Does the right to demand the Hadd punishment for defamation (Qadhf) pass to the heirs if the defamed person dies before making the demand?
General Chapter
Al-Mughni
Book of Mutual Imprecation (Li'an)
Primary text
If the defamed person dies before demanding the Hadd punishment for defamation, the right to the punishment lapses. The heirs have no right to pursue it. The rationale is that this Hadd requires the initiation by the victim, similar to the Hadd for theft requiring a claim. The narration regarding inherited rights applies only to rights left behind, which this demand is not, as it requires prior assertion by the victim while alive. Furthermore, the right of retribution (Qisas), which is sometimes inheritable, differs because Qisas can be commuted to monetary compensation, whereas this Hadd cannot.
Supporting text
The Shafi'i school holds that the right to the Hadd punishment is inheritable even if the victim did not demand it before death. Their evidence is the Prophet's statement, "Whoever leaves behind a right, it belongs to his heirs." They argue that since it is a right established for him during his life, if he had demanded it, it would be inheritable, thus it is inheritable even without a demand, analogous to the right of Qisas.