Islamic Fiqh > Penalties (hudud) > Sariqa: theft in fiqh > Second condition: that the property be legally valuable
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
The same applies to the cheetah and the dog: the cheetah belongs to the species of hunting beasts and the dog is a hunter; since amputation is not due for stealing the hunted animal, it is all the more not due for stealing the hunter.
The scholars, may Allah have mercy on them, differ plainly over the monetary status of the dog and the lawfulness of its sale; the apparent sense of the Messenger of Allah's prohibition of the price of the dog breeds a doubt (al-Mabsut 9/154 and 155; see Bada'i' al-Sana'i' 7/68, al-Hidaya 2/120, al-Jawhara an-Nayyira 5/387).
The majority of jurists, namely the Malikis, the Shafi'is and Abu Yusuf among the Hanafis, hold that one is amputated for stealing birds: the general purport of the Book and the Sunna establishes that this is a kind of hoardable wealth, so amputation is due for stealing it as for the other kinds (adh-Dhakhira 12/155; see al-Hawi al-Kabir 13/276, al-Mabsut 9/154 and 155, Bada'i' al-Sana'i' 7/68, al-Hidaya 2/120, al-Jawhara an-Nayyira 5/387).
The Malikis qualify this: there is no amputation for one who steals a bird worth 3 dirhams on account of its song, like the nightingale and the sparrow, for that is a benefit not sanctioned by the Law. Yes, if its meat, after slaughter, is worth the nisab, one is amputated for that; likewise the pigeon renowned for its swiftness of return (Sharh Mukhtasar Khalil 8/95; see ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/336 and 338, Tahbir al-Mukhtasar 5/366).
The jurists required of the stolen property that it be legally valuable property. Whoever steals what has no value in the Law, such as khamr, pork, carrion, instruments of amusement, the cross, the idol or forbidden books, is not amputated, by agreement of the 4 schools, whether the khamr belongs to a Muslim or to a dhimmi: it is not wealth for us; even if it is wealth in their view, it is not wealth for us; and what is wealth in one respect and not wealth in another has, at the very least, the status of a doubt averting the fixed penalty from its thief, like one who has intercourse with a slavegirl shared between himself and another. Moreover, the Muslim is punishable for possessing khamr and drinking it, and is commanded to turn it into vinegar or pour it away: whoever takes it has only removed a hand from what he was already commanded to remove, so he is not amputated.
He is nevertheless liable for its value to the dhimmi according to the Hanafis and the Malikis. He is not liable for its value to the dhimmi according to the Shafi'is and the Hanbalis, for liability and amputation apply only to what may lawfully be sold (Ahkam al-Quran 4/77 and 78; see al-Mabsut 9/189, al-Mudawwana al-Kubra 16/278, Sharh Mukhtasar Khalil 8/96, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/340, Tahbir al-Mukhtasar 5/638, al-Umm 6/147, Rawdat at-Talibin 6/547, al-Mughni 9/114 and 115, Sharh az-Zarkashi 3/131).
Imam Ibn Qudama, may Allah have mercy on him, said: question. He said: "One is not amputated for a forbidden thing or an instrument of amusement." That is: one is not amputated for stealing a forbidden thing such as khamr, pork, carrion and the like, whether one steals it from a Muslim or a dhimmi. This is the view of al-Shafi'i, Abu Thawr and the partisans of personal opinion. It is transmitted from 'Ata' that the thief of a dhimmi's khamr is amputated even if he is a Muslim, for it is wealth in their view, similar to stealing their dirhams.
Our argument: it is a forbidden substance, so one is not amputated for stealing it, as with pork; and what does not entail amputation when stolen from a Muslim does not entail it when stolen from a dhimmi, like carrion and blood. Their argument is nullified by the case of pork, and it carries no weight: the reference is the ruling of Islam, which applies to them, not their own rulings. Such is likewise the disagreement with him concerning the cross when its value, once assembled, reaches the nisab.
As for instruments of amusement, like the lute (tunbur), the flute (mizmar) and the pipe (shabbaba), there is no amputation for them even if their value, itemized, reaches the nisab; this is the view of Abu Hanifa. The companions of al-Shafi'i said: if its value after the removal of its assembly reaches the nisab, amputation applies, otherwise not, for he stole what is worth a nisab, in which he has no doubt, from an equivalent place of safekeeping, and he belongs to those subject to amputation: it is therefore due, as if it were broken gold.
Our argument: it is, by consensus, an instrument of disobedience, so one is not amputated for stealing it, as with khamr; and he has a right to take it in order to break it, which constitutes a doubt preventing amputation, like his entitlement to his child's wealth. If the instrument carries a gold or silver mounting reaching the nisab, there is likewise no amputation according to the analogical extension of Abu Bakr's view, for it is attached to what carries no amputation, like the wood and the strings. The Judge said: amputation applies, and this is the view of al-Shafi'i, for he stole a nisab from its place of safekeeping, like an unattached item.
Section: if he steals a cross of gold or silver reaching the nisab as a single piece, the Judge said: no amputation, and this is the view of Abu Hanifa; Abu al-Khattab said: its thief is amputated, and this is the view of al-Shafi'i. The argument of the 2 schools has preceded. The difference between this question and the previous one is that in the previous one he can break it so that no value reaching the nisab remains, whereas here, breaking the gold and silver in any manner whatsoever does not bring its value below the nisab; and because in gold and silver the substance prevails over the forbidden craftsmanship, the workmanship being swallowed up relative to the value of their substance; other materials are the reverse: the workmanship prevails, so that the seller sells the forbidden craftsmanship, and the case resembles the vessel.
If he steals a vessel of gold or silver whose value, when broken, reaches the nisab, he is amputated, for its prohibition is not a matter of consensus, and its value, apart from the disputed workmanship, reaches the nisab. If he steals a vessel prepared for carrying and holding khamr, amputation applies, for the vessel is not forbidden in itself: it becomes forbidden only through his intention and purpose, as if he stole a knife prepared for slaughtering pigs or a sword he prepares for highway robbery.
If he steals a vessel containing khamr reaching the nisab, Abu al-Khattab said: he is amputated, and this is the view of al-Shafi'i, for he stole a nisab from an equivalent place of safekeeping in which he has no doubt; others of our companions said: he is not amputated, for the vessel follows what carries no amputation, as if he stole something shared between himself and another. Abu Ishaq ibn Shaqila said: likewise, if he steals a water-skin or a vessel containing water, there is no amputation.
If he steals a cloth at whose corner a dinar is tied, and he knew of it, he is amputated; if he did not know of it, there is no amputation, for he did not intend to steal it: the case resembles a dinar that caught onto his garment. Al-Shafi'i said: he is amputated, for he stole a nisab, as if he stole something whose value he did not know reached the nisab. The difference between the 2 is that here he knew the stolen object and intended its theft, unlike the dinar: he did not want it and did not intend to take it; he is therefore not held answerable for it through the imposition of the penalty upon him (al-Mughni 9/114 and 115; see Sharh az-Zarkashi 3/131).
The principle in this is that, since it is established by the agreement of the jurists among the early generations and those after them that amputation is obligatory only for an amount below which it is not obligatory, and since the way such amounts are established is revealed specification or consensus, no revealed specification being established below 10 and consensus being established for 10, we affirm 10 and do not affirm what is below it, for lack of revealed specification and consensus concerning it.
It is required that the value of the stolen property be 10 from the moment of the theft to the moment of the amputation; if the price falls in the interval, there is no amputation.
And if the property is stolen in one town and the parties litigate before a judge in another town, the value of the stolen property must reach the nisab in both towns together (Ahkam al-Quran 4/64 and 65; see al-Ikhtiyar 4/123, al-Jawhara an-Nayyira 5/381 and 383, al-Lubab 2/321).
The place of safekeeping (hirz) is the place where the stolen property is secured: a house, a shop, the back of a riding animal or a ship, among the places where people customarily keep their wealth; this may vary according to people's customs (al-Qawanin al-Fiqhiyya, p. 236).
The jurists of the 4 schools agreed that it is required of the stolen property, for the fixed penalty to be applied to the thief, that he stole it from a place of safekeeping, because of the hadith of 'Amr ibn Shu'ayb, from his father, from his grandfather:
A man of Muzayna came to the Messenger of Allah, peace and blessings of Allah be upon him, and said: "Messenger of Allah, what is your view concerning the beast pasturing in the mountain?" He replied: "It and its like, together with exemplary punishment. There is no amputation for any livestock, except for what the night enclosure has sheltered and that reaches the price of a shield (mijann): therein lies amputation of the hand; what does not reach the price of the shield entails double compensation and exemplary lashes." He said: "Messenger of Allah, what is your view concerning the fruit still hanging?" He replied: "It and its like with it, together with exemplary punishment. There is no amputation for any hanging fruit, except for what the drying yard has sheltered: what is taken from the drying yard and reaches the price of the shield entails amputation; what does not reach the price of the shield entails double compensation and exemplary lashes."
Good (hasan) hadith, reported by Abu Dawud (1710), at-Tirmidhi (1289), an-Nasa'i (4959), Ibn Majah (2596) and Ahmad (6683)
The Prophet thus waived amputation for livestock except what the night enclosure, the place where the livestock spend the night, sheltered; and he waived it for hanging fruit except what the drying yard sheltered. There is no difference between the 2 situations except that the thing is secured in one of the 2 places and not in the other: this establishes that safekeeping is a condition for the obligation of amputation.
And because the pillar of theft is the taking in a manner of concealment, whereas taking outside a place of safekeeping requires no concealment: the pillar of theft is not realized. And because amputation was prescribed to safeguard wealth for its owners by cutting off the covetousness of thieves from people's wealth; yet covetousness inclines only to what has standing in hearts, and what is not secured has none in hearts as a rule: covetousness does not incline to it, and there is no need to safeguard it through amputation. On this basis there is no amputation below the nisab, nor for what is not legally valuable property capable of being stored (Bada'i' al-Sana'i' 7/73; see al-Jawhara an-Nayyira 5/384, al-Hawi al-Kabir 13/280, al-Muhadhdhab 2/277, al-Bayan 12/444).
The Maliki and Shafi'i jurists stated it expressly, and it is what the words of the Hanafis and the Hanbalis imply: it is required, for the amputation of the thief's hand, that he intended the theft, and that what he took is not his: it is property owned by another, which he took without the knowledge and will of its owner. There is no amputation for one who takes property believing it to be freely disposable or abandoned (al-Qawanin al-Fiqhiyya, p. 236; see al-Bayan 12/434, Kashshaf al-Qina' 6/165).
The generality of jurists, Hanafis, Malikis and Shafi'is, with details of their own, as well as the Hanbalis, expressly laid down among the conditions for cutting off the thief's hand that he not be driven to theft by hunger.
Ibn Juzayy, may Allah have mercy on him, said: that he not be driven to theft by hunger (al-Qawanin al-Fiqhiyya, p. 235; see Sharh az-Zarqani 4/192).
The Hanafis say: there is no amputation under necessity, nor in the year of scarcity, that is, the time of drought, for necessity permits taking from another's wealth according to the need, which prevents the obligation of amputation; and according to what is reported from Makhul, the Prophet, peace and blessings of Allah be upon him, said:
"No amputation in a famine for one who is driven by need."
Cited in al-Mabsut (9/140)
It is reported from al-Hasan, from a man:
"I saw 2 men bound, and some meat; I went with them to 'Umar (may Allah be pleased with him). The owner of the meat said: we had a she-camel 10 months pregnant that we awaited as one awaits spring, and I found these 2 men had slaughtered it. 'Umar said: would 2 she-camels 10 months pregnant and far gone satisfy you in place of your she-camel? For we do not amputate for the date-cluster nor in the year of scarcity. And that was in the year of scarcity."
Cited in al-Mabsut (9/140)
The she-camel pregnant of 10 months is one that has completed 10 months and whose delivery is near: she is the most precious thing her owners have, awaiting abundance and plenty from her milk as one awaits spring.
As for his words "we do not amputate for the date-cluster", some transmit "for the meat"; the better known version is "date-cluster", meaning the bunch of dates; the sense is: no amputation in the year of scarcity, because of necessity and famine (al-Mabsut 9/140; see Sharh Fath al-Qadir 5/367, al-Bahr al-Raiq 5/58).
As for the Shafi'is, they say: if a thief steals food in the year of famine, one considers: if the food exists and is merely expensive, amputation is due upon him, for when it exists no one may take it without its owner's permission: it is like food outside the famine.
And if the food does not exist, there is no amputation for one who steals it in order to eat it, according to what is reported from 'Umar (may Allah be pleased with him): "No amputation in the year of famine"; and it is reported from him: "No amputation in the year of scarcity", the year of drought being called the year of scarcity.
It is reported from Marwan that a thief was brought to him and he did not amputate him, saying: "I see him as driven to it by need." And because one driven by necessity to another's food may take it and fight its owner: this thief was driven to it by need, so he was not amputated for his theft (al-Bayan 12/480).
The shaykh Zakariyya al-Ansari, may Allah have mercy on him, said: one is amputated for food, that is, for stealing it, in the time of famine if it is found, even rare and at a high price, and he was able to obtain it; but if it became scarce, that is, of scant availability, and he could not obtain it, he is not amputated, for he is like one driven by necessity; and it is in this sense that what is reported from 'Umar (may Allah be pleased with him) is to be understood: "No amputation in the year of famine", whether he took the amount of his need or more, for he is permitted to violate the safekeeping in order to preserve his life; al-Ruyani stated this expressly (Asna al-Matalib 4/146).
Imam Ibn Qudama, may Allah have mercy on him, said: Ahmad said: no amputation in famine, meaning that the needy person who steals what he eats is not amputated, for he is like one driven by necessity.
Al-Jawzajani reported from 'Umar that he said: "No amputation in a year of scarcity." He said: I asked Ahmad about it, saying: do you hold it? He said: by my life, I shall not amputate him when need has driven him to it and the people are in hardship and famine. The view of al-Awza'i is similar. This applies to one who cannot find food to buy, or cannot find wherewithal to buy it: he has a doubt in taking what he eats, or what he buys his food with. It is reported from 'Umar (may Allah be pleased with him) that the servants of Hatib ibn Abi Balta' slaughtered a she-camel belonging to a man of Muzayna; 'Umar ordered their amputation, then said to Hatib: I see that you starve them, and he averted amputation from them when he supposed that he starved them.
As for one who finds what he eats, or finds wherewithal to buy and the thing to buy, amputation is due upon him even at the high price; this was reported by the Judge, and it is the view of al-Shafi'i (al-Mughni 9/118; see al-Kafi 4/181).
Imam Ibn al-Qayyim, may Allah have mercy on him, said: the third example: 'Umar ibn al-Khattab (may Allah be pleased with him) waived amputation for the thief in the year of famine. As-Sa'di said: Harun ibn Isma'il al-Khazzaz reported to us, from 'Ali ibn al-Mubarak, from Yahya ibn Abi Kathir, who reported to him from Hassan ibn Zahir, that Ibn Hudayr reported to him from 'Umar the saying:
"The hand is not cut off for a date-cluster, nor in a year of scarcity."
Cited by Ibn al-Qayyim in I'lam al-Muwaqqi'in (3/10 and 12)
As-Sa'di said: I asked Ahmad ibn Hanbal about this hadith; he said: the date-cluster is the palm tree, and the year of scarcity is the famine. I said to Ahmad: do you hold it? He said: by my life, yes. I said: if he steals in a famine, you will not amputate him? He said: no, when need has driven him to it and the people are in famine and hardship.
As-Sa'di said: this is on the pattern of 'Umar's judgment concerning the servants of Hatib. Abu an-Nu'man 'Arim reported to us, from Hammad ibn Salama, from Hisham ibn 'Urwa, from his father, from Ibn Hatib:
Servants of Hatib ibn Abi Balta' stole a she-camel belonging to a man of Muzayna. They were brought to 'Umar and confessed. He sent for 'Abd ar-Rahman ibn Hatib, who came, and he said to him: the servants of Hatib have stolen the she-camel of a man of Muzayna and have confessed against themselves. 'Umar said: "Kathir ibn as-Salt, go and cut off their hands." As they were being led away, 'Umar sent them back, then said: "By Allah, were it not that I know you employ them and starve them, to the point that if one of them ate what Allah has forbidden him it would be lawful for him, I would cut off their hands. By Allah, if I do not do it, I shall fine you a fine that will pain you." Then he said: "Man of Muzayna, for how much was your she-camel wanted from you?" He said: "For 400." 'Umar said: "Go and give him 800."
Reported by Imam Malik in al-Muwatta (2905)
Ahmad adopted 'Umar's position on both points together, in the questions of Isma'il ibn Sa'id al-Shalanji which as-Sa'di explained in a book he called al-Mutarjam. He said: I asked Ahmad ibn Hanbal about the man who carries off fruit from its husks; he said: it carries twice the price and exemplary beating. And he said: everyone from whom we avert the fixed penalty or retaliation, we double the compensation upon him.
Al-Awza'i concurred with Ahmad on the waiver of amputation in famine. And this is pure analogy and what the principles of the Law require: when the year is a year of famine and hardship, need and necessity overwhelm the people, and the thief is scarcely ever free of a necessity driving him to what sustains his fainting breath. It is obligatory upon the owner of the wealth to furnish it to him, either for a price or gratis, according to the difference of opinion on that; the correct view is that it is obligatory to furnish it gratis, because of the obligation of mutual aid and of reviving souls when one has the capacity to do so, and of preferring others with one's surplus in the needy person's necessity. This is a strong doubt averting amputation from the needy, stronger than many of the doubts cited by many jurists.
Abu Yusuf said: he is amputated. His argument: the marriage existing at the time of the theft prevents the obligation of amputation only by consideration of doubt, namely the doubt of absence of safekeeping or the doubt of ownership; were the marriage arising afterwards to be considered as preventive, that would be to uphold a doubt, and doubts are discarded in the chapter of fixed penalties (Bada'i' al-Sana'i' 7/75 and 76; see Tabayin al-Haqa'iq 3/220, al-Jawhara an-Nayyira 5/397 and 398, al-Lubab 2/328).
The jurists required, for the obligation of cutting off the thief's hand, that he have no doubt of ownership or entitlement in the stolen property. From this condition follows the ruling on one who steals from his partner's wealth, from a waqf, from the public treasury of the Muslims, or who takes his due from one indebted to him, and other cases. The explanation follows:
The jurists differed over the ruling of the partner who steals from the partnership's wealth: is he amputated, or not? The Hanafis, the Shafi'is according to the more apparent view, and the Hanbalis hold that the partner is not amputated when he steals from wealth in which he holds a share, however small his portion, such as wealth held jointly between him and his partner: he has a doubt in every part of it, for there is no part that is not held in common between the 2 of them; the wealth is not secured against him; and if the father is not amputated for stealing his child's wealth because he has a doubt in it, then all the more is he not amputated for stealing from his partner's wealth (al-Jawhara an-Nayyira 5/396; see al-Lubab 2/328, al-Bayan 12/471 and 472, an-Najm al-Wahhaj 9/158, Mughni al-Muhtaj 5/465, Kashshaf al-Qina' 6/180, Sharh Muntaha al-Iradat 6/251).
The Shafi'is, contrary to the more apparent view, hold that he is amputated, for he has no doubt in his partner's wealth (al-Bayan 12/471 and 472; see an-Najm al-Wahhaj 9/158, Mughni al-Muhtaj 5/465).
The Malikis hold that among the conditions of amputation for stolen property is that it be stolen from one whose ownership is complete, with no ownership of the thief in it and no strong doubt in it. Accordingly: the partner who steals from partnership wealth not withheld from him, his hand ranging freely together with his partner's, is not amputated.
The partner is not amputated for stealing from the partnership's wealth except under 2 conditions. The first: that the partner withheld the partnership wealth from the thief if the latter had no power of disposal over it, by the 2 of them depositing it under a third party's hand, or its being in the hand of other than the thief of the 2, by way of preservation and securing; otherwise it is as though not withheld; or that the 2 lock it up and deposit the keys with a third party; and depositing the keys with one of the 2, when this is by way of preservation and securing, counts as depositing them with a third party.
The second: that he steal, above his right, a nisab from the totality of the partnership's wealth, both what was stolen and what was not, if it is fungible; thus, if the total wealth is 12 dirhams and he steals 9 of them, you know that his share of the wealth is 6 if the 2 hold it in halves: he has taken, above his right, from the totality of the wealth 3 dirhams, which is a nisab. This is the text transmitted from Malik, and the apparent sense of the Mudawwana. Ashhab, Ibn al-Majashun and Asbagh said: if he steals 6 dirhams from the totality of the wealth, he is amputated.
If the property is valued by appraisal, what counts is that there be, in what was stolen, a nisab above his right from what was stolen, not from the totality of the wealth. If the partnership concerns trade goods, such as books whose total is worth 12, and he steals one particular book worth 6, he is amputated, for his right is in half of it only: he has stolen, above his right, a nisab of it.
The difference between the fungible and the appraised, whereby they required for the fungible that the stolen nisab exceed his right in the whole of the shared wealth, stolen and unstolen, and for the appraised that the stolen nisab exceed his right in what was stolen only: the appraised, since one cannot take one's share of it except with the other's consent, because aims differ in appraised property, means that what he stole is partly his share and partly his companion's share, and the remainder likewise; whereas the fungible, since one may take one's share of it even if the other refuses, aims differing in it rarely, entails that what he took of it is necessarily shared between the 2, and the remainder likewise.
Accordingly, if it was not withheld from him, or was withheld and he stole below his right, or above it but below a quarter dinar or 3 dirhams, he is not amputated (at-Taj wa-l-Iklil 5/350; see Sharh Mukhtasar Khalil 8/96 and 97, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/340 and 341, Tahbir al-Mukhtasar 5/369 and 370).
The difference between this doubt and the doubts they mention becomes clear to you: where is the doubt that the stolen property is quick to spoil, or that its origin is freely disposable like water; the doubt of a prior amputation; the doubt of a claim of ownership without proof; the doubt of the property's destruction inside the safekeeping place by eating or milking from the udder; the doubt of the decrease of its value inside the safekeeping place by slaughter or burning and then removal; and the other very weak doubts, next to this strong doubt? All the more so as he is authorized to contend with the owner of the wealth for the taking of what sustains his fainting breath.
In the year of famine, the needy and the driven-by-necessity multiply, and the self-sufficient among them cannot be distinguished from the one who steals without need; the one upon whom the penalty is due has become confounded with the one upon whom it is not: it is therefore averted. Yes, if it becomes plain that the thief has no need and is independent of theft, he is amputated (I'lam al-Muwaqqi'in 3/10 and 12).
The thief may be an ancestor of the person stolen from, or a descendant of the person stolen from; there may be another bond of kinship between them, or a bond of marriage. Each of these has its own ruling; the explanation follows:
The jurists of the 4 schools, Hanafis, Malikis, Shafi'is and Hanbalis, agreed that there is no amputation for the parent, however far ascending, who steals from his child's wealth, however far descending; the father and mother, or the grandfather and grandmother on the father's or mother's side, are all alike in this.
Imam Ibn Abd al-Barr, may Allah have mercy on him, said: the majority agreed that he is not amputated for what he steals from his child's wealth (al-Istidhkar 7/525).
Imam al-Mawardi, may Allah have mercy on him, said: there is no amputation for one who steals from the wealth of either of his parents, however far they ascend, among the fathers and mothers, grandfathers and grandmothers, nor from the wealth of any of his descendants, however far they descend, among the sons and daughters, sons of sons and sons of daughters; and this is the view of the majority of jurists (al-Hawi al-Kabir 13/347 and 348).
Imam Ibn Rushd, may Allah have mercy on him, said: their consensus is that he is not amputated for what he steals from his child's wealth (Bidayat al-Mujtahid 2/325).
Imam Ibn Hubayra, may Allah have mercy on him, said: they agreed that parents, however far they ascend, are not amputated for what they steal from their children's wealth (al-Ifsah 2/278).
Imam Ibn Qudama, may Allah have mercy on him, said: the parent is not amputated for stealing from his child's wealth, however far descending; the father and mother, the son and daughter, the grandfather and grandmother on the father's and mother's side are all alike in this; and it is the view of the generality of the people of knowledge, among them Malik, ath-Thawri, al-Shafi'i and the partisans of personal opinion (al-Mughni 9/116).
The jurists argued for this with the word of Allah the Most High:
« Do not say to them "uff" and do not repel them. »
Surah al-Isra, 23
Even addressing that word to them is forbidden: cutting off would therefore be graver still, and it is more rightful to avert it.
And with the saying of the Prophet (peace and blessings of Allah be upon him):
« You and your wealth belong to your father. »Authentic hadith, reported by Ibn Majah (2291) and Ibn Hibban in his Sahih (4262)
And with the saying of the Prophet (peace and blessings of Allah be upon him):
« The best of what a man eats is from his earning, and his child is part of his earning. »Authentic hadith, reported by Abu Dawud (3528), at-Tirmidhi (1298), an-Nasa'i (4449), Ibn Majah (2137), Ibn Hibban in his Sahih (2459) and Imam Ahmad in his Musnad (24087)
In another wording: « So eat from the earnings of your children. » It is not permissible to cut off a person's hand for taking what the Prophet (peace and blessings of Allah be upon him) ordered him to take, nor for taking what the Prophet (peace and blessings of Allah be upon him) made into wealth belonging to him.
And because fixed punishments are averted by latent claims (shubha), and the greatest of latent claims is a man's taking from wealth that the Law made his own and ordered him to take and consume (al-Jawhara an-Nayyira 5/397 and 398 ; see al-Ishraf ala Nukat Masa'il al-Khilaf 4/485 and 486, al-Hawi al-Kabir 13/347 and 348, al-Mughni 9/116).
The jurists differed regarding the descendant, the son and however far down the line, when he steals from the ascendant, the father and however far up the line: is his hand cut off for it or not?
The majority of jurists, the Hanafis, the Shafi'is and the Hanbalis in the relied-upon position of their school, are of the view that the son is not cut off, however far down, when he steals from his father, however far up. For each of the parent and the child constitutes a latent claim upon the other's wealth, because maintenance is obligatory upon it ; and because, through the existence of mutual belonging between them, each is treated as his own self: he is not cut off with respect to himself. And because his child is dearer and more precious to him than his wealth: the very meaning of the cutting is absent in him, and it falls away.
And because between them is a kinship that bars the acceptance of the testimony of either for the other: he is therefore not cut off for stealing his wealth, like the father. And because maintenance is obligatory from the father's wealth for his son, to preserve him: it is not permissible to destroy it in order to preserve wealth (al-Jawhara an-Nayyira 5/397 and 398 ; see al-Lubab 2/328, al-Umm 6/151, al-Hawi al-Kabir 13/347 and 349, al-Mughni 9/116, al-Kafi 4/179).
The Malikis, the Hanbalis in one view, Abu Thawr and Ibn al-Mundhir are of the view that he is cut off, because the son has no latent claim upon his father's wealth. The proof is that if he fornicated with his father's slavewoman, the fixed punishment would be applied to him (al-Istidhkar 7/559 ; see al-Ishraf ala Nukat Masa'il al-Khilaf 4/486, al-Ifsah 2/279, al-Mughni 9/116).
The jurists differed regarding relatives, such as brothers, paternal uncles and maternal uncles, that is, all kinship other than that of fathers and sons: if one of them steals from another, is the punishment of theft established upon him and his hand cut off, or not?
The majority of jurists, the Malikis, the Shafi'is and the Hanbalis, are of the view that theft of relatives from one another is not a latent claim that wards off the punishment from the thief: they are therefore cut off when some of them steal from others, whether they inherit from one another, are permanently unmarriageable kin or not, like strangers. For it is a kinship to which the rejection of testimony is not attached: the dropping of the cutting is therefore not attached to it either, like relatives who are not permanently unmarriageable (al-Ishraf ala Nukat Masa'il al-Khilaf 4/485 and 486 ; see al-Ifsah 2/278, al-Umm 6/151, al-Hawi al-Kabir 13/349, al-Mughni 9/117, al-Kafi 4/179).
The Hanafis are of the view that he is not cut off if he steals from an unmarriageable relative, such as the brother or the paternal uncle, meaning one such that, were one of them a man and the other a woman, it would not be permissible for him to marry her because of the kinship between them, according to the word of Allah the Most High:
« There is no blame upon you that you eat from your houses or your fathers' houses... » up to His words: « ...or a house whose keys you possess. »
Surah an-Nur, 61
Allah the Most High lifted the blame from the one who enters the house of brothers and paternal uncles and eats from it: the apparent meaning of this entails permissibility. And the apparent meaning, even if abandoned because of the establishment of proof, remains a latent claim. Do you not see that He coupled the houses of brothers and paternal uncles with the houses of fathers and sons, and that the ruling of what is coupled follows the ruling of what it is coupled to?
As for the relative whose marriage is not forbidden, the one who steals from him is cut off.
And if he steals from a person who became a relative through suckling, with no other kinship with him, Abu Hanifa and Muhammad (may Allah have mercy on them both) said: the one who steals from a person forbidden to him in marriage through suckling, whoever that may be, is cut off, for what suckling establishes is only the permanent prohibition of marriage, and it does not prevent the obligation of the cutting, as when he steals from the mother of his wife. This is why he is cut off for the sister through suckling.
Abu Yusuf said: if he steals from his mother through suckling, he is not cut off, because free access between the 2 of them is established by custom and usage: a person enters the dwelling of his suckling mother without permission, just as he enters the dwelling of his mother by blood, unlike the sister through suckling.
And if he steals from his father's wife, or his mother's husband, or his son's wife, or his wife's son, or her daughter, or her mother, it is examined: if he stole their wealth from the dwelling of the person to whom the thief is tied, among his father, his mother, his son and his wife, he is not cut off, without disagreement, for he is permitted to enter the dwelling of these persons: the dwelling is therefore not a secured place with respect to him.
And if he stole from another dwelling: if the 2 of them were in it, he is not cut off, by consensus. If each of them had a separate dwelling, there was disagreement concerning it: Abu Hanifa said that he is not cut off, because there is a latent claim in the secured place, for the right of mutual visits is established between him and his relative: the dwelling's belonging to other than his relative does not cut off the visits, and this begets a latent claim of permissibility of entry for the visit, so that the meaning of the secured place is impaired.
Abu Yusuf and Muhammad said: he is cut off if he steals from a dwelling other than his own, his father's or his son's, for what prevents the cutting is kinship, and there is no kinship between the thief and the victim: each of the 2 is a stranger to the other, which does not prevent the obligation of the cutting, as if he stole from any other stranger (Ahkam al-Quran 4/81 and 83 ; see al-Mabsut 9/151 and 152, Bada'i' al-Sana'i' 7/75, Tabyin al-Haqa'iq 3/220, al-Jawhara an-Nayyira 5/397 and 398, al-Lubab 2/328).