Is financial guarantee (Daman) mandatory for intercourse with a female who cannot sustain it?

Chapter on Diyat (Blood Money) for Wounds

Al-Mughni

Book of Blood-Money (Diyyāt)

Book 48 · Issue 3 · Bab 2

Open in Qurani

Primary text

Financial guarantee is obligatory only for intercourse with a young female or one too thin to sustain intercourse, but not for one large enough to bear it. This is the opinion held by Abu Hanifa. The evidence supporting this view is that the intercourse was deserved (mustahaq), so what is destroyed by it, such as virginity, is not guaranteed, similar to an act permitted by one whose permission is valid, thus no guarantee for damage resulting from its spread, like authorized treatment that leads to it, or the cutting of a thief, or executing retribution. The opposite applies to a young female or one coerced into adultery.

Supporting text

Al-Shafi'i holds that the guarantee is mandatory in all cases because it is an injury (janayah), and thus mandates a guarantee, just as it would for a non-relative.