Answered by Ustadh Salman Younas
Question: Assalam aleykum
I have heard that the punishment for a parent intentionally murdering their own child is that they must pay the blood money (diyya), but retaliation (qisas) cannot be taken against them. In a country with Muslim rule, is it permissible for a judge to rule that the murderer in a case like this be punished to death by discretionary punishment (ta’zir)? Furthermore, does it matter what age the child is for these rulings to be applicable?
Answer: assalamu alaykum
A parent killing their child is an enormous sin that demands worldly punishment and for which there is certainly next-worldly requital.
Qisas vs Diya
A parent intentionally killing their child does not necessitate retaliatory punishment (qisas) according to the majority of scholars, such as Abu Hanifa, Sufyan al-Thawri, al-Awza`i, al-Shafi`i, Ahmad ibn Hanbal, and others. [al-Sarakhsi, al-Mabsut (26:90); al-Mawardi, al-Hawi (12:22); Ibn Qudama, al-Mughni (8:227)]
They base their view on the tradition, “A father is not killed due to his child.” [al-Tirmidh, Ibn Majah]
Other scholars stated that retaliatory punishment is administered on a parent intentionally killing their child. This was the view of Imam Malik for cases where was decisive evidence that the killing was intentional. Ibn al-Nafi, Ibn Abd al-Hakam, and Uthman al-Batti also held a similar position. [Sahnun, al-Mudawana (16:228); al-Jassas, Ahkam al-Qur’an (1:178); Ibn Qudama, al-Mughni (8:227)]
As such, this is a matter differed upon and, therefore, the authorities have discretion in determining which of these criminal punishments they wish to apply. Even in the case of the non-retaliatory punishment, a state may choose other discretionary punishments (ta’zir), such as life-sentences.
Next-Worldly Punishment
The above ruling relates to the worldly-punishment administered by a state. As for the next-worldly punishment, the texts are clear that this is among the most enormous of sins. The Qur’an states, “and whosoever kills a believer intentionally, his punishment is Hell; he shall abide in it, and God shall send His wrath upon him, curse him, and prepare for him a painful chastisement.” (4:93)
Similarly, when Ibn Mas`ud asked the Prophet (blessings and peace be upon him) about the greatest sin after polytheism, one response was, “that you kill your child out of fear that he may eat with you (i.e. reduce your sustenance).” [al-Bukhari]
Consequently, while many scholars stated there is no retaliatory punishment, this should not be taken to mean that the act itself is not as serious or egregious as others (if not more) for which there is a retaliatory punishment prescribed.
[Ustadh] Salman Younas
Checked and approved by Shaykh Faraz Rabbani
Ustadh Salman Younas graduated from Stony Brook University with a degree in Political Science and Religious Studies. After studying the Islamic sciences online and with local scholars in New York, Ustadh Salman moved to Amman where he spent five years studying Islamic law, legal methodology, belief, hadith methodology, logic, Arabic, and tafsir. He is currently a PhD candidate at the University of Oxford and continues his traditional studies with scholars in the United Kingdom.