Jihaz (dowry) or trousseau is the amount of clothes, household linen, furniture and other belongings contributed by the bride and/or her family to the marriage. It has to be distinguished from the mahr, which is an agreement between the wali (guardian) of the bride and her future husband by which the groom pays certain sum of money or its equivalent to the bride at the signing of the marriage agreement. The mahr is an obligation on the groom stipulated by the Quran to be given to the future wife, while the jihaz is not an obligation on the part of the bride or her family. (For more information on the mahr agreement.

The Jihaz is not the nafaqa (support) either, because nafaqa is the material support given by the husband to his wife as soon as the marriage is consummated. The nafaqa covers clothing, food and shelter of the wife. (For more on the nafaqa.

In the Middle East , as elsewhere, the brides are often given house furnishings and clothing by their parents or family members when embarking on marriage. There is no obligation in the Islamic Shari’a to fulfill the jihaz, however, in most cases, brides bring such jihaz to their houses once they get married.

Consequently, the groom cannot force his future wife to bring the jihaz as part of the household, and if her family is asked to contribute such jihaz, they may decline the demand.

Once the jihaz is given to the bride, it becomes her own property. Her family cannot claim it as part of their estate unless the jihaz was given as a loan agreement to the bride. Under such circumstance, they may demand the return of the jihaz.

The groom cannot have claim on the jihaz, unless it was purchased by the bride or her family, with monies given by the groom as part of the mahr agreement, where the jihaz becomes a mahr and therefore belongs to the groom.

The bride’s father may have a legal agreement with his daughter stating that certain pieces of the jihaz she took with her upon marriage were in fact a loan, and therefore revert to her family upon death. Otherwise the jihaz is considered a private property of the bride and becomes part of her estate.

The jihaz contributed by the bride and /or her family endorses the idea that she enters into marriage as an empowered individual. The marriage arrangements in the Middle East involving jihaz, predated the rise of Islam.

There is no provision in Islamic Shari’a that forbids the exercise of women’s right to contribute jihaz to their marriages. In fact, under Islamic law, married women have legal rights to share in family estate. They may own properties, or be named as beneficiaries of religious waqf (endowment) assets.

Gabriel Sawma is a lawyer with Middle East background, professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant in matters related to recognition and enforcement of Islamic divorce, child custody, banking and finance in US courts. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of http://www.gabrielsawma.blogspot.com

Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com

Author of an upcoming book on Islamic Divorce in US Courts.

Email: gabrielsawma@yahoo.com , gabygms@gmail.com

Republishing and reprinting this article is hereby granted by the author.

U.S. Courts do not apply Islamic Shari’a law because it violates the Establishment Clause set in the United States Constitution; they apply foreign law when necessary. American Courts do apply foreign law in certain cases involving international principle known as “conflict of Laws,” or “Private International Law.” This is referred to in U.S. courts as “the doctrine of comity“.

In the area of Private International Law, Comity is a courtesy, amity, and reciprocity by U.S. courts towards court decision issued in other nations.  Such a consideration by U.S. courts does not entail an obligation to agree with the rulings of foreign judgments. There is therefore a distinction between the doctrine of comity and law.

Public International Law can become part of the national law when the country has its signature on that law, Private international Law however, does not have the same level of recognition by U.S. Courts. The issue of comity is raised in Islamic divorce cases when a person who resides legally in the United States travels to a foreign country and obtain a certificate of divorce from a religious court.

The intent is to obtain an instant divorce by pronouncing triple talaq (divorcing his wife three times in a few minutes.) Such an action leaves the wife with nothing more than a nominal deferred mahr, and takes advantage of the child custody, which discriminates against the women and to label the wife as bad Muslim.

The man then returns to the United States and serves his wife with divorce papers demanding the implementation of the divorce according to the Islamic Shari’a, claiming that the “doctrine of comity” applies to his case.

Generally, a judgment of divorce for example issued in a foreign country is recognized in the U.S. on the basis of comity, provided both parties to the divorce received adequate notice, i.e. service of process and, generally, provided one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the litigants, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country, and those of other countries, an no prejudice towards either party and should not violate a strong U.S. principle of law, and the parties were present in court. The court may deny the application of comity if the judges deem the foreign laws is “repugnant” to U.S. principle of law.

An Islamic triple talaq differs substantially with respect to property division. Under Islamic Shari’a, wives may be entitled to a deferred mahr, which is, in most cases, much less than what U.S. courts order; above all, U.S. courts will not accept an Islamic divorce certificate obtained in a foreign country if the cause of action on which the divorce is based is “repugnant” to the public policy of the State in which the case is litigated.

Gabriel Sawma is Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert on Islamic marriage contracts, Islamic divorce, child custody, inheritance, Islamic banking and finance. Editor of an International Law website: http://www.gabrielsawma.blogspot.com . Author of “The Qur’an: Misinterpreted, Mistranslated and Misread. The Aramaic Language of the Qur’an.” http://www.syriacaramaicquran.com. Author of an upcoming book on Islamic Divorce in US Courts. Email: gabrielsawma@yahoo.com

Republication of this article is permitted.

Analyses Islamic punishment

In

Iranian Islamic criminal code

Author: EHSAN ZARROKH

LLM OF ISLAMIC LAW

ZARROKH2007@YAHOO.COM

Abstract

I think criminal code is so important than other legal code because criminal law relevance to people life, honor and property so I think if you want scrutiny develop of society you must note to its criminal law & penal procedure. Iranian Islamic criminal law based on FIGH; so I explain some articles that exactly based on SHARI’A rules.

I try to state cause of Islamic rules and state roots of them with reference to KORAN, SUNNAH (stories of Islam messenger “MOHAMMAD”).

Here I say about “Rape, incest, adultery, Sodomy, Lesbianism, Pimping, Sexual Malicious Accusations, Intoxication, Civil Unrest (warfare and corruption on earth), Theft, Retaliated Punishments as Dead Penalty, Retaliated Punishments to Body Organs, Definition of Blood Money(mulct), Blood money for Murder, Liability for Blood Money, Causing a Crime, Blood Money for Body Organs, Blood Money for Abortion and …”.

Legislator in Article 12: There are five types of punishments: a) HAAD; b) GHESAS; c) DIYAT; d) TA’ZIRAT, e) DETERRENT PUNISHMENTS. Consider punishment.

3-1) HAAD

Under Article 13: HAAD is a punishment that its degree and type is not been specified in the SHAR’A.

HAAD divided into:

Rape [(sexual intercourse take by force) & incest (sexual intercourse with intimate woman) ZINA]

Sodomy [(anal intercourse) LAVAT]

Lesbianism [(female homosexuality) MOSAHEGHEH]

Pimping [manage a prostitution business (GHAVVADI)]

Sexual Malicious Accusations (GHAZF)

Intoxication [drunkenness (MASTI)]

Civil Unrest [warfare and corruption on earth (MOHAREBEH VA EFSADE FEL ARZ)]

Theft [robbery (SERGHAT E HAADDI)]

Rape & adultery & incest

Under Islamic criminal law we have three kinds of sexual relation: 1) rape: physically force another person to have sexual intercourse 2) incest: sexual intercourse with intimate woman like mother, sister… 3) adultery: sexual intercourse that adulterer & adulteress have wife or husband.

For make easier, in this article I don’t tell between them; in Article 64:” Adultery shall be punishable (subject to HAAD) when the adulterer or the adulteress is of age, sane, in control of his or her action and cognizant of the illicit nature of his or her act.” Legislator define ZINA; Ways to prove adultery in court are: 1) confession this way state in Article 68: “If a man or a woman repeats his or her confession of adultery four lashes before the judge, he or she shall receive the designated punishment, but if he or she repeats his or her confession fewer than four lashes, the punishment shall be at the judge’s discretion.” 2) Testimony this way state in Article 74: “Adultery, whether punishable by flogging or stoning, may be proven by the testimony of four just men or that of three just men and two just women.” And Article 75: “If adultery is punishable only by flogging it can be proven by the testimony of two just men and four just women.” Also I must say according to Article 76: “The testimony of women alone or in conjunction with the testimony of only one just man shall not prove adultery but it shall constitute false accusation which is a punishable act.” the testimony of women alone or in conjunction with the testimony of only one just man shall not prove adultery, because Islamic jurisconsult say women are sentiment and they can think well so can’t accept their testimony with out men in important cases and in these cases their problem in think eliminate with increase their number for testimony, so two woman are equal with a man.

Types of Punishments for Adultery state in 8 articles so I statement and explain them. Article 82: The penalty for adultery in the following cases shall be death, regardless of the age or marital status of the culprit: (1) Adultery with one’s consanguineous relatives (close blood relatives forbidden to each other by religious law); (2) Adultery with one’s stepmother in which the adulterer’s punishment shall be death; (3) Adultery between a non-Muslim man and a Muslim woman, in which case the adulterer (non-Muslim man) shall receive the death penalty; (4) Forcible rape, in which case the rapist shall receive the death penalty.

Article 83: Adultery in the following cases shall be punishable by stoning: (1) Adultery by a married man who is wedded to a permanent wife with whom he has had intercourse and may have intercourse when he so desires; (2) Adultery of a married woman with an adult man provided the woman is permanently married and has had intercourse with her husband and is able to do so again. Note: adultery of married woman with a minor is punishable by flogging.

I must say adultery of married woman with an insane man is punishable by stoning;

But adultery of married man with an insane woman is punishable by flogging; here we see difference between men and women, Islamic jurisconsult say if woman adultery with insane man, because the man is adult may inseminate her so her punished her by stoning; but I think just way is one punishment for man and woman. Article 84: Old married adulterers and adulteresses shall be flogged before being stoned.

Article 87: if a married man commits adultery prior to consummation [sexual intercourse], he will be sentenced to penance by lashes, shaving his hair and banishment for one year. But marriage enough for woman, doesn’t need to intercourse and they condemn to stoning.

Article 88: The punishment for an unmarried adulterer or adulteress shall be one hundred lashes.

Article 90: If a man or a woman has committed the act of adultery several lashes and has been punished after each act, he or she shall be put to death following his or her fourth act of adultery.

Article 94: if there is no hope for the recovery of the sick persons and the judge deems it appropriate for penance to be executed, a bunch of twigs or scourges consisting of one hundred scourges or twigs will be struck only once to the body of the condemned, although not all of the twigs or scourges may strike the body.

I must say under Islamic criminal law it called ZEGHS.

Article 95: if a person who is condemned to penance becomes an apostate [a born Muslim who changes his/her religious] or insane, the penance will not be valid.

Quality of Punishment

Article 100: The flogging of an adulterer shall be carried out while he is standing upright and his body bare except for his genitals. The lashes shall strike all parts of his body–- except his face, head and genitals– with full force. The adulteress shall be flogged while she is seated and her clothing tightly bound to her body.

Article 102: The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.

Jurisconsult says about reason of this article, that because woman breasts are salient she must placed in a hole and covered with soil up to her breasts; but I must say just way is both of them placed in a hole up to their breasts.

Article 103: if during stoning the stoned person flees from the pit and his/her adultery was proven by his/her confession, he/she will not be returned to the pit. But if his/her adultery was proven by the testifying of the witnesses, he/she will be returned to the pit for the stoning to be executed.

Note: if person who is sentenced to lashes flees, he/she will be returned for execution of the penance [whether the adultery was proven by his/her confession or testimony of witnesses].

Article 104: the stone shouldn’t be big enough to kill the person by one or two strike, neither should it be so small that it can’t called a stone.

Cause of legislation of this article is suffered of guilty.

Sodomy

Article 108: Sodomy is sexual intercourse with a male.

Article 109: In case of sodomy both the active and the passive persons will be condemned to its punishment.

Article 110: Punishment for sodomy is killing; the SHARI’A judge decides on how to carry out the killing.

Killing define in FIGH as kill with sword; throw of mountain, demolish wall on guilty and burn this one may attach to others.

Article 112: If a mature man of sound mind commits sexual intercourse with an immature person, the doer will be killed and the passive one will be subject to TA’ZIR of 74 lashes if not under duress.

Article 113: If an immature person commits sexual intercourse with another immature person, both of them will be subject to TA’ZIR of 74 lashes unless one of them was under duress. Articles 112 and 113 are most wondrous that child punished if they commit sodomy whereas article 49 state “minors, if committing an offence, are exempted from criminal responsibility. Their correction is the responsibility of their guardians or, if the court decides by a center for correction of minors.”

Ways of proving sodomy in court

Confessing and testimony these ways state in two articles:

Article 114: By confessing four lashes to having committed sodomy, punishment is

Established against the one making the confession.

Article 117: Sodomy is proved by the testimony of four righteous men who might have observed it.

Article 119: Testimony of women alone or together with a man does not prove sodomy.

Crimes dependent to sodomy

Article 121: Punishment for TAFKHIZ (the rubbing of the thighs or buttocks) and the like committed by two men without entry, shall be hundred lashes for each of them.

Article 122: If TAFKHIZ the like are repeated three lashes without entry and punishment is enforced after each time, the punishment for the fourth time would be death.

Article 123: If two men not related by blood stand naked under one cover without any necessity, both of them will be subject to TA’ZIR of up to 99 lashes.

Article 124: If someone kisses another with lust, he will be subject to TA’ZIR of 60 lashes.

Lesbianism (MOSAHEGHEH)

Article 127: MOSAHEGHEH (lesbianism) is homosexuality of women by genitals.

Article 128: The ways of proving lesbianism in court are the same by which the homosexuality (of men) is proved.

Article 129: Punishment for lesbianism is hundred (100) lashes for each party.

Article 131: If the act of lesbianism is repeated three lashes and punishment is enforced each time, death sentence will be issued the fourth time.

Article 134: If two women not related by consanguinity stand naked under one cover without necessity, they will be punished to less than hundred (100) lashes (TA’ZIR). In case of its repetition as well as the repetition of punishment, hundred (100) lashes will be hit the third time.

These articles define lesbianism and its condition and ways of prove it in the court.

But there is one grotesque article about prove lesbianism legislator state in Article 128: The ways of proving lesbianism in court are the same by which the homosexuality (of men) is proved, when this crime only committed with female and their testimony can’t prove it how prove it???!!!

Pimping (GHAVVADI)

Article 135: Pimping means that someone brings two individuals together or puts them in contact with each other for fornication or homosexuality.

Article 136: Pimping is proved by two confessions if the confessor is mature; of sound mind has free will and intention.

Article 137: Pimping is proved by the testimony of two righteous men.

Article 138: Punishment of a man for pimping is seventy (70) lashes and exile from the place of (his) domicile for a period of 3 months up to one year and punishment of pimping by a woman is seventy five (75) lashes only.

Difference between man & women in this article emanate than Islamic order about women that they must stay at home and doesn’t visited in society so Islamic legislator try to contemplate it.

Sexual Malicious Accusations (GHAZF)

Article 139: GHAZF (malicious accusation) means that someone associates fornication or sodomy with a certain person.

Article 140: Punishment for GHAZF (malicious accusation) is 80 lashes for a man or woman.

Note: execution of penance for false accusation is subject to the request of the accused

Article 146: false accusation will result penance if the accuser [i.e. the person who accuses] is mature, sane at liberty and intensive and the accused is also mature, sane, Muslim and righteous. If the accuser and accused don’t have one of these conditions, penance for false accusation will not be proven [should have been false accusation will not be proven]

Article 147: if a discerning minor falsely accuses another person, by the decision of the judge he/she will be subject to corrective measurement. If a mature and sane person falsely accuses a minor or a non-Muslim he/she will be sentenced to up to seventy four lashes.

Article 149: if a person falsely accuses his/her relatives, he/she will be penance.

Note: if a father or parental grandfather falsely accuses his son or grandson, he will receive punishment according to the TA’ZIR [up to seventy for lashes].

Articles 153: false accusation will be proven by two confessions or by the testimony of two just men.

Article 157: if a person falsely accuses other people on several occasions and he/she is penance after each occasion, on the fourth occasion he/she will be executed.

Article 164: the right or request for execution of penance will be transferred to all heirs except wife or husband. Every one of the heirs can request for the execution of penance, although the rest of the heirs have pardoned [the accused].

Intoxication (MASTI)

Intoxication means altering of one’s mental or physical state usually as a result of ingesting some substance; of euphoria, exhilaration; poisoning; under Islamic criminal law intoxication punished by HAAD.

Ways of prove

Article 168: if a person confesses twice to consumption of intoxicants, he/she will be penance.

Article 170: consumption will only be prove by testimony of two just man.

Article 171: if one of the two just men testifies that a person has consumed an intoxicant and the other testifies that the person has vomited an intoxicant, the penance is proven.

Article 174: The punishment for intoxication is 80 lashes for both men and women.

Article 176: When flogging is carried out, the man being flogged shall be in a standing position and be bared except for his genitals, whereas the woman being flogged shall be seated and her clothing tightly bound to her body.

Note. The face and head and genitals of the condemned shall not be struck by the lashes during flogging.

Article 179: if a person consumes an intoxicant several times and has received the penance after each consumption, on the third occasion he/she will be executed.

Article 180: if the condemned becomes insane or apostate, the penance will not be void. [I.e. it will not be executed]

Civil Unrest [warfare and corruption on earth (MOHAREBEH VA EFSADE FEL ARZ)]

Islamic legislator define warfare and corruption on earth in article 183″any person resorting to arms to cause terror, fear or to breach public security and freedom will be considered as a MOHAREB and be corrupt on earth.

Note 1: a person who draw arms on people but due to inability doesn’t cause fear isn’t a MOHAREB.

Note 2: if a person draws arms on one or several specific persons because of personal enmities, [he/she] will not be regarded as a MOHAREB.

Note 3: there is no difference between fire arms and cold weapons.”

Ways of prove

Article 189: propagation of MOHAREBEH and corruption on earth will be proven by one of following methods:

A) By confessing once provided the confessor is mature, sane and his confession is made intentionally and at free will.

B) Testimony of two just man.

Note 1: testimony of people who have been attacked by the MOHAREBSAND such testimonies which are in support of each other aren’t acceptable.

Note 2: if out of some people who have been attacked by the MOHAREBS, some testify that no harm was done to them, their testimonies will be accepted [as opposed to testimonies] of other.

Penance for MOHAREBEH and corruption on earth

Penance for MOHAREBEH state in article 190, this article state: “penance for MOHAREBEH and corruption on earth is one of the following four things:

1) execution

2) he/she shouldn’t remain crucified for more than three days, but if he/she dies within three days, he/she can be taken down [from the cross]

3) if he/she remains alive after three days [he/she] should not be killed

4) banishment”

Under Islamic law judge has the discretion of choosing one of the above four penance whether that has killed or injured someone or has taken someone’s property or has committed none of these.

Article 195: crucifixion of a MOHAREB will be executed as follows: [I.e. if crucifixion is the sentence, executing it will be as follows].

A) method of tying doesn’t kill him/her

B) He/she should not remain crucified for more than three days, but if he/she dies within three days, he/she can be taken down [from the cross].

C) If he/she remains alive after three days shouldn’t be killed.

D) Amputation of right hand and left leg will be by the same method as it is for “penance of theft”.

Theft (SERGHAT E HADDI)

Theft and conditions for come off it and ways of prove state with legislator in seven articles.

Define of theft state in article 197:”theft is stealing someone else’s property secretly. ”

Condition of theft state in article 198: 1) the owner has placed the property in enclosure [secure place]; I must say owner himself/herself not his/her proxy, 2) the theft either individually or in association with some-one else has broken the enclosure [secure place]; this bond means if (a) broken the enclosure and (b) steal property this isn’t theft with hard punishment(SERGHAT’E'HADDI) but it can be another type of theft (SERGHAT’E'TA’EZIRI); [there are two type of theft under Islamic criminal law theft, has these conditions called (SERGHAT 'E' HADDI) and other type is theft that hasn't these conditions called (SERGHAT 'E' TA'ZIRI).

Enclosure is a place where the property in placed in order to be secure from theft.

3) The theft is not the father of the owner. This bond issue from story of Islamic messenger (MOHAMMAD) and he said "you and your property belong to your father." According this story if father or parentally grandfather steals their children property they don't condemn to punishment of "SERGHAT 'E' HADDI".

Ways of prove

The theft which will result in penance will be proven by one of the following ways:

A) Testimony of two just men

B) Two confession pf thefts to the judge provided the confessor is mature, sane, free and purposeful.

C) Knowledge of judge.

Note: if the confession to the judge is made once by the thief, the thief should return the property to its owner but he will not be penance.

The punishment for theft is as follows: [under article 201]

A) On the first occasion amputation of the full length of four fingers of the right hand of the thief in such a manner that the thumb and palm of the hand remain.

B) On the second occasion amputation of the left foot in such a manner that half of the sole and part of the place of anointing [during ablution] remain.

C) On the third occasion [the punishment] is life imprisonment.

D) On the fourth occasion [the punishment] is execution even though [the fourth] theft was committed in prison.

Note 1: prior to the execution of the punishment, multiple thefts will be considered as one theft [I.e. if the previous thefts have not been punished they will be disregarded and only the current theft will be punished.

Article 202) if the fingers of the theft's hand are amputated and after the execution of the punishment, it is proven that he had previously committed a theft, his/her left foot will be amputated.

This sentence issue from KORAN, jurisconsults says because most of thefts occur with hand and the best way for prevent theft if amputate hand and because most of people do most their works with right hand so Islam said amputate it.

GHESAS [Retaliated Punishments]

Article 204: homicide [or murder] is divided into three categories: premeditated, unpremeditated, accidental.

In premeditated, murderer has intention to makes an action which is inherently lethal and intention to kill. But in Islamic criminal code where the murderer intends to kill a specific person or a non-specific person from a group whether his action is inherently lethal or not but the action result in murder, or where the murderer doesn’t intend to kill and his/her action isn’t inherently lethal to the person [who is murdered] because of [the murdered person's] condition such as illness, disability, old age, childhood and the like, and murderer aware of these conditions.

In unpremeditated murderer has murderer has intention to makes an action which is inherently lethal but doesn’t have intention to kill.

In accidental murderer doesn’t have intention to makes an action which is inherently lethal and intention to kill.

According to article 205 premeditated murders will result in retaliation (GHESAS) but for retaliation need some condition 1) murderer and slain must be Muslim because Muslim doesn’t retaliation for non-Muslim 2) if a Muslim man premeditatedly murders a Muslim woman, he will be sentenced to retaliation, but prior to retaliation the heir of the slain woman should pay half the mulct (blood money) of the man to him; because under article 300 “the mulct for a murdered Muslim woman is half of the mulct for a Muslim man no matter if the murder is premeditated or unpremeditated.” Reason for this article and difference inconspicuous but jurisconsults say because men supply expenditure family so his blood money must twice of woman blood money; but I have objection to their logic, A) their reasoning is authentic when women don’t work out of home, now in Iran we see so much women that they superintend their family B) if we accept this reasoning we must suffice to unpremeditated as this logic is against principle; altogether I think this article is against human rights and justice because KORAN said “there is life in retaliation” and this condition cause most of murderer don’t retaliation as most of Iranian family can’ pay half of men blood money and prefer to take her blood money.

3) If murder is slain father he doesn’t sentenced to retaliation article 220″a father or paternal grandfather who kills his child will not be retaliated and will be sentenced to mulct of murder which should be paid to the inheritors of the murdered” reason of this sentence that I said about theft “story of Islam messenger (MOHAMMAD) he said you and your property belong to your father”; this isn’t reasonable cause for legislation and conflict with Islamic doctrine, Islamic doctrine say children are present of GOD and don’t belong to parents, also in KORAN we don’t see any order about this; if we accept this order we must say children belong to their mothers not fathers so this order must state for mothers.

Altogether order like this cause some father kill their children especially girls, [we see instance of this in KHOZESTAN (a state located south of Iran)].

Under article 222 if a sane person murders an insane person he/she will not be retaliated; this article says another condition: wisdom.

If several Muslim men kill a Muslim man the heir of the slain must pay their blood money to retaliation all of them or only retaliation one of them.

I must say under article 211 “reluctance to commit murder or committing murder on the order of another person isn’t a license to commit murder; and murderer condemn to retaliation; and who has ordered the murder or who has forced the murder to be committed will be sentences to life imprisonment.”

Ways to Prove Murder in Court

Article 231 say “methods of proving murder in the court are:

A) confession

B) testimony

C) compurgation

D) judge’s own knowledge

Article 232 states: by confessing to premeditated murder, the premeditated murder is proven; even the confession is made once.

Article 237 state: (1) First degree murder shall be proven by testimony of two just men; (2) Evidence for second-degree murder or manslaughter shall consist in the testimony of two just men, or that of one just man and two just women, or the testimony of one just man and the sworn testimony of the accuser.

Article 239 state: if due to some indications or by another means such as testimony of one witness, presence of a person with traces of offence at the scene of crime, presence of murdered at the residence or place of frequent of person, testimony of trustworthy discerning child, or the like, the judge suspect that the accuses has committed the crime, this [suspicion] will be of the cases of doubt.

In case of doubt, first-degree murder may be proved by the sworn testimony of 50 men who must be sanguineous relatives of the claimant. If the number of the sworn testimonies does not reach 50, any of the male testifiers may repeat his oath as many lashes as it is necessary to constitute 50 testimonies. If the claimant cannot present any of his sanguineous male relatives to provide sworn testimony in support of his or her claim, the claimant may repeat the sworn testimony 50 lashes, even if she is a woman. The claimant [in the case of murder] may be either a man or a woman but in either case he or she must be one of the victim’s inheritors.

Under Islamic criminal law if prior to dying, the murdered person remits the murderer from retaliation, retaliation will be null and the heirs of the murdered person can’t ask for retaliation; but Islamic law doesn’t determine are they can ask blood money or not? I think because this is premeditated and under article 205 its punishment is retaliation; then murdered remits murderer his/her heirs can ask blood money.

Retaliation of limb

Premeditated mayhem or injury of limb will result in retaliation, and unpremeditated and accidental mayhem will punished by blood money.

In retaliation for limb other than the condition aforesaid of life: A) limbs are equally healthy (unless eyes: the healthy eye will be retaliated for unhealthy one) B) limbs are equally genuine [not artificial] C) equality in location of injured or cut of limb (unless hand) D) retaliation doesn’t result in death or detect of another limb E) retaliation doesn’t exceed the crime.

I must say according to article 273: in retaliation for limb, men and women are equal and a male offender will be sentenced to retaliation for the same limb as he has defected from a woman unless the mulct for the defected limb is one third or more than one third of full mulct (means men mulct not women) in which case in order to retaliation, the woman should pay the mulct of the limb to the man.

This article is Incomprehensible; perhaps women pain for injury is half of men.

Altogether Iranian Islamic rules about retaliation need to change and adjustment with humanity.

Mulct (DIYAH)

Article 294 defines mulct it says: mulct is property which should be paid to a victim of murder or his/her heirs and a victim of injury.

Responsibility of paying the mulct

In premeditated an unpremeditated murders, the murderer is responsible for paying the mulct and in accidental murders, if the murder was proven either by evidence, compurgation [oath taking] or knowledge of the judge, the paternal relative (A’GHELEH) with the exception of women [of the murderer] is responsible for paying the mulct, but if the murder is proven by the confession of the murderer doesn’t compurgation or doesn’t take oath [he/she] is responsible to pay the mulct.

A’GHELEH this term has no English equivalent but refers to the person who is responsible for payment of mulct, other than the criminal. It has been defined as “paternal relative with the exception of woman” throughout this translation] is defined as paternal relatives with the exception of woman who are regarded as inheritors of a person. These people are equally responsible for the payment of mulct.

Under article 315: if two people are accusing of having committed a crime Ana each one accuses the other one of having committed the crime, and it can be proven which one was the murderer, one of them should pay the mulct by drawing lots.

Perhaps you think this isn’t square order, but I evidence this is a square order, according to supposition state in this article we sure one of these two people is murderer, perhaps you think its better we divided mulct into both of them; but I say when we take mulct than both of them certainly we punished innocent person but when we drawing lots we punished one of them and its probable he/she is guilty or innocent; so this way is next to be justice.

Cause of responsibility

A) Conduction means: committing a crime directly by the criminal.

B) Cause means: when a medical doctor, even if it is a skilled one, treats [a patient] directly or orders the treatment to be made, even if the treatment is done with the permission of the patient or [his/her] guardian and the treatment result in loss of life or causes a defect, that medical doctor is responsible and hence should pay for the damage.

Important note is: any crimes causing complete or partial loss of mind don’t result in retaliation and always punished by mulct.

The amount of mulct for loss sense is determine by legislator but the amount of mulct for loss of sense of taste is decided by judge, that called “A’RSH”.

If some one shoots bullet or things similar it to men he/she must pay 2600 us dollar as mulct (2007/3/25) but if he/she shoots to woman his/her punishment determine with judge (A’RSH); really this one hasn’t any reason and certainly against humanity.

Mulct for abortion

When embryo hasn’t soul apply equally to male and female embryo in amount of mulct but when the embryo has soul and the embryo is a boy, full mulct applies; if the embryo has a soul and the embryo is a girl, half mulct applies and if the sex of the soiled embryo isn’t clear, three quarters of mulct applies.

TA’ZIRAT

TA’ZIR is a punishment that its degree and type is not been specified in the SHARI’A and it is up to the decision of the judge. TA’ZIR can be in the form of imprisonment, fines, or flogging (it should be less than HADD).

Articles 498 up to 729 are about TA’ZIR; it does contain 29 chapters:

1: Crimes against National Security. 2: Insulting the Religious Sanctities or State Officials. 3: Insulting or Attempting at Foreign State Officials. 4: Producing False Money. 5: Forgery and Fraud. 6: Breaking Official Stamps. 7: Escaping from Prison. 8: Usurpation. 9: Damaging Historical Properties. 10: Wrongdoing of State Officials. 11: Usury and Bribery. 12: refuse to do legal duty. 13: Disobedience of State Officials. 14: Attacks on State Officials. 15: Personal Insults. 16: Compliance in a Crime. 17: Offenses against people and children. 18: Offenses against Public Moral. 19: Offenses against Family Duties. 20: Lying under oath. 21: Theft. 22: Threatening.

23: Bankruptcy. 24: Violation of Consignment. 25: Incineration and Damaging Properties or Animal. 26: Violating real estates and other properties. 27: Libels and Revilements .28: Intoxication, Gambling, and Vandalism. 29: Violating Traffic Rules

Deterrent punishment

Deterrent punishment is a punishment that is imposed by the government in order to maintain the public order. It can be in the form of imprisonment, fines, or flogging (it should be less than HADD). This means reign orders that issue from government and most of them don’t have SHARI’A roots.

At the end I must say I try to explain the most important articles that correlate to humanity; and state reason of them, I hope my article helps you to have good view about Islam and its legal system.

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Islam – Holy Days

There are only two Muslim festivals set down in Islamic law: Eid-ul-Fitr and Eid-ul-Adha ( Eid is a word significance for festival). But there are also several other unique days which Muslims celebrate. Some Muslims disapprove of commemorateing the birthday of the Prophet (pbuh), on the grounds that it is an innovation, and novelty in religious matters are prohibited.

Some Muslims say that if amended were made in sacred issues it would entail that Islam was not absolute when it was exposed to the Prophet Muhammad (pbuh), or that the Prophet (pbuh) did not tell Muslims everything that was revealed to him. This would be seen as extremely irreverent by many Muslims.

Eid ul Fitr: (1 Shawwal):-

This marks the end of Ramadan, the month of fasting, and is a festival of great celebration. In Islamic countries it is a public holiday.

The first Eid was celebrated in 624 CE by the Prophet Muhammad (pbuh) with his comrades and kins after the triumph of the battle of Ghazwa -e-Badar. Muslims are not only celebrating the end of fasting, but expressing gratitude to Allah Almighty for the assistance and potency that he gave them throughout the previous month to help them carry out self-control. The fiesta begins when the first view of the new moon is seen in the sky.

The festive feeling is enlarged by everyone wearing best or new attire, and decorating their homes. There are extraordinary services out of doors and in masjids, parade through the streets, and of course, a special celebratory meal-eaten during daytime, the first daytime meal Muslims will have had in a month. Eid is also marked as a time of pardon, and making atonement.

Eid ul Adha: (10 Dil Hijja):-

This fiesta symbols the end of the Hajj or holy pilgrimage, which is one of the 5 pillars of Islam. though it is celebrated by all Muslims, not just individuals who are on the pilgrimage.

This is a 3-day public holiday in Muslim countries. The festival memorizes the prophet Ibrahim’s readiness to sacrifice his son when God decree him to… Ibrahim’s whole compliance to the will of God is celebrated by Muslims each year. Each Muslim, as they celebrate, reminds themselves of their own submission to God, and their own willingness to sacrifice anything to God’s wishes.

During the festival Muslims who can afford to, sacrifice domestic animals, usually sheep, as a sign of Abraham sacrifice. The meat is dispersed among family, kiths and the deprived, who each get a third share.

Ashura: (10 Muharram):-

Shi’aat in particular use the day to commemorate the martyrdom of Hussain, a grandson of the Prophet Muhammad (pbuh) in 680 A.D.

It marks two past events: the day Nuh (Noah) left the Ark , and the day that Musa (Moses) was saved from the Egyptians by Allah Almighty . Shi’aat in particular exercise the day to honor the martyrdom of Hussain, a grandson of the Prophet Muhammad (pbuh) in 680 A.D. In Shi’aat communities this is a somber day: plays a replica of martyrdom, repeatedly staged and many take part in bereavement ceremony.

Al-Hijra: (1 Muharram):-

This carnival celebrates the Hijra (or Hegira) in 622 A.D when the Prophet Muhammad (pbuh) moved from Mecca to Medina .

Al-Hijra, the Islamic New Year, is the first day of the month of Muharram. It symbols the Hijra (or Hegira) in 622 A.D when the Prophet Muhammad (pbuh) moved from Mecca to Medina , and set up the first Islamic state. The Muslim calendar counts dates from the Hijra.

There is no precise spiritual service required on this day, but Muslims will think about the broad meaning of Hijra, and observe this as a good time for “New Year Resolutions”. The Qur’an uses the word Hijra to mean moving from a bad place or state of affairs to a good one – and so Muslims may believe about how their belief helps them leave behind bad ways of living and attain a healthier life. The date marks the opening of Islam as a community in which pious and earthly life were completely incorporated. It was a community inspired by God, and totally obedient to God; a group of people bound as one by faith.

By breaking the connection with his own clan the Prophet Muhammad (pbuh) established that tribal and family loyalties were unimportant compared to the bonds of Islam. This Muslim community grew progressively over time, unifying the many tribes that had made up the Arab world in advance. Islam now evolved as a joint spiritual and earthly community, with political and military power working hand in hand with spiritual authority and direction. At the same time the community developed the religious and ethical codes of actions that still provide the base of Muslim existence.

Lailat al Qadr (27 Ramadan):-

The fiesta of The Night of command symbols the night in which the Qur’an was first opened to the Prophet Muhammad (pbuh) by Allah Almighty .

Muslims observe this as the most important event in history, and the Qur’an says that this night is better than a thousand months (97:3), and that on this night the angels come down to earth. This is a festival that Muslims spend in study and prayer. Some will spend the whole night in prayer or in reciting the Qur’an. The date of 27 Ramadan for this day is a customary date, as the Prophet Muhammad (pbuh) did not tell us when the Night of Power would be, although he suggested it was in the last 10 days of the month. As of this, many Muslims will treat the last 10 days of the month of Ramadan as a mainly fine time for prayer and understanding the Qur’an.

http://www.saislam.co.za/member.php?az=aboutIslam&id=43

Two million Muslims in the UK face an ethical dilemma if they want a mortgage or a loan. Conventional mortgages and loans all require the payment of interest and “riba” as interest is called under Islamic law, is forbidden by the Koran.

British financial institutions are increasingly catering for Muslims’ specialist needs through a number of alternative arrangements that respects the teachings of the Koran. Here are just two of them:

Ijara with diminishing Musharaka – the mortgage alternative.

Ijara with diminishing Musharaka is an Islamic alternative to a conventional UK mortgage and has been adopted by several British banks and building societies.

In essence, Musharaka means partnership. Under this Islamic financial concept, the bank buys the house and legally becomes its owner. Then throughout the pre-agreed period, say 25 years, a monthly payment is made. Each monthly payment includes a charge for rent and a charge that buys a small proportion of the house itself. It’s form of variable shared equity plan with the proportion of the house being owned by the purchaser, steadily increasing as payments are made. Once the final payment has been made, the house is owned outright. Ijara

Here you tell the bank or financial institution what you want, for example a car, and they buy it. In return for a monthly payment that covers the cost of the bank’s capital, the bank then allows you to use the asset for an agreed period. In reality, it’s a form of leasing

Islamic finance is not widely available in the UK – so where can find it? Here are three suggestions:

Over the last few years Lloyds TSB has introduced Islamic products to 33 of its branches. Their spokesperson says, “It’s important for our customers to see that we are following the right procedures. We have a panel of four Islamic scholars who over-see the products. They offer guidance on Islamic law and audit the products”.

Another high street bank, HSBC, is developing a special range of Islamic products under the Amanah brand name. This range includes home finance plans, home insurance, commercial finance, and various current accounts and pensions. Hussam Sultan, the Amanah product manager says, “As a bank, we are not here to moralise or tell our customers that Amanah finance is the way to please Allah. We’re just here to provide them with a choice”.

The Islamic Bank of Britain has three branches in London, two in Birmingham and one each in Leicester and Manchester. They’re the only British bank specifically providing for Muslim customers and claim to be halal throughout their operations. All their financial products are approved by their Sharia’a Supervisory Committee – all Muslim scholars who are experts in all aspects of Islamic finance.

For your interest we show below, definitions of some words used widely in connection with Islamic finance.

A Glossary of selected Islamic words used in finance.

Amanah : Means trustworthiness, with associated aspects of faithfulness and honesty. As a central supplementary meaning, amanah also describes a business deal where one party keeps another’s funds or property in trust. This actually the most widely used and understood application of the term, having a long history of use in Islamic commercial law. It can also be used to describe different financial activities such as deposit taking, custody or goods on consignment.

Arbun : Means a down payment. It’s a non-refundable deposit paid to the seller by the buyer upon agreeing a sale contract together with an undertaking that the sale contract will be completed during a prearranged period.

Gharar : This means uncertainty. It’s one of three essential prohibitions in Islamic finance (the others being riba and maysir). Gharar is a sophisticated concept that encompasses certain types of uncertainty or contingency in a contract. The prohibition on gharar is often used as the grounds for criticism of conventional financial practices such as speculation, derivatives and short selling contracts.

Islamic financial services / Islamic banking / Islamic finance : Means financial services that meet the specific requirements of Islamic law or Shariah. Whilst designed to meet specific Muslim religious requirements, Islamic banking is not restricted to Muslims. Both the customers and the service providers can be non-Muslim as well as Muslim.

Ijara : Means an Islamic leasing agreement. Ijarah permits the financial institution to earn a profit by charging leasing rentals instead of lending money and earning interest. The ijarah concept is extended to hire and purchase agreements by Ijarah wa iqtinah.

Maysir : Means gambling. It’s another of three fundamental prohibitions in Islamic finance (the other two being riba and gharar). The prohibition of maysir is often used as the basis for criticism of standard financial practices such as conventional insurance, speculation and derivative contracts.

Mudarabah : A Mudarabah is a form of Investment partnership. Here, capital is provided by the investor (the Rab ul Mal) to another party (the Mudarib) in order to undertake a business or investment activity. Profits are then shared according to pre-arranged proportions but any loss on the investment is born exclusively by the investor and the mudarib then loses the expected income share.

Mudarib : The mudarib is the investment manager or entrepreneur in a mudarabah (see above). It is this managers responsibility to invest the investor’s money in a project or portfolio in exchange for a share of the profits. A mudarabah is essentially similar to a diversified pool of assets held in a conventional Discretionary Managed Investment Portfolio.

Murabaha : means purchase and resale. As opposed to lending money, the capital provider purchases the required asset or product (for which a loan would otherwise have been taken out) from a third party. The asset is then resold at a higher price to the capital user. By paying this higher price by instalments, the capital user effectively gets credit without paying interest. (Also see tawarruq the opposite of murabaha.)

Musharaka : This means profit and loss sharing. It’s a partnership where the profits are shared in pre-arranged proportions and any losses are shared in proportion to each partners’ capital or investment. In Musharakah, all the partners to the commercial undertaking contribute funds and have the right, but without the obligation, to exercise executive powers in that undertaking. It’s a similar concept to a conventional partnership and the holding of voting stock in a limited company. Musharakah is regarded as the purest form of Islamic financing.

Riba : This means interest. The legal concept extends beyond interest, but in simple terms, riba covers any return of money on money. It does not matter whether the interest is floating or floating, simple or compounded, or what the rate is. Riba is strictly prohibited under Islamic law..

Shariah : This is the Islamic law as disclosed in the Quran and through the example of Prophet Muhammad (PBUH). A Shariah product must meet all the requirements of Islamic law. To facilitate this, a Shariah board is usually appointed. This board or committee is usually comprised of Islamic scholars available to the organisation for guidance and supervision for the development of Shariah compliant products.

Shariah adviser : Means an independent professional, usually a classically trained Islamic legal scholar, appointed to advise an Islamic financial organisation on the compliance of its products and services with Islamic law, the Shariah. While some organisations consult individual Shariah advisers, most establish a committee of Shariah advisers (often known as a Shariah committee or Shariah board).

Shariah compliant : Means the activity that ensures that the requirements of the Shariah, or Islamic law are observed. The term is often used in the Islamic banking industry as a synonym for “Islamic”- for example, Shariah compliant financing or Shariah compliant investment.

Sukuk : This has similar characteristics to a conventional bond. The difference is that that they are asset backed and a sukuk represents the proportionate beneficial ownership in the underlying asset. The asset is then leased to the client to yield the profit on the sukuk.

Takaful : This is Islamic insurance. Takaful plans are designed to avoid the characteristics of conventional insurance (i.e. interest and gambling) that are so problematical for Muslims. They structure the arrangement as a charitable collective pool of funds based on the comcept of mutual assistance.

Tawarruq : When used in personal finance, a customer with a cash requirement buys something on credit on a deferred payment basis. That customer then immediately resells the item for cash to a third party. The customer thereby obtains cash without taking an interest-based loan. Tawarruq is the opposite to murabahah.