Abstract:
Most Islamic jurists believe that a father will not retaliate against his son in a deliberate crime. However, there is disagreement about the mother joining the father. Sunni jurists mainly believe that the mother cannot be retaliated like the father, a position that is also accepted in the penal regulations of the countries subject to Sunni jurisprudence. According to the famous Fatwa of Imami jurisprudence, the regulations of our country have specified the removal of retribution only against the father, and this issue has caused the legal doctrine of the mother to be subject to retribution..In the present study, the issue is examined with a descriptive analytical method and it is clear that the only valid document of the famous fatwa of the jurists is the general reasons for retribution, which in other cases, like the grandparents, have been left out for reasons that should apply to the mother in the first place; In particular, a parent who is not retaliated according to the hadiths is also referred to as a mother and also the hadiths do not say anything about the retaliation of the mother, and the companions did not even ask the infallibles about this issue. Evidence that exposes the mother's retaliation to suspicions that should be avoided. From a legal perspective, due to the lack of legal clarification, the mother can be excluded from retaliation based on the fatwa of the minority, especially the opinion of the leadership.
Machine summary:
Mauritanian criminal law has accepted this position and in Article 288, although it explicitly states the principle of non-retaliation for parents, it considers the father or mother subject to retaliation in cases where the crime is committed through intentional acts such as throat-slitting or disemboweling.
Consensus (Ijma) Regarding the evidence of consensus, it must be said that according to the basis of those who consider consensus to be authoritative, this authority refers to the consensus among the ancients, which, upon careful examination of their remaining works, does not prove the realization of consensus regarding the establishment of maternal retaliation; since some of them only focused on the ruling of the father's intentional crime, and the issue of maternal retaliation was left in silence (Ibn Barraj al-Trabulsi, 1406, Vol. 2, p.
In any case, regardless of the shared criteria mentioned above, which have caused some proponents of maternal retaliation to consider the removal of punishment in other cases, however, based on the principle of investigation, since such cases have not been explicitly stated in the transmitted evidences as a reason for negating retaliation, and their expression was merely to show double standards in the words of some proponents of the existence of maternal retaliation, we will proceed to examine the arguments and evidences that have caused a minority of jurists to doubt the inclusion of the scope and generality of the evidences of retaliation regarding the crime of a mother against her child.
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