#909: What Is The Sharī’ah Ruling On The One That Killed His/Her Spouse
“Imperative…Pls What is the position of Islam on this.
Question: When one of the spouse kill the other whether intentional or unintentional) and there is a child between them, what will be the punishment of the murderer? Thanks”
ANSWER:
Alhamdulillāh!
May Allāh brighten your heart with His Light and make you among the Bearers of His Dīn, Amīn.
Know, may Allāh be pleased with you that the position favoured by the Majority of the Fuqahā is that a father or mother are not to be killed for the killing of their child. The evidence for this is the Hadith that was recorded by Imām An-Nasā’ī in which the Rasūl -salallāhu Alayhi Wasallam – said:
لا يقتل والد بولده
“A father is not killed for the killing of his son”
Similar wordings of this Hadīth were recorded by Imām Ahmad and At-Tirmidhī rahimahumullāh.
Though there is difference of opinion on this based on the Authenticity of the Hadīth in question which has been declared Weak by many of the Ulamā of Hadīth, this is the position of the majority. The position held by Mālik is that if he killed his son by slaughtering and other extreme measures, he is to be killed too whereas if it was by stabbing or assaulting, he is not to be killed. And Allāh knows best.
What is the relationship between this and the Question that is asked?
The Majority of the Ulamā, based on their position on this also hold that it is not permissible to kill a spouse for the killing of his spouse provided they have a child from that marriage. They said: this is because the killing of the killer is meant to be a Retributory compensation (Qisās) for the Inheritors of the Killed. In this case, the Inheritors of the Killed are the Children. If it is not permissible to kill a father/mother for the killing of his son, why then should you kill a father/mother as a compensation for the killing of his other parent.
Ibn Qudāmah Al-Maqdisī rahimahullāh said in Al-Mughnī:
“If one of the two Parents kill the other parent and they have a child from that marriage, Qisās is not binding…but if they do not have a Child from their marriage, the Majority of the People of Knowledge have upheld that Qisās in that situation is a must…”
Imam An-Nawawī rahimahumullāh said in Al-Majmū’:
“If he kills his wife and he has a child from her, then Qisās is not binding to be carried out. This is because if it were not to be established on him for killing that child, then it is not established binding upon him for the killing of his mother.”
Though, the position held by some of the Fuqahā is that this only applies to situations where he found her committing Zinā or killed her out of anger or it’s likes. They held that this does not apply to you killing her without any incidence leading to that.
In accordance with the position of the Majority of the Ulamā that hold that Qisās is not to be established, the Punishment agreed upon is that Diyya be paid.
And note that what is established with respect to the husband is also established with respect to the wife.
What we see, and Allāh knows best, is that each matter and situation where such a matter occur will differ from the other. Matters such as this when they occur will be observed and verdict delivered on them by the Qādī in the Sharī’ah.
Bārakallāhu Fīkum
Jazakumullāhu Khayran
Abu Āsim
6th Jumādal Ākhir, 1441AH.
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