چکیده:
According to the first principle, intentional murderer is sentenced to retribution but in Islamic Sharia, the ruling of retribution depends on certain conditions so that the non-fulfillment of which is regarded as exception of this matter. One of these exceptions is the case that the murderer is the victim’s father. The religious experts have consensus regarding the ruling of non- retribution when the victim’s father is the supposed murderer, but the issue of whether the ruling of non- retribution is specific to the father and paternal ancestor or such exception covers the mother’s side or not is a matter of dispute. The Imamiah Jurists make a distinction between retribution of murderous father and murderous mother. Article 301 of the Islamic Penal Code (approved in 2013) followed the same popular opinion and excluded the victom's murderous father from retribution decree while the murderous mother is sentenced to retribution in the same case. In contrast, Ibn Joneid and Sunni schools of jurisprudence other than Māleki, consider the rule of non- retribution to the murderous mother as well as the murderous father. This article with descriptive and analytical method, aims to prove the theory that the murderous mother like the murderous father is similarly exception from the non-retribution decree.
خلاصه ماشینی:
The implication of Article 301 of the Islamic Penal Code passed in 1392, which follows the majority view by considering the killer's fatherhood as an impediment to the application of Qisas, is that a mother shall undergo retaliation for the killing of her child; conversely, Ibn Junayd and the Sunni jurisprudential schools, except for the Malikis, consider the ruling of non-retaliation to apply to the mother as well as the father.
The famous view among Imami jurists is that the exception from the ruling of Qisas is specific to the father, and if a mother kills her child, Qisas is established (Tusi, 1407 AH, Vol. 5, p.
Some, including Allamah al-Hilli in Mukhtalaf al-Shi'a, attribute the view of the non-retaliation of the mother against the killing of her child to Ibn Junayd al-Iskafi (Hilli, 1413 AH, Vol. 9, p.
In the view of these three Sunni schools, the mother, like the father, is not sentenced to Qisas for killing her child (Ibn Qudamah, 1416 AH, Vol. 9, p.
This is because, contrary to the famous theory of the Imami school, they do not consider the exclusion of Qisas to be limited to the father; rather, by generalizing the exception to the mother, they consider her to be attached to the father and the paternal grandfather in the ruling of non-retaliation (Ibn Qudamah, 1416 AH, Vol. 11, p.
(
, 
, 
)
