When a man commits zina with a woman, the tribe offers compensation to the girl’s family in the form of a payment, the amount of which is determined by tribal custom. It may be noted that the tribe helps the man to pay this money. What is the ruling on helping to pay this money if one belongs to the tribe of the one who did it? What is the ruling on taking this money if one belongs to the tribe of the girl? Please note that this town is ruled by a Christian and he does not rule it in accordance with that which Allaah has revealed (sharee’ah), hence the tribes resorted to tribal laws, which also involve ruling by something other than that which Allaah has revealed.
Praise be to Allaah.
Firstly:
With regard
to this financial compensation, there may be two scenarios:1 – When it
is paid only where a woman is forced into zina (rape), where the rapist is
made to pay the mahr to his victim, or to pay the mahr along with
compensation for loss of virginity – if she was a virgin – according to
those who say that this is required. The compensation for loss of virginity
is the difference between the mahr of a virgin and the mahr of one who was
previously married.This money
must be paid by the rapist, and the hadd punishment must be carried out on
him, and it must be given to the victim if it is proven that she was forced
into it.If that is
the case, then there is no problem with it, rather this is the ruling of
sharee’ah even if it is in accordance with customs.If we assume
that they are unable to carry out the hadd punishment, but they can force
the rapist to pay the mahr to his victim, then this is acceptable, because
if it is not possible to do everything, we should do as much as we can do.
Allaah says (interpretation of the meaning):“So keep
your duty to Allaah and fear Him as much as you can”[al-Taghaabun 64:16]
With regard
to obliging the tribe to pay the mahr or help in doing so, there is no basis
for that. Rather it must be paid from the wealth of the rapist, as stated
above. Helping him to pay it means letting the rapist off lightly and
encouraging rape. We will discuss the difference between the mahr and the
compensation (for loss of virginity) below.2 – If that
is the procedure that is followed in all cases of zina, with no distinction
between cases where the woman is forced into it (rape) and cases where she
did it willingly, and the tribe is obliged to help the zaani pay this
compensation, and that is regarded as a general ruling that all the tribes
refer to, this is like a system of prostitution. The Prophet (peace and
blessings of Allaah be upon him) said:“The price
of a dog is evil, and the earnings of a prostitute are evil and the earnings
of a cupper are evil.” Narrated by Muslim (1568).And he said:
“The price of a dog, the fee of a soothsayer and the earnings of a
prostitute are not permissible.” Narrated by al-Nasaa’i (4293).It is
obvious that this tribal law, which is known as saloom, is the ruling
of Jaahiliyyah which is it is not permissible to judge by or to refer to for
judgement, or to help with, because Allaah says (interpretation of the
meaning):“And so
judge (you O Muhammad) among them by what Allaah has revealed and follow not
their vain desires, but beware of them lest they turn you (O Muhammad) far
away from some of that which Allaah has sent down to you. And if they turn
away, then know that Allaah’s Will is to punish them for some sins of
theirs. And truly, most of men are Faasiqoon (rebellious and disobedient to
Allaah).50. Do
they then seek the judgement of (the days of) Ignorance? And who is better
in judgement than Allaah for a people who have firm Faith”[al-Maa'idah 5:49, 50]
“And
whosoever does not judge by what Allaah has revealed, such are the Kaafiroon
(i.e. disbelievers — of a lesser degree as they do not act on Allaah’s
Laws)”[al-Maa’idah 5:44]
“Have you
not seen those (hypocrites) who claim that they believe in that which has
been sent down to you, and that which was sent down before you, and they
wish to go for judgement (in their disputes) to the Taaghoot (false judges)
while they have been ordered to reject them. But Shaytaan (Satan) wishes to
lead them far astray”[al-Nisa’
4:60]“But no,
by your Lord, they can have no Faith, until they make you (O Muhammad) judge
in all disputes between them, and find in themselves no resistance against
your decisions, and accept (them) with full submission”
[al-Nisa’ 4:65]And there
are other verses which indicate that it is obligatory to refer for judgement
to the laws of Allaah and to reject the rulings of Jaahiliyyah that go
against them. Allaah has decreed and prescribed that the zaani should be
flogged if he is a virgin and stoned if he is a non-virgin, and this applies
to both men and women. Every ruling that goes against this is a ruling of
jaahiliyyah, which must be rejected and we must strive to abolish it.The scholars
stated that referring to Bedouin laws and tribal customs that go against
sharee’ah is kufr.Shaykh
Muhammad ibn Ibraaheem (may Allaah have mercy on him) said: The sixth (type
of major kufr with regard to referring to laws for judgement) is the law by
which many of the heads of Bedouin clans and tribes rule, based on the
sayings of their forefathers and their customs which they call their
saloom, which they inherited from them and they judge by it and refer to
it for judgement in the event of disputes, based on the rulings of
Jaahiliyyah or turning away from the rulings of Allaah and His Messenger.
There is no power and no strength except with Allaah. End quote from the
essay, Tahkeem al-Qawaaneen.Shaykh ‘Abd
al-‘Azeez ibn Baaz (may Allaah have mercy on him) said in an essay entitled
“The ruling on referring for judgement to tribal customs and traditions”:From ‘Abd
al-‘Azeez ibn Baaz to whoever among the Muslims reads it: may Allaah help me
and them to find out the truth and follow it.Peace be
upon you and the mercy of Allaah and His blessings…The reason
for this is to answer some questions that have been asked by one of our
sincere brothers in the Kingdom. He says that in his tribe, and in some
other tribes, there are bad tribal customs for which Allaah has not sent
down any authority, such as not referring for judgement to the Book of
Allaah and the Sunnah of His Prophet (peace and blessings of Allaah be
upon him), and turning instead to tribal customs and ignorant traditions.One of these
is the concealment of testimony and not bearing witness out of tribal
loyalty, or bearing false witness out of tribal loyalty also. And there are
other reasons that may lead some people to go against sharee’ah.Because of
our duty to be sincere towards Allaah and His slaves, I say – and Allaah is
the source of strength:The Muslims
are obliged to refer for judgement to the Book of Allaah and the Sunnah of
His Prophet (peace and blessings of Allaah be upon him) in all things,
and not to man-made laws or tribal customs. Allaah says (interpretation of
the meaning):“Have you
not seen those (hypocrites) who claim that they believe in that which has
been sent down to you, and that which was sent down before you, and they
wish to go for judgement (in their disputes) to the Taaghoot (false judges)
while they have been ordered to reject them. But Shaytaan (Satan) wishes to
lead them far astray”[al-Nisa’
4:60]“Do they
then seek the judgement of (the days of) Ignorance? And who is better in
judgement than Allaah for a people who have firm Faith”[al-Maa'idah 5:50]
No Muslim
should give precedence to the rule of anyone other than Allaah over the rule
of Allaah and His Messenger, no matter who he is. Just as worship is for
Allaah alone, so too is the judgement or decision, as He says
(Interpretation of the meaning):“The
decision [hukm] is only for Allaah,”[al-An’aam 6:57]
Referring
for judgement to anything other than the Book of Allaah or the Sunnah of His
Messenger (peace and blessings of Allaah be upon him) is one of the
greatest of evils and the most abhorrent of bad deeds, but as to whether the
one who does that is a kaafir, that is subject to further discussion. Allaah
says (interpretation of the meaning):“But no,
by your Lord, they can have no Faith, until they make you (O Muhammad) judge
in all disputes between them, and find in themselves no resistance against
your decisions, and accept (them) with full submission”
[al-Nisa’ 4:65]So there is
no faith for the one who does not refer for judgement to Allaah and His
Messenger (peace and blessings of Allaah be upon him) with regard to
the fundamentals of religion and its minor issues and with regard to
disputes concerning rights and duties. Whoever refers for judgement to
anything other than Allaah and His Messenger has referred for judgement to
the Taghoot (false judges).Based on
this, the tribal Shaykhs must not judge among the people according to tribal
customs that have no basis in Islam and for which Allaah has not sent down
any authority. Rather they must refer any disputes among their tribes to the
sharee’ah courts. There is no reason why they should reconcile between
disputants in ways that do not go against sharee’ah, so long as they consent
to that and there is no compulsion, because the Prophet (peace and
blessings of Allaah be upon him) said: “Reconciliation between Muslims is
permissible, except a reconciliation that forbids something that is
permitted or permits something that is forbidden.” And all the tribes should
not agree to anything but the rule of Allaah and His Messenger … End quote
from Majmoo’ Fataawa wa Maqaalaat al-Shaykh IbnBaaz (5/142).The Standing
Committee for Issuing Fatwas was asked: What is the ruling if two men argue
and refer for judgement to customary laws, and each of them chooses someone
they think is of good character, and they agree to whoever among the tribal
Shaykhs they choose to judge between them, and they sit before him and each
of them states his case against the other. If it is a simple case, he rules
usually rules that the one who is in the wrong should slaughter an animal
and invite his opponent to the feast; and if it is a serious case he gives a
judgement of al-janbiyyah, which in the past meant that they would strike
him on the head with a sharp instrument until his blood flowed. But nowadays
they pay the janbiyyah in money and they call this reconciliation. This is
something that is widespread among the tribes and they call it a madhhab,
and if you do not approve of what they do, they call you qaati’ al-madhhab
(one who has forsaken the madhhab). What is the ruling on this?Answer: The
Muslims must refer for judgement to Islamic sharee’ah, not to tribal laws.
What you have mentioned is not a reconciliation in the true sense, rather it
is referring for judgement to customary principles. Hence they call it a
madhhab, and they say of the one who does not agree with the ruling that he
has forsaken the madhhab. Their calling it a reconciliation does not alter
the fact that it is referring for judgement to Taghoot (false judges). The
ruling that they stipulate, of slaughtering an animal or striking the head
with a sharp instrument until the blood flows is not a shar’i ruling.Based on
this, the tribal Shaykhs should not judge between people in this manner, and
the Muslims should not refer to them for judgement, until they (the Shaykhs)
turn away from that to Islamic laws. Today – praise be to Allaah – the
authorities have appointed judges who judge between the people and resolve
their disputes in accordance with the Book of Allaah and the Sunnah of His
Messenger (peace and blessings of Allaah be upon him) and who solve
their problems in ways that do not go against the laws of Allaah, may He be
exalted. So there is no excuse for anyone to refer for judgement to false
judges, after the appointment of scholars of Islam to whom they may refer
for judgment and who judge in accordance with the law of Allaah.And Allaah
is the Source of strength. May Allaah send blessings and peace upon our
Prophet Muhammad and his family and companions.The Standing
Committee for Academic Research and Issuing Fatwas.‘Abd-Allaah
ibn Qa’ood, ‘Abd-Allaah ibn Ghadyaan, ‘Abd al-Razzaaq ‘Afeefi and ‘Abd
al-‘Azeez ibn Baaz. End quote.As that is
the case, it is not permissible for you to take part in his judgement or to
pay the money or take it. Rather you must disavow yourself of that, and you
must advise these people and explain to them the seriousness of what they
are doing by passing judgements that are not in accordance with sharee’ah.
They have no excuse for that, even if their governor is a Christian who does
not apply the rulings of Allaah. They have to advise one another and strive
to apply the rulings of sharee’ah as much as they can; whatever they are
unable to apply, it is not permissible for them to invent rulings for it, no
matter what interests they think may be served by that, otherwise they will
be sinners who are introducing jaahili ways into Islam.Secondly:
The majority
of Maaliki, Shaafa’i and Hanbali fuqaha’ are of the view that if a woman is
forced into zina (raped), then the rapist must pay a mahr equal to that of
her peers.If she was a
virgin, is she entitled to compensation for loss of virginity along with the
mahr?Some of the
fuqaha’ are of that view, and it was narrated from Ahmad (may Allaah have
mercy on him), but the well known view of the Hanbalis is that compensation
for loss of virginity is not required, and the one who is forced into zina
can only take a mahr equal to that of her peers. The Maalikis also pointed
out that this mahr is not to be paid collectively by the male relatives of
the rapist, because zina is a deliberate action, it is not something that
can happen by mistake.The Hanafis
differed from that and did not impose a mahr for a woman who is forced into
zina, whether she was a virgin or not.This was
also narrated from Ahmad (may Allaah have mercy on him), and was the view
favoured by Shaykh al-Islam Ibn Taymiyah, who said concerning the mahr: it
is khabeeth (evil).Thirdly:
If he forced
her to commit zina and he destroyed the barrier between the urethra and
vagina, then he must pay the mahr and also compensation, but there was a
difference of opinion as to the amount. The Hanafis and Hanbalis say that it
is one-third of the diyah, and the Shaafa’is say that it is the full diyah.
The Hanafis agree with them if he destroys the barrier between the urethra
and vagina and she can no longer control her urine.See
al-Mabsoot (9/53), al-Muntaqa by al-Baaji (7/77), al-Taaj
wa’l-Ikleel (8/342), Mughni al-Muhtaaj (4/75), al-Mughni
(7/209, 8/373), al-Insaaf (8/306-308), al-Mawsoo’ah al-Fiqhiyyah
(5/297, 21/95).Conclusion:
The mahr which is paid to the woman who is forced into zina (raped), and the
mahr and compensation for loss of virginity which is paid to a virgin who is
forced into zina, must be paid from the wealth of the zaani and not by his
male relatives, and it must go to the woman who was forced into zina, not to
her relatives. As for the woman who willingly commits zina, she is not
entitled to anything.All of this
comes after zina has been proven and the hadd punishment has been carried
out. This makes clear the difference between what is narrated in sharee’ah
and the ruling of tribal customs.And Allaah
knows best.
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