when a Successor says, 'The Prophet said ...'(Translator's Note))”. In addition, Sa'd ibn Ibraaheem, one of the report's transmitters, is majhool, or unknown, and there is discontinuity in the chain of transmitters between Musawwar and his grandfather 'Abdur-Rahmaan ibn 'Awf. See Nasb Ar-raayah, 3/375 and Dha'eef Sunan An-Nsasaa'ee, p. 217.

110 See Al-Mabsoot, 9/157; Badaa'i' As-Sanaa'i', 7/84; Tabyeen Al-haqaa'iq, 3/232; Al-Binaayah, 6/460 and Fath Al-Qadeer, 5/169.

111 See nasb Ar-Raayah, 3/375; Dha'eef Sunan An-Nasaa'ee, p. 217; Al-Haawee, 13/343 and Al-Mughnee, 12/454.

112 See Fath Al-Qadeer, 5/169.


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mursal report is in reality weak (dha'eef) even if it is narrated by a reliable and trustworthy transmitter.113

TWO: Even if this hadeeth is authentic, not making the thief pay an indemnity simply means he is not supposed to pay towards the remuneration for the person who undertakes amputation.114

This contention has been opposed as follows: a. This response can be refuted by another hadeeth which states, "A

thief is not to pay compensation for stolen property after he has been subjected to a hadd punishment."115

I do, however, oppose this by saying that this hadeeth is rather weak (dha'eef), as has already been mentioned above.

b. Claiming that compensation exclusively applies to the remuneration given to the person who undertakes amputation is not true, and that it is more general here.116

I object to this, for their claim here implies that if the stolen property is still in the thief's possession they make it necessary that he has to return it to its rightful owner, and that compensation does not assume a general nature.

THREE: Before the hadd punishments had been prescribed, punishments were effected through compensations, but when the hadd punishments were prescribed, compensations were dropped. Therefore, the Prophet's statement which states that a thief who has been subjected to a hadd punishment must not be made to pay an indemnity for his theft clearly refers to the compensations which the offender was made to pay before the hadd punishments were prescribed.117

3. Compensation, or responsibility for financial coverage, entails transfer of ownership, and any compensation made becomes the property of the thief the moment the compensation is made. Therefore, if we assume that the thief is liable for compensation, ownership of the stolen property is transferred to him the moment he has committed theft. As ownership prevents the possibility of amputation, it follows

113 For a detail discussion of this yype of hadeeth, see Muqaddimat Ibn As-salaah, p. 26 and

Tadreeb Ar-Raawee, 1/162. 114 See Al-Haawee, 13/343 and Al-Mughnee, 12/454. 115 See Fath Al-Qadeer, 5/169. 116 See Al-Binaayah, 6/460. 117 See Al-Haawee, 13/343.


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that the thief's hand has been amputated regarding property which belongs to him, which is obviously impermissible and nonsensical.118

In refutation of this argument, it has been contended that this statement is based on a general principle in the Hanafite school of jurisprudence which cannot be approved.119

4. Amputation is a hadd punishment which can be prevented in case of doubt, and responsibility for financial coverage is a form of compensation which applies even in case of doubt, and thus they cannot be combined for one and the same cause, such as combining payment of the diyah and retaliation.120

In refutation of this argument, it has been contended that in this case retaliation and the payment of the diyah have been established for one and the same cause and thus cannot be combined, but amputation and compensation have been established for two different causes and thus can be combined. A similar case is the combination of paying the value of a slave and expiation in case the slave has been killed.121

5. Compensation can only be established by taking the money of a person who is protected by law122; however, the money taken at the time of committing theft is not as such, nor is it his property. For if it is his own property, it would certainly be lawful for hi, in which case it becomes in case of doubt that prevents the amputation of thief's hand. Now that amputation is obligatory in this case, compensation is not due.123

In refutation of this argument, it has been contended that this statement is based on a general principle in the Hanafite school of jurisprudence which cannot be approved

Third Opinion: The thief is not responsible for financial coverage after his hand has been amputated if the stolen property has been damaged or destroyed, but he becomes responsible for financial coverage in case

118 See Badaa'i' As-Sanaa'i', 7/48 and 85; Tabyeen Al-Haqaa'iq, 3/232; Al-Binaayah, 6/461;

Fath Al-Qadeer, 5/169 and Haashiyat Ibn 'Aabideen, 4/110. 119 See Al-Mughnee, 12/454. 120 See Al-Mabsoot, 9/157. 121 See Al-Haawee, 13/343. 122 Such as a mu'aahid, a non-Muslim who is permitted by a Muslim government to enter its

towns and carry on traffic. (Translator's Note) 123 See Badaa'i' As-Sanaa'i', 7/85 and Al-Binaayah, 6/461.


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he is behind this damage or destruction. This is one of the views held by the Hanafites.124

In support of the view that he becomes responsible for financial coverage in case he is behind this damage or destruction, they have advanced the following arguments:

1. The stolen property remains in the thief's possession after amputation by way of a trust, and the evidence for this is that he ought to return it to its rightful owner and he becomes responsible for financial coverage if he has damaged it.125

2. Theft was committed as a result of dispossession, and using up the stolen property is an act that is definitely separate from that of commiting theft. The belief that the stolen property is intrinsically lawful, being the thief's right, is the reason behind commiting theft and not using up the stolen property.126

In refutation of this, it has been argued that the destruction of the stolen property naturally follows the intention behind theft anyway and thus completes the reason behind the act itself and does not constitute a different act.127

Fourth Opinion: If the thief happens to be solvent from the time he has committed the crime until the time his hand has is amputated, he is responsible for financial coverage of the stolen property; however, if he becomes in desperate financial straits at any time after the commission of the crime and the amputation of his hand, he is not responsible for financial coverage. This is the view held by the Maalikites.128

In support of responsibility for financial coverage in times of solvency, they have put forward the same arguments employed by the Shaafi'ites and the Hanbalites; and in support of freedom from such responsibility while in straitened circumstances, they have advanced the same arguments employed by the Hanafites.

The reason for distinguishing between times of solvency and dire straits, they argue, is that making a person in dire straits responsible for

124 See Badaa'i' As-Sanaa'i', 7/85 and Fath Al-Qadeer, 5/169. 125 See Al-Mabsoot, 9/158 and Badaa'i' As-Sanaa'i', 7/85. 126 See Al-Mabsoot, 9/158 and Al-Binaayah, 6/462. 127 See Al-Binaayah, 6/462 and Fath Al-Qadeer, 5/170. 128 See At-Tafree', 2/230; Al-Ma'oonah, 3/1428; Bidaayat Al-Mujtahid, 2/452 and Adh-

Dhakheerah, 12/189.


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financial coverage combines two punishments: compensation in dire straits will be established against him and amputation will affect an organ in his body, both of which affect one and the same entity; in times of solvency, however, compensation will affect only the person's property, while amputation will affect an organ in his body, both of which constitute two different entities, and thus there should be no objection to combining amputation and the responsibility of financial coverage.129

In response to this contention, the following arguments have been put forward:

1. As far as the item subject to responsibility for financial coverage is concerned, it does not matter whether the guarantor is solvent or in dire straits, as being in a state of dire straits only causes the injured party to delay his demand to claim compensation.130

2. If compensation becomes necessary, it cannot be waived due to being in a state of dire straits; conversely, if it is not necessary, it cannot become obligatory due to solvency.131

3. The Maalikites have not considered this distinction in certain matters that are similar to the one under discussion. For instance, they have not made a distinction whatsoever between a person who is solvent and one in straitened circumstances regarding the due penalty as a result of chasing game belonging to others as the penalty in this case is combined with the value of the game chased; nor have they made such a distinction regarding a hadd punishment and the dower.132

The Maalikite jurists have admitted that this opinion has been expressed by way of istihsaan133, as opposed to qiyaas.134

129 See Al-Ma'oonah, 3/1429 and Adh-Dhakheerah, 12/189. 130 See Tabyeen Al-Haqaa'iq, 3/232. 131 See Al-Haawee, 3/343. 132 See Ahkaam Al-Qur'aan, 2/613. 133 Istihsaan an Islamic term for juristic "preference". Muslim scholars may use it to

express their preference for particular judgements in Islamic law over other possibilities. It is one of the principles of legal thought underlying personal interpretation or ijtihaad, or the process of making a legal decision by independent interpretation of the legal sources, the Qur'an and the Sunnah. (Translator's Note)

134 Qiyaas refers to the process of analogical reasoning. (Translator's Note)


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Section Three: The Right of a Married Person who has been Falsely Accused of Adultery to Pardon his

Offender

Muslim scholars have expressed a difference of opinion regarding whether a married person who has been falsely accused of committing adultery (henceforth maqdhoof) has a right to forgive the accuser (henceforth qaadhif). Three opinions have been advanced in this respect:

First Opinion: The maqdhoof has the right to pardon the qaadhif, in which case the latter is no more subjected to the hadd punishment. This is the view of the Shaafi'ites and the Hanafites as well as one of the views held by the Maalikites.135

In support of this, they have put forward the following arguments: 1. The Prophet's statement, "Your lives, property and honour are

inviolable to one another until your meet your Lord, as is this day of yours and this month of yours."136

In this narration, they argue, the Prophet (peace be upon him) considers honour to be just as inviolable as are our lives and property.137

2. The Prophet (may Allah's peace and blessings be upon him) once said to his companions, 'Can't anyone of you be like Abu Dham Dham?' The Companions enquired, 'Who is Abu Dham Dham, Messenger of Allah?' He replied, 'When he gets up in the morning he says: O Allah, I offer my honour and life to Your slaves.138'"139

135 See Al-Haawee, 11/9 and 13/259; Al-Muhadh-dhab, 2/274; Rawdhat At-Taalibeen, 7/323;

Al-Furoo', 10/86; Al-Muntaqaa, 7/148; Al-Insaaf, 10/200; Mukhtasar At-Tahhaawee, p. 265; Al-Mabsoot, 9/109-110; Fath Al-Qadeer, 5/98 and As-hal Al-Madaarik, 3/174.

136 This hadeeth was reported by Al-Bukhaaree in his Saheeh, Book of Knowledge, 1/41 and Muslim in his Saheeh, Book of Oaths for Establishing the Responsibility for Murders, Fighting, Requital and Blood Money, 3/1306.

137 See Al-Haawee, 11/10. 138 This means he would pardon all those who disparage his honour as well as those who

abuse, wrong or hit him. (Translator's Note)


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This narration, they also contend, makes it clear that anything that is required to preserve a person's honour constitutes one of his rights, and that is allowed to offer this honour, which is his right, to others by pardoning them regarding his own right.140

3. The false accusation of a married person of committing adultery (henceforth qadhf) is analogous to qisaas141, in that both offences the punishment for each of which is inflicted on the body and which cannot be waived once admission has been confirmed. In addition, the punishment for them can only be carried out following the claim laid by the aggrieved party. In this case, it is similar to qisaas in that it constitutes the right of an individual, and thus any human being has the

right to pardon his offender. 142

In response to this argument, it has been contended that this view can be disproved by citing the hadd punishment for theft as an example, for this punishment can only be effected following the claim laid by the victim of theft.143

This contention has been refuted by the fact that the claim regarding a theft case is laid only in order to reclaim the stolen property and not to push for the implementation of the penalty of hand amputation for theft. However, claiming the stolen property is the right of an individual. Furthermore, there are some jurists who are of the view that the penalty of hand amputation ought to be effected even when a claim has not been made.144

139 This hadeeth was reported by Al-Bayhaqee in The Branches of Faith, 10/419, but it is

categorized as dha'eef (weak). See Irwaa' Al-Ghaleel, 8/32 and Dha'eef Sunan Abu Daawood, p. 482. It was also reported—albeit as a mursal narration--by Abu Daawood in his Sunan, Book of Etiquette, 5/127, and was classified as mursal and dha'eef due to the fact that 'Abdur-Rahmaan ibn 'Ajlaan is not known (majhool). Abu Daawood (Sunan: Book of Etiquette, 5/127) also reported it from Abu Qataadah as a maqtoo' narration and was classified as authentic (saheeh). See Irwaa' Al-Ghaleel, 8/33. A maqtoo' narration, or hadeeth, is a narration the chain of narrators of which traces back only to a successor of the Companions of the Prophet (peace be upon him). (Translator's Note)

140 See Al-Haawee, 11/10; Al-Muhadh-dhab, 2/274 and Al-Kaafee, 4/222. 141 That is, the law of equality in punishment. (Translator's Note) 142 See Al-Haawee, 11/10; Al-Muhadh-dhab, 2/274; Rawdhat At-Taalibeen, 7/323; Al-

Mughnee, 12/386; Al-Kaafee, 4/222 and Sharh Muntahaa Al-Iraadaat, 3/351. 143 See Badaa'i' As-Sanaa'i', 7/56. 144 See Al-Haawee, 11/11 and Al-Mughnee, 12/386.


112 Al-Adl (40)

4. The claim regarding a hadd punishment for the crime of qadhf is heard, an oath is to be taken, the judge decides the case based on his knowledge and one cannot go back on one's word after the confession has been made, which clearly indicates that the hadd punishment is the right of an individual, and thus it is possible that the aggrieved party can waive this right.145

In response to this argument, it has been argued that it is true that the injured party (the maqdhoof) does have a right to have the hadd punishment effected, but that Almighty Allah does also have a right which is supreme. There is ample evidence, opponents of this view further argue, that Allah's right regarding this issue must be considered, and there is also sufficient evidence that both the rights of Allah and those of men are involved here, but the right of Allah must come first. Besides, they further contend, a claim is to be made because the maqdhoof needs to lay such a claim against the qaadhif in order to remove the disgrace brought upon him, and doing so constitutes one of his rights.146

5. An analogy can be drawn here with debts, for both of them can be claimed and each one of them can be an inherited right, whereas Allah's rights do not need to be claimed, nor can they possibly be considered inherited rights.147

Second Opinion: The maqdhoof has no right whatsoever to pardon the qaadhif.148 This is the view expressed by the Hanafites, and one of the views held by the Maalikites and the Hanbalites.149

In support of this view, they have advanced the following arguments: 1. Any serious offence is of concern to the public, and it is the

public who will reap the benefit of implementing the hadd punishment regarding such an offence. The penalty required for such an offence

145 Ibid. 146 See Al-Mabsoot, 9/110. 147 See Al-Ma'oonah, 3/1411; Adh-Dhakheerah, 12/111 and Al-Haawee, 11/10-11. 148 The Hanafites maintain that if the maqdhoof pardons the qaadhif, this act of his is

considered invalid and prevents the implementation of the hadd punishment but it does not drop it altogether. They also hold if he pardons him and then he wants to claim his right again, he has every right to do so. See Al-Mabsoot, 9/110-111 and Al-Bahr Ar-Raa'iq, 5/39.

149 See Mujhtasar At-Tahhaawee, p. 265; Al-margheenaanee's Al-Hidaayah, 6/340; Al-Muntaqaa, 7/148; Adh-Dhakheerah, 12/109; Al-Kaafee, 4/222 and Al-insaaf, 10.201.


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actually constitutes one of Allah's rights. As the general meaning here is clearly implied in the qadhf offence, such an offence becomes one of Allah's rights.150

In reply to this contention, I assume that we unquestionably recognise Allah's right regarding the hadd punishment for the qadhf offence, but we do believe that the right of an individual seems to be preponderant in the case under study given the conclusive evidence mentioned above.

2. The execution of the hadd punishment regarding qadhf punishment rests with the Muslim ruler or judge, for it is the judge or the ruler who undertakes the duty of implementing punishments which constitute Allah's rights, while the act of claiming rights of individuals rests with people themselves.151

In response to this argument, it has been contended that the judge or the ruler undertakes such duty because the person eligible for the right may not be able to claim it himself or fears that he may commit an act of injustice by so doing. Therefore, the judge or ruler undertakes the duty in order to establish justice.152

In reply to this, it has been argued that allowing that injustice may incur is entirely baseless, because allowing such unfounded supposition also exists regarding, for instance, the right of the executioner and the right of the husband to administer ta'zeer153 against his wife. It also exists in matters which require retaliation, but all this has not prevented the aggrieved party from claiming their rights by themselves. Therefore, as the maqdhoof has not been allowed a chance to claim a right by himself, as in these cases, it becomes clear that undertaking such a duty does not constitute his right.154

In refutation of this claim, it has been argued that the husband inflicts discretionary correction on his wife because no one else can do that except him. Besides, she has no adversaries when he does so, and he does so for disciplinary purposes only, while showing kindness and compassion at the same time. As for the executioner, he also does not

150 See Badaa'i' As-Sanaa'i', 7/56. 151 See Al-Mabsoot, 9/120 and Badaa'i' As-sanaa'i', 7/56. 152 See Al-Haawee, 11/11. 153 Ta'zeer refers to the discretionary correction which is administered for offences, for

which hadd or 'fixed punishment', has not been appointed. (Translator's Note) 154 See Al-Mabsoot, 9/110.


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have any adversaries, which leave no room whatsoever for suspicion and unfounded suppositions. In matters which require the infliction of retaliation, suspicion is also ruled out because it is a matter with a well-defined nature. Moreover, if the aggrieved party thinks that he may not be able to inflict retaliation appropriately, he will be prevented from undertaking it.

3. An analogy can be drawn here with the punishment of stoning to death in case a married person commits adultery, for both of them set marriage as a condition. Given that they are similar in this regard, because stoning to death is classified a right of Allah, it follows that inflicting the hadd punishment for the qadhf offence is also a right of Allah.155

In reply to this argument, it has been contended that drawing an analogy here with adultery applies but with a difference, for while the hadd punishment for committing adultery may be dropped if one of the parties retracts his confession and the right to be applied can be effected without a claim having been made, the hadd punishment for qadhf lacks such traits.156

4. The rights of individuals become due by way of similarity or correspondence, and as there is no correspondence whatsoever between qadhf and the hadd punishment prescribed for it, it follows that it is a right of Allah, as the rights of Allah do no allow any correspondence whatsoever.157

In reply to this argument, I believe that things which allow correspondence constitute purely rights of individuals. I am not saying here that the right regarding qadhf offence is as such; what I am saying it that it constitutes both a right of Allah as well as a right of the individual.

5. The hadd punishment for qadhf has been prescribed to deter people from engaging in it, and a punishment prescribed for this purpose constitutes a hadd punishment, hence a right of Allah. Conversely, punishments for offences relating to the rights of individuals have been prescribed to have rights settled amongst people

155 See Al-Mabsoot, 156 See Al-Haawee, 11/11 and Al-Mughnee, 12/386. 157 See Al-Mabsoot, 9/109 and Badaa'i' As-Sanaa'i', 7/56.


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and are thus referred to as qisaas (retaliation or the law of equality in punishment) or ta'zeer (discretionary correction), not hadd punishment.158

In response to this, I again state that the qadhf punishment does constitute a right of Allah and I further add that it also includes a right of the individual, the latter being preponderant, based on the evidence previously mentioned.

Third Opinion: The maqdhoof has the right to pardon the qaadhif before the case is brought to the attention of the judge. However, if the hadd punishment decision is brought before the ruler, the maqdhoof is no longer entitled to such a right except in the following two cases:

1. If he does not wish to make his case public 2. In the case where a man accuses his married son of committing

adultery and vice versa. This is the well-known opinion of the Maalikites.159

In support of this opinion, they have advanced the following arguments:

1. The hadd punishment before it is presented before the ruler is the right of an individual, which naturally becomes the right of Allah as soon as it reaches the ruler, who is Allah's viceroy on earth.160

In refutation of this argument, I believe that a right which is purely that of the individual by no means turns into a right of Allah if it is brought before the ruler. The same thing applies to qadhf.

2. An analogy can be drawn here with the hadd punishment for theft which, once brought before the ruler, pardon may not be granted.161

In refutation to this argument, I consider that the analogy does apply in this case but there is still a difference; for the right of the hadd punishment for theft is purely Allah's, while that of the individual is only restricted to claiming the stolen property and not to have the offender's hand amputated. Therefore, whatever may be classified as

158 See Al-Mabsoot, 9/109 and Al-Binaayah, 6/338. 159 See At-Tafree', 2/226; Bidaayat Al-Mujtahid, 2/442; Adh-Dhakheerah, 12/109 and Ad-

Dardeer's Ash-Sharh Al-kabeer, 4/331. 160 See Adh-Dhakheerah, 12/111. 161 See Al-Muntaqaa, 7/148.


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being the right of Allah it does not matter whether or not it is brought before the ruler, for it is only brought before him to have it effected—as no one else is in a capacity to do so—and to establish the fact that the money has been taken with a view to stealing it and without the owner's consent.

Regarding the argument that the maqdhoof is no longer entitled to the right to pardon the qaadhif except in the case where he does not wish to make his case public, they contend that if this happens the aggrieved party's case will be known far and wide and he will thus be leaving something unpleasant for something far worse. Therefore, pardoning the qaadhif in this particular case is good for him in the first place.162

As for the second exception, they argue that love and compassion of the father towards his son and vice versa may lead the maqdhoof to falsely confess the sin of which he has been accused just to save the other party from suffering the penalty of flogging.163

The preponderant view is indisputably the first one due to the cogency of the evidence its proponents have advanced and the arguments they have furnished in refutation of their opponents' contentions. However, the qaadhif may be subjected to discretionary correction (ta'zeer) out of regard for Allah's right regarding the qadhf offence.

It remains to be said that the reason behind jurists' difference may be attributed to the differences they have expressed as to whether the crime of qadhf is more attached to the right of Allah, in which case granting pardon is not acceptable, or to the right of the individual, in which case the injured party has the right to pardon the offender.164

162 See Bulghat As-Saalik, 3/470. 163 See Al-Muntaqaa, 7/147. 164 See Al-Margheenaanee's Al-Hidaayah, 6/338; Haashiyat Ibn 'Aabideen, 4/52; Al-

Ma'oonah, 3/1410; Bidaayat Al-Mujtahid, 2/443; Asnaa Al-Mataalib, 4/136; Al-Kaafee, 4/222 and At-Tawdheeh, 3/1209.


Al-Adl (40) 117

Section Four: The Right of a Muhaarab165

Allah the Almighty mentions the hadd punishment for those who commit the crime of hiraabah thus: "The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter."166

The majority of Muslim scholars from amongst the Hanafites, the Shaafi'ites and the Hanbalites maintain that punishment ought to be inflicted according to the severity of the offence. Those who terrify people, they argue, but do not kill anyone or seize their property ought to be exiled from the land; those who seize their victims' property but do not kill any of them must have their hands and feet cut off from opposite sides; and those who kill their victims must also be killed.167

The Maalikite scholars, however, hold that, as long as the offender has not committed murder, these punishments remain a matter of choice and that they are to be inflicted in accordance with whatever punishments the ruler deems necessary.168

165 A muhaarab is a person who is a victim of hiraabah which has been classified by

Muslim scholars as a form of terrorist activity. Hiraabah is one of the most heinous crimes in the Islamic criminal law and means, amongst other things, ambushing people and threatening them with weapons and so on, in the deserts or in the cities, killing them, terrorizing them and seizing their property by force and openly. The word 'hiraabah' is derived from the word 'harb' which means war, because those who commit such a crime actually wage war on the group, on the existing government as well as the teachings of Islam which came to realise safety and security for all members of society and safeguard their rights as well as the stability of society. This atrocious crime is also called 'hiraabah' because those who perpetrate it are considered 'muhaariboon (plural of 'muhaarib': the one who wages war), waging war on Allah and His Messenger. A muhaarib is the person who carries out hiraabah activities. (Translator's Note)

166 Soorat Al-Maa'idah, 5:33. 167 For further details regarding this view and the evidence brought forward in its

support, see Al-Mabsoot, 9/195; Badaa'i' As-Sanaa'i', 7/93; Al-Umm, 6/152; Mughnee Al-Muhtaaj, 4/182; Al-Mughnee, 12/477 and Al-Insaaf, 10/292.

168 For further details regarding this view and the evidence brought forward in its support, see Bidaayat Al-Mujtahid, 2/455 and Ad-Dardeer's Ash-Sharh Al-Kabeer, 4/349.


118 Al-Adl (40)

The hadd punishment mentioned in this verse constitutes a right of Allah the Almighty, but the question that arises here is: Does a muhaarab have a right over the muhaarib?

As a matter of fact, the act which a muhaarib commits against the muhaarab can take the form of frightening him, seizing his property, wounding him or killing him. I will discuss this issue in detail with reference to the following cases:

First Case: The muhaarib's assault is confined to frightening his victim, in which case the muhaarab has nothing to claim from his offender.

Second Case: The muhaarib's act is restricted to seizing his victim's property. Regarding this case, scholars are unanimously agreed that the seized property ought to be returned to its rightful owner if it is still intact and in the muhaarib's possession. They are also agreed that if the hadd punishment has not been inflicted on the muhaarib, he becomes responsible for financial coverage if the seized property has been destroyed or lost.169 They have expressed a difference of opinion, however, as to whether the muhaarab has the right to claim coverage of the seized property if the hadd punishment has been inflicted on the offender and the seized properly has been lost or destroyed. They have furnished the same arguments and evidence as that regarding the thief's responsibility for financial coverage of the stolen property if it has been lost or destroyed and the hadd punishment has already been inflicted on the thief. The reader may refer to theses arguments and evidence in support of it in the second section of the present paper.

Third Case: The muhaarib's assault is confined to wounds which he has inflicted on the victim. In this case, scholars are unanimously agreed170 that if the offender has not been subjected to the hadd punishment, the muhaarab has the right to claim blood money or demand that the qisaas punishment be inflicted on him. However, if the hadd punishment is going to be inflicted on him, scholars have expressed

169 See Al-Mabsoot, 9/198; Badaa'i' As-Sanaa'i', 7/96; Adh-Dhakheerah, 12/139; Ad-

Dardeer's Ash-Sharh Al-kabeer, 4/351; Rawdhat At-Taalibeen, 7/368; Nihaayat Al-Muhtaaj, 8/8; Al-Mughnee, 12/487 and Kash-shaaf Al-Qinaa', 6/153.

170 See Al-Mabsoot, 9/199; Badaa'i' As-Sanaa'i', 7/96; Bidaayat Al-Mujtahid, 2/457; Adh-Dhakheerah, 12/133; Rawdhat At-Taalibeen, 7/368-369; Mughnee Al-Muhtaaj, 4/183; Al-Mughnee, 12/479 and Al-Insaaf, 10/294.


Al-Adl (40) 119

two different opinions as to whether the muhaarab is entitled to any right at all and whether or not this right, if at all, will be included in the hadd penalty:

First Opinion: The muhaarab is certainly entitled to the right of claiming blood money or demanding that the qisaas penalty be inflicted on the muhaarib. This is the view of the Shaafi'ites and the Hanbalites.171

In support of this view, they argue that it constitutes a crime which requires the implementation of the qisaas penalty, just as it is required in the case of murder.172

Second Opinion: The muhaarab is not entitled to any right whatsoever over the muhaarib, as this right is naturally included in the hadd punishment inflicted on him. This is the view of the Hanafites and the Maalikites.173

In support of this view, they have put forward the following arguments:

1. Offences regarding matters short of life (i.e. not affecting life) are analogous to offences affecting property; therefore, the muhaarib is nor responsible for financial coverage so long as he has been subjected to the hadd penalty. Wounds are no exception.174

In refutation of this argument, I presume that it is based on one of the principles of the Hanafites, which is not approved of and is not acceptable. Furthermore, the question of whether or not amputation as a penalty and responsibility for financial coverage may be combined is controversial and clearly confutes the Hanfites' principle adopted in this case.

2. The action taken by the ruler against the muhaarib does not specifically relate to a certain offence but to all the offences he has committed in this regard, such as frightening people, seizing their

171 See Rawdhat At-Taalibeen, 7/369; Nihaayat Al-Muhtaaj, 8/8; Al-Mughnee, 172 See Al-Mughnee, 12/480. 173 See Al-Mabsoot, 9/196; Badaa'i' As-Sanaa'i', 7/95; Adh-Dhakheerah, 12/140 and Ad-

Dardeer's Ash-Sharh Al-Kabeer, 4/350. It is worth noting that the Hanafites maintain that banishment constitutes a discretionary correction (ta'zeer) and not a hadd penalty; and based on this view, if the punishment which will be inflicted on the muhaarib is banishment, the muhaarab's right will not be dropped, in which case their view is similar to that expressed by the Shaafi'ites and the Hanbalites.

174 See Badaa'i' As-Sanaa'i', 7/95.


120 Al-Adl (40)

property or inflicting wounds on them. It does not relate to what has specifically happened to the victim of hiraabah.175

In refutation of this argument, I presume that the verse cited above mentions offences that do not include the infliction of wounds, and thus the ruling on inflicting wounds still applies even if such wounds are inflicted on occasions other than that of hiraabah.

The preponderant view is that the muhaarab's right is not included in the hadd penalty inflicted on the muhaarib due to the cogency of the evidence advanced in support of this view and the arguments furnished in refutation of opposing contentions.

The question that remains is: What right is left to the muhaarab? Those who hold that the muhaarab's right is not naturally included in the hadd penalty have expressed the following three different opinions regarding the right to which the muhaarab is entitled:

First Opinion: The muhaarab has the right to have retaliation (qisaas) incurred, to claim blood money or to pardon the offender. This is the view of the Shaafi'ites and the Hanbalites.176

In support of this view, they have furnished the following arguments: 1. Wounds are not mentioned in the verse cited above, and thus

their ruling remains the same, just as in offences other than that of hiraabah.177

2. The implementation of this right is tantamount to exalting Allah's right, as in the case of expiation (kaffaarah).178

Second Opinion: The muhaarab is only entitled to the right of having the retaliation penalty inflicted on the perpetrator. This constitutes one of the views expressed by the Shaafi'ites and the Hanbalites.179

In support of this view, they cite qisaas regarding the taking of human life as an analogy, in which case only killing is the penalty. As the offence of inflicting wounds follows, albeit subordinate to, that of killing, they argue, its ruling applies to it; that is by implementing the

175 See Ad-Dardeer's Ash-Sharh Al-Kabeer, 4/350. 176 See Rawdhat At-Taalibeen, 7/369; Mughnee Al-Muhtaaj, 4/183; Al-Mughnee, 12/480 and

Al-Insaaf, 10/294. 177 See Al-Mughnee, 12/480. 178 See Mughnee Al-Muhtaaj, 4/183. 179 See Rawdhat At-Taalibeen, 7/369; Mughnee Al-Muhtaaj, 4/183; Al-Mughnee, 12/480 and

Al-Insaaf, 10/295.


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qisaas penalty. In addition, they further argue, qisaas regarding matters short of life constitutes one of the two types180 of qisaas.181

In refutation of this argument, I presume that the analogy applies but a difference still remains, in that the infliction of wounds is different from killing in terms of expiation (kaffaarah) as well as the amount of the diyah to be paid.

Third Opinion: The muhaarab is only entitled to the right of having the qisaas penalty inflicted on the offender and only in the case of hand and foot wounds; however, if other bodily wounds are involved, he is entitled to have penalties other than qisaas implemented. This is one of the views expressed by the Shaafi'ites.182

In support of this argument, they state that the qisaas penalty applies to the hands and feet, to the exclusion of other bodily parts, in the case of the hiraabah offence.183

In refutation of this assertion, I presume that the fact that mention is made [in the verse previously mentioned] of the hands and the feet is only as a way of implementing a hadd punishment and does not confer certain characteristics upon them.

The preponderant view is that a victim of hiraabah is certainly entitled to the right of demanding the infliction of the qisaas penalty on the muhaarib, claiming blood money (diyah) or pardoning his offender due to the cogency of the evidence its proponents have advanced and the arguments they have furnished in refutation of their opponents' contentions.

Fourth Case: The muhaarib is involved in murdering his victim, in which case Muslim jurists184 are unanimously agreed that if the offender has not been subjected to the hadd punishment, the heirs of the murdered person have the right to have the qisaas penalty inflicted on the offender or demand blood money, in which case retaliation (qisaas) is

180 The subject of qisaas is generally considered, first, as to occasions affecting life, and,

secondly, as to retaliation in matters short of life. (Translator's Note) 181 See Al-Mughnee, 12/480. 182 See Rawdhat At-Taalibeen, 7/370 and Mughnee Al-Muhtaaj, 4/183. 183 See Mughnee Al-Muhtaaj, 4/183. 184 See Al-Mabsoot, 9/199; Badaa'i' As-Sanaa'i', 7/96; Bidaayat Al-Mujtahid, 2/457; Adh-

Dhakheerah, 12/133; Rawdhat At-Taalibeen, 7/368-369; Mughnee Al-Muhtaaj, 4/183; Al-Mughnee, 12/483 and Sharh Muntahaa Al-Iraadaat, 3/377.


122 Al-Adl (40)

remitted. However, a question arises here: If the offender is certainly going to be subjected to the hadd penalty, would the heirs of the murdered person be entitled to any right whatsoever, and, if they are, would this right be included in the hadd punishment?

Regarding this point, Muslim jurists are unanimously agreed that the implementation of the hadd punishment constitutes one of Allah's rights which cannot be remitted or pardoned, nor reconciliation can be brought about, and thus it is necessary to kill any person who is guilty of the hiraabah offence. Another question arises here: Besides the right of Allah involved in this case, are the heirs of the murdered person entitled to any right whatsoever? This question can be settled by considering the jurists' differences as to which right is more preponderant: the right of Allah or that of the individual? Regarding the latter issue, they have expressed two different opinions:

First Opinion: The right of Allah is more preponderant regarding the killing of the muhaarib. This is the view of the Hanafites, the Maalikites as well as one of the views held by the Shaafi'ites and the Hanbalites.185

In support of this opinion, they have furnished the following arguments:

1. It is not permissible to pardon the muhaarib, as punishment for the act he has committed (i.e. hiraabah) constitutes one of Allah's rights; and whatever constitutes a right of Allah cannot be called qisaas.186

In refutation of this claim, I consider that stating that killing the culprit in this case constitutes a right of Allah does not rule out the possibility that the right of the individual is to be maintained.

2. The ruler implements such a penalty without awaiting the heirs of the murdered person to demand it; as for the qisaas penalty, it cannot be effected if the heirs of the murdered person do not demand it. Therefore, the heirs of the murdered person are not entitled to any right whatsoever besides the right of Allah.

In refutation of this assertion, I presume that the ruler's implementation of the required punishment is due to the necessity of

185 See Al-Mabsoot, 9/196; Badaa'i' As-Sanaa'i', 7/93-5; Adh-Dhakheerah, 12/134; Sharh Al-

Kharshee, 8/106; Rawdhat At-Taalibeen, 7/368-369; Mughnee Al-Muhtaaj, 4/183; Al-Mughnee, 12/483 and Al-Insaaf, 10/294.

186 See Mughnee Al-Muhtaaj, 4/183.


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killing the culprit and does not rule out the possibility that the right of the individual is to be maintained.

Second Opinion: The right of the individual is more preponderant regarding the killing of the muhaarib. This is the view of the Shaafi'ites as well as one of the views held by the Hanbalites.187

In support of this view, they have furnished the following arguments: 1. Both the right of Allah and that of the individual are involved in

this case, but that of the individual is more preponderant 188 as it may not be pardoned.189

2. If the aggrieved party is killed in as a result of an offence other than that of hiraabah, the heirs of the murdered person are entitled to request that the death sentence be carried out, as 'retribution in-kind' (qisaas). Therefore, how can this right be dropped if the offence takes the form of hiraabah?190 Accordingly, this case involves a right of Allah, and the heirs of the murdered person also have a right.

The preponderant view is irrefutably the second one due to the cogency of the evidence its proponents have advanced and the arguments they have furnished in refutation of their opponents' contentions.

According to those who maintain that the heirs of the murdered person are entitled to request that the death sentence be carried out, as 'retribution in-kind' (qisaas), this right can be manifested as follows:

187 See Rawdhat At-Taalibeen, 7/368-369; Mughnee Al-Muhtaaj, 4/183; Al-Insaaf, 10/294 and

Al-Mughnee, 12/477, 491 and 492. 188 The issue of the rights of people is one of serious consideration in Islam. Its

importance lies in the fact that "the Rights of Allah" may be pardoned by repentance. If some negligence ever occurs in the matter of Allah's rights, it is very easy to remedy this negligence by means of repentance and seeking Allah's pardon with a feeling of remorse and regret. The negligence can thus be remedied. As for the rights of the servants, if they are violated, they are not pardoned by repentance and feelings of remorse and regret and by seeking pardon, unless the usurped rights are restored to the right-holders or the latter willingly forgo their rights in his favour. (Translator's Note)

189 See Mughnee Al-Muhtaaj, 4/183. 190 Ibid.


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1. If the muhaarib dies before the hadd punishment has been inflicted on him, the legal heirs of the murdered person have the right to claim the diyah (blood money).191

2. If the muhaarib has killed a group of people, he is to be killed against one of the victims while the heirs of the rest of the murder victims become entitled to the diyah.192

Concluding Remarks

1. The right, or 'haqq' intended in the present study is the personal right of the wronged party against whom a crime has been committed and which requires a hadd punishment.

2. If the woman with whom the offender has committed adultery has shown willingness to commit the act, Muslim scholars are generally agreed that she is not entitled to any dower whatsoever.

3. If she has yielded to the offender's desire against her will, scholars are unanimously agreed that she is entitled to a "dower of equivalence" (mahr al-mithl).

4. Muslim scholars are unanimously agreed that if the adultery victim is a virgin and the offender has deflowered her, while she expressed willingness to commit the act, she would not be entitled to the indemnity for defloration.

5. The Ifdhaa' includes both the removal of the septum, or divider, between a woman's urinary and menstrual tracts as well as the septum between the front and back passages.

6. If a man commits adultery with a young girl or a woman against her will and has become involved in an ifdhaa' incident, he becomes liable for the ifdhaa' indemnity, because the ifdhaa' in this case has resulted from an illegal intercourse and against the victim's will. If the woman with whom he has committed adultery has shown willingness to commit the act, the preponderant view is that she would not be entitled to the ifdhaa' indemnity.

7. If he commits adultery with a young girl or a woman against her will and becomes involved in an ifdhaa' incident,he is liable for one third

191 See Rawdhat At-Taalibeen, 7/369 and Al-Mughnee, 12/491-492. 192 Ibid.


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of the diyah if the victim is incontinent; otherwise, he is liable for the diyah in full.

8. If a man commits adultery with a woman and thus becomes involved in an ifdhaa' case, and then the septum, or divider, heals up and its function is restored, the preponderant view is that he would be liable for the ifdhaa' indemnity.

9. If a man commits adultery with a woman and she dies in the process, Muslim jurists are agreed that if the victim is an adult and is physically able to tolerate sexual activity, then no retaliation is due but a diyah is required, for the act of killing here is reduced in this case to manslaughter.

10. If a man commits adultery with a woman and she dies in the process, the preponderant view is that if the victim is very young or is not physically able to tolerate sexual activity, the act of killing her is deemed intentional and thus he becomes subject to retaliation.

11. If the adultery victim is entitled to both the dower and the diyah, the dower is paid for the intercourse itself and the diyah is paid for the offence committed, and so they constitute two different rights which have been due to two different causes.

12. Scholars are unanimously agreed that the stolen property is to be returned to its owner if it is still in the thief's possession and has not been subjected to damage. They are also agreed that even if the thief is not subjected to having his hand cut off for the commission of theft, he is liable for indemnity whether the stolen property is till in his possession and intact or lost, and whether he is solvent or in straitened circumstances. If the thief's hand has been amputated as punishment for the theft he has committed, he is still responsible for financial coverage.

13. The maqdhoof has the right to pardon the qaadhif, in which case the latter is no more subjected to the hadd punishment. However, the qaadhif may be subjected to discretionary correction (ta'zeer) out of regard for Allah's right regarding the qadhf offence.

14. If the muhaarib's assault is confined to frightening his victim, the muhaarab has nothing to claim from his offender.

15. If the muhaarib's act is restricted to seizing his victim's property, scholars are unanimously agreed that the seized property ought to be returned to its rightful owner if it is still intact and in the muhaarib's possession. They are also agreed that if the hadd punishment has not


126 Al-Adl (40)

been inflicted on the muhaarib, he becomes responsible for financial coverage if the seized property has been destroyed or lost. They are also agreed that if his hand has been amputated as punishment for the theft he has committed, he is still responsible for financial coverage.

16. If the muhaarib's assault is confined to wounds which he has inflicted on the victim, scholars are unanimously agreed that if the offender has not been subjected to the hadd punishment, the muhaarab has the right to claim blood money, demand that the qisaas punishment be inflicted on the offender or pardon him.

17. If the muhaarib is involved in murdering his victim, Muslim jurists are unanimously agreed that if the offender is to be subjected to the death penalty and the heirs of the murdered person have no right whatsoever to remit the punishment, drop it, pardon the offender or bring about reconciliation. However, they have the right to claim the diyah (blood money) if the muhaarib dies before the hadd punishment has been inflicted on him. If the muhaarib has killed a group of people, he is to be killed against one of the victims while the heirs of the rest of the murder victims become entitled to the diyah.

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