Feasibility of the Condition of a Wife’s Ihsan (Legal Marital Status) in the Permissibility of Qatl fi al-Firash (Spousal Killing in the Act of Adultery), with Emphasis on the View of Ibn Idris
Keywords:
Honor killing, adultery, jurisprudence, Ihsan, Ibn IdrisAbstract
Qatl fi al-Firash (spousal killing in the act of adultery) is a criminal title that appears legally and seemingly legitimate, and has been subject to discussion in both jurisprudential and legal literature. Despite the many objections raised against it, jurists and legal theorists have, by enumerating specific conditions in their scholarly works and by referring to valid jurisprudential sources, accepted its legitimacy. The issuance of a judgment of acquittal for the perpetrator of qatl fi al-firash in religious and legal texts is contingent upon several conditions that must be proven in court. One such condition for excluding the act of illicit and unlawful sexual intercourse (zina) from the prescribed punishment (hudud) and for considering reduced punishment is the absence of ihsan (legal marital status with conditions) in either party to the act of zina. Clause (b) of Articles 226 and 227 of the Islamic Penal Code of 2013 provides a definition of ihsan and identifies circumstances under which spouses lose their status of ihsan. Despite the two provisions—Clause (th) of Article 302 of the same code and Article 630 of the 1996 Islamic Penal Code (Discretionary Punishments)—which address the permissibility of qatl fi al-firash and the exemption of the husband from prosecution, the Iranian legislator, following the opinion of some jurists such as Ibn Idris, has established in Article 230 of the Islamic Penal Code that the prescribed punishment for zina in cases of non-ihsan is one hundred lashes. In the present study, using a descriptive-analytical method and library-based research from valid sources, after evaluating the validity of the hypothesis that in the absence of ihsan in the wife, the husband is not permitted to commit qatl fi al-firash, we conclude that if the wife is not muhsanah (a legally married woman meeting the conditions of ihsan), the husband has no right to commit murder on the pretext of adultery.
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