Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > The amount of diya: forms and special cases
Contents
Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
There is no qisas in any of this, because Allah, exalted be He, made the diya obligatory for it without mentioning qisas; and because the Prophet, may the peace and blessings of Allah be upon him, said:
My community has been relieved of error, forgetfulness and what it was coerced into.
Cited in "al-Mughni" (8/217)
and because He did not make qisas obligatory in the 'amd khata' (a deliberate act with an unintended outcome): all the more so in the accidental case (1).
He also said: we know of no disagreement among the people of knowledge that the diya of the accidental killing falls upon the 'aqila. Ibn al-Mundhir said: all those whose words we preserve among the people of knowledge agreed on this; and the established reports from the Messenger of Allah, may the peace and blessings of Allah be upon him, attest "that he ruled the diya of the accidental killing upon the 'aqila".
The people of knowledge agreed upon this saying, and the Prophet, may the peace and blessings of Allah be upon him, placed the diya of the 'amd khata' upon the 'aqila, according to the hadiths we have related; and this indicates that the 'aqila bears the diya of the accidental killing (2).
(1) "al-Mughni" (8/217).
(2) "al-Mughni" (8/297).
The jurists of the great cities agreed that the diya of the accidental killing is deferred over three years.
The imam al-Shafi'i, may Allah have mercy on him, said: killing has three forms: pure deliberateness, 'amd khata', and pure accident. As for the accidental, there is no disagreement among anyone I know that the Messenger of Allah, may the peace and blessings of Allah be upon him, ruled the diya for it over three years. He said: that is upon the passing of three years from the day the victim died; when the victim dies and one year passes, one third of the diya falls due; then when a second year passes, the second third falls due; then when the third year passes, the third third falls due. In this, no regard is had to the day the judge rules; and there is no delay because of a proof that was only established after a time: even if it were only established two years after the day of the victim, they would immediately take two thirds of the diya, for it had already fallen due to them. He said: what I retain from a group of the people of knowledge is that they said the same for the 'amd khata', for both belong to accidental killing, in which no qisas applies in any case (1).
(1) "al-Umm" (6/112).
The imam al-Tirmidhi, may Allah have mercy on him, said: the people of knowledge agreed that the diya is collected over three years, each year one third of the diya, and they held that the diya of the accidental killing falls upon the 'aqila (2).
(2) "Sunan al-Tirmidhi" (4/10).
Abu Bakr Ibn al-Mundhir, may Allah have mercy on him, said: we found no verse in the book of Allah, nor any report from the Messenger of Allah, may the peace and blessings of Allah be upon him, for the installment of the accidental diya; and we related from 'Umar, through a chain that is not established from him, that he ruled it over three years.
And we found the generality of the people of knowledge in agreement, as is reported from 'Umar, may Allah be pleased with him (al-Sha'bi reported it from him without meeting him): 'Umar set the diya, among the stipends, over three years: half over two years, two thirds over two years, and one third over one year (3).
(3) "al-Ishraf" (8/9).
The imam Abu Bakr al-Jassas, may Allah have mercy on him, said: there is no disagreement among the jurists on the obligation of the accidental diya over three years. Our companions said: every diya that becomes due otherwise than by an intention to kill is accompanied by recognition of its author's excuse, as a relief and a kindness toward him; whereas the deliberate killer has no excuse: he deserves no relief, and the motive requiring the mutual aid found in the accidental case does not exist in him.
Once this is established, it becomes immediately due; and this is the view of Malik and al-Shafi'i.
Abu Hanifa said: it is due over three years, for it is the diya of a human being, and is therefore deferred, like the diya of semi-deliberate killing.
Our argument: what is due for pure deliberateness is immediately due, like qisas and the compensation for the limbs of a slave. It does not resemble the diya of semi-deliberate killing: in the latter the killer has an excuse, in that he did not intend killing and only arrived at it without any choice of his own; he thus resembles the accidental case, and this is why the 'aqila bears it. And since the aim is relief for the 'aqila, who committed no injury and who bears the payment of wealth as mutual aid, what best suits their situation is relief; and this exists equally in the accidental and the semi-deliberate. As for the deliberate, the offender alone bears it, in the absence of any excuse: it must therefore be assimilated to the compensation for other destroyed property. Disagreement is conceivable when he kills his son, or kills a stranger and execution of qisas becomes impossible, because of the pardon of some of the heirs or something else (1).
(1) "al-Mughni" (8/293).
The people of knowledge agreed that the diya for deliberate killing is aggravated, and that it is immediate and chargeable to the offender's property, by consensus.
It is aggravated in three respects: in that it falls upon the offender, in that it is immediate, and with regard to the age of the animals.
The imam al-Baghawi, may Allah have mercy on him, said: the people of knowledge agreed that the diya of the free Muslim is one hundred camels; then, in pure deliberateness, it is aggravated, chargeable to the killer's property, immediate (1).
(1) "Sharh al-Sunna" (10/187).
However, the jurists differed on the manner of its aggravation.
The majority of jurists, the imam Abu Hanifa, Abu Yusuf, the Malikis and the Hanbalis, held that it is due in quarters: 25 bint makhad (she-camels entering their second year), 25 bint labun (entering their third year), 25 hiqqa (fourth year) and 25 jadha'a (fifth year), chargeable to the offender's property, immediate.
The imam Malik, however, constituted the aggravated diya in thirds: 30 hiqqa, 30 jadha'a and 40 khalafa, which are pregnant ones; and according to him it applies only to a man's killing of his son, when he is not executed for him (2).
(2) "al-Muwatta'" (2/850), "al-Tamhid" (17/352), "al-Istidhkar" (8/43, 44), "al-Kafi" (596), "Sharh al-Sunna" by al-Baghawi (10/187), "Bada'i' al-Sana'i'" (7/254), "al-Hidaya" (4/177), "Tibyan al-Haqa'iq" (6/126), "Bahr al-Ra'iq" (8/373), "al-Ifsah" (2/231), "Bidayat al-Mujtahid" (2/307), "al-Kafi" (4/73), "al-Mubdi'" (8/346), "al-Insaf" (10/59, 60), "Kashshaf al-Qina'" (6/21).
The Shafi'ites and Muhammad ibn al-Hasan held that the injury of deliberately killing the free Muslim whose blood is protected is one hundred camels divided into three parts, the meaning of this division being that it is made up of three portions, even if some exceed others: 30 hiqqa, 30 jadha'a and 40 khalafa, that is, pregnant ones.
The vizier Ibn Hubayra, may Allah have mercy on him, said: they differed on dirhams and dinars: are they taken in diyat? Abu Hanifa and Ahmad said: they are a fixed valuation for the diyat, which may be received even when camels exist. Then they differed: is each species a category in itself and a diya in itself? Abu Hanifa and Ahmad, in one of the two reports, said: it is a category in itself; the second report: the original category is the camel, and currencies are a substitute for it, but a substitute whose measure the law has fixed, which may be neither increased nor decreased.
Malik said: it is a category in itself, fixed, and he did not relate it to the camels.
Al-Shafi'i said: there is no turning away from the camels when they exist, except by mutual consent; if they are unavailable, there are two views:
The older of them: one turns to one of two things: 1,000 dinars or 12,000 dirhams.
The newer of them: one turns to their value at the time of collection, whether more or less.
They differed on the amount of the diya in dirhams: Abu Hanifa said: 10,000 dirhams; Malik, al-Shafi'i and Ahmad: 12,000 dirhams (1).
(1) "al-Ifsah" (2/232).
The jurists differed on cattle, sheep and garments: are they an original category of the diya, or are they received only by way of valuation?
The majority of jurists, the imam Abu Hanifa, the Malikis, the Shafi'ites and the Hanbalis in one report, held that they are neither an original category of the diya nor a fixed valuation: one reverts to them only by mutual consent, by way of valuation, according to the description given previously among the Shafi'ites (1).
(1) "Bada'i' al-Sana'i'" (7/254), "al-Ikhtiyar" (5/45), "al-Jawhara al-Nayyira" (5/233), "al-Lubab" (2/255), "al-Ishraf on the points of disagreement" (4/117), number (1462), "Bidayat al-Mujtahid" (2/308, 309), "al-Bayan" (11/491), "al-Hawi al-Kabir" (12/228), "al-Muhadhdhab" (2/196), "al-Najm al-Wahhaj" (8/465), "Mughni al-Muhtaj" (5/296), "Tuhfat al-Muhtaj" (10/441), "al-Mughni" (8/290).
Because the Prophet, may the peace and blessings of Allah be upon him, "ruled for the life one hundred camels", without valuing them in anything else; and because it is a species of goods, like slaves and real estate; and because if it could be valued in sheep and cattle, it could be valued in food for the people of food and in horses for the people of horses, which no one maintains (1).
(1) "Bada'i' al-Sana'i'" (7/254), "al-Ikhtiyar" (5/45), "al-Jawhara al-Nayyira" (5/233), "al-Lubab" (2/255), "al-Ishraf on the points of disagreement" (4/117), number (1462), "Bidayat al-Mujtahid" (2/308, 309), "al-Bayan" (11/491), "al-Hawi al-Kabir" (12/228), "al-Muhadhdhab" (2/196), "al-Najm al-Wahhaj" (8/465), "Mughni al-Muhtaj" (5/296), "Tuhfat al-Muhtaj" (10/441), "al-Mughni" (8/290).
The Hanbalis according to the madhhab, and the two Hanafi companions Abu Yusuf and Muhammad, held that cattle, sheep and garments are an original category of the diya, because of what 'Amr ibn Shu'ayb reported from his father from his grandfather:
The value of the diya at the time of the Messenger of Allah, may the peace and blessings of Allah be upon him, was eight hundred dinars or eight thousand dirhams, and the diya of the People of the Book was then half the diya of the Muslims. This remained so until 'Umar, may Allah be pleased with him, was made caliph; he stood up as an orator and said: know that the camels have become expensive. 'Umar then fixed the diya, for the people of gold, at 1,000 dinars; for the people of silver, at 12,000; for the people of cattle, at 200 head; for the people of sheep, at 2,000 head; and for the people of garments, at 200 garments. And he left the diya of the people under covenant: he did not raise it among what he raised of the diyat.
Hasan hadith: reported by Abu Dawud (4542)
(2) Hasan hadith: reported by Abu Dawud (4542).
(3) "Bada'i' al-Sana'i'" (7/254), "al-Hidaya" (4/178), "al-Ikhtiyar" (5/45), "al-Jawhara al-Nayyira" (5/233), "al-Lubab" (2/255), "al-Durr al-Mukhtar" (6/574), "al-Mughni" (8/290), "Kashshaf al-Qina'" (6/20), "Sharh Muntaha al-Iradat" (6/94), "Manar al-Sabil" (3/258).
They said: the consensus of the scholars of the great cities, in every age and time, except those who deviated from them, that it is neither increased beyond 1,000 dinars nor decreased from it, is the clearest proof that it is the obligation of the people of gold, just as the camels are the obligation of the people of camels; for if it were the value of one hundred camels, it would vary with increase and decrease because of the changing prices of camels.
And this view is the truth in the matter, because of the consensus of proofs that we have mentioned (1).
(1) "Tafsir al-Tabari" (5/212).
The imam Ibn 'Abd al-Barr, may Allah have mercy on him, said: the reports from 'Umar concerning gold concur that the diya from it is 1,000 dinars; the scholars have not differed over it, neither in the past nor recently (2).
(2) "al-Istidhkar" (8/39).
The imam al-Sarakhsi, may Allah have mercy on him, said: there is no disagreement that in dinars it is 1,000 dinars; and the value of each dinar at the time of the Messenger of Allah, peace be upon him, was twelve dirhams (3).
(3) "al-Mabsut" (26/78).
The imam al-Kasani, may Allah have mercy on him, said: there is no disagreement that what is due in gold is 1,000 dinars (4).
(4) "Bada'i' al-Sana'i'" (7/254).
The jurists differed on the diya when it is in silver: is it 10,000 dirhams or 12,000?
The Hanafis held that it is 10,000 dirhams by weight of seven (ten dirhams weighing seven mithqal), because of what is reported from our master 'Umar, may Allah be pleased with him, that he said: "The diya is 10,000 dirhams", in the presence of the Companions, may Allah be pleased with them, without it being transmitted that anyone contradicted him: it is therefore a consensus; especially since fixed measures are known only through transmission: the apparent meaning is therefore that he heard it from the Messenger of Allah, may the peace and blessings of Allah be upon him (1).
(1) "Bada'i' al-Sana'i'" (7/254), "al-Ikhtiyar" (5/45), "al-Jawhara al-Nayyira" (5/233), "al-Lubab" (2/255).
The majority of jurists, the Malikis, the Shafi'ites according to the older view and the Hanbalis, held that it is 12,000 dirhams of silver, in Islamic coinage of which every ten dirhams weigh seven mithqal, because of what 'Amr ibn Shu'ayb reported from his father from his grandfather:
The value of the diya at the time of the Messenger of Allah, may the peace and blessings of Allah be upon him, was eight hundred dinars or eight thousand dirhams, and the diya of the People of the Book was then half the diya of the Muslims. This remained so until 'Umar, may Allah be pleased with him, was made caliph; he stood up as an orator and said: know that the camels have become expensive. 'Umar then fixed the diya, for the people of gold, at 1,000 dinars; for the people of silver, at 12,000; for the people of cattle, at 200 head; for the people of sheep, at 2,000 head; and for the people of garments, at 200 garments. And he left the diya of the people under covenant: he did not raise it among what he raised of the diyat.
Hasan hadith: reported by Abu Dawud (4542)
'Umar, may Allah be pleased with him, thus valued the diya for the people of gold at 1,000 dinars and for the people of silver at 12,000, without anyone contradicting him; and because it is a species of wealth whose payment in diya is permitted: it is therefore a category in itself, like the camels; and because the diya is a meaning for which the camels were made a category: gold and silver are therefore a category in it, like in the zakat (3).
(2) Hasan hadith: reported by Abu Dawud (4542).
(3) "al-Muwatta'" (2/856), "al-Tamhid" (17/345, 346), "al-Ishraf on the points of disagreement" (4/116), "al-Najm al-Wahhaj" (8/465), "Kashshaf al-Qina'" (6/20), "Manar al-Sabil" (3/258).
The Shafi'ites, according to the newer view, said: if the camels are unavailable, their value at the time their delivery becomes due, whatever it may amount to; for it is the compensation of a destroyed thing: one therefore reverts to its value when the original category is scarce; and it is valued in the prevailing currency of its town, for it is closer and more precise; if there are two currencies or more with none prevailing, the offender chooses among them.
And if part of the required camels is found, one takes what exists and the value of the remainder, just as if someone were owed a like-for-like item and only part of it is found: he takes it and the value of the remainder.
They argued that its value is taken on the basis of what 'Amr ibn Shu'ayb reported from his father from his grandfather:
The value of the diya at the time of the Messenger of Allah, may the peace and blessings of Allah be upon him, was eight hundred dinars or eight thousand dirhams, and the diya of the People of the Book was then half the diya of the Muslims. This remained so until 'Umar, may Allah be pleased with him, was made caliph; he stood up as an orator and said: know that the camels have become expensive. 'Umar then fixed the diya, for the people of gold, at 1,000 dinars; for the people of silver, at 12,000; for the people of cattle, at 200 head; for the people of sheep, at 2,000 head; and for the people of garments, at 200 garments. And he left the diya of the people under covenant: he did not raise it among what he raised of the diyat.
Hasan hadith: reported by Abu Dawud (4542)
Al-'Imrani, may Allah have mercy on him, said: the probative force of the report lies in his saying: "The value of the diya at the time of the Messenger of Allah, may the peace and blessings of Allah be upon him, was such and such": this indicates that the obligation consists of the camels.
And because 'Umar, may Allah be pleased with him and satisfied with him, said: "know that the camels have become expensive", and he fixed for them 1,000 dinars or 12,000 dirhams: he thus attached it to the high price of camels, which indicates that this was by way of valuation; for whatever is due by value varies with increase and decrease; and none of the Companions contradicted him.
As for the reports transmitted in favor of the first view, we interpret them as being by way of valuation.
Accordingly, the diya has only one original category: the camels. If the diya is aggravated and the camels are scarce: if we follow his newer view, it is valued aggravated at 30 hiqqa, 30 jadha'a and 40 khalafa; if we follow his older view, there are two views, transmitted in "al-'Udda":
The first: it is aggravated by one third of the diya, and he related only this in "al-Muhadhdhab", because of what we cited from 'Umar, 'Uthman and Ibn 'Abbas, may Allah be pleased with them and satisfied with them.
The second: the aggravation lapses; for aggravation, according to us, lies in the quality of the animals of the original category, not in the increase of the number, and that is possible only for camels, not for currency. Do you not see that the slave, for whom only a value is due, carries no aggravation? As for the reports from the Companions, may Allah be pleased with them and satisfied with them, we have said that they were the value of what they made obligatory. Such is our madhhab (1).
(1) "al-Bayan" (11/491), "al-Hawi al-Kabir" (12/228), "al-Muhadhdhab" (2/196), "al-Najm al-Wahhaj" (8/465), "Mughni al-Muhtaj" (5/296), "Tuhfat al-Muhtaj" (10/441).
All those who recognize semi-deliberate killing, namely the Hanafis, the Shafi'ites and the Hanbalis, agreed that the diya is due for it and falls upon the 'aqila, because of the saying of the Prophet, may the peace and blessings of Allah be upon him:
Know that the diya of the error resembling deliberate killing, that which is done with the whip or the stick, is one hundred camels, forty of which carry their young in their wombs.
Authentic hadith: reported by Abu Dawud (4549), al-Nasa'i (4796), Ibn Majah (2628) and Ahmad (6552)
And the hadith of Abu Hurayra, may Allah be pleased with him:
Two women of Hudhayl fought; one of them threw a stone at the other and killed her and what was in her womb; the Prophet, may the peace and blessings of Allah be upon him, ruled that the diya of her fetus be a slave or a slave girl, and ruled that the diya of the woman be borne by her 'aqila.
Reported by al-Bukhari (6910) and Muslim (1681)
And because he, may the peace and blessings of Allah be upon him, when asked about the woman who struck her co-wife with the tent pole and killed her and her fetus, ruled a ghurra for the fetus and ruled the diya upon her 'aqila (3).
The diya of semi-deliberate killing is aggravated like that of deliberate killing, but its author is not put to death.
Hasan hadith: reported by Abu Dawud (4565) and Ahmad (6718)
And according to 'Amr ibn Shu'ayb, from his father from his grandfather, the Prophet, may the peace and blessings of Allah be upon him, said the above. And because it is a killing that does not entail retaliation: its diya therefore falls upon the 'aqila, like accidental killing (5).
(1) Authentic hadith: reported by Abu Dawud (4549), al-Nasa'i (4796), Ibn Majah (2628) and Ahmad (6552).
(2) Reported by al-Bukhari (6910) and Muslim (1681).
(3) Reported by Muslim (1682).
(4) Hasan hadith: reported by Abu Dawud (4565) and Ahmad (6718).
(5) "al-Hidaya" (4/158, 159), "al-'Inaya" (15/122, 123), "al-Jawhara al-Nayyira" (5/196, 197), "al-Ta'rifat" (165), "Bahr al-Ra'iq" (8/332), "al-Ishraf on the points of disagreement" (4/107, 108), "al-Bayan" (11/449, 450), "al-Najm al-Wahhaj" (8/329, 330), "Mughni al-Muhtaj" (5/215), "al-Mughni" (8/216), "Kashshaf al-Qina'" (5/603), "Sharh Muntaha al-Iradat" (6/13, 14), "Manar al-Sabil" (3/221).
This is not specific to the diya of life, but extends to one third of what is fixed for the deliberate case outside of life, such as the limbs (1).
However, the diya is immediate according to the majority, chargeable to the offender's property; according to the Hanafis it is deferred over three years, because the term was established by the consensus of the Companions, may Allah be pleased with them, through the decision of our master 'Umar, may Allah be pleased with him, in their presence: the term therefore became an attribute of every diya made obligatory by a text (2).
(1) "al-Hawi al-Kabir" (12/213), "Rawdat al-Talibin" (6/279), "al-Najm al-Wahhaj" (8/456), "Mughni al-Muhtaj" (5/292), "Tuhfat al-Muhtaj" (10/434).
(2) "Bada'i' al-Sana'i'" (7/256, 257), and the rest of the preceding sources.
The people of knowledge agreed that there is no qisas in accidental killing, and that the one who kills another by mistake owes the diya, upon his 'aqila, and the expiation, upon his own property; they proved it by the Quran, the Sunna and the consensus.
As for the Quran: the saying of Allah, exalted be He:
And whoever kills a believer by mistake must free a believing slave and pay a diya to his family, unless they remit it as charity. If he belonged to a people at enmity with you and was a believer, then the freeing of a believing slave suffices; and if he belonged to a people between whom and you there is a treaty, then a diya delivered to his family and the freeing of a believing slave. And whoever cannot find the means must fast for two consecutive months as repentance from Allah. Allah is ever All-Knowing, All-Wise.
Surat an-Nisa (The Women), verse 92
As for the Sunna: according to al-Mughira ibn Shu'ba:
A woman killed her co-wife with the pole of a tent; the matter was brought to the Messenger of Allah, may the peace and blessings of Allah be upon him, and he ruled the diya upon her 'aqila; she was pregnant, and he ruled a ghurra for the fetus. One of her agnates said: shall we pay the diya for one who has tasted nothing, neither drunk, nor cried out in life, and who has merely lain there? He said: he replied: this is rhyming speech, like the rhyming speech of the Bedouins.
Reported by Muslim (1682)
And in the Sunan of Ibn Majah, according to al-Mughira ibn Shu'ba, may Allah be pleased with him:
The Messenger of Allah, may the peace and blessings of Allah be upon him, ruled the diya upon the 'aqila.
Authentic hadith: reported by Ibn Majah (2633)
And the hadith of Abu Hurayra, may Allah be pleased with him:
Two women of Hudhayl fought; one of them threw a stone at the other and killed her and what was in her womb; the Prophet, may the peace and blessings of Allah be upon him, ruled that the diya of her fetus be a slave or a slave girl, and ruled that the diya of the woman be borne by her 'aqila.
Reported by al-Bukhari (6910) and Muslim (1681)
As for the consensus:
The imam Ibn al-Mundhir, may Allah have mercy on him, said: the people of knowledge agreed that the diya of the accidental killing falls upon the 'aqila (4).
(1) Reported by Muslim (1682).
(2) Authentic hadith: reported by Ibn Majah (2633).
(3) Reported by al-Bukhari (6910) and Muslim (1681).
(4) "al-Ishraf" (8/7), and "al-Ijma'" (699).
The imam Abu Bakr al-Jassas, may Allah have mercy on him, said: the jurists agree on the obligation of the diya in this matter. Allah, exalted be He, said: "And whoever kills a believer by mistake: the freeing of a believing slave and a diya delivered to his family"; the verse does not mention upon whom the diya falls, the killer or the 'aqila; yet consecutively transmitted reports have come from the Prophet, may the peace and blessings of Allah be upon him, making the diya of the accidental killing obligatory upon the 'aqila, and the jurists agree upon it...
The reports from the Prophet, may the peace and blessings of Allah be upon him, making the diya of the accidental killing obligatory upon the 'aqila are consecutively transmitted, and the early generations and the jurists of the great cities agree upon it (1).
(1) "Ahkam al-Qur'an" (3/193, 194).
Ibn Battal, may Allah have mercy on him, said: al-Tabari said: the diya of the accidental killing falls upon the killer's 'aqila, and the expiation upon the killer, by consensus (2).
(2) "Sharh Sahih al-Bukhari" (8/514).
The imam al-Mawardi, may Allah have mercy on him, said: as for the diya of pure accident and of 'amd khata', what the majority of the community follows, among the early and the later scholars, is that it is obligatory upon the 'aqila, who bears it for the killer; al-Asamm, Ibn 'Ulayya and a group of the Khawarij deviated from them, imposing it upon the killer and not upon the 'aqila, as in the deliberate case (3).
(3) "al-Hawi al-Kabir" (12/240).
Ibn Qudama, may Allah have mercy on him, said: for the accidental case, the diya is due upon the 'aqila and the expiation upon the killer's property, without any disagreement we know of. The basis of the obligation of the diya and the expiation is the saying of Allah, exalted be He: "And whoever kills a believer by mistake: the freeing of a believing slave and a diya delivered to his family, unless they remit it" [an-Nisa: 92]; whether the victim is a Muslim or a disbeliever bound by a pact, according to the saying of Allah, exalted be He: "If he belonged to a people between whom and you there is a treaty: a diya delivered to his family and the freeing of a believing slave" [an-Nisa: 92].
And because every diya due for a killing, without settlement nor partial pardon, falls upon the 'aqila.
Ibn Qudama, may Allah have mercy on him, said: the diya, that is, in semi-deliberate killing, falls upon the 'aqila according to the majority of the people of knowledge; Malik classified it as deliberate entailing qisas (1).
(1) "al-Mughni" (8/216).
This diya is aggravated and upon the 'aqila; the offender does not share in it according to the Shafi'ites and the Hanbalis; according to the Hanafis, he shares in it with them as one of them; its explanation has preceded in the section on accidental killing.
All those who admit the diya in semi-deliberate killing agreed that it is aggravated, because of the saying of the Prophet, may the peace and blessings of Allah be upon him:
Know that the victim of the error resembling deliberate killing, killed by the whip or the stick, calls for an aggravated diya, forty of whose camels carry their young in their wombs.
Authentic hadith: reported by Abu Dawud (4547), al-Nasa'i (4793), Ahmad (6552) and Ibn Hibban in his "Sahih" (6011)
They differed, however, on the manner of its aggravation:
The Shafi'ites, the Hanbalis in one report and the imam Muhammad ibn al-Hasan held that the diya of semi-deliberate killing is constituted in thirds: 30 hiqqa, 30 jadha'a and 40 pregnant thaniyya, carrying their young in their wombs, the forty being meant; according to the saying of the Prophet, may the peace and blessings of Allah be upon him:
Know that the victim of the error resembling deliberate killing, killed by the whip or the stick, calls for an aggravated diya, forty of whose camels carry their young in their wombs.
Authentic hadith: reported by Abu Dawud (4547), al-Nasa'i (4793), Ahmad (6552) and Ibn Hibban in his "Sahih" (6011)
And according to 'Amr ibn al-'As, may Allah be pleased with him:
Whoever kills a believer deliberately is handed over to the heirs of the victim: if they wish, they kill him; if they wish, they take the diya; it is 30 hiqqa, 30 jadha'a and 40 khalafa: that is the diya of the deliberate; and whatever they settle upon belongs to them; and that is the heaviest of diyat. The diya of semi-deliberate killing is aggravated like the diya of the deliberate, but its author is not put to death.
Reported by the imam Ahmad (7033)
In one version:
The diya of semi-deliberate killing is aggravated, like the diya of the deliberate, and its author is not put to death.
Hasan hadith: reported by Abu Dawud (4565) and Ahmad (7088)
(1) Authentic hadith: reported by Abu Dawud (4547), al-Nasa'i (4793), Ahmad (6552) and Ibn Hibban in his "Sahih" (6011).
(2) Reported by the imam Ahmad (7033).
(3) Hasan hadith: reported by Abu Dawud (4565) and Ahmad (7088).
(4) "Mukhtasar Ikhtilaf al-'Ulama'" (5/93, 94), "Ahkam al-Qur'an" (3/207), "al-Ikhtiyar" (5/44), "al-Jawhara al-Nayyira" (5/231), "al-Lubab" (2/253, 254), "al-Umm" (7/330), "al-Hawi al-Kabir" (12/312, 314), "al-Muhadhdhab" (2/195), "al-Najm al-Wahhaj" (8/461), "Mughni al-Muhtaj" (5/294), "al-Ifsah" (2/231).
The imam Abu Hanifa, Abu Yusuf and the Hanbalis according to the madhhab held that it is 100 camels in quarters: 25 bint makhad, that is, the she-camel that has entered its second year; 25 bint labun, the one that has entered its third year; 25 hiqqa, the one that has entered its fourth year; and 25 jadha'a, the one that has entered its fifth year.
Aggravation is established only for camels specifically, because the Companions, may Allah be pleased with them, established it only for them; if the diya is ruled in something other than camels, it is not aggravated: thus nothing is added in silver beyond 10,000, nor in gold beyond 1,000 dinars (1).
(1) "al-Ikhtiyar" (5/44), "al-Jawhara al-Nayyira" (5/231), "al-Lubab" (2/253, 254), "al-Kafi" (4/72), "Kashshaf al-Qina'" (6/21), "Sharh Muntaha al-Iradat" (6/95).
Ibn Hubayra, may Allah have mercy on him, said: as for the diya of semi-deliberate killing, Ahmad and Abu Hanifa said: it is like the diya of pure deliberateness.
The reports from Malik differ: two reports: one denies it outright; the other affirms it in a case like a father's killing of his son, on the mode of resemblance rather than intent; its diya, according to him, is in thirds: 30 hiqqa, 30 jadha'a and 40 pregnant khalafa carrying their young in their wombs.
Al-Shafi'i said: its diya is 30 hiqqa, 30 jadha'a and 40 khalafa, which are the pregnant ones (2).
(2) "al-Ifsah" (2/231), "Bidayat al-Mujtahid" (2/307).
The imam al-Kasani, may Allah have mercy on him, said: what is due of each species varies according to whether the victim is male or female: if male, there is no disagreement that what is due for killing him, in camels, is one hundred, according to his saying, may the peace and prayer of Allah be upon him: "In the life of a believer there are one hundred camels"; and there is likewise no disagreement that what is due in gold is 1,000 dinars (1).
(1) "Bada'i' al-Sana'i'" (7/254).
Likewise, the amount explained previously is due: in gold, 1,000 dinars; in silver, 12,000 according to the majority, and 10,000 according to the Hanafis; and likewise for cattle, sheep and garments according to those who accept them.
The people of knowledge agreed that the diya of the free Muslim woman is half that of the man.
The imam al-Shafi'i, may Allah have mercy on him, said: I know of no opponent among the people of knowledge, ancient or recent, on the fact that the diya of the woman is half the diya of the man, which is fifty camels. When a diya is ruled for a woman, it is fifty camels; if she is killed deliberately and her people choose her diya, her diya is fifty camels whose ages are the ages of the diya of the deliberate; whether a man kills her, a group, or a woman, her diya is not increased beyond fifty camels; and the wounds of the woman follow, for her diya, those of the man: they do not differ; for her muwadiha (wound laying bare the bone), half of that of the man, and so for all her wounds by this calculation (2).
(2) "al-Umm" (6/106).
The imam Ibn al-Mundhir, may Allah have mercy on him, said: they agreed that the diya of the woman is half the diya of the man (1).
(1) "al-Ijma'" (669).
Abu 'Umar Ibn 'Abd al-Barr, may Allah have mercy on him, said: they agreed that the diya of the woman is half the diya of the man; and analogy would require her wounds to follow the same rule, unless an established sunna must be submitted to (2).
(2) "al-Istidhkar" (8/67).
Ibn Hazm, may Allah have mercy on him, said: they agreed that the diya, for the people of the countryside, is one hundred camels for the life of the free Muslim killed by mistake, no more and no less, and fifty camels for the life of the free Muslim woman killed among them; all this as long as the victim is not a close relative, nor killed in the Sanctuary, nor during the sacred months (3).
(3) "Maratib al-Ijma'", p. (140).
The imam Ibn Rushd, may Allah have mercy on him, said: they agreed that the diya of the woman is half the diya of the man for life (4).
(4) "Bidayat al-Mujtahid" (2/318, 319).
The imam al-'Imrani, may Allah have mercy on him, said: the diya of the woman is half the diya of the man; this is the view of all the scholars, except al-Asamm and Ibn 'Ulayya, who said: her diya is like the diya of the man.
Our proof: what 'Amr ibn Hazm reported: the Prophet, may the peace and blessings of Allah be upon him, said:
The diya of the woman is half the diya of the man.
Verification note: this wording was not found in the hadith of 'Amr ibn Hazm
(5) I have not found this wording in the hadith of 'Amr ibn Hazm.
It is reported from 'Umar, 'Uthman, 'Ali, Ibn 'Umar, Ibn 'Abbas, Ibn Mas'ud and Zayd ibn Thabit, may Allah be pleased with them and satisfied with them, that they said: "The diya of the woman is half the diya of the man"; and none of the Companions, may Allah be pleased with them all, contradicted them: this indicates a consensus (1).
(1) "al-Bayan" (11/494, 495).
The vizier Ibn Hubayra, may Allah have mercy on him, said: they agreed that the diya of the free woman, for her life, is half the diya of the free Muslim man (2).
(2) "al-Ifsah" (2/242).
The imam al-Kasani, may Allah have mercy on him, said: if it is female, the diya of the woman is half the diya of the man, by consensus of the Companions, may Allah be pleased with them: it is reported from our master 'Umar, our master 'Ali, Ibn Mas'ud and Zayd ibn Thabit, may Allah bestow His pleasure upon them, that they said, concerning the diya of the woman, that it is half the diya of the man, without it being transmitted that anyone contradicted them: it is therefore a consensus.
And because the woman is half the man in inheritance and testimony: so too in her diya (3).
(3) "Bada'i' al-Sana'i'" (7/254).
The jurists differed on the ruling for the woman's limbs and wounds: are they, absolutely, half those of the man, or does she equal him up to one third of the diya, the compensation for the ma'muma and the ja'ifa, and then become half of his beyond that?
The Malikis, al-Shafi'i according to the older view and the Hanbalis according to the madhhab held that the woman equals the man in wounds below one third of the diya; when one third of the diya is reached, she is half the diya of the man. Of this view were, among the Companions, 'Umar ibn al-Khattab, may Allah be pleased with him, and, among the Successors, Sa'id ibn al-Musayyab and al-Zuhri.
Thus, for her finger: ten camels; for two fingers: twenty camels; for three fingers: thirty; and there is no dispute that beyond one third she is half: for four fingers: twenty, and for her hand: twenty-five.
She is half the diya of the man among the people of her religion.
The imam Malik reported from Rabi'a ibn Abi 'Abd al-Rahman that he said: I asked Sa'id ibn al-Musayyab: how much for the finger of a woman? He said: ten camels. I said: how much for two fingers? He said: twenty camels. I said: how much for three? He said: thirty camels. I said: how much for four? He said: twenty camels. I said: when her wound grows graver and her misfortune intensifies, her diya diminishes! Sa'id said: are you an Iraqi? I said: rather a scholar who verifies, or an ignorant man who learns. Sa'id said: it is the Sunna, my nephew (1). And this is what the sunna of the Messenger of Allah, may the peace and blessings of Allah be upon him, requires; and because below one third, the male and the female are equal, as shown by the fetus, in which the male and the female are equal.
(1) Reported by the imam Malik in "al-Muwatta'" (2/680).
And according to 'Amr ibn Shu'ayb, from his father from his grandfather, attributed to the Prophet:
The diya of the woman is like the diya of the man until it reaches one third of her diya.
Weak hadith: reported by al-Nasa'i (4805) and al-Daraqutni (3128)
And it is an explicit text given precedence over any other.
And because it is the destruction of a human being whose due is less than one third of the diya: the female must equal the male in it; its basis is the diya of the fetus; and because, for every fixed share of wealth due upon death, the female equals the male in its smaller part: its basis is the sixth in the case of uterine siblings.
And the difference between what is below one third and what is beyond it is that what is below it is little: the woman's misfortune in it has been compensated by her equality with the man (1).
(1) "al-Muwatta'" (2/680), "al-Ishraf on the points of disagreement" (4/126, 128), "Sharh Mukhtasar Khalil" (8/43), "Tahbir al-Mukhtasar" (5/285), "al-Mughni" (8/315), "al-Kafi" (4/77), "Sharh al-Zarkashi" (3/44), "al-Mubdi'" (8/350, 351), "Kashshaf al-Qina'" (6/23), "Manar al-Sabil" (3/263, 264).
The Hanbalis, however, differed on the third itself: are they equal in it? Two reports:
One: they are equal in it, for the limit of smallness is not considered there, and this is why a bequest of it is valid.
The second report, which is the madhhab: they differ: for her ja'ifa (perforating wound of the abdomen), one sixth of the diya of the man is due, for the third falls within abundance, according to his saying, peace be upon him: "One third, and one third is much"; and because the 'aqila bears it: this indicates that it differs from what is below it (2).
(2) "al-Mughni" (8/315), "al-Kafi" (4/77), "Sharh al-Zarkashi" (3/44), "al-Mubdi'" (8/350, 351), "Kashshaf al-Qina'" (6/23), "Matalib Uli al-Nuha" (6/96), "I'lam al-Muwaqqi'in" (2/169).
The Hanafis and the Shafi'ites according to the madhhab (and it is reported from 'Ali and 'Abd Allah ibn Mas'ud, and of their view were al-Thawri, al-Layth, Ibn Abi Layla, Ibn Shubrama and Abu Thawr, and Ibn al-Mundhir chose it) held that the woman does not equal the man in any wound: her wounds are half his, in the small as in the great; for it is an injury against a free woman: what is due for it is therefore half of what is due for the free man, the basis being what exceeds one third.
And because it is an injury which, were it to exceed one third, would be referred to life: when it falls below one third, it is likewise referred to life, like an injury against a man. And because the increase of the injury would, in their doctrine, have the effect of diminution: if he cuts three fingers of the woman, thirty camels are due; if he cuts four, twenty are due: the increase of the injury would thus result in the decrease of the compensation, which is contrary to the principles.
And because the deficiency of femaleness, which prevented equality with the man in the diya for life, prevents all the more equality with him in what is below it, the diyat of limbs and wounds, the diya for life being the weightier; by comparison with the Muslim vis-a-vis the disbeliever. And because, since qisas below life is determined by qisas for life, the diya below life must be determined by the diya for life; now she is half in it for life: so too below it.
And because they are two persons whose diyat differ: the compensations for their limbs differ, like the Muslim and the disbeliever. And because it is an injury with a fixed compensation: it is, for the woman, half that of the man, like the hand.
And since they agreed that above one third it is half, so too below it.
As for the answer to the hadith of 'Amr ibn Shu'ayb: it is not supported by a chain, for his grandfather Muhammad ibn 'Abd Allah ibn 'Amr ibn al-'As does not hold the rank of Companion; it would be supported only if he reported it from his grandfather 'Abd Allah ibn 'Amr, for he is the Companion; and al-Shafi'i said: "I have found no established transmission for him", meaning a way to his companionship (of the Prophet).
As for inheritance, the woman is half the man in it only below one third, when sharing with brothers; and if she equaled the children of the mother, it is because the attachment there is through the womb, which requires the equality of males and females in it, like the share of the two parents; were the cause the fixing at one third, no difference could occur (1).
(1) "Mukhtasar Ikhtilaf al-'Ulama'" (5/105, 106), "al-Tajrid" by al-Quduri (11/5720, 5721), "al-Jawhara al-Nayyira" (5/234), "al-Hawi al-Kabir" (12/289, 290).
The imam al-Shafi'i, may Allah have mercy on him, said: according to Ibrahim, 'Umar ibn al-Khattab and 'Ali ibn Abi Talib, may Allah be pleased with them, said: "The diya of the woman is half the diya of the man, for life and for what is below it". 'Umar and 'Ali agreed upon this: it is not fitting to take anything else. And among what attests the soundness of the saying of 'Umar and 'Ali: if the finger of a woman is cut off by mistake, there is due, according to the people of Medina, upon its cutter, one tenth of the diya of the man; if he cuts two fingers: two tenths of the diya; if he cuts three fingers: three tenths of the diya; if he cuts four fingers: two tenths of the diya: when the wound grows graver, the diya diminishes.
Al-Shafi'i said: the analogy that no one rejects, and by which no one errs in our view, is that if the life of the woman is, in diya, half the diya of the man, and her hand half of what is in his hand, then what is lesser among her wounds should follow the same rule. When this belongs to the matters in which no one may be mistaken by way of opinion, and Ibn al-Musayyab said: "for three fingers of a woman, thirty; for four, twenty", and it was said to him: "when her wound grows graver, her diya diminishes!", he would reply: "it is the Sunna"; and he reported from Zayd ibn Thabit that the woman equals the man up to one third of the diya of the man, and then is half of his diya; it is not permissible to attribute such an error to anyone by way of opinion: error of opinion occurs only in what admits of an equivalent, where one opinion may be sounder than another; but as for this, I do not believe anyone errs in it except by following someone whom he does not allow himself, in his view, to contradict. Since Ibn al-Musayyab said: "it is the Sunna", it is likely that it comes from the Prophet, may the peace and blessings of Allah be upon him, or from the consensus of the generality of his Companions; and Zayd does not resemble one who would say this by way of opinion, for opinion cannot bear it.
If someone says: a contrary version is reported from 'Ali ibn Abi Talib, may Allah be pleased with him,
the answer is: it is established neither from 'Ali nor from 'Umar; and even if it were established, it would be likely that they said it by way of opinion, the very one that it is not fitting for anyone to say otherwise; it would therefore not be lack of knowledge, since everyone grasps what they said when life is half the life of the man and the hand likewise, and the same for what is below both. And what Sa'id calls the Sunna, if it contradicts analogy and reason, can only come from a knowledge that is followed, in our view; and Allah, exalted be He, knows best.
We used to hold this meaning, then I stopped at it, and I ask Allah, exalted be He, for the better choice, for we find among them one who says: "it is the Sunna", yet we find no established transmission for his saying "the Sunna" proving that it comes from the Prophet, may the peace and blessings of Allah be upon him. Analogy is therefore more binding upon us: half the diya of the man; and it is not established from Zayd as it is established from 'Ali ibn Abi Talib, may Allah be pleased with him; and Allah, exalted be He, knows best (1).
(1) "al-Umm" (7/311, 312).
The vizier Ibn Hubayra, may Allah have mercy on him, said: they differed: does the woman equal the man in wounds up to one third of the diya?
Abu Hanifa and al-Shafi'i according to the newer view said: she does not equal him in any wound: her wounds are half his, in the small as in the great.
Malik, al-Shafi'i according to the older view and Ahmad in one of his two reports said: the woman equals the man in wounds below one third of the diya; when one third of the diya is reached, she is half the diya of the man.
Ahmad, in the other report, which is the more evident of the two and the one al-Kharqi chose, said: the woman equals the man in the compensation for wounds up to one third of the diya; beyond one third, she is half of the man (2).
(2) "al-Ifsah" (2/242).
The imam Ibn Rushd, may Allah have mercy on him, said: they differed on the diyat of the head wounds of the woman and of her limbs. The majority of the jurists of Medina said: the woman equals the man in her diya for head wounds and limbs until she reaches one third of the diya; when one third of the diya is reached, her diya reverts to half that of the man, I mean the diya of her limbs compared to his limbs. Example: for each of her fingers, ten camels; for two, twenty; for three, thirty; for four, twenty. Of this view were Malik and his companions, and al-Layth ibn Sa'd; Malik reported it from Sa'id ibn al-Musayyab and from 'Urwa ibn al-Zubayr; it is the view of Zayd ibn Thabit and the madhhab of 'Umar ibn 'Abd al-Aziz.
A group said: the diya of the wound of the woman equals that of the wound of the man up to the muwadiha; then her diya is half the diya of the man: it is the more famous of the two views of Ibn Mas'ud; it is reported from 'Uthman, and of this view were Shurayh and a group.
Others said: the diya of the woman, for her wounds and limbs, is half the diya of the man, in the small as in the great: it is the view of 'Ali, may Allah be pleased with him; it is reported from Ibn Mas'ud, but the more famous from him is what we mentioned first; and of this view were Abu Hanifa, al-Shafi'i and al-Thawri.
The basis of the proponent of this view is that the original rule is that the diya of the woman is half the diya of the man: it is obligatory to hold fast to this original until there comes a proof from established transmission, since analogy is not permissible in matters of diyat, especially since maintaining a difference between the small and the great contradicts analogy. This is why Rabi'a said to Sa'id what will be mentioned from him. And the first group relies only on interrupted reports and on what is reported from Sa'id ibn al-Musayyab when Rabi'a ibn Abi 'Abd al-Rahman asked him: "How much for four of her fingers? He said: twenty. I said: when her wound grows graver and her misfortune intensifies, her diya diminishes! He said: are you an Iraqi? I said: rather a scholar who verifies, or an ignorant man who learns. He said: it is the Sunna."
Imam Ibn Hubayra, may Allah have mercy on him, said: « They differed concerning cattle, sheep and garments: are they a fixed basis in the diya, or are they taken on the basis of value? »
Abu Hanifa, Malik and ash-Shafi'i said: none of that is a fixed or specified basis in the diya; recourse is made to them only by mutual consent, on the basis of value.
Ahmad said: sheep and cattle are two specified bases in the diya: two hundred head of cattle, and one thousand head of sheep. The reports differ concerning garments: it is reported from him that they are fixed at two hundred suits, each suit consisting of a waist wrapper and a cloak; it is also reported from him that they are not a substitute (al-Ifsah 2/233).
Imam Ibn Hubayra, may Allah have mercy on him, said: « They differed concerning one who kills in the Sanctuary, or kills while in a state of ihram, or during a sacred month, or kills a mahram relative: is the diya increased in these situations? »
Abu Hanifa said: the diya is not increased in any of these situations.
Malik said: there is no increase for these causes except when a man kills his own child, in which case it is increased. The form of the increase according to him is that the camels be in three thirds: thirty hiqa camels, thirty jadha'a and forty khalafa (al-Ifsah 2/233). As for gold and silver, two reports are transmitted from him:
according to the first, the increase is denied outright, and no addition is taken from them, as for the people of the camels;
according to the second, it is increased; and on the form of that increase, two reports are likewise transmitted from him:
according to the first, what is due in gold and silver is the value of the increased camels, whatever it amounts to, unless it falls below one thousand dinars or twelve thousand dirhams, in which case it is not reduced;
according to the second, its amount is not considered as lying between the diya of accidental killing and its increased form: a supplementary share is thus added to the diya in gold and silver, according to him.
Ash-Shafi'i said: it is increased for the Sanctuary, for the person in a state of ihram and for the sacred months. As to whether it is increased on account of ihram, there are two views, the most apparent of which according to them is that it is not increased. The form of the increase according to him is that it does not enter the monetary values: it enters only the camels, according to their ages alone.
Ahmad said: the diya is increased in all of these situations. The form of the increase according to him: if the compensation is due in gold or silver, it is by increase of the amount, namely one third of the diya, according to an explicit text from him; if it is due in camels, what follows from his school is that they follow the rule of monetary values: the increase is by increase of the amount, not by age.
Ahmad and ash-Shafi'i differed on whether the increases of the diya accumulate, for example when a person kills, in a sacred month, in the Sanctuary, a mahram relative:
ash-Shafi'i said: they merge and the increase is one;
Ahmad said: one third of the diya is due for each of these causes (al-Ifsah 2/233 and 235).