Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Executing a man for the killing of a woman
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
The non-Muslim is executed for the Muslim, the slave for the free, and the woman for the man, because of the word of Allah the Most High : « We prescribed for them in it : a life for a life » (Surah al-Ma'ida, 45) ; it is a consensus of the people of knowledge ; and if he is executed for his equal, his execution for one above him is more entitled.
The man is executed for the woman according to the 4 schools, and it is the view of most of the scholars, because of the word of Allah the Most High : « And there is life for you in retaliation, O people of understanding : perhaps you will fear Allah » (Surah al-Baqara, 179), and His word : « We prescribed for them in it : a life for a life » (Surah al-Ma'ida, 45), generalities that stand except for what evidence specifies.
And because he is a person who killed his counterpart in religion : nothing applies to him but retaliation, as between 2 men.
Ibn Battal (may Allah have mercy on him) said : the imams of the great cities agreed that the man is executed for the woman and the woman for the man when the killing is intentional, except for al-Hasan al-Basri, Ata and what was reported from Ali.
Malik, ath-Thawri, ash-Shafi'i and most of the jurists held that retaliation between men and women regarding wounds is as it is regarding life.
Abu Hanifah said : there is no retaliation between men and women for what is below life, among wounds. His companions argued : equality is considered regarding life but not regarding limbs ; do you not see that the sound hand is not taken for the paralyzed hand, while the sound life is taken for the sick life ? Such are their subtleties, on which they build their discourse ; likewise they do not cut the hand of a woman for the hand of a man, nor the hand of a free person for that of a slave, even though retaliation applies between them for life.
Ibn al-Mundhir said : since they agreed that her life is for a life, and it is the greatest of things, while they disagreed over what is below that, what they disagreed over reverts to what they agreed upon ; for when much of a thing is permitted, its lesser part is more deserving of it (Sharh Sahih al-Bukhari 8/516).
Imam Ibn Rushd (may Allah have mercy on him) said : as for the execution of the man for the woman, Ibn al-Mundhir and others among those who recorded the disagreement related that it is a consensus, except what was related from Ali among the Companions and from Uthman al-Batti : according to them, when the man is killed for the woman, half the diya is due from the heirs of the woman.
The judge Abu al-Walid al-Baji related in al-Muntaqa from al-Hasan al-Basri that the man is not executed for the woman ; al-Khattabi related it in Ma'alim as-Sunan ; it is an anomalous view, but his proof is strong : the word of Allah the Most High : « the female for the female » (Surah al-Baqara, 178) ; even though the generality of the word of Allah the Most High : « We prescribed for them in it : a life for a life » (Surah al-Ma'ida, 45) counters the argument of this text here, this text was revealed for a law other than ours ; and it is a disputed question : is the law of those before us a law for us or not ? The basis for executing a man for a woman is regard for the general welfare (Bidayat al-Mujtahid 2/300).
Imam Ibn Qudamah (may Allah have mercy on him) said : the man is executed for the woman and the woman for the man : this is the view of the generality of the people of knowledge, among them an-Nakha'i, ash-Sha'bi, az-Zuhri, Umar ibn Abd al-Aziz, Malik and the people of Medina, ash-Shafi'i, Ishaq, the companions of personal opinion and others.
It was reported from Ali (may Allah be pleased with him) that he said : the man is killed for the woman, and his heirs are given half the diya ; reported by Sa'id. The like of this was reported from Ahmad, and it was related from al-Hasan and Ata ; from them both was also related the same as the view of the group. Whoever holds the second view argues presumably with the statement of Ali (may Allah be pleased with him) and with the fact that the diya of the woman is half his : so when he is executed for her, a remainder stands in his favor, exacted from the one who killed him.
As for us : the word of Allah the Most High : « a life for a life » (Surah al-Ma'ida, 45) and His word : « the free for the free » (Surah al-Baqara, 178), with the generality of the rest of the texts ; and it is established that the Prophet (peace and blessings of Allah be upon him) executed a Jew who had crushed the head of a servant girl of the Ansar ; and Abu Bakr Muhammad ibn Amr ibn Hazm reported from his father, from his grandfather, that the Messenger of Allah (peace and blessings of Allah be upon him) wrote to the people of Yemen a letter containing the prescribed shares and the schedules, and that the man is executed for the woman : it is a letter well known among the scholars, received from them with acceptance ; and because they are 2 persons each of whom incurs the fixed punishment of calumny for slandering the other : each is executed for the other, like 2 men ; and nothing is due along with the retaliation, for it is obligatory retaliation : nothing is due with it upon the executor, like the rest of the cases of retaliation ; and difference of equivalents carries no weight in retaliation, as proven by the group being killed for one, the Christian being executed for the Magian despite the difference of their religions, and the slave for the slave despite the difference of their value.
The jurists however disagreed on one question :
Executing a Muslim for the killing of a non-Muslim :
The jurists disagreed about the case of a Muslim killing a dhimmi whose blood is protected : is he executed for him unconditionally ? Not executed for him at all ? Or executed for him if he killed him treacherously, and not executed if the killing was not treacherous ? There are, on this, 3 views among the jurists :
The first view : if a Muslim kills a non-Muslim dhimmi whose blood is protected, he is not executed for him ; this is the school of the Shafi'is and the Hanbalis and of most of the people of knowledge ; because of the statement of the Prophet (peace and blessings of Allah be upon him):
« Muslims are equal in their blood : the covenant of the least of them binds all, and the protection granted by the noblest of them binds all ; they are one hand against others ; their strong restores their weak, and their swift one answers for their sitting one ; a believer is not killed for a disbeliever, nor one under covenant so long as his covenant holds. »an authentic hadith, reported by Abu Dawud 2751 and 4530, an-Nasa'i 4735 and 4746, Ibn Majah 2660 and Ahmad 6970
From Abu Juhayfah who said : I asked Ali (may Allah be pleased with him) : do you have anything that is not in the Quran ? (he once said : that is not with the people ?). He said : « By Him who split the grain and created the soul, we have nothing but what is in the Quran, except an understanding given to a man in his Book, and what is in the sheet. I said : and what is in the sheet ? He said : compensation for killing, the ransom of the captive, and that no Muslim be killed for a disbeliever. » (reported by al-Bukhari 6507)
And because he is diminished by unbelief : the Muslim is therefore not executed for him, like the non-Muslim under safe conduct ; for he is diminished by unbelief like the non-Muslim at war and the non-Muslim under safe conduct ; and because it is a fixed punishment whose execution takes place only upon demand : it is therefore not due from a Muslim to a disbeliever, like the punishment of calumny (al-Bayan 11/305 and 307 ; al-Mughni 8/218 ; Kashshaf al-Qina 6/618 ; Manar as-Sabil 3/226 and 228).
And because they agreed that the disbeliever does not undergo retaliation from the Muslim for what is below life, among wounds : life is more entitled to it (al-Istidhkar 8/124).
The second view : Imam Malik adopted the same view as the Shafi'is and the Hanbalis : if a Muslim kills a non-Muslim, whoever he may be, he is not executed for him, except if the Muslim kills the dhimmi treacherously, in which case he is executed for him. Treacherous killing is killing in order to take the victim's property, as the highway robber does, not out of vengeance or enmity ; whether the killing is done secretly, as when he deceives him and takes him to a place where he kills him to take his money, or openly in a manner making rescue impossible, even if the second case is called highway robbery : he is not killed for it as qisas, but for corruption ; hence Imam Malik said : there is no pardon and no settlement in it ; the heir's settlement is void, and the judgment belongs to the imam (Sharh Sahih al-Bukhari 8/565 ; al-Ishraf ala Nukat Masa'il al-Khilaf 4/81 and 82 ; at-Taj wa-l-Iklil 5/217 ; Sharh Mukhtasar Khalil 8/3 ; ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/177 and 178 ; Tahbir al-Mukhtasar 5/222).
The third view, that of the Hanafis : if a Muslim kills a dhimmi who pays the jizyah and upon whom the rulings of Islam apply, he is executed for him in retaliation, because of the general texts of qisas, such as the word of Allah, blessed and exalted be He : « Retaliation is prescribed for you in cases of killing » (Surah al-Baqara, 178), and His word, exalted be He : « We prescribed for them in it : a life for a life » (Surah al-Ma'ida, 45), and His word, glorious be His majesty : « And whoever is killed unjustly, We have given his heir authority » (Surah al-Isra, 33), without any distinction between one slain and another, one life and another, one wronged person and another : whoever claims specification and restriction, the burden of proof is upon him.
And His word, exalted is the One who spoke : « And there is life for you in retaliation » (Surah al-Baqara, 179) : the realization of the meaning of life in executing a Muslim for a dhimmi is more complete than in executing a Muslim for a Muslim, for religious hostility drives him to kill, especially in anger, and he may be driven to kill him over claims weighing upon him ; the need for a deterrent was therefore more pressing, and the legislation of qisas in it more fully realizes the meaning of life.
And because of what Ibn Umar reported : the Messenger of Allah (peace and blessings of Allah be upon him) executed a Muslim for a covenantor under protection and said :
« I am the worthiest of honoring the covenant made in my name. »a weak report, reported by ad-Daraqutni 3259 and al-Bayhaqi in as-Sunan al-Kubra 15695
And because equality in protection is established in consideration of legal obligation and abode ; what renders killing lawful is the unbelief of the combatant, not of the peaceful one ; and because they paid the jizyah only so that their property be as our property and their blood as our blood ; and because of their equality in permanent protection ; and because the absence of retaliation would deter them from accepting the covenant of dhimmah, with the obvious corruption that entails.
And because there is no disagreement that when a Muslim steals from a dhimmi, his hand is cut : likewise when he kills him.
And because the child's love for his parent, when it exists, is for benefits that reach him from him and not for his own sake, he may perhaps kill his father to hasten access to his possessions, especially when no benefit reaches him from him because of impediments ; the like of this is rare on the father's side (Bada'i as-Sana'i 7/235).
The jurists disagreed over how qisas is exacted from the killer : is he put to death by the like of the means he used to kill his victim, so that if he burned her he is burned with fire, and if he drowned her he is drowned with water, for instance ? Or is there no qisas except by the sword ?
This after their unanimous agreement that if the family of the victim kill him with the sword, it is permissible, and their agreement likewise that if he killed her with the sword, he may be killed only with the sword ; the disagreement concerns this : if he killed her with something other than the sword, is he killed by the like of what he did, or is the sword indispensable ?
The Hanafis and the Hanbalis, according to the school, held that there is no qisas except by the sword, whether he killed with it or with another sharp instrument, or with fire ; because of the statement of the Prophet (peace and blessings of Allah be upon him):
« There is no retaliation except by the sword. »a weak hadith, reported by Ibn Majah 2667 and 2668
a statement specifying that retaliation is neither obligatory nor executed by anything other than the sword. What is meant by the sword is the weapon ; for what is meant by weapon in execution is sharpened iron, like the dagger and the knife, and the sword was used by metonymy for the weapon because the weapon par excellence prepared for fighting is the sword, since it is not intended for anything other than fighting, while other weapons may serve other purposes ; it is the meaning of his statement (peace and blessings of Allah be upon him) : « I was sent with the sword before the Hour », meaning the weapon, which is the instrument of fighting.
And because entitlement to killing prevents its execution by other than the sword, like the apostate and the one who kills with the sword ; and because the destruction of lawful lives is permissible only with a sharp instrument, like slaughter animals, while the lives of human beings are more inviolable than the lives of beasts.
And because qisas is one of the 2 substitutes for life : the limb therefore falls under the ruling of the whole, like the diya ; were the matter to end in the diya, only the diya of the life would be due ; and because the aim of qisas for life is the disabling of the whole and the destruction of the entire body, and this is possible by striking the neck : it is therefore not permissible to go beyond it by destroying his limbs, just as if he killed her with a blunted sword, he is not killed with its like.
And if the heir wishes to kill by other than the sword, he is not permitted to ; were he to do it, he would be disciplinarily punished, but without liability, and he is deemed to have carried out his right by whatever way he killed him : whether he killed him with a stick, a stone, by throwing him from the roof, by casting him into a well, or by driving a mount against him until he died, and the like ; for the killing is his right : when he kills him he has exacted his right by whatever means, except that he sins by an execution not conducted through a lawful channel, for transgressing the limit set by the Law.
He may kill in person or through a deputy, by ordering another to kill, for not everyone is able to execute in person, whether through bodily weakness, weakness of heart, or lack of skill : the need for delegation therefore exists ; except that his presence at the execution is required (Ahkam al-Quran 1/198 and 200 ; al-Mabsut 26/122 ; Bada'i as-Sana'i 7/245 and 246 ; al-Hidaya 4/161 ; al-Binaya, commentary on al-Hidaya, 13/86 and 87 ; al-Ikhtiyar 5/35 ; al-Jawhara an-Nayyira 5/211 ; al-Mughni 8/240 ; al-Kafi 4/42 ; al-Mubdi 8/292 ; al-Insaf 9/490 ; Manar as-Sabil 3/238 and 239).
The majority of jurists, the Malikis, the Shafi'is and the Hanbalis according to a narration chosen by Shaykh al-Islam Ibn Taymiyyah, held that every killer is killed by the means he used : whoever kills another by burning is burned with fire until he dies ; whoever kills another with poison is killed with it ; whoever kills another by striking with a stone is killed by the means he used.
They supported this with the Book and the Sunnah.
As for the Book : the word of Allah the Most High : « So whoever transgresses against you, transgress against him in the same way he transgressed against you » (Surah al-Baqara, 194), and His word : « And if you punish, punish with the like of that with which you were afflicted » (Surah an-Nahl, 126), and His word : « The retribution for an evil act is an evil act like it » (Surah ash-Shura, 40).
As for the Sunnah : among it is what al-Bara' ibn Azib reported from the Prophet (peace and blessings of Allah be upon him):
« Whoever burns, we burn him ; and whoever drowns, we drown him. »a weak hadith, reported by al-Bayhaqi in as-Sunan 15771
and because qisas denotes equivalence : it must therefore be applied according to what it requires.
Anas (may Allah be pleased with him) reported the account of the Jew who killed a young servant girl over her jewelry and killed her with a stone, and whom the Prophet (peace and blessings of Allah be upon him) put to death with 2 stones, after the girl had indicated her killer by signs (reported by al-Bukhari 6485 and Muslim 1672).
And because for every instrument the like of which kills, the execution of qisas by its like is permissible, like the sword ; and because qisas is instituted for equivalence, which is considered regarding life : it is more entitled to be considered regarding the instrument of killing ; and because killing is at times a right of Allah the Most High and at times a right of human beings : since in the right of Allah it takes 2 forms, at times with iron and at times with the heavy instrument in the stoning of the married fornicator, it was fitting that in the rights of human beings it take 2 forms, with a heavy instrument and otherwise.
Its formulation as analogy : it is one of the 2 modes of killing ; its execution was therefore bound to take 2 forms, like killing in the rights of Allah the Most High.
As for the answer to his statement (peace and blessings of Allah be upon him) : « There is no retaliation except by the sword », if the hadith is authentic, it is understood as applying to killing when it was done with a sword or a piece of iron.
The Malikis and the Shafi'is, and here the Hanbalis, specified that he is killed by everything he killed with, except 3 things : killing by sorcery, by sodomy, or by making him drink wine : he is not killed by sorcery even if he killed with it, nor by sodomy even if he committed it upon him, nor by making him drink wine even if he gave it him : recourse is had to killing him with the sword, for that is forbidden in itself : the means therefore falls away and the killing remains (Tafsir al-Qurtubi 2/358 ; ad-Dakhira 12/449 and 450 ; al-Hawi al-Kabir 12/139 and 140 ; al-Muhadhdhab 2/186 ; al-Bayan 11/414 and 416 ; an-Najm al-Wahhaj 8/429 and 431 ; al-Mughni 8/240 ; al-Kafi 4/42 ; Sharh az-Zarkashi 3/19 ; al-Mubdi 8/292 ; al-Insaf 9/490 ; Manar as-Sabil 3/238 and 239).
Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) said : many jurists said : if he killed him by burning, drowning, strangling or the like, there is done to him what he did, so long as the act is not forbidden in itself, like forcing him to drink wine or sodomizing him ; some of them said : « there is no retaliation upon him except by the sword » ; the first view is closer to the Book, the Sunnah and justice (Majmu al-Fatawa 23/381).
Ibn al-Qayyim (may Allah have mercy on him) said : among this is equivalence in qisas for the 3 categories of wrongs : lives, property and honor ; these are 3 questions :
The first : is there done to the offender what was done to the offended ? If the act is forbidden as a right of Allah, like sodomy or forcing him to drink wine, nothing of the sort is done to him, by consensus.
If it is otherwise, like burning him with fire, casting him into water, crushing his head with a stone, or depriving him of food and drink until he dies : Malik, ash-Shafi'i and Ahmad, in one of the narrations from him, do to him what he did, there being no difference between the lethal wound and any other.
Abu Hanifah and Ahmad, in a narration from him, say : he is killed only with the sword, at the neck specifically.
Ahmad, in a third narration, says : if the wound is lethal, there is done to him what he did ; otherwise he is killed with the sword.
In a fourth narration he says : if it is lethal or by itself warrants retaliation were it taken alone, there is done to him what he did ; otherwise he is killed with the sword.
The Book and the scale are with the first view, and it is what the Sunnah brought : the Prophet (peace and blessings of Allah be upon him) crushed the head of the Jew between 2 stones, as he had done to the servant girl ; this is not a killing for breach of covenant, for the covenant-breaker is killed only with the sword, at the neck ; and in a report elevated to the Prophet : « Whoever burns, we burn him ; whoever drowns, we drown him » ; and of the hadith « There is no retaliation except by the sword », Imam Ahmad said : its chain is not good ; and what is established from the Companions is that there is done to him what he did. The Book, the Sunnah, analogy and the reports of the Companions therefore agree upon it, and the very name of qisas requires it, for it entails equivalence (I'lam al-Muwaqqi'in 1/327).
Malik's view differed on this question : Ibn Habib said : if the victim was married and the husband established the proof, nothing is due from him ; otherwise he is executed for her. Ibn al-Qasim said : if the proof is established, the married and the unmarried are alike and his blood is forfeit ; Ibn al-Qasim considered the diya preferable in the case of the unmarried (Zad al-Ma'ad 5/403 and 407).
What intentional killing entails :
Intentional killing entails 6 things :
First : the sin : the killer sins by consensus, because of the word of Allah the Most High : « And whoever kills a believer deliberately, his recompense is Hell, abiding eternally therein ; Allah is angry with him, has cursed him, and has prepared for him a tremendous punishment » (Surah an-Nisa, 93).
From Abdallah ibn Umar (may Allah be pleased with them both), the Messenger of Allah (peace and blessings of Allah be upon him) said :
« The believer remains in the breadth of his religion so long as he does not shed forbidden blood. »reported by al-Bukhari 6469
Second : retaliation (qisas) by consensus, because of the word of Allah the Most High : « Retaliation is prescribed for you in cases of killing » (Surah al-Baqara, 178) ; the intentional is meant, for there is no qisas for anything else : there is no qisas for the quasi-intentional or the accidental, by consensus.
Imam Ibn Hazm (may Allah have mercy on him) said : there is no disagreement among anyone of the community that retaliation applies only to the intentional (al-Muhalla 10/408).
Imam Ibn Rushd (may Allah have mercy on him) said : as for the description of that which obligates qisas, they agreed that it is intentionality (Bidayat al-Mujtahid 2/297).
Imam Ibn Hajar al-Haytami (may Allah have mercy on him) said : there is no qisas except for the intentional, by consensus, unlike the accidental and the quasi-intentional (Tuhfat al-Muhtaj 10/286).
Imam Ibn Qudamah (may Allah have mercy on him) said : the scholars agreed that retaliation is due only for the intentional, and we know of no disagreement among them on its obligation for intentional killing when its conditions are met (al-Mughni 8/214).
The verses and the reports, in their generality, establish qisas for the intentional ; among them :
the word of Allah the Most High : « And whoever is killed unjustly, We have given his heir authority, but let him not exceed in killing » (Surah al-Isra, 33).
Allah the Most High said : « Retaliation is prescribed for you in cases of killing » (Surah al-Baqara, 178).
Allah the Most High said : « And there is life for you in retaliation » (Surah al-Baqara, 179) : He means that the obligation of qisas deters whoever intends killing, out of regard for himself, from killing, so that life remains for the one whose killing was intended.
It has also been said : enmity becomes established between the killer and the tribe of the victim : he intends to kill them out of fear of them, and they intend to kill him and his tribe in requital ; exacting retaliation upon him by the judgment of the Law cuts off the cause of destruction between the 2 tribes.
On the obligation of qisas : qisas is due, and if it is not possible, the financial compensation (arsh) is due (Bada'i as-Sana'i 7/233 and 234).
The Shafi'is said : intentional by way of error, or quasi-intentional, is to intend the act and the person together with what does not usually kill, as when striking with a whip or a stick a light blow, or throwing a small stone without repeating the blows, the pain not intensifying as a result, it not being a time of intense heat or cold, and the one struck not being frail or small : this is quasi-intentional ; if any of these factors is present, it is intentional, for it usually kills in such circumstances (an-Najm al-Wahhaj 8/329 and 330 ; Mughni al-Muhtaj 5/215).
The Hanbalis said : quasi-intentional is to direct at someone a wrong that does not usually kill and with which he does not wound him, or to intend to strike him with what does not usually kill, whether intending aggression or intending discipline but going to excess in it, like striking a person away from the vital spots with a whip, a stick or a small stone, or jabbing him with the hand, and everything that does not usually kill : if he dies of it, it is quasi-intentional, for he intended the striking and not the killing ; likewise if he casts him into shallow water, or shouts at a sane person caught off guard, or at a child on a roof, or the like, and he dies (al-Mughni 8/216 ; Kashshaf al-Qina 5/603 ; Sharh Muntaha al-Iradat 6/13 and 14 ; Manar as-Sabil 3/221).
The jurists disagreed : does quasi-intentional killing exist, or do only the intentional and the accidental exist ?
The majority of jurists, the Hanafis, the Malikis in one view, the Shafi'is and the Hanbalis, held that killing has types, that the category previously defined is the quasi-intentional, and that the Sunnah mentioned it, such as the statement of the Prophet (peace and blessings of Allah be upon him):
« The victim of an accidental, quasi-intentional killing, the victim of the whip and the stick : one 100 camels, 40 of them pregnant, carrying their young in their wombs. »an authentic hadith, reported by Abu Dawud 4547, an-Nasa'i 4794 and 4796, Ibn Majah 2627 and Imam Ahmad 23540
He thereby affirmed the quasi-intentional ; its description as such conveys that it takes a resemblance to the intentional and a resemblance to the accidental : it therefore does not have the ruling of either in pure form ; its resemblance to the intentional is the killer's aiming to strike with what does not usually kill the like ; its resemblance to the accidental is that he did not intend killing : it was therefore bound to have a ruling of its own, distinct from the ruling specific to the 2.
From al-Mughirah ibn Shu'bah :
« A woman killed her co-wife with a fustat pole ; the case was brought to the Messenger of Allah (peace and blessings of Allah be upon him), who ruled the diya upon the liability group (aqilah) of the killer ; she was pregnant, and he judged a ghurrah for the fetus. One of her agnates said : shall we pay for one who has no taste, no drink and no cry, and who dissolves as this ? He said : rhymed prose, like the rhymed prose of the Bedouins. »reported by Muslim 1682
From Amr ibn Shu'ayb, from his father, from his grandfather : the Prophet (peace and blessings of Allah be upon him) said :
« The compensation for quasi-intentional killing is aggravated, like the compensation for intentional killing, but its author is not killed. »a good hadith (hasan), reported by Abu Dawud 4565 and Ahmad 6718
This is a third category established by the Sunnah, while the intentional and the accidental are established by the Book ; and because it is a killing that does not entail retaliation, its diya falls upon the liability group (aqilah), like accidental killing (al-Hidaya 4/158 and 159 ; al-Inaya 15/122 and 123 ; al-Jawhara an-Nayyira 5/196 and 197 ; at-Ta'rifat 165 ; Bahr ar-Ra'iq 8/332 ; al-Ishraf ala Nukat Masa'il al-Khilaf 4/107 and 108 ; al-Bayan 11/449 and 450 ; an-Najm al-Wahhaj 8/329 and 330 ; Mughni al-Muhtaj 5/215 ; al-Mughni 8/216 ; Kashshaf al-Qina 5/603 ; Sharh Muntaha al-Iradat 6/13 and 14 ; Manar as-Sabil 3/221).
...a diya delivered to his family, and the freeing of a believing slave.
Surat an-Nisa (The Women), verse 92
This fetus, if it is born of 2 believing parents or of one of them, is judged a believer by attachment: it inherits from them, its believing heirs inherit from it, and no disbeliever inherits anything from it. If it is born of people under a covenant of protection, it belongs to a people between whom and us there is a pact; and since it is a life secured by diya, the freeing (of a slave) is required for it as for the adult. The omission of the mention of the expiation does not prevent its obligation, just as in his saying, peace be upon him: "In the life of a believer there are one 100 camels," where he mentions the diya in several places without mentioning the expiation; and likewise the Prophet, may the peace and blessings of Allah be upon him, ruled the diya of the slain woman upon the 'aqila of the slayer without mentioning an expiation, although it is obligatory; so too here. And it is so because the verse dispensed with mentioning the expiation in another place, and reliance was placed upon it (1).
(1) "al-Mughni" (8/326, 327).
The imam Ibn Rushd, may Allah have mercy on him, said: as for the unborn, they agreed that what is due for the fetus of a free woman, and for the fetus of a female slave from her master, is the ghurra, because of what is established from him, may the peace and blessings of Allah be upon him, in the hadith of Abu Hurayra and others:
Two women of Hudhayl: one struck the other and caused her to lose her fetus; the Messenger of Allah, may the peace and blessings of Allah be upon him, ruled for it a ghurra: a slave or a slave girl.
Reported by Abu Hurayra and others; cited in "Bidayat al-Mujtahid" (2/311)
The people of knowledge are unanimously agreed that if a woman is beaten and delivers her fetus alive, and it then dies, the full diya is due for it.
(1) "al-Mughni" (8/326, 327).
(2) "Bidayat al-Mujtahid" (2/311).
The imam Ibn al-Mundhir, may Allah have mercy on him, said: all those whose words we preserve among the people of knowledge agreed that for the fetus that falls alive as a result of a blow, the full diya is due.
They also agreed that if the mother's womb is struck and she delivers the fetus alive, and it then dies shortly after its exit, and it is known that its death resulted from the blow and from what was done to it and to its mother, the full diya is due, and the male and the female are equivalent in this; and upon this view are the body of jurists of the great cities.
The scholars agreed that if the fetus comes out immediately after the blow or because of it, then dies on the spot, the full diya is due; if it does not die on the spot, the word that prevails is that of the 'aqila: that it died of a cause other than the injury (1).
(1) "al-Iqna'" (2/296, 297).
The imam al-Nawawi, may Allah have mercy on him, said: if it is born alive and then dies, the full diya of an adult is due: if it is male, one 100 camels; if female, 50; this is by consensus, and deliberate and accidental are alike in all of this (2).
(2) "Sharh Sahih Muslim" (11/176).
The imam Ibn Rushd, may Allah have mercy on him, said: as for the description of the fetus for which it is due, they agreed that among its conditions are that the fetus come out dead and that its mother not die from the blow.
They differed when the mother dies from the blow and the fetus then falls dead: al-Shafi'i and Malik said: nothing is due for it; Ashhab said: the ghurra, and of his view were al-Layth, Rabi'a and al-Zuhri.
(1) "Bidayat al-Mujtahid" (2/311, 312).
They differed, within this chapter, on derived questions: the sign that indicates whether it fell alive or dead.
Malik and his companions held that the sign of life is the cry at birth or weeping; al-Shafi'i, Abu Hanifa, al-Thawri and most jurists said: anything by which life is customarily known, movement, sneezing or breathing, carries the rulings of a living person; and this is the more evident view (1).
(1) "Bidayat al-Mujtahid" (2/311, 312).
The imam al-Qurtubi, may Allah have mercy on him, said: killing the fetus in its mother's womb means that its mother's womb is struck and she delivers it alive and it then dies. All the scholars without exception said: the full diya is due for it, in the accidental case, and in the deliberate case after the qasama; and it has been said: without qasama.
They differed on the criterion by which its life is known, after their agreement that if it cries out at birth, suckles, or breathes a verified breath, it is alive and the full diya is due. If it moves: al-Shafi'i and Abu Hanifa said movement indicates its life; Malik said: no, unless it is accompanied by a prolonged survival. The male and the female are, according to all the scholars, equal in the ruling. If she delivers it dead: a ghurra is due for it, a slave or a slave girl. If she does not deliver it and dies while it is in her womb without coming out: nothing is due for it. All of this is consensus, without disagreement.
It is reported from al-Layth ibn Sa'd and Dawud that both said, regarding the woman who dies from a blow to her womb and whose fetus then comes out dead after her death: the ghurra is due, whether she delivered it before her death or after her death; what counts is the life of the mother at the time of the blow, nothing else.