Part 29

Does the stepfather have the right to put the daughter of his wife from another husband under his custody?

Q: A man married a woman who was formerly married and has a daughter. The wife died and the girl stayed with her stepfather until he brought her up. A soldier wanted to take the girl under his custody. Is this act permissible?

A: This soldier does not have the right to put her under his custody. If there is none of her relatives to put her under his custody, the most suitable person should take her under his custody. It is prohibited for her stepfather to marry her while the case is not so with the soldier. If her stepfather takes proper care of her, she should not go to another

person considered as stranger for her and it is not

permissible for him to look at her and stay alone with her.

What about the son put under the custody of his mother?

Q: What about the son put under the custody of his mother?

A: When a son is put under his mother’s custody and she spent money on him hoping that she will ask her former husband to repay it, she has the right to do so. This is the opinion of Malik and Ahmed. They believe that when a person does something on behalf of another, such as settling his debt or supporting his slaves, he should return such money even if the person who did so has not asked for the other’s permission. Allah, the Almighty, said: “And = if they suckle your (offspring), give them their recompense.”

Allah ordered the husband to give the mother due recompense for nursing the baby. Allah did not mention any conditions or agreements in this regard. If she volunteered to take the child under her custody, she does not have the right to ask her former husband for support.

If the man_ stipulated that if she traveled with the child to another city, she would not have financial support, he has full right to do so, even if she intends to return back. She is not entitled to travel without his father’s permission and

if she traveled, she has caused him injustice. Allah knows best.

The mother is the most suitable person to take the child under her custody.

What will happen if an event occurred which prevented the mother from taking the child under her custody? The mother may not fulfill one of the conditions required as far as custodianship is concerned. She may even die. In this case, another custodian should take care of the child according to the order ranked by Shari* ah as follows:

The mother -maternal grandmother -paternal grandmother - full sister - maternal sister - paternal sister - niece (daughter of a full sister) - niece (daughter of a maternal sister) -mother’s aunt —father’s aunt —paternal sister’s niece - full sister’s niece - maternal brother’s niece - paternal brother’s niece — full aunt (father’s sister) - paternal aunt —- mother’s maternal aunt -— father’s maternal aunt - mother’s paternal aunt - father’s paternal aunt - The full aunt is given priority in the last two cases.

If the child has none of the female relatives mentioned above, or if none of them is apt to take him under her

custody, custodianship is moved to the men _ nonmarriageable to the female child. Order is ranked according to their right in inheritance as follows:

The father - grandfather - full brother — paternal brother - nephew (of a full brother) - nephew (of a paternal brother) - full uncle - paternal uncle - the full uncle of his father - the paternal uncle of his father.

If there is none of the child’s male relatives or none of them is apt to take him under his custody, the right of custodianship moves to those men of his relatives through the mother as follows:

The grandfather - brother - nephew (of a maternal brother) — the uncle of his mother - maternal uncle - full uncle — paternal uncle — maternal uncle.

If the child has no relatives, the judge should appoint a custodian to bring him up.

Crimes and Penalties Unintentional and premeditated murder

Q: Is the unintentional or premeditated murderer entitled to the Kaffarah mentioned in the Holy Qur’an “a fast for two months running”? Or is he entitled to pay the blood money?

A: Unintentional murder entitles its doer to pay blood money and perform Kaffarah, and he is not a sinner.

Premeditated murderer is a_ sinner, and even if the murdered person’s family forgave him or took the blood money, the murdered person’s rights are not absolved in the Hereafter. If the family of the murdered killed the murderer, this is a controversial point in Ahmed’s juristic school. The soundest opinion is that such right is not absolved. If the murderer’s good deeds are so many, some of them may be taken so as to please the murdered, or Allah may compensate him if the murderer sincerely repented.

An unintentional murderer is entitled to pay the blood money according to the Holy Qur’an and the unanimous agreement of Muslim scholars. Blood money is to be paid if the murdered is a Muslim or one of the People of the Book as the Holy Qur’an indicated and as declared by the Muslim scholars and Imams. There is no old controversy on this matter. Yet, some recent scholars of Al-Zhahiriah claim that if the murdered belongs to the People of the Book, no blood money is to be paid.

As for the premeditated murderer, he must be put to death in return. Yet, if he agreed with the murdered person’s family on a blood money, this is a permissible act according to the Holy Qur’an and the unanimous agreement of Muslim scholars. Such blood money is to be paid out of the murderer’s money, in contrast with the unintentional murderer who can pay the blood money out of his family’s money.

As for Kaffarah, the majority of scholars say that premeditated murder, just like perjury and adultery, is too heinous to be compensated. This is the opinion of Malik.

Abu Hanifah and Ahmed. Kaffarah is to be performed in case a man had said to his wife: “you are just like my mother or sister” and then had intercourse with her or a man had intercourse with his wife during a Ramadan day. In another narration, Shafi’ ] and Ahmed say that Kaffarah is obligatory in case of premeditated murder and perjury, and they agree that a man is not absolved of the sin once he performed Kaffarah.

When a group of people conspired to murder a person but just one of them performed the plot, will they be killed all or just the murderer?

Q: A group of people conspired to murder a person but just two of them attended the act. Will they be killed all or just the murderer?

A: All praise be to Allah. If there is a clear-cut proof that a certain person (or more) murdered him, he (they) would be murdered in return by the family of the murdered person. This family has the right to murder only some of them. If a certain murderer was not defined, the family of the murdered would swear on one of this group that he had performed the plot and he is to be murdered accordingly. Allah knows best.

When a man beats another and later the beaten person falls dead, what is the legal judgment in this case?

Q: A man beats another and later the beaten person fell dead. Between being beaten and his death, the man was very weak because of such beating. What is_ the legal judgment in this case?

A: All praise be to Allah, the Lord of the Worlds. If the aggressor beats him out of enmity, this is a semipremeditated murder. Therefore, the aggressor should pay an exorbitant blood money, but he is not to be murdered in retaliation. This ruling is applicable if his death does not result from such beating.

The penalty of adultery If the adulterer repented before due penalty is afflicted, is penalty canceled?

Q: When an adulterer repents before due penalty is afflicted, is penalty canceled?

A: When a person repented from committing adultery, robbery or drinking wine before he is referred to the ruler, his penalty is canceled as is the case with the rebels who

repent before they are referred to the ruler. This ruling is delivered according to the unanimous agreement of Muslim scholars.

Do the viciousness of sins and the penalty of adultery increase in the blessed days?

Q: Do the viciousness of sins and the penalty of adultery increase in the blessed days?

A: Yes, in blessed days and places, penalties are augmented according to the virtues of the time and place.

The penalty of defaming people When a man and his divorced wife defame his present wife and accuse her of adultery, is their claim accepted? Is the dowry of the present wife canceled?

Q: A man married a righteous woman after he had divorced his former wife. He stipulated that if he had returned to his former wife, the dowry of his present wife would be paid immediately. Later, he returned to his former wife, and they defamed his present wife accusing

her of adultery and that she was pregnant out of adultery. Later, he divorced this second wife. What should be done by both? Is their claim accepted? Is her dowry canceled?

A: All praise be to Allah, the Lord of the Worlds. As for the first divorced wife and the man, they are to be lashed eighty whips if the accused woman demanded for implementing such penalty. Once lashed, their testimony will never be accepted because they are deviant.

Yet, as mentioned above, there are three opinions as far as

Li* an is concerned:

1.The man is not to make Li*an. Instead he is to be lashed eighty whips because of accusing his wife of adultery. Besides, his testimony will never be accepted. This is one of the opinions of Imam Ahmed and Shafi* i.

2.The man is to make Li-an according to Abu Hanifah and Ahmed in another narration.