What penalty is due from the ravisher of the captive when the Hadd is averted due to the semblance of ownership?
General Chapter
Al-Mughni
Book of Jihad
Primary text
The ravisher is subject to Ta'zir (discretionary punishment) that does not reach the level of the prescribed Hadd. Furthermore, the equivalent of her Mahr al-Mithl (dower of a woman of comparable standing) must be taken from him and placed into the pool of spoils (Al-Maqsam). This is the position of Al-Shafi'i.
Supporting text
The Qadi rules that the portion of the Mahr equivalent to his share in the captive is dropped, and the remainder is obligatory upon him, similar to co-ownership scenarios. This is incorrect because if his share is dropped and the rest is pooled, it will eventually return to him through the division of the remaining spoils.