Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Homicides giving rise to the diya
Contents
Updated on 27 September 2026 at 3:52 AM
This section sets out the homicides that give rise to the diya: accidental and quasi-deliberate killing, the deferral of the diya over three years, the aggravation of the diya, the currency of payment (camels, gold, silver, cattle, sheep, garments), the woman's diya and the regime of her wounds, aggravation through the sacred precinct, the state of ihram or kinship, the diya of the fetus, that of the Jewish, Christian or Magian protected person, the burden of the aqila and the killer's possible share.
The rulings are given school by school with their proofs and references, verses and hadiths cited according to the source sheets.
No retribution applies in what precedes: Allah made the diya binding without mentioning retribution, and the Prophet said that error, forgetfulness and coercion are lifted from the community: all the more so in error. The diya of accidental killing falls upon the aqila with no divergence among the scholars: Ibn al-Mundhir reports the agreement of all the retained scholars, and the established reports of the Prophet fix that he judged the diya of error upon the aqila; the scholars agree upon this doctrine, the Prophet having placed the diya of error joined with intent upon the aqila according to what we have reported.
The jurists of the lands agree that the diya of error is deferred over three years. ash-Shafi'i (al-Umm 6/112): killing has three forms, pure deliberate, deliberate joined with error, and pure error; as for error, no divergence is known among those I know, the messenger of Allah having judged its diya over three years; each year that passes since the victim's death makes due one third of the diya; the judge's day of ruling does not count in it, and no proof that does not become established at a given time adds delay to it: if it becomes established only after two years from the victim's death, they take in their place two thirds of the diya, already due; and the retained group of scholars said the same of error joined with intent, both being error that carries no retribution at all.
at-Tirmidhi (Sunan 4/10): the scholars agreed that the diya is taken over three years, one third each year, and they place the diya of error upon the aqila. Ibn al-Mundhir (al-Ishraf 8/9): we found neither verse nor report for the installments; it reached us from Umar, through a chain not established from him, that he judged it over three years; the generality of the scholars agreed as reported from Umar by ash-Sha'bi, who never met him: Umar spread the diya across the grants, the half over two years, the two thirds over two years and the third over one year. al-Jassas: no divergence among the jurists over the obligation of the diya of error over three years.
Error carries an excuse: lightening and kindness; the deliberate act has no excuse and deserves no lightening: the meaning of solidarity does not stand in it. It is therefore due immediately: the saying of Malik and ash-Shafi'i. Abu Hanifa places it over three years: it is the diya of a human being, therefore deferred like the diya of the quasi-deliberate. Ibn Qudama's answer (al-Mughni 8/293): what is due through pure deliberation is immediate, like retribution and the arsh of the slave's limbs, and does not resemble the quasi-deliberate: the killer is excused, not having aimed at death, which reached him without his choice: he resembles the one in error, and this is why the aqila bears it; the purpose is to lighten the aqila, which committed no injury and bears a payment in solidarity, something found in error and in the quasi-deliberate alike; the deliberate act, however, is borne by the culprit without excuse: it must therefore be attached to the compensation of other losses, the disagreement remaining conceivable when he kills his son, or kills a stranger and retribution becomes impossible through the pardon of some heirs.
The scholars agree that the diya of deliberate killing is aggravated, immediate and upon the culprit's property, by consensus. It is aggravated under three angles: it weighs upon the culprit, it is immediate and it is measured by the ages. al-Bagawi (Sharh as-Sunnah 10/187): they agree that the free Muslim's diya is one hundred camels, aggravated in pure deliberation, upon the killer, immediate.
The form of aggravation: the majority of the jurists, Abu Hanifa, Abu Yusuf, the Malikis and the Hanbalis, place it by quarters: twenty-five bint makhad, twenty-five bint labun, twenty-five hiqqa and twenty-five jadha, immediate and upon the culprit's property. Malik, however, places it by thirds: thirty hiqqa, thirty jadha and forty khalifa, that is, pregnant ones, and it stands with him only in a father killing his son, if the father is not killed for him. The Shafi'is and Muhammad ibn al-Hasan: one hundred camels by thirds, thirty hiqqa, thirty jadha and forty khalifa, that is, carrying their young, though some groups exceed the others (al-Muwatta 2/850, at-Tamhid 17/352, al-Istidhkar 8/43-44, al-Kafi 596, Bada'i' as-Sana'i' 7/254, al-Hidaya 4/177, Tabyin al-Haqa'iq 6/126, al-Bahr ar-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).
Ibn Hubayra (al-Ifsah 2/232): they differed over the dirhams and the dinars, whether they are taken in the diyas: Abu Hanifa and Ahmad make them a fixed measure whose taking is allowed even with the camels present; then over whether each species is an original in itself: Abu Hanifa and Ahmad in one version treat it as an original by itself; the second version: the original is the camel and the prices a substitute, fixed by the law, without increase or decrease allowed. Malik: a species fixed by itself, without counting it like the camels. ash-Shafi'i: the camels are not replaced when they exist, except by consent; if they are missing, the old says: substitution by one thousand dinars or twelve thousand dirhams; the new: substitution by the value at the moment of taking, more or less. The amount of the diya in dirhams: Abu Hanifa: ten thousand dirhams; Malik, ash-Shafi'i and Ahmad: twelve thousand.
On cattle, sheep and garments: the majority of the jurists, Abu Hanifa, the Malikis, the Shafi'is and the Hanbalis in one version, see neither original nor fixed measure in them: one returns to them only by consent, upon the basis of value, under the Shafi'i doctrine already stated; for the Prophet judged one hundred camels in the life without valuing them through anything else; it is merchandise resembling slaves and real estate; and had valuation by the ewe and the cow been allowed, valuation by food for the people of food, or by horses for the people of horses, would be allowed too, and nobody says that (Bada'i' as-Sana'i' 7/254, al-Ikhtiyar 5/45, al-Jawhara an-Nayyira 5/233, al-Lubab 2/255, al-Ishraf 4/117, Bidayat al-Mujtahid 2/308-309, al-Bayan 11/491, al-Hawi al-Kabir 12/228, al-Muhadhdhab 2/196, an-Najm al-Wahhaj 8/465, Mughni al-Muhtaj 5/296, Tuhfat al-Muhtaj 10/441, al-Mughni 8/290).
The Hanbali madhhab and the two Hanafi companions, Abu Yusuf and Muhammad, hold cattle, sheep and garments to be originals of the diya, following the hadith of Amr ibn Shu'ayb:
The value of the diya at the time of the messenger of Allah was eight hundred dinars, or eight thousand dirhams, and the diya of the people of the book was then half that of the Muslims. This stood until Umar's succession: he rose to the pulpit and said: the camels have grown dear. He fixed for the people of gold one thousand dinars, for the people of silver twelve thousand, for the people of cattle two hundred cows, for the people of sheep two thousand sheep, for the people of garments two hundred garments, and he left the diya of the covenant people without raising it in what he raised of the diya.
narrated by Abu Dawud (4542), good hadith
The scholars of every age, apart from the dissenters, agree that the diya in gold is neither raised beyond one thousand dinars nor lowered below it: it is the clearest proof that it is the counterpart of the camels due from the people of camels; had it been their price, it would rise and fall with the camels' prices; and this doctrine is the right one through the consensus that founds it (Tafsir at-Tabari 5/212). Ibn Abd al-Barr (al-Istidhkar 8/39): the versions from Umar do not differ: the diya in gold is one thousand dinars, and the scholars early and late do not differ over it. as-Sarakhsi (al-Mabsut 26/78): no divergence: one thousand dinars, each dinar worth twelve dirhams at the time of the messenger of Allah. al-Kasani (Bada'i' as-Sana'i' 7/254): no divergence over the one thousand dinars of gold.
In silver: ten thousand or twelve thousand dirhams? The Hanafis place ten thousand dirhams weighed by the weighing of seven, following Umar's word before a circle of companions, none contradicting him, which stands as consensus; measures are known only by hearing: he had therefore heard that from the messenger of Allah. The majority, Malikis, the early Shafi'is and the Hanbalis, place twelve thousand dirhams of silver of the Islamic dirhams of which ten make seven mithqal, following the hadith of Amr ibn Shu'ayb already cited: Umar valued one thousand dinars for gold and twelve thousand for silver with no contradiction from anyone; silver is a property whose payment in the diya is allowed: it is therefore an original by itself like the camels; the diya is a meaning whose original was the camels, and gold and silver stand as originals in it as in the zakat (al-Muwatta 2/856, at-Tamhid 17/345-346, al-Ishraf 4/116, an-Najm al-Wahhaj 8/465, Kashshaf al-Qina' 6/20, Munar as-Sabil 3/258).
The later Shafi'is say: if the camels are missing, their value at the moment their delivery becomes due is taken, whether greater or less, for it is the compensation of a loss: one returns to its value at the moment the original is missing, valued in the dominant currency of his town, which is the nearest and the most precise; if two currencies circulate there without one prevailing, the wrongdoer chooses the greater. If a part of the camels due exists, the present part is taken with the value of the rest, like the one owed a like thing who finds a part of it. Proof: the hadith of Amr ibn Shu'ayb, "the value of the diya was...", which proves that what is due is the camel, as al-Amrani notes; and Umar, may Allah be pleased with him, said "the camels have grown dear" while fixing one thousand dinars or twelve thousand dirhams: the tie to the dearness proves the way of value, for what is due in value rises and falls, and no companion contradicted him; the opposing reports, however, bear upon the value. Thus the diya has only one original, the camel: if it is aggravated and the camels are missing, under the later saying it is valued in its aggravated form, thirty hiqqa, thirty jadha and forty khalifa; under the early one, two ways stand in al-'Udda: aggravation by a third of the diya, the only one retained in al-Muhadhdhab following Umar, Uthman and Ibn Abbas; or the falling of the aggravation, for aggravation lies in the quality of the original, not in the increase of number, possible with camels and not with money: see the slave, where only the value is due, without aggravation; the companions' reports bear upon the value of what they imposed (al-Bayan 11/491, al-Hawi al-Kabir 12/228, al-Muhadhdhab 2/196, an-Najm al-Wahhaj 8/465, Mughni al-Muhtaj 5/296, Tuhfat al-Muhtaj 10/441).
All who affirm quasi-deliberate killing, Hanafis, Shafi'is and Hanbalis, agree that the diya is obligatory in it and upon the aqila:
Know that the diya of the quasi-deliberate error, killed by the whip or the stick, is one hundred camels, of which forty are carrying their young.
narrated by Abu Dawud (4549), an-Nasa'i (4796), Ibn Majah (2628) and Ahmad (6552), authentic hadith
And the case of the woman who killed her co-wife with a tent pole, where the Prophet judged the ghurra for the fetus and the diya upon the aqila (Muslim 1682). Amr ibn Shu'ayb reports from the Prophet:Two women of Hudhayl fought; one threw a stone at the other and killed her, her and what she carried in her womb; the Prophet judged for her fetus the diya of a slave or a maid, and judged the woman's diya upon the killer's aqila.
narrated by al-Bukhari (6910) and Muslim (1681)
It is a killing that brings no retribution: its diya therefore falls upon the aqila like accidental killing (al-Hidaya 4/158-159, al-'Inaya 15/122-123, al-Jawhara an-Nayyira 5/196-197, at-Ta'rifat 165, al-Bahr ar-Ra'iq 8/332, al-Ishraf 4/107-108, al-Bayan 11/449-450, an-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, Munar as-Sabil 3/221).The diya of the quasi-deliberate is aggravated like that of the deliberate, and its doer is not killed.
narrated by Abu Dawud (4565) and Ahmad (6718), good hadith
This regime does not hold only for the diya of life: it holds for a third of the fixed measure in the deliberate, such as the limb. The diya is immediate under the majority, upon the culprit's property; under the Hanafis it is deferred over three years, for the term became established through the companions' consensus through Umar's ruling before them: the term became an attribute of every diya due by text (al-Hawi al-Kabir 12/213, Rawdat at-Talibin 6/279, an-Najm al-Wahhaj 8/456, Mughni al-Muhtaj 5/292, Tuhfat al-Muhtaj 10/434, Bada'i' as-Sana'i' 7/256-257).
The scholars agree that no retribution exists in accidental killing, and that whoever kills another by mistake owes the diya upon his aqila and the expiation upon his property, by the book:
By the sunna:Whoever kills a believer by mistake: the freeing of a believing slave and a diya delivered to his family, unless they give it as charity; if he belongs to a people enemy to you while being a believer, the freeing of a believing slave; if he belongs to a people between whom and you there is a treaty, a diya delivered to his family and the freeing of a believing slave; whoever finds not: the fasting of two consecutive months, as repentance from Allah; Allah is all-knowing and wise.
Surah an-Nisa, 92
Ibn Majah (2633) retains from Mughira ibn Shu'ba: "the messenger of Allah judged the diya upon the aqila", authentic hadith; and the hadith of the two women of Hudhayl (al-Bukhari 6910, Muslim 1681) says the same.A woman killed her co-wife with a tent pole; the messenger of Allah was informed and judged the diya upon the killer's aqila, and she was pregnant: he judged for the fetus a ghurra. A man of her clan said: shall I pay for one who ate not, drank not, cried not and uttered not a cry? He said: a cry like the cry of the Bedouins.
narrated by Muslim (1682)
The consensus: Ibn al-Mundhir (al-Ishraf 8/7, al-Ijma' 699): the scholars agreed that the diya of error stands upon the aqila. al-Jassas (Ahkam al-Qur'an 3/193-194): the jurists agree upon its obligation; the verse does not name the debtor, but the reports of the Prophet upon the aqila were transmitted en masse and the early jurists agreed upon it. Ibn Battaal (8/514) cites at-Tabari: the diya of error upon the killer's aqila, the expiation upon the killer, by consensus. al-Mawardi (al-Hawi al-Kabir 12/240): the community's majority, early and late, places it upon the aqila bearing it for the killer; the dissenters: al-Asamm, Ibn Ulayya and a party of the Khawarij, who place it upon the killer like the deliberate. Ibn Qudama: error gives rise to the diya upon the aqila and the expiation upon the killer's property, with no divergence known; the origin is Surah an-Nisa 92, the Muslim victim and the unbelieving one under treaty being equal.
Every diya due through killing without settlement or the pardon of some falls upon the aqila. Ibn Qudama (al-Mughni 8/216): the diya of the quasi-deliberate stands upon the aqila according to most of the scholars; Malik, however, classes it as deliberate bringing retribution.
This diya is aggravated upon the aqila, and the culprit does not share in it under the Shafi'is and the Hanbalis; the Hanafis make him share like one of them, explained in the section on accidental killing. The aggravation gathers the agreement of all who affirm it:
The form: the Shafi'is, the Hanbalis in one version and Muhammad ibn al-Hasan place it by thirds: thirty hiqqa, thirty jadha and forty pregnant thaniya, following the preceding hadith; and the hadith of Amr ibn al-As:Know that the victim of the quasi-deliberate error, killed by the whip and the stick, has an aggravated diya, of which forty are carrying their young.
narrated by Abu Dawud (4547), an-Nasa'i (4793), Ahmad (6552) and Ibn Hibban (6011), authentic hadith
version narrated by Abu Dawud (4565) and Ahmad (7088), good hadith (Mukhtasar Ikhtilaf al-Ulama 5/93-94, Ahkam al-Qur'an 3/207, al-Ikhtiyar 5/44, al-Jawhara an-Nayyira 5/231, al-Lubab 2/253-254, al-Umm 7/330, al-Hawi al-Kabir 12/312-314, al-Muhadhdhab 2/195, an-Najm al-Wahhaj 8/461, Mughni al-Muhtaj 5/294, al-Ifsah 2/231).Whoever kills a believer deliberately is handed to the victim's heirs: if they wish, they kill him; if they wish, they take the diya: thirty hiqqa, thirty jadha and forty khalifa, that is the price of the deliberate; whatever settlement they reach is theirs; it is the heaviest of diyas; and the diya of the quasi-deliberate is aggravated like that of the deliberate, and its doer is not killed.
narrated by Ahmad (7033)
Abu Hanifa, Abu Yusuf and the Hanbali madhhab: one hundred camels by quarters: twenty-five bint makhad, having reached her second year; twenty-five bint labun, third year; twenty-five hiqqa, fourth year; twenty-five jadha, fifth year (al-Ikhtiyar 5/44, al-Jawhara an-Nayyira 5/231, al-Lubab 2/253-254, al-Kafi 4/72, Kashshaf al-Qina' 6/21, Sharh Muntaha al-Iradat 6/95).
The aggravation stands only in the camels exclusively: the companions fixed it only there; if the diya is judged outside the camels, it is not aggravated: silver is not raised beyond ten thousand, nor gold beyond one thousand dinars. Ibn Hubayra: the diya of the quasi-deliberate is, for Ahmad and Abu Hanifa, like the diya of the purely deliberate. Malik's versions differ: one negates it absolutely; the other establishes it in a father killing his son upon the quasi mode, at thirty hiqqa, thirty jadha and forty pregnant khalifa; and ash-Shafi'i places thirty hiqqa, thirty jadha and forty carrying khalifa (al-Ifsah 2/231, Bidayat al-Mujtahid 2/307).
al-Kasani (Bada'i' as-Sana'i' 7/254): what is due differs by the sex of the victim; if male, no divergence: one hundred camels, following "in the believing life: one hundred camels"; no divergence either over the one thousand dinars of gold; likewise the amount in silver, twelve thousand under the majority and ten thousand under the Hanafis, and the cattle, sheep and garments under those holding them.
The scholars agree that the free Muslim woman's diya is half the man's. ash-Shafi'i (al-Umm 6/106): I know no dissenter among the scholars, early and late: fifty camels; if the killing is deliberate and her family chooses the diya, it is fifty camels under the ages of the deliberate diya; killed by a man, by a group or by a woman, nothing is added beyond fifty; and her wounds are settled like the man's: her muwadhiha is half the man's, and so for all her wounds. Ibn al-Mundhir (al-Ijma' 669): they agreed that the woman's diya is half the man's. Ibn Abd al-Barr (al-Istidhkar 8/67): agreement, and the analogy would make her wounds alike, except for a sunna fixing the payment in her favor. Ibn Hazm (Maratib al-Ijma' 140): agreement: one hundred camels for the free Muslim man killed by mistake, no more and no less, and fifty for the free Muslim woman, except for forbidden kinship, the sacred precinct or the sacred months. Ibn Rushd (Bidayat al-Mujtahid 2/318-319): agreement over the half in life. al-Amrani: all the scholars, except al-Asamm and Ibn Ulayya who place it like the man's. Our proof: the version of Amr ibn Hazm: the Prophet said: "and the woman's diya is half the man's diya", a wording the scholars did not find textually in the hadith of Amr ibn Hazm.
It was reported from Umar, Uthman, Ali, Ibn Umar, Ibn Abbas, Ibn Mas'ud and Zayd ibn Thabit: "the woman's diya is half the man's", with no contradiction from any companion: it is therefore a consensus (al-Bayan 11/494-495). Ibn Hubayra (al-Ifsah 2/242): they agreed that the free woman's life diya is half the free Muslim man's. al-Kasani: by the companions' consensus, Umar, Ali, Ibn Mas'ud and Zayd, with no reported contradiction; and the woman stands at the half in inheritance and testimony: so her diya stands.
The divergence bears upon her limbs and wounds: always the half, or equality with the man up to a third of the diya, that is, the arsh of the ma'muma and the ja'ifa, then the half beyond? The Malikis, the early ash-Shafi'i and the Hanbali madhhab: the woman equals the man in wounds below the third; at the third reached, she falls to half the man's diya: Umar's opinion among the companions, and Sa'id ibn al-Musayyib's and az-Zuhri's among the successors. In her finger: ten camels; in two fingers: twenty; in three: thirty; beyond the third no dispute: the half: four fingers are worth twenty, and her hand twenty-five. And she is worth half the diya of the man of her religion. Malik reports from Rabi'a the dialogue with Sa'id ibn al-Musayyib:
This is the meaning of the sunna of the messenger of Allah: below the third, male and female are equal, as the fetus shows, where they are equal; and the hadith of Amr ibn Shu'ayb, "the woman's diya is like the man's until it reaches the third of her diya" (narrated by an-Nasa'i (4805) and ad-Daraqutni (3128), weak hadith), is a text preferred over the rest (al-Ishraf 4/126-128, Sharh Mukhtasar Khalil 8/43, Tahrir al-Mukhtasar 5/285, al-Mughni 8/315, al-Kafi 4/77, Sharh az-Zarkashi 3/44, al-Mubdi' 8/350-351, Kashshaf al-Qina' 6/23, Munar as-Sabil 3/263-264).I asked Sa'id ibn al-Musayyib: how much for the woman's finger? Ten camels. Two fingers? Twenty. Three? Thirty. Four? Twenty. Rabi'a said: when her wound grows and her trial hardens, her diya shrinks! Sa'id said: are you an Iraqi? I said: rather a scholar holding to the certain, or an ignorant one learning. Sa'id said: it is the sunna, o son of my brother.
narrated by Malik in al-Muwatta (2/680)
The wisdom: destroying a human being below the third carries no diminution, so equality stands there; its origin is the fetus's diya; and every fixed share of property due through death sees the female equal the male in its small portion, whose origin is the sixth of the uterine brothers. The difference between what lies below the third and what exceeds it: what lies below is little, and the woman's trial is there repaired through equality with the man.
The Hanbalis differed over the third itself, in two versions: equality of the two, for it does not count as the limit of smallness, hence the validity of the bequest; and the madhhab's retained version: difference, the woman's ja'ifa being worth a sixth of the man's diya, for the third borders abundance, "the third, and the third is abundant", and the aqila bears it: it therefore differs from what lies below (al-Mughni 8/315, al-Kafi 4/77, Sharh az-Zarkashi 3/44, al-Mubdi' 8/350-351, Kashshaf al-Qina' 6/23, Matalib Uli an-Nuha 6/96, I'lam al-Muwaqqi'in 2/169).
The Hanafis and the Shafi'i madhhab, on the authority of Ali and Ibn Mas'ud, with ath-Thawri, al-Layth, Ibn Abi Layla, Ibn Shubrama and Abu Thawr, and Ibn al-Mundhir's choice: the woman equals the man in no wound: hers is half of his, in little as in much; it is an injury to a free woman: half of what is due upon the free man is therefore due, its origin taken when she exceeds the third. The arguments: an injury, if it exceeds the third, is counted by life; below, by life like the man's injury; and the growth of her injury would have the effect of diminishing the arsh: three fingers worth thirty and four worth twenty, which contradicts the principles. And had the lack of womanhood prevented equality in the life's diya, it is more fitting that it prevent equality below, the life's diya being weightier; retribution below life is counted by life's retribution: the diya below is therefore counted by the life's diya, which stands at the half in it. And they are two persons of different diyas: the arsh of their limbs differs like the Muslim's and the unbeliever's. Answer to the hadith of Amr ibn Shu'ayb: it is not connected, for his grandfather Muhammad ibn Abd Allah ibn Amr never met the Prophet; the hadith connects only through his grandfather Abdullah ibn Amr, the companion; ash-Shafi'i says: "I find no effect in it", no path to his companionship. As for inheritance, the woman may there be half the man below the third in the sharing among brothers; the mother's son was equalized because the womb's tie equalizes males and females there like the parents' share; were the ratio there the third, no difference would be allowed in it (Mukhtasar Ikhtilaf al-Ulama 5/105-106, at-Tajrid of al-Quduri 11/5720-5721, al-Jawhara an-Nayyira 5/234, al-Hawi al-Kabir 12/289-290).
ash-Shafi'i (al-Umm 7/311-312): Ibrahim reports from Umar and Ali: "the woman's diya is half the man's in life and below": they therefore united upon it, and nothing else should be taken; the proof of their correctness: the woman's finger cut by mistake is worth, under the people of Medina, a tenth of the man's diya; two fingers, two tenths; three, three tenths; four, one tenth: when the wound grows, the arsh shrinks. The analogy none rejects: the woman's life at half the man's and her hand at half of his: what is smaller follows. Sa'id ibn al-Musayyib's words, "three fingers: thirty, four: twenty", and his "it is the sunna" cannot fall under an error of opinion: opinion errs only where a like exists; this admits none, except by blindly following the one whose contradiction one does not allow; should "the sunna" trace to the Prophet or to the generality of the companions, the question changes; as for Zayd, it is unlikely he said it by opinion. It is also said that it is not established from Ali nor from Umar; and were it established, it would be by an opinion none should contradict; as for us, we held this view, then suspended our judgment, asking Allah for the better choice, for we find in it no effect established from the Prophet: the analogy to half the man's diya remains preferable (al-Umm 7/311-312).
Ibn Hubayra (al-Ifsah 2/242) summarizes: Abu Hanifa and the later ash-Shafi'i: the woman equals the man in no wound, half in little as in much; Malik, the early ash-Shafi'i and Ahmad in one version: equality below the third, then the half; Ahmad's second version, the more apparent and the one chosen by al-Khiraqi: equality in the wounds' arsh up to the third, then half beyond.
Ibn Rushd: the majority of the Medina jurists: the woman equals the man in the arsh of her limbs up to the third, then her diya returns to the half: example: each finger ten camels, two fingers twenty, three thirty, four twenty: the opinion of Malik and his companions and of al-Layth, reported by Malik from Sa'id ibn al-Musayyib and Urwa, the doctrine of Zayd ibn Thabit and the madhhab of Umar ibn Abd al-Aziz. A group: equality up to the muwadhiha, then the half: the more famous of Ibn Mas'ud's two versions, reported from Uthman, held by Shurayh and others. A group: the half in little as in much: Ali's opinion, reported from Ibn Mas'ud as well, whose first version remains the more famous, and held by Abu Hanifa, ash-Shafi'i and ath-Thawri; the essential for its holders is that the origin is the half and one must hold to it until a fixed audition, analogy not being allowed in the diyas, above all when the distinction between the little and the much contradicts analogy; hence Rabi'a's words to Sa'id; the first group rests only on interrupted reports and on Sa'id ibn al-Musayyib's dialogue.
Ibn Hubayra (al-Ifsah 2/233): on cattle, sheep and garments, Abu Hanifa, Malik and ash-Shafi'i: neither original nor fixed measure, return only by consent upon value. Ahmad: sheep and cattle are two fixed originals: two hundred cows and one thousand sheep; garments differ: two hundred garments, each garment an izar and a rida, or no compensation at all.
The killing committed in the sanctuary, in the state of ihram, in a sacred month, or the killing of a forbidden relative: is the diya aggravated? Abu Hanifa: no aggravation in any of that. Malik: no aggravation in these causes, except when the man kills his son: the diya is then aggravated in camels by thirds, thirty hiqqa, thirty jadha and forty khalifa; in gold and silver, two versions: no aggravation at all, without increase as with the people of camels; or aggravation, its form splitting in two: one owes in gold and silver the value of the aggravated camels, without falling below one thousand dinars or twelve thousand dirhams; or without regard to the amount between the diya of error and the aggravation, a portion being added above his gold and silver diya. ash-Shafi'i: aggravation in the sanctuary, the state of ihram and the sacred months; in ihram proper? two opinions, the more apparent among them: no aggravation; the form: money does not enter it, only the camels enter it by ages. Ahmad: aggravation in all of that; if the compensation is paid in gold and silver: through the increase of the measure, a third of the diya by his text; if in camels: by analogy with the prices, aggravation through quantity and not through ages. On the accumulation of causes, as killing in a sacred month, in the sanctuary, a forbidden relative: ash-Shafi'i: the causes merge into a single aggravation; Ahmad: a third of the diya for each (al-Ifsah 2/233-235).
The scholars agree that the diyas of the unbelieving women are half those of their men. Ibn Qudama (al-Mughni 8/313): no divergence known; Ibn al-Mundhir: the scholars agree that the woman's diya is half the man's: so for the women of the people of the book like the Muslim women. Their wounds are settled upon their diyas like the Muslims', and their diyas are aggravated through the meeting of sanctities under whoever aggravates the Muslims'. Harb asked Ahmad: a protected person killed in the sanctuary? He answered: the measure is raised as for the Muslim. al-Athram: an injury to a Magian's eye and hand? He answered: one counts by his diya, as the Muslim is settled by count; a hand cut: half his diya.
The diya of the fetus: the pregnant woman whose belly is struck, or who is frightened and miscarries, falls into two cases: she delivers the fetus dead or alive. First case, delivered dead, male or female: the wrongdoer owes the fetus's diya, a ghurra, a slave or a maid, or five camels, following the hadith of Abu Hurayra (al-Bukhari 6910, Muslim 1681) and the tent-pole hadith (Muslim 1682). The agreement is reported by Ibn al-Mundhir (al-Ijma' 711): all the retained scholars place the ghurra upon whoever strikes a woman's belly and she delivers a dead fetus. The Prophet judged a slave ghurra for the fetus, and the generality of the scholars hold it. All the retained scholars also bind the freeing of a believing slave, with the ghurra, upon whoever strikes the belly. The fetus of the Jewish woman and of the Christian woman is worth a tenth of its mother's diya, the opinion of a group of jurists with no retained dissenter. If she does not deliver it and it dies within her womb: nothing: consensus. The jurists of the lands: the woman who dies from the blow to the belly and whose fetus then comes out dead after her death: nothing, the fetus being lost if delivered after her death, except al-Layth and Dawud: the blow struck while she lived and the fetus delivered dead give the ghurra, before or after her death alike. The rest: if its life is known through movement, sneezing, first cry or otherwise, and it then dies: the full diya. All agree: the culprit who strikes the belly deliberately and makes a dead fetus delivered owes neither retribution nor diya (al-Iqna' 2/295-297, al-Ishraf 4/262-263, al-Ijma' 706-709). Ibn Abd al-Barr (al-Istidhkar 8/74): the scholars agree that the ghurra is due for the fetus fallen dead from the womb of its living mother, male and female equal, each a ghurra. an-Nawawi (Sharh Sahih Muslim 11/176, al-Bayan 11/495-497): the fetus may remain hidden and disputes multiply, so the law settled it by a decisive criterion; complete or incomplete body, or a shapeless clump in which the creation of a human being can be conceived: the ghurra by consensus.
Ibn Qudama (al-Mughni 8/327): the pregnant woman who drinks an abortive remedy and brings down her fetus owes a ghurra, inherits nothing of it and frees a believing slave. No divergence known, except under whoever does not bind the freeing: she brought down the fetus by her own act: the ghurra falls upon her as if another had struck her, and she inherits nothing of the ghurra, for the killer inherits not from the killed: it returns to the other heirs, and the freeing weighs upon her; if the author of the fall is the father or another heir: the ghurra, no inheritance over it, and the freeing: the saying of az-Zuhri and ash-Shafi'i. The scholars bind the freeing with the ghurra upon every culprit named, fetus alive or dead: the opinion of most, among them al-Hasan, Ata', az-Zuhri, al-Hakam, Malik, ash-Shafi'i and Ishaq; Ibn al-Mundhir: all the retained scholars; and it was reported from Umar. Abu Hanifa: no expiation, the Prophet having imposed the ghurra without the expiation; answer: Surah an-Nisa 92 binds it.
The combination of the two reports becomes possible once the proof of address is removed; were the combination obligatory and possible, following the second report would bind; the majority: the combination is obligatory when possible, and preferable to preferring. Moreover, Surah an-Nisa 29 says: "do not kill yourselves": when the ransom of his life by property is offered to the responsible one, ransoming binds him; the origin: whoever finds food in famine at the like's price and owns what to buy with is compelled to buy: how not so for his own life? This version requires, when the heirs mix minors and adults, delaying the killing until the minors grow and hold the choice, above all when the minors veil the adults, as the sons before the brothers. The judge Ibn Rushd reports: this question arose in Cordoba in my grandfather's lifetime; the jurists of his time judged by the famous version, without waiting for the minor, and he judged the waiting by analogy; the people of his time attacked him over the blindness of their tradition, until he had to write a defense of it that remains in people's hands (Bidayat al-Mujtahid 2/301).
The diya of deliberate killing is taken from the culprit's property by consensus. Ibn Abbas:
Ibn al-Mundhir (al-Ijma' 705): they agreed that the aqila bears no deliberate diya and bears that of error. al-Qurtubi (Tafsir 5/331): the scholars agree it does not bear it: it stands upon the culprit's property. al-Mawardi: no divergence: the deliberate diya is not borne by the aqila, whether retribution is due in it or not, as the father's injury to his son and what has no retribution such as the ja'ifa and the rest of the wounds; and it is immediate upon the culprit's property. Abu Hanifa: what carries no retribution among the deliberate gives rise to a diya upon the culprit, deferred like error: three refutations: the falling of retribution in the deliberate does not bring the deferral of its diya as the pardon does; the compensation of a loss without the burden of solidarity is immediate like properties; and the diya of error not having been hastened despite the variety of its cases, that of the deliberate is not deferred despite the variety of its cases (al-Hawi al-Kabir 12/340). Ibn Abd al-Barr (al-Istidhkar 8/125): Malik reports from Ibn Shihab: the sunna has passed: the aqila bears nothing of the deliberate diya, unless they wish; Malik reports from Yahya ibn Sa'id the same; Ibn Shihab adds: the sunna in deliberate killing when the heirs pardon: the diya upon the killer in his property alone, unless the aqila helps him of good pleasure. These reports hold one meaning: the aqila bears nothing of the deliberate, where there is no diya but retribution, except through the heirs' pardon to take the diya and settle, or the pardon of one holding the right, the killing rising and the diya remaining due to whoever did not pardon; or the deliberate injury below life reaching the third and beyond; or the impossibility of retribution as in the ja'ifa.The aqila bears neither the deliberate, nor the slave, nor the settlement, nor the confession.
narrated by al-Bayhaqi (8/104), good hadith
Ibn Qudama: all the scholars agree that the deliberate diya stands upon the killer, not upon the aqila: this is the case of the origin, the compensation of the loss weighing upon the loser and the injury's arsh upon the wrongdoer; the Prophet said that no injustice falls except upon its author, and said to a companion holding his son: "this child is yours? yes: no injustice upon you nor from you"; the injury's cause is the effect of the culprit's act: he must therefore stand alone in its harm as in its benefit, his gain being his own, a rule established in every injury and gain; the exception to this origin stands only in the excused killing, the burden there being heavy and the culprit usually unable, with the expiation besides.
The hermaphrodite of doubtful sex is worth half the male's diya and half the female's: three quarters of the male's diya; it admits masculinity and femininity equally, so the middle stands as in inheritance; his wounds are settled like his diya: below the third equality, beyond it three quarters of the free man's diya (Mawahib al-Jalil 8/450, al-Kafi 4/79, al-Mubdi' 8/351, al-Insaf 10/64, Kashshaf al-Qina' 6/23).
The diya of the Jew or the Christian and of the Magian: like the Muslim's, the half, or the third? The Hanafis: the protected Jew, Christian or Magian, like the one under safe conduct, owes the Muslim's diya, one hundred camels; their men like their men and their women like their women; their wounds and injuries among themselves likewise, below life as for the rest; if they hold aqilas guaranteeing one another, upon the aqila; otherwise upon the culprit's property; for through the covenant they bound themselves to Islam's rulings in transactions: what stands among the Muslims stands among them, their diya like the free Muslims'. Surah an-Nisa 92 speaks of the diya in every killing without distinction: one measure everywhere. Sa'id ibn al-Musayyib reports:
It is reported that Amr ibn Umayya ad-Damri killed two persons under safe conduct and that the Prophet judged for them the diya of two free Muslims. az-Zuhri: Abu Bakr and Umar judged the protected person's diya like the Muslim's, and such a saying does not lie. Ibn Mas'ud: the people of the book's diya like the Muslims'. The full diya depends on the fullness of the victim's standing in worldly rulings: manhood, freedom and protection: all present; the defect of unbelief does not act upon worldly rulings (al-Mabsut 26/84, Mukhtasar Ikhtilaf al-Ulama 5/155-156, Bada'i' as-Sana'i' 7/254-255, al-Hidaya 4/178, al-Ikhtiyar 5/46, Tabyin al-Haqa'iq 6/128, al-Jawhara an-Nayyira 5/233).The diya of every covenanted person under his covenant is one thousand dinars.
narrated by Abu Dawud in al-Marasil (264)
The Malikis and the Hanbali madhhab: the half, following Amr ibn Shu'ayb:
version: "the unbeliever's diya is half the believer's diya" (narrated by at-Tirmidhi (1413), good hadith); and under Ahmad: "the unbeliever's diya is half the Muslim's diya" (narrated by Ahmad (6692), good hadith); and in a version: "the Prophet judged that the people of the book's diya, the Jews and the Christians, is half the Muslims' diya" (narrated by Ahmad (7092), good hadith). al-Khattabi (Ma'alim as-Sunan 4/37): nothing clearer on the people of the book's diya, and its chain poses no problem. Unbelief is a defect acting upon the diya: like womanhood, the women's inviolability being less than the men's, their diyas dropped to half; the unbeliever holds an inviolability less than the Muslim's, through the defect barring his testimony, his inheritance, his marriage to the Muslim women and his share of booty: his diya must therefore decrease; it is a substitute for the life: unbelief acts upon its amount.The covenanted person's diya is half the free Muslim man's diya.
narrated by Abu Dawud (4583), good hadith
The covenanted Magian's diya: a third of a fifth, in error as in deliberation: sixty-six dinars and two thirds in gold, eight hundred dirhams in silver, six camels and two thirds in camels; and the apostate the same under the Malikis. The Hanbalis: the apostate and the belligerent hold no diya, their protection being absent. The female of each of these categories is worth the half: the free Muslim woman fifty camels, the Magian and the apostate woman four hundred dirhams (al-Muwatta 2/864, al-Istidhkar 8/116-120, al-Ishraf 4/129-131, Bidayat al-Mujtahid 2/311, at-Taj wa-l-Iklil 5/257, ash-Sharh al-Kabir 6/226, Tahrir al-Mukhtasar 5/267, al-Mughni 8/212-213, Kashshaf al-Qina' 6/23-24, Munar as-Sabil 3/260-261). The Hanbalis aggravate his diya if he is killed deliberately: Ibn Qudama: if they kill him deliberately, the diya upon the Muslim killer is made heavier, to remove retribution; Uthman's ruling:
Ahmad followed it by affiliation, and his madhhab offers parallels: the one-eyed man who tears out the sound eye owes the full diya once retribution is removed from him; the date thief owes twice the value once cutting is removed from him, the Prophet's ruling for the date thief. If the killer is a protected person, or kills a Muslim, no heaviness: retribution is due in both cases; the majority: the protected person's diya is not doubled through deliberation, the report upon it being general; it is a binding diya: it is not doubled like the Muslim's, or as if the killer were a protected person; no difference stands between the protected and the one under safe conduct: both people of the book with guaranteed blood (al-Mughni 8/212-213).A man killed a man of the covenant people; brought to Uthman, he did not kill him and made his diya heavier at one thousand dinars.
narrated by Ahmad from Abd ar-Razzaq, from Ma'mar, from az-Zuhri, from Salim, from his father
The Shafi'is and Ahmad in one version: the Jew, the Christian, the covenanted one and the one under safe conduct, whenever his blood is protected and his marriage to the Muslim women lawful, owe a third of the Muslim's diya in life, following the report attributed to Ubadah: "the Prophet judged that the Jew's and the Christian's diya is four thousand dirhams", a wording whose anchor with Ubadah the scholars did not find. Sa'id ibn al-Musayyib reports from Umar:
The Magian and the polytheist under safe conduct, entered into safety within the abode of Islam, hold the lowest of diyas: two thirds of a tenth of the Muslim's diya: in aggravation, two hiqqa, two jadha, two khalifa and two thirds of a khalifa; in lightening, a camel and a third of each age. The meaning: the Jew and the Christian hold five merits: a book and a religion once true by consensus, the lawfulness of their marriages and of their slaughter, and their standing through the jizya; the Magian holds only the standing through the jizya: his diya is therefore a fifth of the Jew's and the Christian's (al-Umm 4/289, al-Hawi al-Kabir 12/308-311, al-Ishraf 7/696-697, al-Muhadhdhab 2/197, al-Bayan 11/492-493, an-Najm al-Wahhaj 8/470-471, Mughni al-Muhtaj 5/297-298). Ibn Hubayra (al-Ifsah 2/243): Abu Hanifa: like the Muslim's diya, in deliberation as in error, without distinction; Malik: the half, without distinction; ash-Shafi'i: the third, without distinction; Ahmad: the covenanted Jew or Christian killed deliberately by a Muslim: like the Muslim's diya; killed by mistake by a Muslim, or by a coreligionist or a person of the book deliberately with the diya sought: two versions: the third or the half, al-Khiraqi's choice.The Jew's and the Christian's diya is four thousand, and the Magian's eight hundred.
narrated by ad-Daraqutni (3247, 3248)
On the killer's obligation to pay together with the aqila: Malik's companions differed from him: Ibn al-Qasim like Abu Hanifa; others: the culprit does not pay with the aqila. ash-Shafi'i: if the aqila affords it, nothing falls upon the culprit; otherwise, it falls upon him. Ahmad: nothing falls upon him, whether the aqila affords it or not; when it cannot bear the whole diya, the rest passes to the treasury; its origin is the hadith of Hawiyya and Mahiyya (al-Ifsah 2/247-248).
The origin is the diya's obligation upon the culprit himself: its cause is the killing, of which he is the source: he should therefore bear it as he bears the deliberate diya and the destruction of properties; but the wise lawgiver left this origin in the diya of error through the hadith's text placing it upon the aqila. The wisdom, according to the scholars: accidental injuries are many and the diya of a human being is abundant property: binding it upon the culprit's property would wrong him; wisdom therefore required the placement upon the aqila, in solidarity with the killer and to aid him, lightening him, whenever he stands excused in his act, the expiation remaining his alone (al-Mughni 8/297, al-Mubdi' 8/328).
al-Jassas (Ahkam al-Qur'an 3/194-195) answers the objection: Surah al-An'am 164 says that no soul bears the burden of another, and the Prophet said that a man is not seized for his father's or his brother's fault, and said to Abu Rithama and his son: no injustice upon you nor from you; the aqilas too prevent taking a man for another's sin. Answer: the verse negates taking a man for another's sin; placing the diya upon the aqila is not taking them for his sin: the diya remains upon the killer, and these people are commanded to join the bearing in solidarity, without being bound by the guilt of his act; Allah bound upon the rich's properties rights for the poor without binding them a sin they did not commit, but in solidarity; the ties of kinship and kindness toward parents are commanded likewise: all of that is recommended for solidarity and harmony; the aqila was therefore commanded to bear the accidental killer's diya in solidarity, without wronging them: each owes only three or four dirhams, paid into their grants should they be people of the register, and deferred over three years: these are noble characters recommended. The bearing of diyas was famous among the Arabs before Islam and counted among their fine deeds; the Prophet said he was sent to complete the noble characters: an act esteemed by reason, accepted in morals and usages; and the two hadiths negate, in the sense given, blaming someone for another's deed. Four rational justifications of the diya upon the aqila: Allah may be worshipped through a fresh imposition of property without any killing committed, like the alms upon the rich's properties for the poor; the diya upon the aqila is support and aid, hence its imposition upon the people of the register under our companions rather than upon the relatives: they are the people of his support, lending each other help in fighting, protection and the defense of the sanctuaries: they are therefore commanded to aid one another upon the diya, to share the bearing as they share protection; the imposition upon the aqila removes rancor and enmity and calls for affection and harmony: two enemies, one bearing the other's burden, see their enmity vanish; and whoever bears another's injury is borne by him in return: nothing is lost, a praiseworthy effect returning. All of that is esteemed by reason, and only the deviant attack it, through narrowness of mind and lack of reflection.
al-Kasani reports from Abu Bakr al-Asamm that the killer alone bears, none being seized for another's sin, hence the aqila's exclusion for property damages and for everything below half a tenth of the diya; answer: the Prophet judged the ghurra upon the aqila of the woman who struck, and Umar judged the diya upon the aqila before the companions with none opposing; as for the verse, we hold by it; but why do you say the aqila's bearing takes another's sin, when protecting the killer is binding upon his aqila?
The diya varies by person: the man's differs from the woman's, the Muslim's from the person of the book's and the Magian's. First, the free Muslim man's diya: the scholars agree upon one hundred camels:
version: "in the believing life: one hundred camels". Ibn al-Mundhir: they agreed that the man's diya is one hundred camels. al-Amrani: one hundred camels, following the letter the Prophet wrote (the sheet ends here).And in the life: one hundred camels.
narrated in the letter of Amr ibn Hazm
Why the aqila bears it: whoever should have preserved and neglected failed; the killer kills only because his kin cover him: they stand as sharers in his killing; the diya is abundant property: binding the culprit alone would wrong him, and the aqila shares the bearing to lighten him; he deserves the lightening, being in error; this is what distinguishes it from the compensation of properties, rarely frequent by habit and requiring no lightening; and everything below half a tenth of the diya follows the regime of property compensation (Bada'i' as-Sana'i' 7/255).
The scholars agree that the diya of accidental killing, if paid in camels, is one hundred:
Ibn Abd al-Barr (at-Tamhid 17/341): their consensus: one hundred camels from the people of camels when a life is destroyed by mistake, with no divergence among the Muslim scholars, and they do not differ that the messenger of Allah set it so. al-Amrani: one hundred camels, following the letter the Prophet wrote (the sheet ends here).There is in the life one hundred camels.
narrated by Malik in al-Muwatta (1547) and an-Nasa'i (4857)
In the case of a settlement, the diya stands over three years; it is reported, through Ash'ath from ash-Sha'bi and through al-Hakam from Ibrahim, that the first to fix the grant was Umar ibn al-Khattab, fixing in it the full diya over three years, the two thirds over two years, the half over two years and what lies below within its year. al-Jassas: this spread from Umar with no early opponent, and the jurists of the lands agreed upon it: a consensus admitting no dissent (Ahkam al-Qur'an 3/195).
Ibn Qudama (al-Mughni 8/297): no divergence among them over the deferral over three years: Umar and Ali placed the diya of error upon the aqila over three years, with no opponent among the companions, and the scholars followed them; it is property due in solidarity: it is therefore not immediate like the zakat; every diya the aqila bears is deferred, and what it does not bear is immediate: it is the compensation of a loss, immediate like the values of losses; the aqila's bearing is solidarity: the deferral lightens it, leaving the origin of deferral as it left the origin of binding one other than the culprit.
Does the culprit share? The Hanafis: the killer is one of the aqila's members: the diya falls upon him as upon each of them, for the imposition upon the aqila aims at repelling the wrong and the crushing of the killer, and that bears upon the whole, not upon the share; their obligation rests upon support, and he supports himself as the others support him; he is excused, not blamed by the law, and the aqila is not blamed by his act either, following Surah al-An'am 164; whoever fails not stands farther from sanction than the excused culprit: should each member owe a share, the killer is the more entitled still; the place of payment is the grant issued through the ties of kinship, and they are as one soul: the grant issues for the killer as for another (al-Mabsut 27/126, al-Jawhara an-Nayyira 5/198). az-Zayla'i: "the culprit is like one of them", like a member of the aqila: he is its killer: excluding him and sanctioning another has no meaning. ash-Shafi'i: nothing of the diya falls upon the killer, for he is excused: were the whole not binding upon him, neither is the share, the share not contradicting the whole. Answer: binding the whole wrongs him, not the share; it is due for support, and he supports himself more than anyone: he is therefore the more entitled to the imposition; the culprit being excused, the innocent toward him is the more entitled still; the whole not being binding does not negate the share: each member owes not the whole and yet owes a share: counting the share by the whole is void (Tabyin al-Haqa'iq 6/178-179).
The majority of the jurists, Malikis, Shafi'is and Hanbalis: the culprit bears nothing of the diya. Ibn Qudama: nothing of the diya falls upon the killer, the saying of Malik and ash-Shafi'i. Abu Hanifa: he is like one of the aqila, which was imposed to aid him: they do not increase over him. Our proof: Abu Hurayra reports that the Prophet "judged the woman's diya upon her aqila", a hadith agreed upon: the whole falls upon them; he is the killer, upon whom it does not fall: neither does his share; like the imam ordering a man to kill someone, who kills believing it lawful before the injustice appears; and the expiation falls upon the killer from his property, equaling his diya share or exceeding it: no need to impose upon him a share of the diya (al-Mughni 8/297, al-Jawhara an-Nayyira 5/198).
In practice the retained frame stands firm: the free Muslim man's diya is one hundred camels, the woman's the half, deferred over three years and borne by the aqila when the killing is accidental or quasi-deliberate, immediate and upon the culprit's property when deliberate; gold stands at one thousand dinars and silver at twelve thousand dirhams under the majority, ten thousand under the Hanafis; the woman's wounds are settled at the half under the Hanafi and Shafi'i schools, and at equality up to the third then the half under the Malikis and Hanbalis; the protected person of the book holds the full diya under the Hanafis, the half under the Malikis and Hanbalis, the third under the Shafi'is; and the fetus delivered dead brings a ghurra and the freeing, its full diya standing as soon as it is born alive.