Islamic Fiqh > Penalties (hudud) > Wounds and diyat: limbs, compensation and qisas > Qisas in limbs and wounds
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Updated on 27 September 2026 at 3:52 AM
Qisas in the limbs and the wounds: talion runs in every limb that reaches a joint, under strict conditions of equivalence between victim and offender, of taking without loss or excess, of equal naming of the organs, and of integrity of both parties.
Each ruling is attributed to the school holding it, each hadith carries its original reference, and the notes of the source sheets are reproduced as they stand.
The offender must be of the kind one may kill for the victim: the free Muslim man with the free Muslim man; one whose killing does not bring his own death is not requitable below a life, like the Muslim with the unbeliever and the free man with the slave.
Ibn Abd al-Barr said: they have already agreed that the unbeliever is not requitable for the Muslim below a life, in wounds. Al-Imrani said: every pair of men between whom talion runs in a life, talion runs between them below a life: the hand of the free Muslim is cut by the hand of the free Muslim, that of the unbeliever by that of the unbeliever, that of the woman by that of the woman: consensus.
Disagreement: is a man requited through a woman? The Hanafis say: no talion between men and women below a life, in wounds: equality counts in a life and not in the limbs; the sound hand is not taken against the paralyzed one, while the sound life is taken against the sick one. The hand of the woman is therefore not cut by the hand of the man, nor the man's by the woman's, even if talion runs between them in a life; talion runs in the limbs only between equals of diya, the limb cut from the joint and the two matching.
The reason: limbs are treated like property, which is why the sound one is not taken against the paralyzed one, nor the complete one in fingers against the deficient: their value differs, unlike a life; equivalence therefore falls by the absence of equality in value, and that value is known by the law; equality in cutting is possible only if it starts from the joint.
This established: talion does not run in the limbs between the man and the woman, so that if he cuts her two hands deliberately, talion is not due: the arsh differs in amount, and equivalence counts below a life; proof: the right is not taken against the left, nor the sound hand against the paralyzed or finger-deficient one, unlike talion in lives, where equivalence does not count: the sound man is killed for the leper and the group for one. Were there equivalence below a life, there would be none between the hand of the man and that of the woman: hers serves what his does not, grinding, kneading and spinning; with talion fallen, the arsh is due from his property at once. Likewise talion does not run in the limbs between the free man and the slave: their value differs, and that value is the diya.
Talion runs in the limbs between the Muslim and the dhimmi: their equality in diya; likewise between two free women, between the Muslim woman and the woman of the book, and between two women of the book.
The majority of jurists, Malikis, Shafi'is and Hanbalis, say: talion between men and women in wounds as in a life, by the word of Allah: We prescribed for them: a life for a life, an eye for an eye, down to His word: and for wounds, talion: the verse is general; every pair between whom talion runs in a life does so in the limbs, like the men; every talion running between men and women may run between a man and a woman, as for lives; and every talion running between two free men runs between two slaves, as for lives.
The detail advanced about the functions proper to the limbs of the man collapses from three sides: first, the established agreement on taking the hand of the scribe, the craftsman and the warrior by the hand of one who is neither; second, the hand of the woman holds functions the hand of the man does not: they equal each other; third, the limbs of slaves equal each other in functions without talion running in them: that consideration falls. Ibn al-Mundhir said: when they agreed on a life for a life, the greatest of things, and differed on the rest, their difference reverts to their agreement: the lighter returns to the graver.
The jurists agree that talion requires the possibility of being taken without loss or excess: Allah said: If you punish, punish with the like of that with which you were punished, and: Whoever transgresses against you, transgress against him in the measure of his transgression; the blood of the offender is protected except by the measure of his harm, what exceeds remains protected after the harm as before, and forbidding the excess requires forbidding talion, the excess being one of its consequences.
Ibn Qudama said: no known disagreement on this; al-Hasan, ash-Shafi'i, Abu Ubayd and the holders of opinion forbid talion below the moudiha.
This established: the requitable wound is every wound that reaches a bone, like the moudiha of the head and face; no known disagreement on the lawfulness of talion in the moudiha, every wound exposing the bone of the head or face; Allah prescribed talion for wounds, else the authority of the verse would fall; on its model, every wound reaching a bone elsewhere than the head and face: forearm, upper arm, leg, thigh, on the view of most scholars, the explicit text of ash-Shafi'i.
Some of his companions said: no talion, since no estimation; the saying is not correct: Allah said: and for wounds, talion, and taking without loss or excess is possible by the bone being reached: the wound ranks as the moudiha; the estimation of the moudiha neither calls for talion nor blocks it, it rested on the severity of the disfigurement and the nobility of the site: what lies beyond, the gashes of the head and face, holds neither fixed amount nor talion, and the ja'ifa holds a fixed arsh without talion.
A wound outside a joint carries no talion at the place of cutting, with no known disagreement; Nimr ibn Jabir reported from his father that a man struck another on the forearm with the sword and cut it off outside the joint; he sought the Prophet (peace be upon him), who ordered the diya; he said: Messenger of Allah, I want talion; he said:
Take the diya, may Allah bless it for you.
reported by Ibn Majah (2636), a weak hadith
and he did not rule talion for him.
The jurists agree on the condition of the same proper name: nothing of the origin is taken except by its like; the hand is taken only by the hand, the other not being of its kind: equality of kind is the condition of equivalence; the foot, the finger, the eye, the nose and the like likewise; the thumb is taken only by the thumb, the forefinger by the forefinger, the middle by the middle, the ring finger by the ring finger, the little finger by the little finger: the functions of the fingers differ, so they stand like different kinds.
Likewise the right hand is taken only by the right, the left by the left: the right holds a merit over the left, hence its name; the foot likewise; the fingers of the hands and feet likewise: the right taken only by the right, the left by the left. The eyes likewise; the teeth: the incisor taken only by the incisor, the canine by the canine, the molar by the molar: their functions differ, some cutting, some grinding, some biting; difference of function ranks two things in two kinds, and no equivalence holds between different kinds. Likewise what is above is not taken by what is below, nor the below by the above: unequal function between the upper and the lower.
Ibn Hubayra said: they agree that a right hand is not cut by a left, nor a left by a right. Ibn Qudama said: this is the view of most scholars, among them Malik, ash-Shafi'i and the holders of opinion; Ibn Sirin and Sharik are reported taking one by the other: the two equal in formation and function.
Our argument: each of the two holds a proper name: one is not taken by the other, like the hand by the foot; everything divided into right and left, like the hands, the feet, the ears, the nostrils, the breasts, the hips and the testicles, one is not taken by the other. What divides into upper and lower, like the eyelids and the lips: the upper is not taken by the lower nor the lower by the upper; a finger is taken by a finger only if name and seat match; a fingertip by a fingertip likewise; the upper is not taken by the lower nor the middle one, the middle and the lower are not taken by another; a tooth is taken by a tooth only if seat and name match; a natural finger or tooth is not taken by a supernumerary, a supernumerary not by a natural one, nor a supernumerary by a supernumerary outside its seat.
Al-Imrani said: every member where talion is required keeps it, even if the two members differ in size, health or thinness: Allah said: an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, without distinction; else hardship and narrowness, and the consideration would fall as it fell in a life. What divides into right and left, like the eyes, the ears, the hands and the feet: the right is not taken by the left nor the left by the right; Ibn Shubruma allows it. Our proof: each of the two holds a name of its own, as the hand is not taken by the foot; the upper eyelid is not taken by the lower, the lips likewise; a tooth is not taken by another tooth, a finger by another finger, a fingertip by another fingertip, as a life is not taken for the harm of another life; that even if the offender and the victim consent. And if the offender consents that the whole member be taken against the deficient one, the sound against the paralyzed, it is not allowed: bloods are not made lawful by consent.
Al-Kasani said: the sound member is taken only by the sound one: the sound hand, complete in fingers, is not cut by a hand deficient in fingers or cut off; the foot, the finger and the rest likewise: no equivalence between the sound and the deficient. Al-Ayni said: they also agree that the right is not taken by the left; the thumb by the thumb, the forefinger by the forefinger, the middle by the middle, the little finger by the little finger, the ring finger by the ring finger; the teeth: the incisor by the incisor, the canine by the canine, the molar by the molar; the upper is not taken by the lower; gashes and wounds call for requital only at the site of the wound on the wounded.
The jurists agree: the sound hand is not cut against a paralyzed hand; one who cuts the hand of another while his own hand is paralyzed: the sound hand of the offender is not cut. Ibn Hubayra said: they agree on this. Al-Ayni said: they agree that the sound one is not taken against the paralyzed.
An-Nawawi said: a sound hand or foot is not cut against a paralyzed one, even with the offender's consent; what is due for the paralyzed limb is the hukuma, as the free man is not killed for the slave nor the Muslim for the dhimmi, even with the offender's consent; if he cuts against the ruling, the cutting does not fall as talion: half the diya is due, and if the wound spreads sepsis, talion is due in a life; if he cuts with the offender's consent, no talion even with the sepsis, the act being by consent; then: if the offender says: cut my hand, freely, the victim stands as taker of his right and nothing is required of him; if he says: cut it in exchange for your hand, or as talion, two views: the first, held by al-Baghawi: half the diya on the victim and the hukuma on the offender, the hand not being given free; the second: nothing on the victim, as if the offender had traded the good for the bad and the rightful one took it.
Ibn Qudama said: the offender of sound limb and the cut limb paralyzed: no talion; no one among the scholars requires cutting a sound hand, foot or tongue against a paralyzed one, except what is reported of Dawud requiring it, each of the two bearing its bearer's name, like the ears.
The second type: qisas in the limbs: the people of science agree that talion runs there, and it is due in every limb that reaches a joint.
Talion in the eye: they agree that talion runs in the eye in case of intent: the eye is taken by the eye; Allah said:
And We prescribed for them in it: a life for a life, an eye for an eye.
Surah al-Ma'ida, 45
Ibn Hubayra said: they agree on the eye for the eye, and on the whole diya in the two eyes; disagreement on the standing eye that does not see, the paralyzed hand, the tongue of the mute, the impotent penis and the black tooth: Malik, Abu Hanifa and ash-Shafi'i in one of his two views: a hukuma; another view of ash-Shafi'i: the whole diya in the penis of the castrate and the incontinent, mentioned by ash-Shashi; three transmissions of Ahmad: the most apparent a third of the diya, another a hukuma, a third the diya.
Ibn Qudama said: the people of science agree on talion in the eye: Masruq, al-Hasan, Ibn Sirin, ash-Sha'bi, an-Nakha'i, az-Zuhri, ath-Thawri, Malik, ash-Shafi'i, Ishaq, Abu Thawr and the holders of opinion, with Ali (may Allah be pleased with him) reported; the origin is the word of Allah: and the eye for the eye: it reaches a joint, talion runs in it like the hand; the eye of the young is taken by that of the old sick man, the eye of the child by that of the old man and of the one-eyed man; the sound eye is not taken by the eye that does not see, that would take more than one's right.
If the eye is removed by a finger, requital by the finger is not valid: equivalence impossible; if a slap extinguishes the light of the eye, requital by the slap is not valid: equivalence impossible; the loss of light alone carries no talion: talion runs in sight, treated by what destroys it without removing the eye, as Yahya ibn Jad'a did in his report: a Bedouin came to Medina with his she-camel, a client of Uthman (may Allah be pleased with him) bargained with him, they quarreled, he slapped him and gouged out his eye; Uthman offered to lighten the diya if he pardoned, he refused; the matter was brought before Ali (may Allah be pleased with him): he ordered a mirror, had it heated, placed cotton over his other eye, took the mirror with tongs, brought it near his eye until the humor of his eye flowed. Reaching it by a means that destroys the light without touching the pupil is allowed; if it is possible only by harming the organ, talion falls, equivalence being impossible.
Ibn al-Mundhir said: the hadith came from the Prophet (peace be upon him):
And for the two eyes, the diya.
reported by an-Nasa'i (4853) and by Ibn Hibban in his Sahih (6559)
The people of science agree that the two eyes harmed by accident carry the diya, and one eye half.
Disagreement on the eye of the one-eyed man: a group holds the diya, reported from Umar and Uthman, followed by Abdul-Malik ibn Marwan, az-Zuhri, Qatada, Malik, al-Layth ibn Sa'd, Ahmad and Ishaq; a second view: half the diya, reported from Masruq, Abdullah ibn Ma'qil and an-Nakha'i, followed by Sufyan ath-Thawri, ash-Shafi'i and an-Nu'man; this is the view held: the hadith says the two eyes are worth the diya, so one eye half.
The one-eyed man who gouges out the sound eye: Umar and Uthman said: no talion on him, the whole diya is due; Ata, Sa'id ibn al-Musayyab and Ahmad ibn Hanbal follow. A group says: talion lies on him, on the apparent of the verse: and the eye for the eye; the view of Masruq, ash-Sha'bi, Ibn Sirin, Ibn Ma'qil, ath-Thawri, ash-Shafi'i and an-Nu'man. Al-Hasan and an-Nakha'i said: if he wills, he exacts from him and gives him half the diya. Malik said: if he wills, he gouges out the eye of the one-eyed man leaving him blind, if he wills he takes the whole diya, the diya of the eye of the one-eyed man: he takes only the diya of the eye, which was one thousand dinars. Abu Bakr said: Allah said: and the eye for the eye, and the Prophet (peace be upon him) set the diya for the two eyes: one eye is half the diya, and talion between the one-eyed man and the man of sound eye runs as between the rest of people.
Disagreement on the eye of the one-eyed man, the one that does not see: Zayd ibn Thabit said: it carries one hundred dinars; Umar ibn al-Khattab said: it carries a third of its diya, followed by Ishaq; Mujahid said: half its diya; Masruq, az-Zuhri, Malik, ash-Shafi'i, Abu Thawr and an-Nu'man: a hukuma, the view held as the least of what is said. Two other opinions: that of Sa'id ibn al-Musayyab: a tenth of the diya; that of Umar ibn Abd al-Aziz: its hukuma is five hundred dinars if no compensation was taken for it.
The eyelids of the eyes are four, around the eyes, above and below: they guard them from harm, bring them sleep, and complete the beauty of the face and the eye. They carry no talion: the like impossible.
Disagreement on their diya when they are uprooted. The majority, Hanafis, Shafi'is and Hanbalis: a quarter of the diya per eyelid: they belong to the complete formation, holding function and beauty; cutting them hurts and raises the fear of sepsis on a life; the diya is completed there as for the limbs; the follower may equal the followed in the diya when it holds function and beauty of its own, like the nose for smell and the ears for hearing; the same for the child, the old man and the blind man.
Al-Mawardi said: talion, possible there without the harm spilling to the eyes, is required, else it falls; one eyelid taken away: a quarter of the diya, every numbered organ carrying the diya split over its number, like the hands over the fingers; upper or lower eyelid equal; two eyelids: half; three: three quarters; one who cuts the eyelids of the eyes and destroys their sight owes two diyas, like one who cuts the ears and destroys the hearing.
Ash-Shafi'i said: the eyelids cut to the point of uprooting carry the whole diya, a quarter each; the eyes and the eyelids: two diyas, the eyes not being the eyelids; lashes torn out without regrowth: a hukuma; the hair of the lips: no known arsh; whatever harm reaches the eyelids: its share of the diya.
The Malikis: a hukuma in the eyelids and in each one: the amounts of diyas rest on a text and there is no text; the eyelid follows the eyes, the status of the follower being lighter than that of the followed. The Mudawwana reports: in the eyelids, only ijtihad; the lashes likewise on the view of Malik; the eyebrows: only the hukuma if they do not grow back. Ibn Hubayra said: they agree on the whole diya in the four eyelids, a quarter each, except Malik: a hukuma.
Ibn Qudama said: the four eyelids carry the diya, a quarter each, as al-Hasan, ash-Sha'bi, Qatada, Abu Hashim, ath-Thawri, ash-Shafi'i and the holders of opinion said; from Malik: the eyelid and its conjunctiva fall to ijtihad, no amount from the Prophet (peace be upon him) being known, and estimation not standing by analogy. Our argument: members of visible beauty and complete utility: they cover the eye, shield it from heat and cold, like a lid closed and opened at will; without them the look would be ugly: the diya is due as for the hands; a quarter per eyelid; ash-Sha'bi is reported to have held two thirds for the upper one, a third for the lower: refuted by the fingers and by the right with the left.
The eyes destroyed with their eyelids: two diyas; the eyelids of the blind man's eye: the diya due; the lashes: the diya, a quarter each on the view of Abu Hanifa, a hukuma on the view of ash-Shafi'i; eyelids cut with their lashes: no more than one diya, the hair following the eyelids.
Al-Kasani said: the hanging flesh of the nose cut carries talion without disagreement among our companions, by His word: and the nose for the nose, and because the like is takeable there: it holds a known limit; a cut part carries no talion, the like impossible; the bony septum cut carries none: it is bone, and neither bone nor tooth carries talion. Abu Yusuf said: if he takes it whole, talion is there; Muhammad said: no talion even whole; no real disagreement between them: Abu Yusuf meant the hanging flesh, carrying talion without disagreement, and Muhammad the bony septum, carrying none.
Talion in the ear: the people of science agree that it runs there, by His word: and the ear for the ear; the big is taken by the small, the small by the big, the thick by the thin, the sound by the cut, the deaf by the hearing, the hearing by the deaf, the pierced by the sound and the sound by the pierced: the hole is no defect of the ear, it is pierced only for adornment.
Ibn Hubayra said: they agree that the lobe of the ear, the skin standing between the rims and the whites, carries the diya, except Malik: two transmissions reported, a hukuma or the diya. Al-Kasani said: the whole ear carries talion; a part with a known limit likewise, otherwise not.
Ibn Qudama said: the people of science agree that the ear is taken by the ear: it reaches a separating limit and resembles the hand; the big is taken by the small; the ear of the hearing man is taken by the ear of the hearing man; the ear of the deaf man is taken by either one: their equality, loss of hearing being a defect of the head, not of the two ears; the sound one is taken by the pierced one, the hole being no defect, made in custom for the ring; if the hole is out of place or the ear torn out, the pierced one is taken by the sound one, the sound one not by it: the widened hole becomes a defect, and the hole out of place is a defect; the victim chooses between the diya, except the share of the defect, and requital on the rest; the hukuma for the share of the hole: two views; a part of the ear cut: requital possible, estimated by portions, half by half, a third by a third; some companions of ash-Shafi'i: no talion in the part, no limit; our argument: the part is measurable, no bone fracture, talion runs there like the penis.
The flattened ear is taken by the sound one; the sound one by the flattened: two views: not taken, the ear being deficient and defective like the paralyzed hand; or taken: its function, gathering the sound, keeping the seat of hearing and the beauty, is achieved there as with the sound one. One who cuts the ear then detaches it, its bearer reattaches it and it holds: the qadi said talion is due, the view of ath-Thawri, ash-Shafi'i and Ishaq: the detaching was required and it took place; Abu Bakr said: no talion, the view of Malik: it was not detached for long; if it falls after, talion is due and what was taken is restored; on the view of Abu Bakr: if it does not fall, the diya of the ear is due, the view of the holders of opinion; Malik said: no hukuma if it returns to its place; a part of the ear cut then reattached: the arsh of the wound is due, no talion; if the victim asks the detaching after requital of the whole was made, it is not granted him: the detaching took place and the talion was taken, no right remains; if the victim had lost only a part that was reattached, cutting the whole is allowed him: the detaching of the whole was due to him and did not take place; the tooth follows the same ruling as the ear.
Reattaching after detaching rests on the purity of the detached part: if one holds the part of a human being impure, its removal is required as long as removing it holds no risk, like a bone set with an impure bone; if one holds its purity, removal is not required: the held view of Abu Bakr, the saying of Ata ibn Abi Rabah and Ata al-Khorasani, and the sound view: a part of a human being is pure in life and at death, pure therefore as before the detaching; the reattached part requires no detaching: it is pure on both views, not turning carrion without detaching, and no talion: the like of the cut part impossible; the qadi said it, the school of ash-Shafi'i. Az-Zarkashi said: the ear is cut by the ear: consensus as a whole.
The people of science agree that the nose is taken by the nose, by His word: and the nose for the nose; it reaches a joint: the nose of the big man is taken by the small one, the thick by the fine: talion is due in the limbs even if they differ in size.
The whole diya is due there; the Prophet (peace be upon him) said:
And for the nose, when it is cut at the root, the diya.
reported by an-Nasa'i (4853) and by Ibn Hibban in his Sahih (6559)
Ibn al-Mundhir said: they agree on the diya when the nose is cut at the root; talion runs there in case of intent as in the other limbs, on the apparent of the book of Allah. Ibn Hubayra said: they agree that the nose is taken by the nose, and on the diya when it is taken whole. Ibn Qudama said: talion runs there too: the big is taken by the small, the hooked by the crushed, the smelling nose by the nose unable to smell: the cause lies in the brain and the nose is sound, like the ear of the hearing man taken by that of the deaf one; the leprous nose: the sound nose is taken from it as long as nothing has fallen from it, leprosy being disease; if a part of the nose has fallen, the sound one is not cut, except from one side: taking the like of what remains, or the arsh of that.
What carries talion or the diya is the hanging flesh of the nose, what hangs below its septum: a limit, like the hand to the elbow; the nose cut whole from the septum: talion of the hanging flesh and a hukuma of the septum, the view of Ibn Hamid and the school of ash-Shafi'i; another view: no hukuma with the talion, one single organ not gathering talion and diya; Abu Bakr's analogy: no talion here, the iron placed outside the site placed by the offender, like the hand cut at half the arm or at the palm; the qadi held the word of Abu Bakr here and that of Ibn Hamid in the like cases: no distinction with equality. A part of the nose cut: estimated by portions, as for the ear; no estimation by surface, else the whole small nose of the offender would be cut for a part of the big nose of the victim; the right nostril is taken by the right, the left by the left, not the right by the left; the septum is taken by the septum: a limit reached by talion.
Al-Mawardi said: ash-Shafi'i said: and the nose for the nose: a sound saying; talion in the nose required by the text; the hanging flesh cut to the taking of it whole: the like taken; the smelling nose taken by the unfit, the big by the small, the hooked by the crushed, the sound by the torn-out one as long as nothing has fallen from it; half the hanging flesh cut: half required, unlike cutting at half the arm: the bone of the forearm blocks equivalence, the hanging flesh of the nose allows it; half the bony septum cut: like cutting at half the arm: requital up to the limit of the bone, the whole hanging flesh taken, and a hukuma for what is cut of the bone; the bone merely laid bare: the diya of a moudiha; pressed in: the diya of a hashima; displaced: the diya of a mounaqila; the hukuma of a cutting exceeding the diya of the mounaqila.
One of the two sides of the nose cut: requital takes place, the septum of the nostrils being a limit of talion; the septum cut: requital up to the cut limit, the like of the whole being possible; the nose struck to flattening: no requital, the diya due, like the paralyzed hand; another probable view: a hukuma, like the flattened ear; the nose fractured and reset disfigured: a hukuma, no talion; reset bent: the hukuma greater than if it were straight.
The penis is cut only if cut from its base: the place of cutting is known like a joint; a part of the glans or of the penis cut carries no talion, its measure unknown, unlike the ear cut whole or in part: it neither contracts nor stretches and holds a known limit.
The penis of the castrate and that of the incontinent: the Shafi'is and the Hanbalis in one transmission say: the penis of the able male is cut by theirs: their soundness is equal, the absence of emission and intercourse coming from an external cause: talion is not blocked, like the ear of the hearing man taken by that of the deaf one; the sound penis is not cut by the paralyzed one, no equality. The Malikis and the Hanbalis in another transmission: it is not cut by it.
Ibn Qudama said: the head of the school said the penis of other men is not taken by these two, the view of Malik: no function: the incontinent neither enters nor emits, the castrate fathers no child and can hardly enter: both like the paralyzed one, each deficient, the whole one not being taken. Abu al-Khattab said: the penis of others is taken by these two in one of the two views, the school of ash-Shafi'i: two sound members that contract and stretch: the absence of emission coming from the loss of the testicles, the impotence from a back cause: nothing blocks talion, like the ear of the deaf one and the nose unfit to smell.
The qadi said: the penis of the able is not taken by that of the castrate: the defect is established there and despair of cure fixed; the penis of the incontinent: two views: taken, despair not being established there, a term of one year, unlike the castrate; the sound view is the first: doubt over equality blocks talion, the origin being absence, the proof of impotence and defect fixed; every penis is taken by its like, as the slave by the slave and the dhimmi by the dhimmi. A part is taken by its like, estimated by portions, half by half, a quarter by a quarter, as for the nose and the ear.
Most of the people of science say: talion is required for harm to the testicles: if one cuts the two of another, requital is taken for the victim and the two of the offender are cut; Allah said: and for wounds, talion; it is a limb where equivalence is possible, like the limbs.
Ibn Qudama said: talion runs in the testicles, as said before of text and meaning, no known disagreement; one alone cut, the people of experience affirming it can be taken without the other being harmed: allowed; if they say the loss of the other is not ruled out, it is not taken, fearing loss: half the diya is due; if the loss of the other is set aside, the right is taken by the right and the left by the left.
Al-Imrani said: both testicles cut: requital takes place, by the word of Allah on wounds; one alone cut: ash-Shafi'i said: consult the people of experience; if they say requital is possible without loss of the other: requital; else no requital, one testicle not taken by a single one: half the diya is due; whether its skin follows it or a separate hukuma: two transmissions reported in the Furu'. The Hanafis: no text in the apparent books on talion required in the deliberate cutting of the testicles, as in the Fatawa Hindiyya and the Zahiriyya; the jurists of the school differ: Ibn Nujaym held that talion seems required there; al-Kasani: no talion, no known joint, the like impossible. Malik in the Mudawwana: the penis and the testicles cut together: two diyas; the testicles alone: the whole diya; the penis after: the whole diya; the right and the left equal: half the diya each.
The people of science agree that talion runs in the tooth, by His word:
And We prescribed for them in it: a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds talion.
Surah al-Ma'ida, 45
Anas (may Allah be pleased with him) reported: ar-Rubi'a, the aunt of Anas ibn Malik, broke the front tooth of a girl of the Ansar; the people sought requital and came to the Prophet (peace be upon him), who ordered requital; Anas ibn an-Nadr, the uncle of Anas, said: no, by Allah, her tooth shall not be broken, O Messenger of Allah; the Messenger of Allah (peace be upon him) said: O Anas, the Book of Allah is requital; the people settled and accepted the arsh; the Messenger of Allah (peace be upon him) said:
Among the servants of Allah are those who, were they to swear by Allah, He would fulfill their oath.
reported by al-Bukhari (4335)
Ibn Battal said: Allah said: and the tooth for the tooth, and the scholars agree that this verse bears on intent: one who harms the tooth of another deliberately carries talion, by the hadith of Anas. An-Nawawi said: talion in the tooth is unanimous if the tooth is pulled out whole; a part broken carries talion or not: a famous disagreement, most of the scholars holding no talion. Ibn Qudama said: consensus, by the verse and the hadith of ar-Rubi'a: the tooth is delimited in itself, talion runs in it like the eye; the sound one is taken by the sound one, the broken by the sound one: partial taking; the arsh of the rest alongside the talion: two views already stated.
Requital is made only by the tooth of one whose milk teeth have fallen and grown back; the tooth of one who has not shed them: no immediate requital, the view of Malik, ash-Shafi'i and the holders of opinion: it returns by habit, like hair; if the tooth returns identical in place and form: nothing on the offender, like the regrown hair; if it returns bent out of place or changed in form: a hukuma, else it would not have returned; if it returns incomplete: the lack is compensated by estimation, a third by a third, a quarter by a quarter; if it returns with blood flowing: a hukuma, a defect caused by his act; if the term of regrowth passes without return, the scholars of medicine are consulted: if they say regrowth is despaired of, the victim chooses between talion and the diya of the tooth; if he dies before the despair, no talion: the right is not established, doubt blocks it, and the diya is due: the pulling exists, the return being doubtful; if he dies before the hour of regrowth, probably nothing is owed: the habit is the return, like shaved hair followed by death.
The tooth of one who has shed his teeth: talion is due at once, the return not being apparent there, the view of some companions of ash-Shafi'i. The qadi said: the people of experience are consulted: if they say there is no return, talion is due at once; if they say return is hoped at a term they state, one waits for that term, the view of some companions of ash-Shafi'i. This established: if the tooth does not return, no discussion; if it returns, neither talion nor diya: the view of Abu Hanifa and one of the two views of ash-Shafi'i; the other view: the arsh does not fall: this tooth does not replace itself ordinarily, its return being a renewed gift, so no waiting in the indemnity. Our argument: it is a tooth that returned, the arsh falls as for the tooth of one who has not shed his teeth; the rarity of the case does not block fixing the rule; the arsh taken is restored; if talion was made then the tooth returned, a new talion is not valid: no aimed aggression; if the tooth of the offender returns without that of the victim, two views: no cutting, two teeth not taken by one; or cutting even if the return repeats: he destroyed his tooth, the destruction lawful.
If the tooth is pulled, requital made, then the tooth of the victim returns, then the offender cuts it again: nothing on him: the returned tooth makes the victim owe the offender the diya of his tooth, taken under the first requital; each of the two owes the diya of a tooth, and they offset each other.
Most of the scholars, Hanafis, Shafi'is and Hanbalis, even the reported consensus, hold that there is no talion in the fracture of a bone, except the tooth: the bone of the offender is not broken by that of the victim, the hukuma being due; several scholars reported that consensus.
The proving hadith: Ibn Majah reported from Nimran ibn Jariya, from his father, that a man struck another on the forearm with the sword and cut it off outside the joint; he sought the Prophet (peace be upon him), who ordered the diya; he said: Messenger of Allah, I want talion; he said:
Take the diya, may Allah bless it for you.
reported by Ibn Majah (2636), a weak hadith
and he did not rule talion for him. Al-Imrani said: the fracture of a bone carries no talion by the consensus of the community. At-Tahawi said: Abu Hanifa and his companions: no talion in bone, except the tooth; al-Layth and ash-Shafi'i the like, with no exception of the tooth.
Ibn al-Qasim said from Malik: all the bones of the body carry talion, except what holds danger like the thigh and its like; no talion in the hashima, nor in the mounaqila; the forearm, the upper arm, the legs, the feet, the heels and the fingers broken carry talion. Al-Awza'i said: the ma'muma carries no talion. Abu Ja'far said: when they agreed on the bone of the head, the other bones alike; Allah said: and for wounds, talion, a thing impossible in the bones. Hammad ibn Salama reported from Amr ibn Dinar that Ibn az-Zubayr made requital against a broken limb and was disapproved: disapproval by his peers among the Companions, not by reasoning.
Ibn Battal said: disagreement on the other bones broken deliberately: Malik said: all the bones of the body carry talion when broken deliberately: forearm, upper arm, legs, feet, heels, fingers, except what holds danger like the thigh, the ma'muma, the mounaqila, the hashima and the base of the spine: the diya. The Kufans: no talion in the broken bone, except the tooth, by His word on the tooth; al-Layth and ash-Shafi'i the like; ash-Shafi'i argued: skin, flesh and nerves bar the bone: breaking the bone as he broke his own forces touching what lies above it, of unknown measure, more or less than the harm suffered; and a fracture identical to a fracture is impossible: talion is therefore forbidden. At-Tahawi said: they agreed on the bone of the head: the others alike.
The proof of Malik is the hadith of Anas, the Prophet (peace be upon him) saying for the tooth of ar-Rubi'a: the Book of Allah is requital: talion allowed in the broken tooth, bone, so the other bones alike, except the bone on which they agree that talion is not there: fear of loss of life, and equivalence impossible; one does not do what most often leads to death when the act of the first offender did not. Ibn al-Mundhir said: whoever says no talion in bone contradicts the hadith, and turning to reflection is not allowed while the report stands.
Ibn Abd al-Barr said: Malik said: what holds agreement among us: the hand or leg broken deliberately calls for requital, not the diya. Abu Umar said: the hand and the leg cut from the joint deliberately: talion without disagreement; the forearm, the leg and the rest of the limbs: disagreement; Malik: requital, agreement among them; the thigh: no talion; Abu Bakr ibn Muhammad ibn Amr ibn Hazm reported it, the view of his father; Ibn al-Qasim said from Malik: all the bones like the leg carry talion, except the danger; no talion in the hashima, the mounaqila nor the ma'muma; al-Layth ibn Sa'd and ash-Shafi'i: no talion in any bone; Abu Hanifa, Abu Yusuf and Muhammad: no talion in bone, except the tooth; Ibn Abbas is reported: no talion in the bones; Ata ibn Abi Rabah, Amir ash-Sha'bi, al-Hasan al-Basri, Ibn Shihab az-Zuhri, Ibrahim an-Nakha'i and Umar ibn Abd al-Aziz the like, and Sufyan ath-Thawri.
Abu Umar said: two hadiths attributed to the Prophet bear on this chapter. The first, sound, with no critique of its chain: the hadith of Anas, the matter of the front tooth of ar-Rubi'a; the short version, the Book of Allah is requital, does not suffice as proof: the tooth may have been pulled or fallen by the blow, a case of talion without disagreement, the disagreement bearing on the broken tooth; the preserved version establishes the fracture and the talion. The second, the one denying talion in the bones: a single chain, Dahhak ibn Qurran al-Ukli weak, a Bedouin whose hadith serves no proof, and Nimran ibn Jariya a Bedouin too, his father Jariya ibn Zafar counted among the Companions.
Ibn Rushd said: disagreement on the fracture of the leg and the arm: Malik: talion in all the bones, except the thigh and the base of the spine; ash-Shafi'i and al-Layth: no talion in bone; Abu Hanifa the like, except the tooth; Ibn Abbas and Umar reported: no talion in bone. Abu Umar Ibn Abd al-Barr said: the Prophet (peace be upon him) established requital for the broken tooth; another report, not strong: he did not establish requital for the bone cut outside the joint; Malik reported that Abu Bakr ibn Muhammad ibn Amr ibn Hazm made requital for the fractured thigh. Al-Qurtubi said: the proof of Malik is the hadith of Anas on the tooth, bone: the other bones alike, except the feared bone where consensus forbids talion; the word of Allah: Whoever transgresses against you, transgress against him in the measure of his transgression, and: If you punish, punish with the like of that with which you were punished: what holds consensus does not enter the verse; the disagreement bears only on the bone where equivalence is possible: the bone where it is impossible with fear of life holds consensus without talion. As-San'ani and ash-Shawkani said: the consensus is reported: no talion in the bone where loss of life is feared and the measure of the lack cannot be grasped.
Al-Hattab said: Ibn al-Mawwaz said: they agreed: no talion in the bones of the neck, the thigh, the base of the spine and their like, composite bones; the hukuma by the disfigurement, except the base of the spine: the diya; no effect of disfigurement, except bending while still standing: a proportional share of the diya; the fracture of the thigh: a hukuma by the disfigurement, possibly exceeding the diya; the leg unable to walk: the whole diya of the leg; weakened walking: a proportional share of the diya. Ibn al-Qasim said from Malik: the fingernail carries talion if talion is possible there; Ibn al-Mawwaz: Malik differed, the preferred view; Ibn Abdus: the fingernail like the milk tooth: it grows back. Ibn al-Hajib said: the dangerous bone healed without disfigurement ranks as accident: nothing, except correction in case of intent, unlike the other bones: requital even healed without disfigurement. The commentary fixes: what holds no talion by danger, healed without defect, carries nothing: talion impossible by the danger, the compensation not named by the law, the judge correcting the deliberate one. Iyad said: the bone and the disfigurement hold one meaning, trace and disfigurement; adh-dhil' is the rib, at-tarqwa the collarbone, az-zand the forearm.
Most of the scholars say: talion in the limbs is not allowed before the harm settles by healing or by sepsis reaching a life. Amr ibn Shu'ayb, from his father and his grandfather, reported: the Messenger of Allah (peace be upon him) judged the case of a man who had struck another on the foot with a horn; he said: Messenger of Allah, exact him for me; the Messenger of Allah (peace be upon him) said: do not hasten until your wound heals; he insisted on immediate requital, the Messenger of Allah (peace be upon him) made it; the claimant limped and the wounded man healed; the claimant came saying: Messenger of Allah, I limped and my companion healed; he said to him:
Had I not ordered you not to exact requital before your wound healed? You disobeyed me: may Allah keep you far and void your wound.
reported by Ahmad (7034), a sound hadith
then he ordered everyone carrying a wound not to seek requital before healing.
Jabir (may Allah be pleased with him) reported from the Prophet (peace be upon him):
Requital against a wound takes place only after healing.
reported by at-Tahawi in Sharh Ma'ani al-Athar (3/184)
Ibn al-Mundhir said: they agree on waiting for talion until the wounded man heals: the view of Ata, al-Hasan al-Basri, Malik, ath-Thawri, ash-Shafi'i, Ahmad, Ishaq and Abu Thawr. Ibn Qudama said: no talion in the limb before healing on the view of most: an-Nakha'i, ath-Thawri, Abu Hanifa, Malik, Ishaq and Abu Thawr, reported from Ata and al-Hasan; Ibn al-Mundhir: everyone waits for healing.
The Shafi'is and the Hanbalis, in a derived view, allow requital before healing, the Prophet (peace be upon him) having said: you disobeyed me: may Allah keep you far and void your wound: requital is therefore allowed there. Ibn Qudama said: talion before healing is allowed on our view, sepsis reaching a life bringing the same treatment, the view of ash-Shafi'i; talion of the limb does not fall by sepsis: the right is immediate, as after healing.
If a man cuts the hand or leg of another, the victim exacts requital, his limb heals, and the offender dies: his blood is forfeit on the view of most scholars, Malikis, Shafi'is and Hanbalis, and Abu Yusuf and Muhammad among the Hanafis; Allah said:
And whoever defends himself after a wrong, those hold no way against.
Surah ash-Shura, 41
Umar and Ali (may Allah be pleased with them) are reported saying: one who dies of a penalty or of talion has no diya: the right killed him; no opponent to them: consensus; the cutting was deserved and measured: its sepsis is not guaranteed, like the cutting of the thief. This established, no difference between sepsis reaching a life and sepsis reaching a limb, like the cut finger whose sepsis spreads to the palm.
Abu Hanifa said: the sepsis of talion is guaranteed by the claimant, as the sepsis of the wound is guaranteed by the offender: if the offender dies by the sepsis of talion, the claimant guarantees the whole diya of a life through his band of agnates: whatever comes from a direct act is guaranteed by its doer; talion is permitted, not obligatory, the guardian choosing to do it or leave it, like the man striking his wife and the father striking his son: the harm of such blows is guaranteed to them, so the harm of talion is guaranteed to the claimant.
In practice, talion in the limbs runs only between equals: same name, same side, same soundness, taking possible without loss or excess; the eye, the nose, the ear, the tooth and the testicles carry talion by text, the bones do not, the fracture carrying the hukuma; the milk tooth and the paralyzed limb escape talion; requital waits for healing, and the sepsis of talion is guaranteed only by Abu Hanifa.