Judgement Based on Oaths along with the Testimony of a Single Witness

5 Yahya said that Malik said from Ja'far ibn Muhammad from his father that the Messenger of Allah, may Allah bless him and grant him peace, pronounced judgement on the basis of an oath along with a single witness.

[In Muslim]

6 From Malik from Abu'z-Zinad that 'Umar ibn 'Abd al-'Aziz wrote to 'Abd al-Hamid ibn 'Abd ar-Rahman ibn Zayd ibn al-Khattab who was the governor of Kufa, " Pronounce judgement on the basis of an oath along with one witness."

7 Malik related to me that he heard that Abu Salama ibn 'Abd ar-Rahman and Sulayman ibn Yasar were both asked, " Does one pronounce judgement on the basis of an oath along with a single witness? " They both replied, " Yes."

Malik said, " The precedent of the sunna in judging by an oath along with a single witness is that if the plaintiff takes an oath along with presenting his witness, he is confirmed in his right. If he draws back and refuses to take an oath, the defendant is made to take an oath. If he takes an oath, the claim against him is dropped. If he refuses to take an oath, the claim is confirmed against him."

Malik said, " This procedure pertains to property cases in particular. It does not occur in any of the hadd punishments, nor in marriage, divorce, freeing slaves, theft or slander. If someone says, 'Freeing slaves comes under property, ' he has erred. It is not as he says. Had it been as he says a slave could take an oath along with one witness, if he could find one, that his master had freed him.

" However, when a slave lays claim to a piece of property, he can take an oath along with presenting one witness and demand his right as the freeman demands his right."

Malik said, " The sunna with us is that when a slave brings somebody who witnesses that he has been set free, his master is made to take an oath that he has not freed him, and the slave's claim is cancelled."

Malik said, " The sunna about divorce is also like that with us. When a woman brings somebody who testifies that her husband has divorced her, the husband is made to take an oath that he has not divorced her. If he takes the oath, the divorce does not proceed."

Malik said, " The sunna in cases of divorce and freeing a slave is one witness. The right to make an oath only belongs to the husband of the woman and the master of the slave. Freeing is a hadd matter, and the testimony of women is not permitted in it, because when a slave is set free, his inviolability is affirmed and the hadd punishments are applied for and against him. If he commits fornication and is muhsan, he is stoned for it. If he kills a slave, he is killed for it. Inheritance is established for him, between him and whoever inherits from him. If somebody disputes this, arguing that if a man frees his slave and then a man comes to demand from the master of the slave payment of the debt, and a man and two women testify to his right, that establishes the right against the master of the slave, so that his freeing of the slave is cancelled if the slave is his only property - inferring by this case that the testimony of women is permitted in cases of setting free - the case is not as he suggests (i.e. it is a case of property, not freeing). It is rather like a man who frees his slave, and then the claimant of a debt comes to the man and takes an oath along with one witness, demanding his right. By this, the freeing of the slave would be cancelled. Or else a man is brought who has frequent dealings and transactions with the master of the slave and he is asked to take an oath that he doesn't owe what the claimant claims. If he draws back and refuses to take an oath, the claimant takes an oath and his right against the master of the slave is confirmed. This would cancel the freeing of the slave if it is confirmed that property is owed by the master."

Malik said, " It is the same with a man who marries a slave-girl and then the master of the slave-girl comes to the man who has married her and claims, 'You and so-and-so have bought my slave-girl from me for such an amount of dinars.' The slave-girl's husband denies that. The master of the slave-girl brings a man and two women and they testfy to what he has said. The sale is confirmed and his claim is considered to be true. So the slave-girl is haram for her husband and they have to separate even though the testimony of women is not accepted in divorce."

Malik said, " It is also the same when a man accuses a supposedly free man of a hadd crime and then a man and two women come and testify that the accused is in fact a slave. That would remove the hadd from the accused after it has been proved against him, even though the testimony of women is not accepted in accusations involving hadd punishments."

Malik said, " Another similar case in which judgement appears to go against the precedent of the sunna is when two women testify that a child was born alive. This would effect inheritance if a situation arose where he was entitled to inherit, and the child's property would go to those who inherited from him if he dies, and it is not necessary that the two women witnesses should be accompanied by a man or an oath even though it may involve vast possessions of gold, silver, livestock, gardens and slaves and other properties. However, had two women testified to one dirham or more or less than that in a property case, their testimony would not affect anything and would not be permitted unless they came with a witness or took an oath."

Malik said, " There are people who say that an oath is not acceptable with only one witness and they argue by the word of Allah, the Blessed, the Exalted whose word is the Truth, 'Two men among you should act as witnesses. But if there are not two men, then a man and two women with whom you are satisfied as witnesses.' (2: 282) Such people argue that if he does not bring one man and two women, he has no claim and he is not allowed to swear an oath with one witness."

Malik said, " Part of the proof against those who argue in this way is to reply to them, 'Do you think that if a man claims property from another man, the one from whom he claims it should not swear that the claim is false? ' If he swears, the claim against him is dropped. If he refuses to swear an oath, the claimant is made to swear an oath that his claim is true, and his right against his companion is established. There is no dispute about this with any of the people nor in any country. By what does the doubter take this? In what place in the Book of Allah does he find it? So if he confirms this, let him confirm the oath with one witness, even if it is not in the Book of Allah, the Mighty, the Majestic. It is enough that this is the precedent of the sunna. However, man wants to recognise the proper course of action and the location of the proof. In this there is a clarification for what is obscure about that, if Allah ta'ala wills."

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