The Rules for Abortion and Causing Miscarriage

(Isqt-i-Haml and Isqt-i-Janin in the Pakistan Penal Code)

Background:
Until 1990, abortion in Pakistan was regulated by century-old provisions of the Penal Code of 1860 which had been developed for India by the British colonial government and remained in force in Pakistan following independence. Under this Code, abortion was a crime unless performed in good faith in order to save the pregnant womans life. Article 312 of the Penal Code provided that any person performing an illegal abortion was subject to imprisonment for three years and/or a fine; if the woman was quick with child, the penalty was imprisonment for up to seven years and payment of a fine. The same penalty applied to a woman who caused herself to miscarry.

Following a 1989 decision of the Pakistani Supreme Court, which held that part of the Penal Code of 1860 dealing with offences against the human body was invalid because it was repugnant to the injunctions of Islam, Pakistan revised its law in this area, reformulating a number of its provisions to conform to the principles of Islamic law. The revised law came into effect provisionally in 1990 and became permanent law in 1997. According to this law the issue of causing miscarriage/abortion in 338, 338A, 338B, and 338C. The two offences dealt with are isq aml and isq jann.

Imran Ahsan Khan Nyazee has discussed the issues of miscarriage and abortion according to Islamic law in light of the text of Hanafi jurists; he has described the distinction between the two offences and discussed different punishments provided by Shariah for the offenders In this article Imran Ahsan Khan Nyazee has translated the text of great Hanafi jurist Ab Bakr al-Ksn from the Book of jinyt in which he has described the different types of jinayats quite briefly he then discusses the Jinyah Against the Jann with the views of other jurists and an analysis of the various opinions to arrive at the rules for causing abortion and miscarriage. The meaning of the term jann, as well as other terms used by the jurist.

JINAYAH AGAINST JANIN:

As for jinyah against what is life in some respects and not in others, which Is the jann, it is like someone striking at the belly of the pregnant woman and she delivers the jann; this invokes legal rules. The general statement about this is that the jann may: (1) either be [a] free [person], where the female is a freewoman, or is a slave girl who has conceived her masters child, or has conceived from a person whom she married deceptively (posing as a freewoman); or it is a slave. Again, the woman may have delivered it dead or alive. If it is a freeperson and has been delivered dead, then there is liability for the ghurrah.

Evidence regarding ghurrah from Tradition:

It is narrated by Mughrah ibn Shubah (God be pleased with him), who said: I was among two females when one of them struck the other with a tent-pole. The woman delivered a lifeless jann and then died. The Messenger of Allah (pbuh) imposed the payment of diyah (blood-money for life) by the qilah of the female offender, as well as the payment of ghurrah.

Ghurrahs meaning & value:

The term ghurrah, in the terminology of the law, became the name for a male or female slave having a value of five hundred or valued at five hundred. The obligation of ghurrah is equal to one-half of ten percent of the diyah. The payment of the ghurrah is obligatory on the qilah, due to the tradition of the Messenger of Allah (pbuh). As for the person to whom it is paid, it is the inheritance of the heirs of The jann, according to the farid (shares) fixed by Allah, the Glorious and the Exalted. We (anafs) maintain that the ghurrah is a counter-value (compensation) for the life of the jann, and a counter-value for life becomes inheritance like the diyah. The above is the case when she delivered it dead.

If, however, she delivers it and it is alive and then dies, then there is a full diyah (to be paid) from which the striking offender does not inherit anything, this is the case when a single jann is delivered.

If she delivers two and both are dead, then for each one of them there is one ghurrah. If they were both alive and then died, then for each one there is (separate) diyah, due to the presence of the cause of obligation for each one of them, and that is destruction (of life). If the mother dies from the blow and the jann emerges alive and dies thereafter, then he is liable for the payment of two diyas: a diyah for the mother and a diyah for the jann, due to the presence of the cause of both obligations, which is the killing of two human beings. If the jann emerges dead after the mothers death, he is liable for the diyah of the mother, and he has to pay nothing for the jann. Al-Shfi, God bless him, said that he has to pay ghurrah for the jann in this case. All the above applies when the jann is free. If it is a slave, and it emerges dead then there is onehalf of ten percent of its value if it is a male, and tenth of its value if it is a female. It is related from Ab Ysuf that in the case of the jann of a slave woman the loss in the value of the mother is to be paid. Al-Shfi said that a tenth of the value of the mother is to be paid. If it is established that the jann is to be legally acknowledged for itself, and that the obligation for it(s loss) is amn, then this consideration leads to the conclusion that in the jann of a slave woman, if it (the jann) is a slave, is one-half of ten percent of its value if it is a male, and ten percent of its value if it is a female. The rule then is that each case in which a ghurrah is to be paid for a free jann, for the slave jann one-half of ten percent of the value is to be paid if it is a male and ten percent of the value if it is a female. In each case where the woman beaten is a freewoman the full diyah has to be paid, and in the case of the slave woman the value has to be paid. In each case where nothing is to be paid for the jann there, nothing is to be paid for the jann here, on the basis of what we said with respect to the free jann without any differences. The exception is that the obligation in the case of the jann of the slave woman, the payment is charged from the wealth of the offender immediately, and it is not to be borne by the qilah. The obligation in the case of the jann of the freewoman is imposed on the qilah.

ABORTION:
It is a situation where the mother of the child wishes to get rid of the child conceived in her womb. A physician or some person is going carry out her wishes. The differences between this case and the case discussed by the jurists are obvious. In that case, it was the mother who was attacked and the child was lost as an indirect consequence. In this case, it is the child itself who is under attack by persons who wish to terminate its life. There is no shubhah (doubt) of any kind about the child being alive inside the womb in this case, whereas in that case its being alive at the time of the blow was in question. In that case, the offender intended to injure the mother and not the fetus. In this case, the offenders are fully aware that the child is alive and they have full mens rea or intention to destroy the defenseless and helpless child. Killing a living human being amounts to murder or Qatl Amd, as the jurists have acknowledged above. The penalty for murder is qi. When qi cannot be implemented due to lack of perfect equality, diyat is imposed.

If the life of the mother is threatened and has to be saved, it is the mother that will be saved, as she represents life in the full sense, while the jann is life in some senses and not in others. Nevertheless, it is the intentional taking of life of the child therefore, the mother must pay the ghurrah to the heirs. In the case of the tradition, no Tazr was awarded to the offender by the Sunnah, and the only liability was the imposition of the ghurrah. As this case is that of intentional destruction, the Imam (ruler) at his discretion may award an additional penalty under his Siysah jurisdiction. This may be thirty-nine stripes for both the physician and the mother of the destroyed child to be awarded in a public square next to the main mosque.

PROBLEMS WITH LAW OF ISQAT-I- HAML AND ISQAT-I-JANIN:

The rules laid down by the jurists prescribe the payment of the ghurrah for the indirect causation of miscarriage. For purposes of this payment, intention is not taken into account, as the compensation is for the loss caused. The four sections in the Pakistan Penal Code, lay down the same rules for isqt-i-aml and isqt-i-jann. In addition to this, the sections also prescribe

punishment by way of imprisonment. Like the rules of the jurists, the sections ignore intention in certain cases. In other words, there is strict liability for both financial compensation as well as the punishment of imprisonment. It is to be noted that the rules of the jurists, based on the tradition, do not prescribe any punishment in addition to the payment of the ghurrah. . The section on isq-i-haml does not impose a financial penalty, but provides punishment in the same way as above. Two changes need to be made in this section too. First, one-twentieth diyah should be imposed in this case too. Second, no punishment should be provided for accidental miscarriage or one caused through indirect causation.

It is, therefore, necessary that two separate categories should be made for this law. The first should impose one-twentieth of the diyah for all cases of causing miscarriage that are without the consent of the woman, and where the woman is harmed and the intention is not to hurt the child. No distinction needs to be made on the basis of the formation or non-formation of organs. The act of causing miscarriage in this case should not be criminalized. The second category should be the case of the intentional causing of miscarriage, whether it is with the consent of the woman or without her consent. One-twentieth diyah should be imposed in these cases too along with punishment. No distinction needs to be made on the basis of the formation or non-formation of organs.

The Ruling
The following rules emerge: The ghurrah or one-twentieth of the diyah is to be paid in all cases of miscarriage (Isq), whether of the Haml or of the jann. In cases of the intentional causing of miscarriage, punishment, in addition to the ghurrah, may also be provided as Tazr under the Siysah jurisdiction of the ruler. When abortion is carried out in the case of necessity, to save the life of the mother, a ghurrah or one-twentieth of the diyah has to be paid by the mother.