Ta’zeer punishment for dislikable matters
Fatwa No: 373714

Question

Assalamu alaikum, can a tazeer punishment be given to somebody who does makrooh actions? For example if one frowns at the religious police can he imprison him? And if a person sees a woman unintentionally who doesnt wear hijab and then says to other she is beautiful without lusting on her? What if it is a woman who wears niqab and one sees her face etc.accidently and he tells othets abt her beauty without lusting on her And she feels offended and can she demand a punishment? If so please explain why. Or the religious police can punish him as it may stir temptation among people etc. To put a stop to this evil.May Allah reward you with good

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

The jurists  may  Allaah  have  mercy  upon  them defined Ta’zeer to be a punishment for a sin for which there is no Hadd (penal punishments fixed by the Sharee’ah) or expiation in the Sharee’ah; so Ta’zeer, in principle, is not related to sins. In spite of this, the jurists broadened its boundaries.

Applying Ta’zeer when a dislikeable action is committed is something that some scholars consider to be permissible.

The Fiqh Encyclopedia reads:

There is a difference of opinion about the person who abandons a desirable action, and the person who does a dislikeable action. A group of scholars ruled that Ta’zeer is impermissible in this case, as the people are not held accountable for this, and there should be no Ta’zeer without being Islamcically held accountable for the action. Another group of scholars permitted it based on what ‘Umar  may  Allaah  be  pleased  with  him did. He applied Ta’zeer on a man who put down a sheep to slaughter it, and then started sharpening his knife while the sheep was in that condition (laying on seeing him sharpen). This act is only disliked. This ruling also applies to someone who abandons a desirable act.” [End of quote]

Besides, the commentary of Qaloobi (a Shaafi’i scholar) reads:

Ta’zeer may be applied for something that is not a sin, such as disciplining a boy or a non-Muslim, and to one who gets an income by selling an entertainment instrument which is permissible.” [End of quote]

Merely describing a woman to be beautiful or frowning at the police is not a sin, but one should not do that. Describing a woman to be beautiful may lead to being tempted by her, and frowning at the police is contrary to what is enjoined in the Sharee’ah that we should smile at people. So, if the person in authority –such as the ruler or his representative – considers to apply Ta’zeer for this, then he may do so, because it is not a condition that the Ta’zeer be applied only when there is a sin, as we have already mentioned.

The woman may take the matter to the ruler to study the case; this is a claim that needs evidence and it is more appropriate for the ruler [or the judge] to investigate this matter.

For more benefit, please refer to Fatwa 184083.

Allah knows best.

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