Mazhabhanbali Analysis

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MazhabHanbali differentiates between the two conditions of unlawful sexual intercourse, whether it was being committed with the consent of the women or without her consent. If it was a non-consensual act and she was killed, the defender shall be liable for qisas. But if she was a consenting party to the unlawful sexual intercourse the defender shall not be liable for any punishment.
Whereas, consent of the parties for unlawful sexual intercourse is of no importance in Shari'ah and in such cases if the defender causes death of both the parties he will not be liable. In Shari 'ah the act shall not be justified unless he has witnessed the offence himself because in it is dealt under the general principles of private defence.
Attack on property: …show more content…
They support their opinion by a logical argument that it is not permissible for a person to allow someone to kill him or to indulge in unlawful sexual intercourse with him. A wilful failure to defend body or chastity will result in the violation of command, whereas in the case of property the owner has an absolute right to allow someone to take it. If he has a right to gift it or deliver it, he can withdraw his right to defend it. If the victim desires to defend, he can, however an abstention to defend will not lead to breach of any legal duty.
It is opined that avoiding defence of property to save life of the assailant is better than to cause his death or injure him. The opinion is a manifestation of a general principle that human life and safety should always take priority over property.
According to another opinion of MazhabHanbali jurists, the assailed is under a duty to defend property where he believes that his defensive acts would not lead to destruction of life of the offender. The opinion imposes a restriction that the defender while using force in defence of property, is allowed to use only such force that should not cause any serious harm to the

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