Question:
Assalamualaikum Sahibus Samahah Mufti. I want to ask who should pay for damages if something is purposely broken by a very young child (who has not reached mumayyiz)?
Hope for an explanation from Mufti. Thank you.
Answer:
Waalaikumussalam wrt wbt,
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
Indeed, Allah SWT does not hold children, a sleeping and crazy person responsible as stated by the Prophet PBUH:
رُفِع القلمُ عن ثلاثةٍ: عن النّائمِ حتّى يستيقظَ وعن الغلامِ حتّى يحتلِمَ وعن المجنونِ حتّى يُفيقَ
"There are three people whose actions are not recorded, a sleeping person till he awakes, a child till he is a grown up, and an insane person till he is restored to reason or recovers his sense."
Sunan Abu Daud (4403) and Ibn Hibban (142)
The meaning of which ‘whose actions are not recorded’ is they are not held responsible/accountable and is not punished or considered sinful for anything that they did. (Refer Faidh al-Qadir Syarh Jami’ al-Saghir, 4:46)
Thus, anything that is done by these three groups of people including children who has not reached puberty, regardless of whether it is on purpose oR otherwise, then they are not punished. This is in accordance with an Islamic legal maxim:
عَمْدُ الصَبِيّ خَطَأٌ
“An intentional action of a child is considered as a mistake of his.”
Hence, for a baby or child who has not reached puberty, when they commit something that they deserve to be punished, then they are not punished like an adult would, such as the punishment of hudud. However, he can be punished through ta’zir which is to educate or give lessons to the child. The reason is they are immature in their thought process and their intentional actions are considered as a mistake on their part. (Refer Usul Fiqh Li Abd Wahab Khalaf, 137).
The same goes for the Prophet Muhammad PBUH’s ummah who are forgiven by Allah SWT if they are forced to do something, it is considered as a mistake or forgetfulness. The Prophet PBUH said:
إنَّ اللهَ تَجاوَزَ لِأُمَّتي عما استُكرِهوا عليهِ، وعنِ الخَطَأِ والنِّسيانِ
“Indeed, Allah SWT forgives my ummah from things that they are forced to do, their actions are due to a mistake (unintentional) and forgetfulness.”
Musnad Ahmad (561)
Furthermore, jurists explained that although there are no punishments for them, damages are still applicable for it involves the rights of others. This is stated in the book Tuhfat al-Muhtaj Syarh al-Minhaj:
ولا عقوبة على صبى ومجنون ومكره وإن ضمنواً النفس والمال
There is no punishment on children, the insane and forced people although they have to pay the damages for a life (diyat) and property broken or damaged. (Refer Tuhfat al-Muhtaj, 4:151)
The reason is basically, the property damaged is the right or owned by others, whether it is done on purpose or not should be compensated. In this matter, al-Hafiz Ibn Abd Barr stated:
الأمر المجتمع عليه عندنا في ذلك أن الأموال تُضمن بالعمد والخطأ
We have agreed on this matter where the broken goods (or property) should be compensated whether it is done purposely or not. (Refer al-Istizkar, 7:279)
Thus, in this issue when a child purposely broke something owned by another person then first the damages should be paid using the property of the child if it is sufficient. However, if the child does not have any money or the money is insufficient, then his parents or wali is permissible to pay for the damages but it is not wajib for them to do so.
إن أتلف صبي مال غيره يلزم الضمان من ماله وإن لم يكن له مال ينتظر إلى حال يسر ولا يضمنه وليه
If a child damaged the property of others, then it is wajib for him to compensate it with his own property, if he is incapable, then it is delayed until he is capable and it is not wajib for his wali to pay it on his behalf. (Refer Fiqh al-Islami Wa Adillatuhu, 4:297)
Conclusion
According to the above discussion, we surmise that a child who has not reached mumayyiz is not punished except with a punishment that serves as a lesson to educate the child. While the damages of the broken goods should be paid using the child’s own property if he owns any property.
However, considering that usually, a very young child does not own any property, then his parents should pay for the damages on behalf of the child for they are responsible to take care of the child and ensure that the child did no such thing.
Remember that the Prophet PBUH advised us to protect life, property and dignity of a Muslim and we should not violate or harm them. The Prophet PBUH said:
كُلُّ المُسْلِمِ على المُسْلِمِ حَرامٌ، دَمُهُ، ومالُهُ، وعِرْضُهُ
“Every Muslim’s blood, property and honor are unlawful to be violated by another Muslim.”
Sahih al-Bukhari (6064) and Sahih Muslim (2564)
May Allah SWT give us the correct understanding in practising His commandments and bless us with guidance to worship Him with sincerity. Amin.
Wallahua’lam.