4. INDEMNITY (DIYA)
(The rulings below concern the maximum that the victim or victim’s family may demand. If both sides agree on an indemnity of lesser amount, or nothing at all. this is legally valid and binding.)
An indemnity is obligatory (though it may by waived by deserving recipients, like retaliation) in cases of death caused:
1. by an honest mistake;
2. by a mistake made in a deliberate injury;
3. or intentionally, if those entitled to retaliate agree to forgo retaliation.
The indemnity for killing a male Muslim is 100 camels.
(Shafi’i scholars early converted the pastoral equivalents to gold dinars (one dinar equaling 4.235 grams of gold, the amount due in the rulings below being the weight of the gold, regardless of its current market value.) (The stronger position in the Shafi’i school is that indemnities should be reckoned in camels, after which both parties may agree on a lesser amount or another form of payment.)
THE INDEMNITY FOR A PURELY INTENTIONAL KILLING
The indemnity for cases of purely intentional homicide is made severe in three ways:
a) it must be paid immediately;
b) it is due from the offender himself;
c) and the amount paid is (1,333.3 gold dinars (5,646.6 grams of gold) or else:) 30 she camels in their fourth year, 30 she-camels in their fifth year, and 40 pregnant she-camels.
THE INDEMNITY FOR DEATH BY MISTAKE IN A DELIBERATE INJURY
When the killing is a mistake made in a deliberate injury, the indemnity is only made severe in one respect, namely that the payment consists of the three types of camel mentioned above (or 5,646.6 grams of gold), while it is less severe in that:
a) payment is deferred;
b) and is due (not from the offender, but) from those of the offender’s extended family who are required to pay (‘aqila).
THE INDEMNITY FOR A DEATH CAUSED BY AN HONEST MISTAKE
When the killing occurred through an honest mistake, the indemnity is less severe in three ways:
a) payment is deferred;
b) it is due from those of the offender’s extended family who are required to pay;
c) and the amount paid is (1,000 gold dinars (4,235.0 grams of gold) or:) 20 she camels in their second year, 20 she-camels and 20 he-camels in their third year, 20 she-camels in their fourth year, and 20 she-camels in their fifth year.
But no matter whether the killing was a mistake or intentional, the three-types-of-camel indemnity (def: 04.3(c) must be paid if the person killed was:
1. unmarriageable kin by birth relative of the killer;
2. slain in the Sacred Precinct in Mecca;
3. or killed during one of the sacrosanct months of Dhul Qa’da, Dhul Hijja, Muharram, or Rajab.
Defective animals may not constitute payment.
It is permissible for deserving recipients to accept payment other than camels if both parties agree.
(For the rulings below, one multiplies the fraction named by the indemnity appropriate to the death or injury’s type of intentionality and other relevant circumstances that determine the amount of a male Muslim’s indemnity.)
The indemnity for the death or injury of a woman is one-half the indemnity paid for a man.
The indemnity paid for a Jew or Christian is one-third of the indemnity paid for a Muslim. The indemnity paid for a Zoroastrian is one-fifteenth of that of a Muslim
When a miscarriage results from someone having struck the stomach of a pregnant woman (or other part of her, or when someone frightens her, resulting in a miscarriage), the indemnity for the fetus is a male or female slave worth one-twentieth of the indemnity payable for killing the fetus’s father, or one-tenth that of its mother. (The indemnity is whatever they agree upon.)
The members of the offender’s extended family who are liable for certain kinds of indemnities consist of the offender’s universal heirs, excluding his father, father’s father (and on up), his son, son’s son (and on down). (Meaning that they consist of those men.) Those of the extended family who are poor (poor meaning someone who has enough for himself but no more), prepubescent, or insane are not obliged to pay (anything in conjunction with the other members). If the offender is Muslim, then his non-Muslim relatives are not obliged to pay, as is also the case if the offender is non-Muslim and his relatives are Muslim.
When the extended family is obliged to, they must pay the entire indemnity of 100 camels (or the gold equivalents) within three years. Every required extended family member who is well-off is obliged to pay one-half dinar (2.1175 grams of gold) at the end of each year, while every member who is between affluence and poverty is obliged to pay a quarter dinar (1.05875 grams of gold), If any of the indemnity remains to be paid after three years (or if the offender has no family to pay it), it is paid by the Muslim common fund (bayt al-mal). If there is none, the offender himself must pay.
When the indemnity due is less than a full indemnity (full meaning that which is due for a Muslim male), as when it is for a wound, miscarriage, female, or a Jewish or Christian subject of the Islamic state, then:
1. if it consists of one-third or less of a full indemnity, it must be paid within one year;
2. if it consists of two-thirds or less of a full indemnity, then one of the thirds must be paid in the first year, and the rest in the second year;
3. and if it amounts to more than two-thirds of a full indemnity, then the two-thirds must be paid within two years and the rest in the third year.
THE INDEMNITY FOR BODILY INJURIES
If a nonpaired body part of aesthetic value and utility (a tongue, for example) is dissevered then a full indemnity is paid, meaning the indemnity due if the member’s owner were killed, 04.9).
The same is due for each pair of Iambs: if both are cut off, a full indemnity is paid, while if only one is cut off, then half the full indemnity. The same is true for the faculties of sense (such as hearing): for each faculty the injury eliminates, there is a full indemnity. Thus, a full indemnity is paid for cutting off two ears, and a half indemnity for one. This also holds for a pair of eyes, lips, jaws, hands, feet, buttocks, testicles, eyelids, the nipples of a female, vulval labia, the soft part of the nose, the tongue, head of the penis, or whole penis. A full indemnity is also paid for injuries which paralyze these members, or for injuring the peritoneal wall between vagina and rectum so they become one aperture, or for flaying a person, breaking his back, or eliminating the use of his mind. hearing. vision, speech. sense of smell, or taste.
The indemnity for each finger is ten camels, and five for each tooth (or 10 and 5 percent respectively of the equivalent gold values, depending on the relevant circumstances.
As for wounds on the body. their indemnity consists of a fraction of the full indemnity proportionate (by the calculation of the Islamic magistrate) to the extent of the damage.
The indemnity for wounds on the head or face, when not to the bone, is also such a proportionate fraction, though if such wounds are to the bone. as mentioned above, the indemnity is five camels.
There are other injuries which I prefer to omit for the sake of brevity.
There is no indemnity obligatory for killing a non-Muslim at war with Muslims (harbi). someone who has left Islam, someone sentenced to death by stoning (for adultery) by virtue of having been convicted in court, or those it is obligatory to kill by military action (such as a band of highwaymen).
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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