A Critical Analysis of Article 351 of the Islamic Penal Code: Examining the Transfer of the Right of Retaliation to Spouses - A Jurisprudential Comparative Study of Islamic Denominations

Aghaei, Seyyed Mohammad Ali; Aghaei, Seyyed Rasool; Shakuri, Hasan

doi:10.22034/mfu.2025.142791.1508

A Critical Analysis of Article 351 of the Islamic Penal Code: Examining the Transfer of the Right of Retaliation to Spouses - A Jurisprudential Comparative Study of Islamic Denominations

Document Type : Original Article

Authors

¹ Student of seminary in Qom province

² Member of the Faculty of Al-Mustafa Al-Alamiya University

10.22034/mfu.2025.142791.1508

Abstract

The transfer of the right of retaliation (qisᾱs) to spouses and the quality of their share in this right is a significant topic in Islamic jurisprudence and law, drawing considerable attention from jurists, legal scholars, and experts in judicial courts and criminal jurisprudence. Given the paramount importance of human life in Islamic law, this research holds substantial significance. The choice between transferring or not transferring the right of retaliation to spouses can lead to major changes in the forgiveness or punishment of offenders and, in some instances, expedite the processing of criminal cases. Article 351 of the Islamic Penal Code does not currently recognize such a right for spouses. In Imamiyyah jurisprudence, there is a claimed consensus on excluding spouses from inheriting the right of retaliation. However, contrary to Imamiyyah jurists, many Sunni scholars argue that spouses, like other heirs, should inherit the right of retaliation equally. This study employs a descriptive-analytical and comparative approach. It concludes that the primary basis for the Imamiyyah position is Sheikh Tūsī's consensus, which is deemed unreliable due to the inherent weakness of transmitted consensus. Additionally, arguments such as the healing of the guardian's heart (tashaffī walī al-dam) are found to be insufficiently substantiated. Considering the rule of "retaliation is bound to blood money" (al-qisᾱs malzūm al-dīyah), the absence of explicit narrations excluding spouses, and linguistic evidence, the research adheres to general principles and concludes that the exclusion of spouses from the right of retaliation is unfounded. The study aims to propose an amendment to Article 351 of the Islamic Penal Code.

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