Nasai

(1) In this hadith as well, the blood money (diyah) for a miscarried fetus (janin) is stated as a male or female slave. However, if the fetus comes out alive from the womb and then dies due to the effect of the inflicted blow, in that case, the full blood money (diyah) equivalent to that of an adult must be paid. Whether the blow was inflicted intentionally or by mistake, in both cases the ruling is as stated above. And Allah knows best. For details, see: (Dhakheerat al-‘Uqba Sharh Sunan al-Nasa’i by Atbubi: 36/219, 220)

(2) From the words of this blessed hadith [إنَّ المرأة التي قضى عليها بالغُرَّةِ توُفِّيَت], some scholars have misunderstood that it refers to the murderess (qatilah), and thus they have interpreted these words to mean: “Then the woman upon whom the decision of paying the ghurrah (compensation) was made, died.” This is not correct; rather, it is contrary to the actual event. The reality is that the deceased was not the murderess, but rather the one whose fetus was miscarried, because in authentic ahadith it is explicitly mentioned that the deceased was not the murderess, but the other woman who was struck with a stone, causing her to miscarry and resulting in her death. The words of the hadith are: [اقْتَتَلَتِ امْرَأَتانِ مِن هُذَيْلٍ، فَرَمَتْ إحْداهُما الأُخْرى بحَجَرٍ فَقَتَلَتْها وما في بَطْنِها] “Two women from the tribe of Hudhayl fought. One of them struck the other with a stone, killing her and the child in her womb.” (Sahih al-Bukhari, al-Diyat, Chapter: The fetus of a woman… Hadith: 6910, and Sahih Muslim, al-Qasamah wa al-Muharibin, Chapter: The blood money for the fetus…, Hadith: 1681 (36)). The meaning of allati qudiya ‘alayha bil-ghurrah is: allati qudiya laha bil-ghurrah. That is, ‘alayha here means ‘laha’. In Sahih al-Bukhari, the words are: [ثم ان المراۃ التی قضی لھا بالغرۃ توفیت] See: (Sahih al-Bukhari, al-Fara’id, Chapter: The inheritance of a woman and a husband with a child, etc., Hadith: 6740). Some scholars have misunderstood from the last sentence of the blessed hadith [قضی رسول اللہ صلی اللہ علیہ وسلم بان میراثھا لبنیھا وزوجھا، وان العقل علی عصبتھا] that the deceased was the murderess herself, and that her sons and husband are entitled to her inheritance, and her blood money is the responsibility of her ‘asaba (male relatives). The hadith of Sahih Muslim completely removes this doubt and misconception. Its words are so clear and explicit that there is no room for doubt. The words are: [فجَعَل النَّبيُّ ﷺ دِيَةَ المقتولةِ على عَصَبةِ القاتلةِ، وغُرَّةً لِما في بَطْنِها] “Then the Messenger of Allah (sallallahu alayhi wa sallam) made the blood money of the murdered woman the responsibility of the ‘asaba of the murderess, and set the blood money for the fetus in her womb as one ghurrah.” (Sahih Muslim, al-Qasamah wa al-Muharibin, Chapter: The blood money for the fetus…, Hadith: 1682). All doubts are removed by the above clarifications.

(3) In the case of accidental killing resembling intentional killing (qatl khata shibh al-‘amd), the blood money (diyah) is the responsibility of the killer, but all his blood relatives (nasabi relatives) will participate in its payment. Legally, an installment amount will be set for all of them, and they will be obliged to pay it, because in accidental killing, the killer is not at fault, or not greatly at fault. However, in the case of intentional killing (‘amd), the blood money is the responsibility of the killer alone, and he alone is liable for its payment, because he is fully at fault, and thus he alone must bear the punishment. And Allah knows best.

Hadith Commentary:
(1)
Although the father is not mentioned in these narrations, in other chains of this hadith the father is explicitly mentioned; that is, the blood money (diyah) of the murdered woman is the responsibility of the father of the murderess and her other male agnates (asabat), and it will not be upon her son. Likewise, the blood money will not be the responsibility of the uterine relatives (dhawu al-arham), and for this reason, maternal brothers will also not pay the blood money.
(Fath al-Bari: 12/315)
(2)
In one narration, it is explicitly stated:
"When, due to the action of one woman, another woman and her unborn son died, her husband went to the father of the murderess and demanded the blood money for his wife and son from him.
The father of the murderess said:
'The blood money is the responsibility of her sons, who are the chiefs of the Banu Lahyan tribe.' Then this case was presented before the Messenger of Allah (sallallahu alayhi wa sallam), and he ruled that the blood money of the woman is the responsibility of the paternal relatives of the murderess, and for the child, a slave or slave-girl should be given."
(Al-Sunan al-Kubra lil-Bayhaqi: 8/108)
Both of the women who were fighting were the wives of Sayyiduna Haml ibn Nabighah (radi Allahu anhu); one of them was pregnant, and the other struck her with a tent pole, causing the pregnant woman and her child to die.

Hadith Commentary:
The woman who committed the killing was Umm ‘Aqeeqah bint Marwah. The blood money (diyah) for accidental killing or killing resembling intentional killing (shibh al-‘amd) is upon the family (‘aqilah) of the perpetrator; therefore, the command to pay the diyah was given to the family.

The translation of the chapter heading is derived from this, as the Prophet (sallallahu alayhi wa sallam) gave the inheritance of the woman to her husband and sons. This shows that the husband is an heir along with the children, and when the husband is an heir to his wife along with the children, then the woman (wife) will also be an heir to her husband along with the children.

(All praise is due to Allah, today the revision work in Masjid Ahl-e-Hadith, Rani Banoor, has been completed up to this point.
Friday, 13 Shawwal 1396 AH)

Hadith Commentary:
(1)
Two women from the tribe of Banu Lihyan fought. One of them struck the other with a stone, causing the child in the latter’s womb to die. The Prophet (sallallahu alayhi wa sallam) imposed blood money (diyah) upon the woman who struck, requiring her to pay either a male or female slave.

(2)
The purpose of Imam Bukhari rahimahullah in citing this hadith is to show that a wife is never deprived of inheritance under any circumstance. There are two situations regarding this:

➊ When the deceased husband has no children or male descendants, the wife receives 1/4 of the estate. The Noble Qur’an states:
“If you have no children, then your wives shall have one fourth of what you leave.” ()
(al-Nisa 4:12)

➋ If the deceased husband has children or male descendants, the wife receives 1/8 of the estate. The command of Allah, the Exalted, is:
“If you have children, then your wives shall have one eighth of what you leave.” ()
(al-Nisa 4:12)

It should be noted that whether there is one wife or more, their prescribed share is as stated in the above verses; in the case of multiple wives, this prescribed share will be divided among them. Also, during the waiting period (‘iddah) of a revocable divorce (talaq raj‘i), the woman will still be an heir.

The basis of Imam Bukhari rahimahullah’s reasoning from this hadith is that when a husband, along with the children, is an heir to his wife, then the wife will also receive a share from her husband’s estate along with the children. Furthermore, blood money and similar compensations must be paid by the family members, because in both hardship and ease, the responsibility lies with the tribe.

And Allah knows best.

Hadith Commentary:
Whatever decision the Messenger of Allah (sallallahu alayhi wa sallam) made was the truth; the rest were the ramblings of that person, which the Messenger of Allah (sallallahu alayhi wa sallam) likened to soothsaying and, by comparing them to soothsaying, declared them to be false (sallallahu alayhi wa sallam).

Hadith Commentary:
(1)
In the era of ignorance (Jahiliyyah), it was the practice of soothsayers (kahins) to embellish their false statements with rhymed and metered prose, so that the falsehood would be concealed within the phrasing and its reality would not be exposed, thereby misleading people into thinking there was benefit in it. In this hadith, the person mentioned did the same thing: he attempted to reject the judgment of the Messenger of Allah (sallallahu alayhi wa sallam) with rhymed prose, and thus became deserving of condemnation. However, the Prophet (sallallahu alayhi wa sallam) did not impose any other punishment on him, because he was commanded to pardon the ignorant.

(2)
This hadith contains condemnation of the profession of soothsaying, and also refutes those who imitate soothsayers in their use of words and phrasing. In any case, the judgment given by the Messenger of Allah (sallallahu alayhi wa sallam) was the truth, while the rest were the nonsensical utterances of that person, which the Prophet (sallallahu alayhi wa sallam) likened to soothsaying and thus declared them false like soothsaying. The Messenger of Allah (sallallahu alayhi wa sallam) has declared the act of informing about the unseen to be a satanic act (Sunan Abi Dawud, Book of Medicine, Hadith: 3907). Therefore, going to soothsayers—those who claim to foretell the future—astrologers, and palmists, seeking information from them, and then affirming their statements is forbidden and impermissible. The Shari‘ah has declared such superstitions to be false. And Allah knows best.

Hadith Commentary: That is why you speak in rhymed and rhythmic phrases like the soothsayers.

And the reason he (sallallahu alayhi wa sallam) did not punish him is because he (sallallahu alayhi wa sallam) was commanded to show forbearance towards the ignorant. And in this hadith, there are also the following benefits: ➊ The removal of ritual impurity (janabah) for the judge, and ➋ The obligation of blood money (diyah) for the fetus, even if it is born dead (Fath).

That is, when Haml bin Malik said this, the Prophet (sallallahu alayhi wa sallam) did not reproach him, because he was commanded to pardon the ignorant. There are many benefits in this hadith, such as: bringing a case before the judge, and that blood money (diyah) is obligatory for the fetus even if it is born dead. It is also understood that this person's statement was poetic imagination and had no basis in reality.

Hadith Commentary: Benefits and Issues: These two women who fought belonged to two families of Banu Hudhayl and were co-wives, both being wives of Haml ibn Nabighah. One struck the other on the abdomen with a stone. After the stone, she struck with a tent pole (wood), which is why, further on, the mention is of striking with a tent pole instead of a stone. There is no contradiction between the two; some narrators mentioned one object, and some mentioned the other.

As a result, her pregnancy was miscarried, so the Prophet (sallallahu alayhi wa sallam) ordered that compensation be given in the form of a slave man or slave woman, and this compensation was placed upon the ‘aqilah (the paternal relatives responsible for blood money) of the perpetrator, that is, upon her father’s relatives.

However, when she died, her inheritance was distributed among her sons and her husband, not to her ‘aqilah. Her ‘aqilah was not considered an heir. And these two women died one after the other, so there is no contradiction with the next narration.

They were troubled by the thought that, “We pay the blood money, but have no share in the inheritance.”

Hadith Commentary:
Vocabulary of the Hadith:
(1)
Janin:
The child who is in the womb,
because it is concealed.
If it is born alive, it is called walad (child), and if it is born dead, it is called saqt (miscarriage), and it is also referred to as janin,
provided that it has developed into a child.
(2)
Ghurrat:
Refers to the whiteness of the forehead,
therefore, it is also used for something superior and excellent,
but in this hadith, what is meant by it is a male or female slave.

Explanation:
1:
Since this man deliberately used rhymed and rhythmic speech in order to reject a legal (shar‘i) ruling and to establish falsehood, for this reason the Prophet (sallallahu alayhi wa sallam) condemned him. If the purpose of rhymed speech is not this, then there is no harm in it. Some of the speech of the Messenger of Allah (sallallahu alayhi wa sallam) is found to be rhymed; however, it is a different matter that such words issued from his blessed tongue coincidentally, without intention or purpose.

2:
This will be in the case when the child is delivered dead from the womb; but if the child is born alive and then dies due to the effect of the blow received in the womb, then blood money (diyah) or retribution (qisas) will be obligatory.

Urdu Footnote:
In the Age of Ignorance (Jahiliyyah), there used to be a "kahin" (soothsayer) appointed alongside every idol. People would also approach them for treatments and similar needs. These individuals were very cunning and crafty. They maintained connections with the jinn. They would speak in ambiguous terms. They also made predictions, but in a very cautious manner so that they would not face difficulty in unforeseen circumstances. Their speech was very captivating. They would utter short, rhymed phrases (saj‘), which would impress those who heard them. This is the reason why the Prophet (sallallahu alayhi wa sallam) referred to Hazrat Haml ibn Malik as a kahin.

Benefits and Issues:
➊ The term "janin" refers to a child who is still in the mother's womb and has not yet been born.

➋ Sometimes, if a pregnant woman's abdomen is struck, it can cause irreparable harm to the child, resulting in the child's death before birth, so that the child is born dead. Therefore, this too is considered a form of killing.

➌ The ruling for such a child is not the same as for a general murder victim; its blood money (diyah) is not one hundred camels, but rather only one male or female slave. However, if the mother also dies due to that blow, then the full blood money (diyah) for the woman will be due.

➍ Tribal customs and traditions have no standing in comparison to the Shari'ah ruling.

➎ The reference to "poetic talk" means that, just as ordinary poets speak false and unserious things which have no value in practical life, similarly, these matters are also useless; the law cannot be changed because of them.

Takhrij:
«أخرجه البخاري، الطب، باب الكهانة، حديث:5758، ومسلم، القسامة، باب دية الجنين، حديث:1681، وحديث ابن عباس: أخرجه أبوداود، الديات، حديث:4572، والنسائي، القسامة، حديث:4822، 4832، وابن حبان (الإحسان): 7 /605، حديث:5989، والحاكم.»©Explanation:
Clarification: «حضرت حمل بن نابغہ رضی اللہ عنہ » ("Ha" and "Meem" both have a fatha) Haml bin Malik bin Nabigha al-Hudhali was a Companion (Sahabi).
Abu Nadlah was his kunyah, and he was a resident of Basrah.