Analysis of Domestic Violence under Islamic Criminal Law (Jināyah): A Qiṣāṣ and Taʾẓīr Perspective

Abstract

This study examines how Islamic criminal law (Jināyah) addresses domestic violence through its two principal non-Ḥudūd mechanisms, Qishash (retributive justice) and Taʾzīr (discretionary punishment). Drawing on a doctrinal approach, the research analyzes primary sources the Qur’an, Sunnah, classical fiqh treatises and contemporary scholarly fatwā literature, alongside illustrative case studies from Muslim-majority jurisdictions. It first maps the concept of domestic violence onto the Jināyah framework, distinguishing between severe physical injuries that may invoke Qishash (or its financial substitute, Diya) and the broader array of harm physical, verbal, emotional, and financial that falls under Taʾzīr. The findings reveal that Qishash is rarely applied in domestic settings except in instances of grievous bodily harm, whereas Taʾzīr accommodates both non-physical and lesser physical abuses through tailored sanctions (fines, imprisonment, counseling, or community service). However, the study also identifies significant implementation challenges sentencing inconsistency, patriarchal bias, limited judicial training, and inadequate victim support that undermine equitable outcomes. To strengthen Islamic legal responses to domestic violence, the research recommends clarifying Qishash thresholds, codifying Taʾzīr sentencing guidelines, providing specialized judicial training, and integrating interdisciplinary victim services. By harmonizing retributive and discretionary mechanisms within an ethics-infused framework of mercy and proportionality, Islamic criminal law can more effectively protect survivors, deter abuse, and promote restorative justice.