What is the liability upon a man who engages in sexual intercourse with a woman under a misconception (shubah) resulting in a permanent injury (ifda')?
Chapter on Diyat (Blood Money) for Wounds
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
If a man engages in sexual intercourse with a woman based on a misconception and causes a permanent injury (ifda'), he is liable for the compensation (arsh) for the injury in addition to the dower (mahr) typical for a woman of her status (mahr mithliha). This ruling is held by Al-Shafi'i. The rationale is that the act was permitted under the mistaken belief that the recipient was the rightful party entitled to it. When this belief proves false, the obligation to compensate for the resulting damage is established, similar to granting permission to take a debt from someone believed to be the owner, only for the actual owner to be someone else.
Supporting text
Abu Hanifa holds that the woman is entitled to the greater of either her customary dower or the compensation for the injury. This view argues that the compensation for the injury (arsh) covers the damage to the organ, and therefore, one cannot combine compensation for the damage with compensation for the benefit derived (mahr), as in the case of removing a bodily part entirely.