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Executing a Father for Killing His Son

Question and answer details
Adeeb
2013/02/03
As-salamu `alaykum. Is the following ruling based on Islamic laws: a father cannot be executed for murdering his children, nor can husbands be executed for murdering their wives? Please, explain.
`Abdel Khaliq Hasan Ash-Shareef
On Islam Fatwa Editing desk
Answer

Wa `alaykum as-Salamu wa rahmatullahi wa barakatuh.

In the Name of Allah, Most Gracious, Most Merciful.

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.

     

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Dear brother, thank you for trusting us and for your question that shows your interest in Islam’s rulings concerning retaliation (qisas).

The legal penal system in Islam is based on justice and protection of people’s lives, faiths, honor, and properties. Therefore, punishment has always played an integral part in the concept of justice.

We all know or at least expect that if you do something wrong you are subject to punishment in some way or another. This is only fair. Humankind is charged with the responsibility for the choices they make. This is because they are created with the freedom of choice and granted the moral sense of right and wrong. Accordingly, one is not to be punished for the actions of others, or for acts done under duress or because of insanity. All people are equal and innocent until proven guilty: only then punishment is considered.

Islam considers crime an act of injustice towards society, a sin against oneself and a transgression against Allah. Punishment is not atonement nor does it erase the sin. A sin is only forgiven through repentance. However, crime is an act of inflicting harm upon society that cannot be forgiven by repentance alone.

The object of all penal systems is to punish the offender and protect society from reoccurrence of the crime. Punishment serves as an educational purpose, as well as a form of crime deterrent and prevention and the system used must achieve this aim. However, if societies were to rely only upon their systems of punishment, they would fail miserably. An environment of healthy morality and faith must be the norm, where to do right is encouraged by all and to do wrong is discouraged and found difficult. In fact, encouraging right and forbidding wrong is a foremost duty in Islam.

Most penal systems in today's societies are based and dependent on the current social sentiment. In Islamic law, punishment is based upon divine revelation. There is no leeway for sentiment or possibility of change. These laws were established by the Creator who is Infinitely Wise and Merciful, Who knows the true affairs of the world better than humankind. To seek justice without recourse to divine help would be tragic, as all other sources of knowledge and theory are flawed by human imperfection.

Justice is the ruling spirit of Islamic law, which is known as the Shari`ah. One of the main reasons for which the Prophets (peace be upon them all) were sent were to guide mankind to justice.

In this connection, Allah, Most High, says, { We sent our messengers with clear signs and sent down with them the Book and the Balance so that men may conduct themselves with justice.} (Al-Hadid 57: 25) and {O you who believe, be upholders of justice, witnessing for Allah alone.} (An-Nisaa' 4: 135)

Given the above, if a father kills his son on purpose, he should be executed for killing him. This is the opinion of imam Malik. Some Muslim scholars, however, see it unimaginable for a father to intentionally murder his, supposed to be beloved and dear, son and therefore a father may not be executed for killing his son as this is most probably not an intentional killing. All in all, a judge could punish the criminal with the proper penalty according to the evidences he has regarding the case. 

Moreover, Sheikh `Abdel Khaliq Hasan Ash-Shareef, a prominent Muslim scholar, Egypt, stated,

A spouse could be executed if he/she kills his/her spouse, as none of them is considered the origin of the other. So, if a husband kills his wife, his punishment may reach to execution, and the same is for a wife.

As for fathers, the matter is different. A father is not expected to kill his child on purpose. It was narrated that the Prophet (peace and blessings be upon him) said, “No father should be killed (executed) for killing his son.” (At-Tirmidhi) Some Muslim scholars, therefore, see it unimaginable for a father to intentionally murder his son. Accordingly, a suspected father may not be executed for killing his son as this is most probably not an intentional killing.

Having said this, it should be also pointed out that Imam Malik has a different opinion: if a father kills his son definitely on purpose without any doubt, he may be executed.

The judge, therefore, has the right to afflict the proper punishment on the criminal on the basis of the proofs he has regarding the case.

Allah Almighty knows best.


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