Must the Aaqilah (blood relatives responsible for manslaughter compensation) bear the compensation (Diyah) for a fetus that dies along with its mother due to unintentional or quasi-intentional injury to the mother?
General Chapter
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
The Aaqilah must bear the Diyah for the fetus if it dies simultaneously with its mother due to an accidental or quasi-intentional injury inflicted upon the mother. This is established by Ahmad. The evidence is the report from Mughirah ibn Shu'bah that the Messenger of Allah (PBUH) ruled regarding a fetus that the Diyah should be a Ghurrah (a male or female slave) paid by the victim's blood relatives (Asabah) of the killer. If the killing of the mother was intentional, or if the fetus died independently, the Aaqilah does not bear the Diyah.
Supporting text
Al-Shafi'i holds that the Aaqilah bears the Diyah in all circumstances, based on his principle that the Aaqilah bears both small and large compensations. He argues that injury to a fetus is not intentional because its existence cannot be fully established to be the intended target of the blow. Our position is that the Aaqilah does not bear compensation less than one-third of the full Diyah, and the fetus's Diyah falls into this category. Furthermore, if the mother dies from intentional homicide, the killer pays her Diyah, and likewise, the fetus's Diyah must be on the killer, as compensation should not be partially borne by the killer and partially by others.