Diyatdenotes the fine a murderer has to pay to the family of the victim in case he or she is granted pardon. It is believed that if a lady is murdered the fine to be be paid to her relatives would be half the amount of what would have been paid in case a man was murdered.
Consider now the verse of the Qur’ānwhich mentions this issue:
فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ (178:2)
Then for whom there has been some pardon from his brother, [the remission] should be followed according to the ma‘rūf and diyat should be paid with goodness. (2:178)
It is evident from this verse that the diyat should be paid according to the ma‘rūf of a society. Ma‘rūf means the customs and conventions of a society.
In the times of the Prophet (sws), the ma‘rūf of the Arab society was that the diyat of a woman was half that of a man. So while following the directive of the Qur’ānregarding diyat, the Prophet (sws) enforced the ma‘rūf of his society.
The ma‘rūf of different societies may be different and therefore the ma‘rūf of each society should be followed. In other words, Islam has not obligated Muslims to discriminate in this matter between a man and a woman, a slave or a free man and a Muslim or a non-Muslim. It wants them to follow the ma‘rūf of our society. Scholars have erroneously enforced the ma‘rūf of the Arab society of the times of the Prophet (sws). Since then, the wheel of fortune has revolved through fourteen more centuries and the tide of time has sped past innumerable crests and falls. Social conditions and cultural traditions have undergone a drastic change.
As per this Qur’ānicdirective, every society is to obey its custom, and since in our own society no law about diyat exists, those at the helm of affairs of our state can re-legislate in this regard. Ibn ‘Ābidīn, a celebrated Hanafite scholar, writes:
اعلم أن لمسائل الفقهية أما إن تكون ثابتة بصريح النص وهى الفصل الأول واما إن تكون ثابتة بضرب اجتهاد ورأي وكثير منها ما يبنيه المجتهد على ماكان في عرف زمانه بحيث لوكان في زمان العرف الحادث لقال بخلاف ما قاله أولا ولهذا قالوا في شروط الاجتهاد انه لابد فيه من معرفة عادات الناس فكثير من الأحكام تختلف باختلاف الزمان لتغير عرف أهله أو لحدوث ضرورة أو فساد أهل الزمان بحيث لوبقى الحكم على ماكان عليه أولا للزم منه المشقة والضرر بالناس ولخالف قواعد الشريعة المبنية على التخفيف والتيسير ودفع الضرر والفساد
It should be noted that juristic issues either stand proven by a categorical injunction which is the first type, or stand proven by ijtihād and opinion [which is the second type]. Most issues of the second category are based by the mujtahid upon the customs and traditions of a particular period in such a way that if he had been present in an age which had a different custom and tradition, he would have given a different opinion. Hence, about ijtihād, they also state that that one of the necessary conditions is to have a clear understanding of the habits and common practices of the people because with change in times a lot of the directives change. This may be due to a number of reasons. For example, if there is a change in the general custom, requirement of a situation or a fear of disorder in the general condition of the people and a directive is continued in its original state it might create difficulties for them or inflict a loss upon them; this would be against the principles of the sharī‘ahwhich are based upon facility, comfort, and prevention of damage and disorder.