What is Ghurra? When is it given? Who gives it? Who is it given to?

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What is Ghurra? When is it given? Who gives it? Who is it given to?
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Dear Brother / Sister,

As a term, ghurra means compensation to be paid by a person who causes the death of a fetus in the womb by committing a crime.

In Islam, man has basic rights like owning property, living, honor etc. The right of living is the first and most important one. Therefore, a child (fetus) is put under protection as soon as it starts to exist in the womb; a person who harms the fetus is to face some worldly and otherworldly penalties. When the father, mother or anybody else hits the back, abdomen, sides or any other organ of a pregnant woman, or when anybody threatens the woman to beat, kill or reprimand her by frightening her and causes the woman to have a miscarriage, two possibilities occur. The child dies or is born alive.

The fine for ghurra is paid within one year. Even if one year passes, it is necessary to pay it in a single sum.

According to the soundest view of Hanafis, Hanbalis and Shafiis, the money for ghurra needs to be paid within one year. Ghurra is paid to the inheritors of the fetus - except the one who caused its death - in accordance with the religious inheritance law. (see Ibn Qudama, al-Mughni, VII, 716; Wahba az-Zuhayli, al-Fiqhu'l-Islami, VI, 364).

The amount of ghurra is five camels; that is one twentieth of the blood money; it is 50 dinars (200 gr. of gold coins) according to Hanafis. According to the majority of the other fiqh scholars, it is 600 dirhams (1680 gr. of silver) (see Qasani, Badayiu's-Sanayi', V/325; Ibn Qudama, al-Mughni, V/799; Ibn Rushd Bidayatu'l-Mujtahid, II/ 407).

The following was reported from Abu Hurayra:

"Two women of the tribe of Hudhayl fought with each other. One of them flung a stone at the other, killing the fetus in her womb. The case was brought to the Messenger of Allah (pbuh). He gave judgment that the ghurra of her unborn child be paid by her paternal relatives." (Muslim, Qasama, 36; Bukhari, Tibb, 468, Abu Dawud, Diyat, 19; Nasai, Qasama, 39; Ahmed b. Hanbal, II-274, 535; ad-Darimi, Diyat, 21).

The crime of abortion and its punishment:

(Prof. Dr. Hayrettin Karaman)

Accepting the fetus as a human "who will be completed based on the genetic program inherent in him", fiqh scholars agree that it is a murder (crime) to eliminate it but they say it must definitely be known that thing in the womb was a fetus (child in the womb) in order to decree that this murder took place. It is stated that as long as the possibility of the swelling and movement in the abdomen to originate from a tumor, gas, etc, exists, it is not regarded a murder to eliminate it. According to the majority of the scholars, "it is necessary for the thing to come out and to be seen that it is a fetus" to remove the possibility. The conditions that a certain period of time needs to pass, the organs of the thing taken out or aborted need to be apparent though partly for the murder to occur are based on the same reason; the aim is to determine that the thing taken out or aborted is a human being. Today, it is very easy and it can be determined through a simple examination whether the thing in the womb is a fetus or not; therefore, the hesitations and differences of opinion regarding the issue are regarded to have been removed.  

Another thing that fiqh scholars take into consideration to decree that it is a murder is the condition of knowing whether the fetus died as a result of an intervention. In the past, the ways of knowing whether the fetus in the womb was alive or not were limited and it was possible to know it only at advanced phases; therefore, some fiqh scholars said, "The fetus must come out alive and die afterwards; otherwise, in cannot be known before intervention whether it was dead or not." There is no hesitation regarding the issue today; it has become possible to know whether the fetus is alive or not in all phases and to know the reason of death.

An important element in terms of determining penalties for qisas (retaliation) and diyah (blood money) is "intention". Maliki fiqh scholars decreed that the murder was committed intentionally if the deed that caused the death of the fetus was done intentionally. According to the preferred view of the other three madhhabs, the murder is regarded as similar to intentional or accidental, not intentional, since it is not certain that the fetus was a human and it was alive in the womb before it was eliminated.  

The penalty for the death, elimination and miscarriage of the fetus as a result of an unjust and physical deed (violence) of the mother or somebody else is determined as follows in classical fiqh based on the following different situations: 

When the fetus comes out dead:

In that case, it is doubtful whether the death originated from a deed; so, the penalty for it is diyah. The diyah, which means financial compensation and which is called "ghurra", is five camels or the equivalent.

When the fetus comes out of the womb alive but then dies due to the violence inflicted when it was in the womb:

In that case, it becomes certain that death occurred due to an external intervention; so, qisas is necessary according to those who regard the murder of the fetus as "intentional" and full diyah is necessary according to those who regard the murder of the fetus as "accidental or similar to intentional". Full diyah is one hundred camels or the equivalent for a boy and fifty camels or the equivalent for a girl (it is calculated as about 213 grams of gold). The diyah is paid to all of the inheritors except the murderer. If the inheritors waive, then no diyah is necessary to be paid.  

When the fetus comes out of the womb alive but then dies due to some other reason:

In that case, death does not occur due to the deed of miscarriage or removal; so, tazir punishment is necessary for those who cause the preterm birth. Tazir is the punishment that is left to the decision of the state or the judge.

When the fetus comes out after the death of the mother or does not come out but remains inside:

In that case, either the fetus will die or preterm birth will occur. In both cases, tazir is necessary unless it is known that the deed of the criminal caused it; if it is known, the punishment is determined based on the other cases mentioned above. 

The punishment given to the killer of the fetus does not consist of qisas and diyah only; there is also kaffarah (atonement), which necessitates freeing a slave, if it is impossible fasting two months without interruption and if it is impossible - according to some fiqh scholars - to give meals to sixty poor people one day.

The punishment for abortion today:

Abortion means killing a baby that is known to be alive in the womb in any phase and emptying the womb. There is no doubt here that the thing that is killed is a fetus, that it is alive before abortion and that the deed of killing is done intentionally. In that case, the deed of abortion is an intentional murder unless it is based on a legitimate excuse - explained above - and the punishment for it is the punishment given for such a murder.

GHURRA

Ghurra lexically means whiteness, brightness, the whiteness on the forehead of a horse, effusion and the first night and day of the lunar month. The plural form of it is ghurar. As a term, it means the compensation to be paid by a person who causes the death of the fetus* by committing a crime.

In Islam, man has fundamental rights like the immunity of property, life and honor. The right to life is the first one. Therefore, a child is put under protection beginning from the moment it goes to the uterus; those who harm it are given some worldly and otherworldly penalties. When the father, mother or anybody else hits the back, abdomen, sides or any other organ of a pregnant woman, or when anybody threatens the woman to beat, kill or reprimand her by frightening her and causes the woman to have a miscarriage, two possibilities occur. The child dies or is born alive.

When the fetus comes out of the mother dead, the one who causes the fetus to die is to pay diyah for the fetus. The diyah for the fetus, whether it is male or female, whether the crime is committed intentionally or accidentally, is ghurra. The amount of ghurra is five camels; that is, one twentieth of the blood money; it is 50 dinars (200 gr. of gold coins) according to Hanafis. According to the majority of the other fiqh scholars, it is 600 dirhams (1680 gr. of silver)(al-Qasani, Badayiu's-Sanayi', V/325; Ibn Qudama, al-Mughni, V/799; Ibn Rushd Bidayatu'l-Mujtahid, II/ 407).

The following was reported from Abu Hurayra: "Two women of the tribe of Hudhayl fought with each other. One of them flung a stone at the other, killing the fetus in her womb. The case was brought to the Messenger of Allah (pbuh). He gave judgment that the ghurra of her unborn child be paid by her paternal relatives." (Muslim, Qasama, 36; Bukhari, Tibb, 468, Abu Dawud, Diyat, 19; Nasai, Qasama, 39; Ahmed b. Hanbal, II-274, 535; ad-Darimi, Diyat, 21)

The criminal who intentionally causes the fetus to die needs to pay the ghurra from his own money or property. It is paid as gold or silver. Only Malikis regard intention as possible. When the fetus is killed accidentally, if the diyah of the criminal is one-third or more, the ghurra is to be paid by the paternal relatives.

According to the majority of the Islamic fiqh scholars, the crime can be committed accidentally or in a way similar to intentionally and the diyah has to be paid by the paternal relatives. According to the majority of the scholars, one of the paternal relatives is guilty here. According to Hanafis, when the mother has a miscarriage using some medicine or doing something without the permission of her husband, the paternal relatives need to compensate for ghurra. If the husband gives permission for the miscarriage or if the woman does not do it intentionally, ghurra is not necessary since no violation of rights is in question.  (Ibn Qudama, al-Mughni, VII, 716; Wahba az-Zuhayli, al-Fiqhu'l-Islami, VI, 364). The fine for ghurra is paid in one year, diyah in three years; the diyah which is equivalent to one third of the diyah of a Muslim, like the diyah of a dhimmi, is paid in one year.

The imams of four madhhabs agree unanimously that ghurra is divided among the relatives of the fetus based on their shares in inheritance. However, if the father is guilty, he cannot have any shares from ghurra because he is like a person who kills someone unjustly. The killer cannot get any inheritance from the person he kills (Abu Dawud, Diyat, 18; Tirmidhi, Faraiz, 17; Ahmed b. Hanbal, I, 49).

According to Hanafis, when a fetus whose creation has been completed is born dead here, the criminal does not have to pay kaffarah; however, it is regarded appropriate for the criminal to do charity as much as they can of their own accord and ask for repentance in order to approach Allah (al-Qasani, Badayiu's-Sanayi, VII, 326, Ibn Abidin, Raddu'l-Mukhtar, V. 418).

If a fetus dies due to a deed that is regarded as a crime after it comes out of the womb alive, this deed is not regarded to have been done intentionally according to Hanafis; it is regarded to have been committed accidentally or in a way similar to intentionally. For, the formation of the fetus and its living do not occur when the deed is intentional. Therefore, the punishment of full diyah is necessary and the criminal cannot get a share from the diyah. Hanafis also regard the punishment of kaffarah necessary in such cases. If the fetus is twins or triplets, etc, the punishment is multiplied accordingly. If the mother dies due to violence after the death of the fetus or if the fetus comes out alive after the death of the mother and then it dies, the criminal has to pay two diyahs: one for the mother and one for the fetus.  If the fetus comes out dead after the death of the mother, only the diyah for the mother needs to be paid. No payment for diyah is necessary but the punishment of tazir is applied. For, there is no clear evidence showing that the crime caused the fetus to die. Besides, it is highly probable that the fetus died due to the death of the mother. In that case, the fetus is regarded as an organ of the mother (al-Qasani, Badayiu's-Sanayi, VII, 326, VIII, 326; Ibn Abidin, Raddu'l-Mukhtar, V, 417; Ibn Qudama, al-Mughni, VIII, 811 Ibn Rushd, Bidayatu'l-Mujtahid, II, 408).

According to Hanafis, gurra punishment is applied also for the baby of a non-Muslim woman. For, the diyah of an unbeliever is like the diyah of a Muslim.

Hamdi DÖNDUREN

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