- His words, “Whoever has a relative who is killed is entitled to the better of the two options: either he retaliates or he accepts the blood-money,” prove that the heirs of the murdered person—his legal inheritors—may pardon without restriction, and that pardoning is better for them; they may also pardon in exchange for the diyah (blood-money). Likewise, they retain the right to exact qisās (retaliatory execution), and the choice rests with them. This is the well-known position in our school.
Qisās was obligatory in the Torah, but Allah eased the matter for this community by permitting pardon in return for the diyah, as He said: “But if the victim’s brother remits something, then grant any reasonable demand and pay with good grace; that is an alleviation and a mercy from your Lord” (Q 2:178).
Retaliation is justice, whereas pardon is beneficence, and each has its proper place. Shaykh al-Islām Ibn Taymiyyah said: “For a person to take his right in blood-shed is justice; for him to pardon is kindness. In this context kindness is superior, yet it ceases to be kindness once it results in harm; if harm ensues, the pardon becomes an injustice—either to oneself or to others—and is therefore not prescribed.” Al-Mardāwī commented in al-Insāf: “This is precisely correct.”
Hadith 7
Umar ibn al-Khattāb (d. 23 AH) sought the Companions’ advice about the case of a woman who miscarried. Al-Mughīrah ibn Shuʿbah (d. 50 AH) said, “I witnessed the Prophet ﷺ rule that the diyah for such a fetus is a ghurra: a male or female slave.” Umar replied, “You must bring someone to testify with you,” whereupon Muḥammad ibn Maslamah (d. 43 AH) bore witness alongside him.
Imlāṣ al-marʾah: when a woman expels her fetus stillborn.
Unfamiliar Terms
• imlāṣ al-marʾah: with a kasrah on the hamzah and a sukūn on the mīm, ending with the letter ṣād. It is the verbal noun of amlasa and means that a woman prematurely discharges her fetus.
• ghurra: with a ḍamma on the ghayn and a shaddah on the rāʾ, followed by tāʾ. Literally, it refers to a blaze of white on the face; here it is used for a male or female slave—even if they are black—because of the honour Allah grants to every human being.
Overall Meaning
A woman miscarried and delivered a stillborn fetus after being wrongfully injured. The just caliph ʿUmar ibn al-Khattāb (Allah be pleased with him) was accustomed to consulting his Companions and their scholars about his affairs and legal cases, especially new or unprecedented ones. Despite his vast knowledge and intellectual strength, he would seek their counsel because consultation draws out hidden insights, leads to the soundest ruling, unites hearts, and offers support.