Who has the right to exact retribution (Qisas) for a minor heir whose mother was killed?

Chapter on Retaliation (Qawad)

Al-Mughni

Book of Wounds

Book 47 · Issue 1 · Bab 2

Open in Qurani

Primary text

If the heir is a single minor, such as a boy whose mother was killed, and the mother was not the father's wife, the right to exact Qisas belongs solely to the minor. Neither the father nor anyone else may enforce it. This view is held by Al-Shafi'i. The rationale is that the father does not possess the authority to enact divorce upon his wife, thus he does not possess the authority to exact Qisas on behalf of the heir, similar to a guardian (Wasi). Furthermore, the purpose of Qisas is satisfaction and removal of anguish, which is not achieved by the representative's enforcement. This differs from blood money (Diyyah), where the objective is met by the father's enforcement. Another distinction is that the right to enforce Diyyah only arises when it is definitively fixed, whereas Qisas is not fixed because pardon to Diyyah or settlement for money is permissible, which is not the case with Diyyah.

Supporting text

Abu Hanifa and Malik hold that the father has the right to exact Qisas on behalf of the minor heir. Similarly, this applies to a guardian (Wasi) and a judge (Hakim) regarding physical retaliation (other than execution/life for life).