نوع مقاله : مقاله پژوهشی
طلبه سطح سوم حوزه علمیه قم، کارشناس ارشد فقه و مبانی حقوق، دانشگاه علامه طباطبائی، تهران، ایران
عنوان مقاله [English]
The premeditated murderer is sentenced to retaliation according to the first principle. However, in Islamic law, the sentence of retaliation rests on conditions whose non-fulfillment is considered as an exception to this first principle. One of the exceptions to this general principle is the presumption that the killer is the father of the victim. The jurists agree on the ruling of no retribution on the assumption that the child is killed by the father; but the question of whether the sentence of non-retaliation is specific to the father and paternal grandfather or also to the mother is a matter of dispute. The famous Imams distinguish between the ruling of parents. The emergence of Article 301 of the Islamic Penal Code adopted in 2003, which, following the popular view, considers the murderer to prevent retaliation, is that the mother retaliates against the murder of her child. On the other hand, Ibn Junaid and the Sunni jurisprudential sects other than Maliki, in addition to the father, also consider the ruling of no retaliation against the mother. This study, by evaluating the arguments of the parties, seeks to prove the strength of the well-known opposite theory, according to which the mother, like the father, is one of the exceptions to the sentence of no retribution.