Praise be to Allaah.
Firstly:
With regard
 to this financial compensation, there may be two scenarios: 
1 – When it
 is paid only where a woman is forced into zina (rape), where the rapist is
 made to pay the mahr to his victim, or to pay the mahr along with
 compensation for loss of virginity – if she was a virgin – according to
 those who say that this is required. The compensation for loss of virginity
 is the difference between the mahr of a virgin and the mahr of one who was
 previously married. 
This money
 must be paid by the rapist, and the hadd punishment must be carried out on
 him, and it must be given to the victim if it is proven that she was forced
 into it. 
If that is
 the case, then there is no problem with it, rather this is the ruling of
 sharee’ah even if it is in accordance with customs. 
If we assume
 that they are unable to carry out the hadd punishment, but they can force
 the rapist to pay the mahr to his victim, then this is acceptable, because
 if it is not possible to do everything, we should do as much as we can do.
 Allaah says (interpretation of the meaning): 
“So keep
 your duty to Allaah and fear Him as much as you can”
[al-Taghaabun 64:16]
With regard
 to obliging the tribe to pay the mahr or help in doing so, there is no basis
 for that. Rather it must be paid from the wealth of the rapist, as stated
 above. Helping him to pay it means letting the rapist off lightly and
 encouraging rape. We will discuss the difference between the mahr and the
 compensation (for loss of virginity) below.                         
2 – If that
 is the procedure that is followed in all cases of zina, with no distinction
 between cases where the woman is forced into it (rape) and cases where she
 did it willingly, and the tribe is obliged to help the zaani pay this
 compensation, and that is regarded as a general ruling that all the tribes
 refer to, this is like a system of prostitution. The Prophet  (peace and
 blessings of Allaah be upon him) said:  
“The price
 of a dog is evil, and the earnings of a prostitute are evil and the earnings
 of a cupper are evil.” Narrated by Muslim (1568). 
And he said:
 “The price of a dog, the fee of a soothsayer and the earnings of a
 prostitute are not permissible.” Narrated by al-Nasaa’i (4293). 
It is
 obvious that this tribal law, which is known as saloom, is the ruling
 of Jaahiliyyah which is it is not permissible to judge by or to refer to for
 judgement, or to help with, because Allaah says (interpretation of the
 meaning): 
“And so
 judge (you O Muhammad) among them by what Allaah has revealed and follow not
 their vain desires, but beware of them lest they turn you (O Muhammad) far
 away from some of that which Allaah has sent down to you. And if they turn
 away, then know that Allaah’s Will is to punish them for some sins of
 theirs. And truly, most of men are Faasiqoon (rebellious and disobedient to
 Allaah).
50. Do
 they then seek the judgement of (the days of) Ignorance? And who is better
 in judgement than Allaah for a people who have firm Faith”
[al-Maa'idah 5:49, 50]
“And
 whosoever does not judge by what Allaah has revealed, such are the Kaafiroon
 (i.e. disbelievers — of a lesser degree as they do not act on Allaah’s
 Laws)”
[al-Maa’idah 5:44]
“Have you
 not seen those (hypocrites) who claim that they believe in that which has
 been sent down to you, and that which was sent down before you, and they
 wish to go for judgement (in their disputes) to the Taaghoot (false judges)
 while they have been ordered to reject them. But Shaytaan (Satan) wishes to
 lead them far astray”
[al-Nisa’
 4:60] 
“But no,
 by your Lord, they can have no Faith, until they make you (O Muhammad) judge
 in all disputes between them, and find in themselves no resistance against
 your decisions, and accept (them) with full submission”
 [al-Nisa’ 4:65] 
And there
 are other verses which indicate that it is obligatory to refer for judgement
 to the laws of Allaah and to reject the rulings of Jaahiliyyah that go
 against them. Allaah has decreed and prescribed that the zaani should be
 flogged if he is a virgin and stoned if he is a non-virgin, and this applies
 to both men and women. Every ruling that goes against this is a ruling of
 jaahiliyyah, which must be rejected and we must strive to abolish it. 
The scholars
 stated that referring to Bedouin laws and tribal customs that go against
 sharee’ah is kufr. 
Shaykh
 Muhammad ibn Ibraaheem (may Allaah have mercy on him) said: The sixth (type
 of major kufr with regard to referring to laws for judgement) is the law by
 which many of the heads of Bedouin clans and tribes rule, based on the
 sayings of their forefathers and their customs which they call their
 saloom, which they inherited from them and they judge by it and refer to
 it for judgement in the event of disputes, based on the rulings of
 Jaahiliyyah or turning away from the rulings of Allaah and His Messenger.
 There is no power and no strength except with Allaah. End quote from the
 essay, Tahkeem al-Qawaaneen. 
Shaykh ‘Abd
 al-‘Azeez ibn Baaz (may Allaah have mercy on him) said in an essay entitled
 “The ruling on referring for judgement to tribal customs and traditions”: 
From ‘Abd
 al-‘Azeez ibn Baaz to whoever among the Muslims reads it: may Allaah help me
 and them to find out the truth and follow it. 
Peace be
 upon you and the mercy of Allaah and His blessings… 
The reason
 for this is to answer some questions that have been asked by one of our
 sincere brothers in the Kingdom. He says that in his tribe, and in some
 other tribes, there are bad tribal customs for which Allaah has not sent
 down any authority, such as not referring for judgement to the Book of
 Allaah and the Sunnah of His Prophet  (peace and blessings of Allaah be
 upon him), and turning instead to tribal customs and ignorant traditions. 
One of these
 is the concealment of testimony and not bearing witness out of tribal
 loyalty, or bearing false witness out of tribal loyalty also. And there are
 other reasons that may lead some people to go against sharee’ah. 
Because of
 our duty to be sincere towards Allaah and His slaves, I say – and Allaah is
 the source of strength: 
The Muslims
 are obliged to refer for judgement to the Book of Allaah and the Sunnah of
 His Prophet  (peace and blessings of Allaah be upon him) in all things,
 and not to man-made laws or tribal customs. Allaah says (interpretation of
 the meaning): 
“Have you
 not seen those (hypocrites) who claim that they believe in that which has
 been sent down to you, and that which was sent down before you, and they
 wish to go for judgement (in their disputes) to the Taaghoot (false judges)
 while they have been ordered to reject them. But Shaytaan (Satan) wishes to
 lead them far astray”
[al-Nisa’
 4:60] 
“Do they
 then seek the judgement of (the days of) Ignorance? And who is better in
 judgement than Allaah for a people who have firm Faith”
[al-Maa'idah 5:50]
No Muslim
 should give precedence to the rule of anyone other than Allaah over the rule
 of Allaah and His Messenger, no matter who he is. Just as worship is for
 Allaah alone, so too is the judgement or decision, as He says
 (Interpretation of the meaning): 
“The
 decision [hukm] is only for Allaah,”
[al-An’aam 6:57]
Referring
 for judgement to anything other than the Book of Allaah or the Sunnah of His
 Messenger  (peace and blessings of Allaah be upon him) is one of the
 greatest of evils and the most abhorrent of bad deeds, but as to whether the
 one who does that is a kaafir, that is subject to further discussion. Allaah
 says (interpretation of the meaning): 
“But no,
 by your Lord, they can have no Faith, until they make you (O Muhammad) judge
 in all disputes between them, and find in themselves no resistance against
 your decisions, and accept (them) with full submission”
 [al-Nisa’ 4:65] 
So there is
 no faith for the one who does not refer for judgement to Allaah and His
 Messenger  (peace and blessings of Allaah be upon him) with regard to
 the fundamentals of religion and its minor issues and with regard to
 disputes concerning rights and duties. Whoever refers for judgement to
 anything other than Allaah and His Messenger has referred for judgement to
 the Taghoot (false judges). 
Based on
 this, the tribal Shaykhs must not judge among the people according to tribal
 customs that have no basis in Islam and for which Allaah has not sent down
 any authority. Rather they must refer any disputes among their tribes to the
 sharee’ah courts. There is no reason why they should reconcile between
 disputants in ways that do not go against sharee’ah, so long as they consent
 to that and there is no compulsion, because the Prophet  (peace and
 blessings of Allaah be upon him) said: “Reconciliation between Muslims is
 permissible, except a reconciliation that forbids something that is
 permitted or permits something that is forbidden.” And all the tribes should
 not agree to anything but the rule of Allaah and His Messenger … End quote
 from Majmoo’ Fataawa wa Maqaalaat al-Shaykh IbnBaaz (5/142). 
The Standing
 Committee for Issuing Fatwas was asked: What is the ruling if two men argue
 and refer for judgement to customary laws, and each of them chooses someone
 they think is of good character, and they agree to whoever among the tribal
 Shaykhs they choose to judge between them, and they sit before him and each
 of them states his case against the other. If it is a simple case, he rules
 usually rules that the one who is in the wrong should slaughter an animal
 and invite his opponent to the feast; and if it is a serious case he gives a
 judgement of al-janbiyyah, which in the past meant that they would strike
 him on the head with a sharp instrument until his blood flowed. But nowadays
 they pay the janbiyyah in money and they call this reconciliation. This is
 something that is widespread among the tribes and they call it a madhhab,
 and if you do not approve of what they do, they call you qaati’ al-madhhab
 (one who has forsaken the madhhab). What is the ruling on this? 
Answer: The
 Muslims must refer for judgement to Islamic sharee’ah, not to tribal laws.
 What you have mentioned is not a reconciliation in the true sense, rather it
 is referring for judgement to customary principles. Hence they call it a
 madhhab, and they say of the one who does not agree with the ruling that he
 has forsaken the madhhab. Their calling it a reconciliation does not alter
 the fact that it is referring for judgement to Taghoot (false judges). The
 ruling that they stipulate, of slaughtering an animal or striking the head
 with a sharp instrument until the blood flows is not a shar’i ruling. 
Based on
 this, the tribal Shaykhs should not judge between people in this manner, and
 the Muslims should not refer to them for judgement, until they (the Shaykhs)
 turn away from that to Islamic laws. Today – praise be to Allaah – the
 authorities have appointed judges who judge between the people and resolve
 their disputes in accordance with the Book of Allaah and the Sunnah of His
 Messenger  (peace and blessings of Allaah be upon him) and who solve
 their problems in ways that do not go against the laws of Allaah, may He be
 exalted. So there is no excuse for anyone to refer for judgement to false
 judges, after the appointment of scholars of Islam to whom they may refer
 for judgment and who judge in accordance with the law of Allaah. 
And Allaah
 is the Source of strength. May Allaah send blessings and peace upon our
 Prophet Muhammad and his family and companions. 
The Standing
 Committee for Academic Research and Issuing Fatwas. 
‘Abd-Allaah
 ibn Qa’ood, ‘Abd-Allaah ibn Ghadyaan, ‘Abd al-Razzaaq ‘Afeefi and ‘Abd
 al-‘Azeez ibn Baaz. End quote. 
As that is
 the case, it is not permissible for you to take part in his judgement or to
 pay the money or take it. Rather you must disavow yourself of that, and you
 must advise these people and explain to them the seriousness of what they
 are doing by passing judgements that are not in accordance with sharee’ah.
 They have no excuse for that, even if their governor is a Christian who does
 not apply the rulings of Allaah. They have to advise one another and strive
 to apply the rulings of sharee’ah as much as they can; whatever they are
 unable to apply, it is not permissible for them to invent rulings for it, no
 matter what interests they think may be served by that, otherwise they will
 be sinners who are introducing jaahili ways into Islam. 
Secondly:
The majority
 of Maaliki, Shaafa’i and Hanbali fuqaha’ are of the view that if a woman is
 forced into zina (raped), then the rapist must pay a mahr equal to that of
 her peers. 
If she was a
 virgin, is she entitled to compensation for loss of virginity along with the
 mahr? 
Some of the
 fuqaha’ are of that view, and it was narrated from Ahmad (may Allaah have
 mercy on him), but the well known view of the Hanbalis is that compensation
 for loss of virginity is not required, and the one who is forced into zina
 can only take a mahr equal to that of her peers. The Maalikis also pointed
 out that this mahr is not to be paid collectively by the male relatives of
 the rapist, because zina is a deliberate action, it is not something that
 can happen by mistake.  
The Hanafis
 differed from that and did not impose a mahr for a woman who is forced into
 zina, whether she was a virgin or not. 
This was
 also narrated from Ahmad (may Allaah have mercy on him), and was the view
 favoured by Shaykh al-Islam Ibn Taymiyah, who said concerning the mahr:  it
 is khabeeth (evil). 
Thirdly:
If he forced
 her to commit zina and he destroyed the barrier between the urethra and
 vagina, then he must pay the mahr and also compensation, but there was a
 difference of opinion as to the amount. The Hanafis and Hanbalis say that it
 is one-third of the diyah, and the Shaafa’is say that it is the full diyah.
 The Hanafis agree with them if he destroys the barrier between the urethra
 and vagina and she can no longer control her urine.  
See
 al-Mabsoot (9/53), al-Muntaqa by al-Baaji (7/77), al-Taaj
 wa’l-Ikleel (8/342), Mughni al-Muhtaaj (4/75), al-Mughni
 (7/209, 8/373), al-Insaaf (8/306-308), al-Mawsoo’ah al-Fiqhiyyah
 (5/297, 21/95). 
Conclusion:
 The mahr which is paid to the woman who is forced into zina (raped), and the
 mahr and compensation for loss of virginity which is paid to a virgin who is
 forced into zina, must be paid from the wealth of the zaani and not by his
 male relatives, and it must go to the woman who was forced into zina, not to
 her relatives. As for the woman who willingly commits zina, she is not
 entitled to anything. 
All of this
 comes after zina has been proven and the hadd punishment has been carried
 out. This makes clear the difference between what is narrated in sharee’ah
 and the ruling of tribal customs. 
And Allaah
 knows best.

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