if one of the spouses has a right to it and the other steals from it, his hand is not cut off according to those who do not hold that one of them is to have his hand cut off for stealing the other's wealth. The mention of this has already passed.

Section: The one who steals from the spoils of war is not a ghall (one who embezzles from the spoils), and he is not treated like him regarding the burning of his saddlebags, nor is the ghall treated like the thief regarding the cutting off of his hand. Some of our companions mentioned that the thief's saddlebags are to be burned, because he is in the same category as the ghall, and because when the hadd (prescribed punishment) is averted from him, it is necessary that another punishment be legislated for him, like the thief of fruit who pays double what he stole. Our position is that the name "ghall" does not truly apply to him, nor is he in its meaning; because ghulul (embezzlement) occurs frequently due to it being the taking of wealth that has no guard and is generally not seen, so it requires a deterrent, whereas theft is not like that; for it is the taking of guarded wealth, so the need for a deterrent against it is less.

1686 - Issue; He said: (And if he has intercourse with a slave girl before she is divided, he is disciplined, but the hadd for zina is not reached, and the mahr (dower) of her like is taken from him and thrown into the division, unless she bears a child from him, then her value is upon him.)

This means if the one committing intercourse is one of the participants in the spoils, or from those whose child has a right in it, then there is no hadd upon him; because ownership is established for the participants in the spoils, so the person committing intercourse has a right in this slave girl even if it is small, so the hadd is averted from him due to the shubha (legal ambiguity). This is the opinion of Abu Hanifah and al-Shafi'i. Malik and Abu Thawr said: The hadd is upon him, because of the saying of Allah the Exalted: {The woman and the man who commit zina, flog each of them one hundred lashes}. This is a fornicator, and because he committed intercourse in other than his ownership, intentionally, and knowing of the prohibition, so the hadd is binding upon him, as if he had intercourse with someone else's slave girl. Al-Awza'i said: Everyone who has passed from our scholars says: He is subject to the lesser of the two punishments, one hundred lashes. Some jurists denied the establishment of ownership in the spoils and said: It is only established upon selection, as evidenced by the fact that...