چکیده:
Murder and intentional injury are punished by Qisas. One of the conditions of executing qisas is lack of paternity. Accordingly، a murderer is not retaliated where he is father of his victim. Traditional documentaries and renown legal opinions which are raised on this case by the Shiite and Sunni groups، make the legislator consider the mentioned condition in the article 301، Islamic penal code of 2014.A father that murders his offspring، is not absolutely taken in retaliation in accordance with absoluteness of the Shiite Jurist`s words and text of law. This is while that according to some jurists`s opinions، retaliation is executed on a father where he murders his child with malice aforethought or motives such as hostility and greed. In this paper، based on a descriptive-analytical method and connected narrations، it is resulted that annulling qisas of father is a general and absolute legal commandment، and limiting it to some situations such as killing with malice aforethought، necessitates abandoning the traditions. At the same time، it proves that such an legal precept is especial for father، and it does not apply to mother، grandfather and grandmother at all.
خلاصه ماشینی:
Therefore, in this research, specific interpretations are criticized that for some time have entered scientific circles as the dominant theory, according to which the exemption narrations are considered to apply only to cases where there is no conspiracy or prior decision-making; also, it is concluded that according to strong evidence, not only is the mother not included in the ruling of exemption, but the exemption of the paternal grandfather also lacks a strong evidentiary basis.
Nevertheless, the truth is that the criterion and standard for the father's exemption from retaliation can be neither considered the existence of a special emotion that is greater in the mother than in the father, nor the greater amount of her rights; because none of these matters are either explicitly stated in texts (mansus) or provable; furthermore, there are explicit statements in dictionaries that make relying on linguistic arguments problematic in this regard: for example, Raghib in "Al-Mufradat," despite considering "walad" (offspring) to include both male and female children, has deemed the word "walid" (parent) specific to the father and the masculine gender (Raghib Isfahani, 1412 AH: p.
According to some jurists, by citing 'inṣirāf' (divergence) or by reading the aforementioned narrations as judicial, in cases where the intentionality of the child's murder is proven, the father cannot be considered exempt from Qisas.
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