Familial Immunity in Offences against Properties and Ownership
Journal Title: فقه و اصول - Year 2014, Vol 46, Issue 97
Abstract
Financial and economic relationships are undeniable realities and impressive factors in familial relations, and there are reciprocal interactions between these two. The existence of this relationship has caused the familial relations to be realized as effective in the penal destiny of aggressions against properties in the penal jurisprudence and statutes. In Islamic jurisprudence, familial immunity has been taken into consideration only in such cases as “lapse of legal punishment” in “theft” and as confined to “father-child” relations. Nevertheless, certain issues have to be examined as follows: 1. Determining “the domain of familial relation” effective in offences against properties and ownership; 2. Explanation of “the realm of offences against properties and ownership” effected by familial relations; 3. Description of “type of efficacy” of familial relations in offences against properties and ownership” Based on the effect of familial relations in theft leading to legal punishment (ḥadd), which is brought up in detail in jurisprudence – with a comparative look at the Sunni jurisprudence –, this writing explores into the above three issues and raises the fundamental question as to whether the existing judiciary approach in this respect is a desirable and sound one or not. The article’s hypothesis is the possibility of qualitative and quantitative development of familial immunity in offences against properties and ownership and its by-products; verification of non-limitedness of the domain of familial relation effective in offences against properties to father, paternal ancestors or mother; and non-limitedness of the domain of offences effected by familial relations to theft. The writer’s suggestion is recognition of familial immunity as one of the “legal excuses for non-punishment” in the context of article 227 bis of penal code, and the presented working procedure for this suggestion is the restoration of section 5 of clause 2 of article 8 of penal code approved in 1290 sh/1911 and the issuance of order to suspend prosecution – in case of existing familial relation between the criminal and the victim of crime.
Authors and Affiliations
‘Alī MurāD ḤAydarī
Keywords
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- EP ID EP184521
- DOI 10.22067/fiqh.v46i17.6308
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