Is amputation required for theft between spouses from each other's property?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
If one spouse steals from the other's property, the ruling on amputation (*qat'*) depends on whether the stolen item was secured (*muhraz*). If the stolen item was not secured by the owner against the thief, there is no amputation. If the item was secured, there are two established narrations regarding amputation. The first narration states there is no amputation. This view is preferred by Abu Bakr and is the doctrine of Abu Hanifa. The evidence cited is the statement of Umar (may Allah be pleased with him) to Abdullah ibn Amr ibn al-Hadrami, when the latter reported his slave stole his wife's mirror, stating: 'Send him back, there is no amputation,' because, 'Your servant took your property.' If a slave cannot have his hand cut for stealing his mistress's money, then the husband is even less liable. Furthermore, spouses inherit from each other without obstruction (hijab), their testimony against each other is not accepted, and they customarily utilize each other's wealth, resembling the relationship between a parent and child.
Supporting text
The second narration holds that amputation is required. This is the doctrine of Malik, Abu Thawr, and Ibn al-Mundhir, and it aligns with the apparent position of al-Kharaqi. The evidence for this is the generality of the Quranic injunction and the fact that the thief stole secured property over which he had no claim, thus resembling a non-relative stranger. Al-Shafi'i holds a view encompassing both narrations.