Possibility of Qiṣāṣ (Retaliated Punishment) of Father by the Child in Legal Opinions and Penal Laws

Document Type : Research Article

Author

• ‘Alī Murād Ḥaydarī

10.22067/fiqh.v0i0.12679

Abstract

The impossibility of qiṣāṣ of father for murdering the child is unanimously agreed upon by the Imāmī jursprudents; however, presuming that the father does not directly commit murder of the child and the child inherits the right for qiṣāṣ against the father from the victim of crime, there is disagreement among the jurisprudent as to whether the child can retaliate the father in qiṣāṣ or not.
In this respect, a group of jurisprudents believe in the impossibility of qiṣāṣ of father. The evidences adduced by these jurisprudents include: priority analogy, the narration lā yaqādu wālidun bi waladihī (father is not retaliated for [killing] the child), the narration on qadhf (false accusation of unchastity), the general evidences concerning enjoinment of doing good to parents and keeping their company honorably.
A group of jurists have issued a legal decision (ḥukm) for the possibility of qiṣāṣ of father on this matter, too. This group of jurisprudents, while rejecting
the allusion to the priority analogy or to the narration on qadhf, have resorted to being content with agreed certitude in withdrawal from the application of qiṣāṣ evidences and have regarded the issue in question as included in generalities of qiṣāṣ evidences.
In this article, while doing a critical review of the evidences of both groups, the second view is preferred.
Islamic Penal Code, approved in 1370/1991, as well as the draft of Islamic Penal Code of 1388/2009 simply point out that if the murderer is the father or grandfather of the murdered person and the presumption discussed in this article is briefly carried out. Therefore, the jurisprudential analysis of this issue is of significance in clarifying the legal decision of this issue.

Keywords

• deliberate murder
• qiṣāṣ
• qiṣāṣ of the father
• negation of paternity

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