A while ago, a repetitive and painful news about the murder of a son by his father and the impossibility of retribution due to legal obstacles was published in the media of the country. The fact that harsh and life-depriving punishments have not been effective and useful in reducing heinous crimes is evident from statistics and numbers, as well as the continuous and recurring tragic events. Therefore, our criticism is not about the reason for the lack of retribution for the father of the victim (the murderer), but rather about the discrimination in punishment and the dual treatment of a single issue. In order to clarify the matter, Article 301 of the Islamic Penal Code is being republished.

Article 301: Retaliation is proven only when the offender is not a relative or ancestor of the father, and the victim is of sound mind and equal in religion to the offender.

Note:“

If a non-Muslim commits a crime against a Muslim, being a non-Muslim is not a barrier to seeking retribution.“.

As observed, according to the legal article, one of the obstacles to issuing a sentence and carrying out retribution is the existence of a paternal relationship, and not a maternal one. This means that if a father intentionally kills his child or grandchild, retribution will not be carried out, but the ruling in this case is not valid if the relationship is reversed, or if the killer is the mother of the victim.

It is necessary to explain the legal reasons and justifications for the enactment of the described law. It should be noted that, based on the principles of Hanafi jurisprudence, as well as the opinions of Islamic legal scholars and legislators, this law has been enacted and approved in accordance with Islamic laws. The main legal and philosophical reasons for this are as follows:

1 – Claim of consensus among early jurists and later religious authorities.

2 – Prophetic saying and narration from Imam Jafar Sadiq.

3 – The philosophy of the necessity of the sanctity of paternal causality in the existence of a child.

4 – The necessity of preserving the dignity of father’s authority over the child.

5 – The elevated position of the father in the family and his role in strengthening the foundations of shared life.

6 – The necessity of worshiping according to the sacred law and following divine commands.

Some of the supporters of the ruling on discrimination of punishment have written the following about this matter:

“Father is the reason for the existence of a child; therefore, a child cannot be the cause of his father’s demise. Furthermore, this ruling goes against the sanctity of fatherhood, and out of respect for him, the punishment of stoning is not applicable in cases of a child’s murder. The role and position of a father in the family system is so high that it becomes a major obstacle in carrying out the punishment of retribution. It also emphasizes the importance of preserving the family system and in such cases, the family’s important pillar should be protected and the payment of blood money should suffice. Another significant reason in the murder of a child is the bond of love and affection between a father and child, making it unbelievable and strange for a father to commit such a heinous act. This same love and affection also leads to doubts about the intentionality of the murder, ultimately preventing the execution of the punishment of retribution.”

Some other supporters of Article 301 of the Islamic Penal Code, who seem to have not found any philosophical justifications for the first category, have dealt with the issue more fairly and logically and have given such opinions:

“The basis for exempting a father from retribution punishment is purely religious and rational reasons do not have much strength in confirming this narrative. Divine orders are based on the principle of benefit, and God’s prohibitions are due to the harms that exist in the subject. Iran’s criminal law, especially its specific criminal law, is influenced by Imamite jurisprudence. In jurisprudence, intentional murder is considered retribution according to the text. The Islamic Penal Code of Iran states in Article 301 that a father or grandfather who kills their child will not be subject to retribution punishment… Considering that equality of souls is mentioned in the Quran and there is emphasis on implementing and reviving retribution in society, the question arises as to why there is discrimination in retribution for the murder of a child? In jurisprudence, just as retribution is specified for intentional murder, there are also obstacles under the title of “conditions for retribution”. One of these conditions is that the killer is

Mullah Mohsen Fayyaz Kashani says, “A father cannot seek retribution for the murder of his child through vengeance, and the reason for that is the text and consensus.”

Ayatollah Khomeini also explains in Tahrir al-Wasilah in the section on the branches of the act of retribution and as one of the conditions for the implementation of retribution, that the third condition is the absence of fatherhood. Therefore, a father cannot be killed for killing his child, and it is apparent that a father cannot be killed for killing his father, and likewise, it is revealed in his saying, peace be upon him and his family, that a son cannot be punished for the actions of his father, and a daughter cannot be punished for the actions of her father, unanimously. He also mentions in some narrations from Imam al-Sadiq, peace be upon him, that a father cannot be killed for his child, but a child can be killed for their father.

Now that we have become familiar with the main reasons and justifications of the verdict of Article 301 of the Islamic Penal Code, we will critique and respond to it, as well as address the harms of such unjust discrimination and preferences without reason.

1 – This statement that the ruling must be based on the consensus of claims is not correct. Firstly, it is not necessary for every Islamic ruling to be legislated. Secondly, the claim of consensus is not proven and the context of the ruling mentioned in the writing of the means also includes doubt. Thirdly, in criminal and governmental matters, the precedence of secondary rulings over primary rulings, taking into account the interests of society, is a common and precedent-setting matter. Fourthly, many contemporary jurists believe in suspending the implementation of punishments and retribution during the occultation of the Imam of the Time, and paying attention to this dynamic and useful theory can be effective in addition to approximating the domestic and international legal system, towards the mitigation of laws and elimination of discriminatory punishments with an appropriate and alternative approach.

2 – Honoring and considering someone as a legitimate ruler is not logical. How can one value the rulership and fatherhood of someone who deliberately and unjustly killed their own child? It seems that the narrations in this regard are not in line with the general verses about murder and retribution. Of course, delving into this subject is not within the expertise of the writer.

3 – This justification that the father is the reason and cause for the existence of the child and the disabled person cannot deny and eliminate their own cause is also not logical. Firstly, this attribution and causation also applies to the mother, and the difference between the two judgments is lost. Secondly, the impossibility or worthiness of the disabled person to deny their cause is beyond the scope of the discussion, as in the case of retribution from the father, the guardians of the child have exercised their right to retribution, not the child who has been killed.

4 – Holding onto the high position of the father in the family and the necessity of preserving his value, credibility, and dignity cannot justify his criminal actions or be the reason for his expertise and capability in enduring the punishment of intentionally killing his child. Firstly, the desire to kill and the savage nature that arises from it leaves no room for the continuation of value and credibility. Secondly, in the presence of these qualities and characteristics, there is no difference between the father and mother.

5 – The release of a father from retribution opens the way for those who are prone to committing criminal and violent acts, making it difficult to control or reduce domestic violence. When a person knows that they will receive more immunity and protection compared to others when committing a criminal act, they are unconsciously encouraged and motivated towards it, or in situations of temptation, it becomes harder for them to control themselves, making it easier, quicker, and more frequent for them to commit crimes.

6 – Perhaps the best response to justify the reasons for supporters of Article 301 of the Islamic Penal Code, in case of certainty and validity and the legitimacy of the punishment of father’s retribution, is to consider it as compliance with the holy Shari’a and the existence of hidden divine interests. In this case, it is also necessary and essential to take into account the necessities and requirements of today’s society and the possibility of benefiting from dynamic and progressive jurisprudential fatwas. Firstly, we must take steps towards reforming the Islamic Penal Code and abolishing or suspending life-depriving punishments (execution, stoning, retribution, etc.). Secondly, we must eliminate unjust discrimination and arbitrary preferences. Thirdly, we must determine appropriate solutions and improve criminal policies, and ultimately save society from increasing degradation.