IMPRISONMENT Arabic Sijn صجن, Habs حبس According to the Hanafi school of jurisprudence, the person upon whom punishment or retaliation is claimed, must not be imprisoned until evidence be given either by…
IMPRISONMENT Arabic Sijn صجن, Habs حبس
According to the Hanafi school of jurisprudence, the person upon whom punishment or retaliation is claimed, must not be imprisoned until evidence be given either by two people of unknown character (that is, of whom it is not known whether they be just or unjust), or by one just man who is known to the Qazi; “because the imprisonment, in this case, is founded on suspicion, and suspicion cannot be confirmed but by the evidence of two men of unknown character, or of one just man. It is otherwise in imprisonment on account of property; because the defendant, in that instance, cannot be imprisoned but upon the evidence of two just men; for imprisonment on such an account is a grievous oppression, and, therefore, requires to be grounded on complete proof. In the Mabsut, under the head of duties of the Qazi, it is mentioned that, according to the two disciples, the defendant, in a case of punishment for slander, or of retaliation, is not to be imprisoned on the evidence of one just man, because, as the exaction of bail is in such case (in their opinion) lawful, bail is. Therefore to be taken from him. When a claimant establishes his right before the Qazi, and demands on him the imprisonment of his debtor, the Qazi must not precipitately comply, but must first order the debtor to render the right; after which, if he should attempt to delay the payment in a case where the debt due was contracted for some equivalent (as in the case of goods purchased for a price, or of money, or of goods borrowed on promise of a return), the Qazi must immediately imprison him, because the property he received is a proof of his being possessed on wealth. In the same manner, the Qazi must imprison a refractory defendant who has undertaken an obligation in virtue of some contract, such as marriage or bail, because his voluntary engagement in an obligation is an argument of his possession of wealth, since no one is supposed to undertake what he is not competent to fulfill.
A husband may be imprisoned for the maintenance of his wife, because in withholding it he i s guilty of oppression; but a father cannot be imprisoned for a debt due to his son, because imprisonment is a species of severity which a son has no right to be the cause of inflicting on his father; in the same manner as in cases of retaliation or punishment. If, however, a father withhold maintenance from an infant son, who has no property of his own, he must be imprisoned; because this tends to preserve the life of the child. (Hidayah, vol. ii.)
Based on Hughes, Dictionary of Islam