When the number of witnesses to zina is not complete

This part belongs to the full section: All sections of this part.

The minimum number of witnesses (niçab al-chahada) varies according to the nature of the right involved: four male witnesses for zina, two male witnesses for the other legal punishments (hudud) and legal retaliation (qisas), one man and two women for debts and property, and the testimony of women alone for what men do not see, such as childbirth or breastfeeding. The juristic tradition also settles delicate cases: the testimony of zina whose number is not complete, judgment by a witness and an oath, the formula required to deliver testimony, and testimony upon testimony. The following sheets present the positions of the schools (Hanafi, Maliki, Shafi'i, Hanbali) with their textual proofs, their hadiths and their classical references.

When the number of witnesses to zina is not complete

Imam an-Nawawi (may Allah have mercy on him) said: they reached consensus (ijma') that the evidence consists of four witnesses, male and just (odoul), when the testimony concerns zina itself, and it is not accepted below four ("Charh Sahih Mouslim", 11/192).

Imam Ibn Qoudama (may Allah have mercy on him) said: the Muslims reached consensus that less than four witnesses is not accepted in zina, and Allah the Most High stated it explicitly in a text ("Al-Moughni", 10/155). Ibn al-Qayyim (may Allah have mercy on him) said: judgment is established by four free men, in the matter of the punishment of zina and of sodomy (liwat); as for zina, it is by text and consensus; as for sodomy, a group said that it is measured against zina in the niçab of testimony just as it is measured against it in the punishment. Another group said: rather it falls under the name of zina, for it is intercourse in a forbidden place, something the Arabs did not know; so these latter say that it falls under the name of zina legally ("At-Tourouq al-Hikamiyya", 1/239).

When the number of witnesses to zina is not complete: the majority of jurists (the Hanafis, the Malikis, the Shafi'is according to the madhhab, and the Hanbalis according to the madhhab) hold that if fewer than four testify, their testimony is not accepted and they are accusers (qadhaf): all of them receive the punishment of slanderous accusation (qadhaf) if the accused person requests it. This is because Abu Bakra, Nafi' ibn al-Harith and Chibl ibn Ma'bad testified to zina against al-Mughira ibn Chou'ba before 'Omar ibn al-Khattab; and when Ziyad did not state explicitly what he had seen, but only said that he had seen an ugly thing, 'Omar rejoiced and praised Allah.

I saw an ugly thing; 'Omar rejoiced and praised Allah, and he did not apply the punishment to him, although there was an assembly of Companions, and no one objectedAuthentic narration reported by at-Tahawi (2/286-287)

'Omar therefore waived the punishment from him because he had not stated the accusation explicitly, and he lashed the three with the punishment of slanderous accusation. Ibn Qoudama said: when the witnesses to zina are not complete, the punishment is due upon them in the view of most people of knowledge, among them Malik, ach-Chafi'i and the people of opinion (ahl ar-ray); Abu al-Khattab mentioned two reports about them, and two positions are attributed to ach-Chafi'i: the first: no punishment upon them, for they are witnesses, so the punishment does not become obligatory upon them, just as if four had testified among whom one was a sinner (fasiq).

Our argument (in the Hanbali school): the word of Allah the Most High:

"And those who accuse chaste women and then do not bring four witnesses, lash them with eighty lashes"

Surat An-Nur, 4

This verse imposes flogging upon every accuser who did not produce four witnesses for what he claims; and the consensus of the Companions: 'Omar lashed Abu Bakra and his two companions when the fourth did not complete his testimony, in the presence of Companions and no one objected.

Salih narrates in his masail, through his chain, from Abu Othman an-Nahdi:

A man came to 'Omar and testified against al-Mughira ibn Chou'ba, and 'Omar's color changed; then another came and testified, and 'Omar's color changed; then another came and testified, and 'Omar became angry; then a young man came limping on both his hands. 'Omar said: "What do you have, O Salh al-'Ouqab?" and he shouted at him. Abu Othman said: "By Allah, I nearly fainted." He said: "O Commander of the Faithful, I saw an ugly thing." He said: "Praise be to Allah who did not let Satan delight in the companions of Muhammad." Then he ordered that this group be lashedAuthentic narration reported by at-Tahawi (2/286-287)

In another version, when 'Omar received the testimony against al-Mughira, three testified and Ziyad remained; 'Omar said:

I see a handsome young man, and I hope that Allah will not disgrace through his tongue a man among the companions of Muhammad, the Messenger of Allah. He said: "O Commander, I saw a he-creature urinating, a breath panting, and I saw its two legs above his neck like two donkey's ears, and I do not know what was beyond that." 'Omar said: "Allah is greater", and he ordered the three to be lashed

'Omar's words "O Salh al-'Ouqab" (O eagle's talon) mean that he resembles the eagle's talon which burns everything it strikes: the sanction inevitably falls upon one of the two parties; if the testimony is complete, the accused person undergoes the punishment, and if it is not, then his companions, that is, the witnesses. If it is said: Abu Bakra and his companions who testified therefore contradicted them, we answer: they did not differ over the obligation of the punishment upon them, but over the validity of what they testified to; and he is an accuser of zina who did not produce four witnesses: the punishment is due upon him as if he had produced none.

Section: if they were four but not acceptable, or if one of them was a slave, a sinner or blind, three positions exist concerning them:

• The first: the punishment is due upon them; this is the view of Malik, and the judge (al-Qadi) said: this is the correct view, for it is a testimony that was not completed, so the punishment becomes obligatory on account of the testimony, as if they were three.
• The second: no punishment upon them; this is the view of al-Hasan, ach-Cha'bi, Abu Hanifa and Muhammad; for these brought four witnesses and thus entered into the generality of the verse: their number was complete and the testimony was rejected for a reason that was not their negligence, like four witnesses of unknown standing (mastour) whose justice or wickedness was not established.
• The third: if they were blind, some of them are lashed; if they were slaves or sinners, no punishment upon them; this is the view of ath-Thawri and Ishaq; for the blind are certainly liars: they testified to what they certainly did not see, while the others may be truthful and their number was complete, like those of unknown standing.

The companions of ach-Chafi'i said: if the rejection of the testimony is due to an apparent reason (blindness, slavery, manifest wickedness), two opinions concern them; if it is due to a hidden reason, no punishment upon them, for what is hidden escapes the witnesses and is therefore not negligence on their part, unlike what is apparent. And if three men and two women testify, all of them are lashed, for the testimony of women in this chapter is like its absence; this is the view of ath-Thawri and the people of opinion, and it strengthens the report imposing the punishment upon the first ones and signals the obligation of the punishment when they are blind or when one of them is: the two women may be truthful and are in principle among the people of testimony, while the blind man is certainly a liar and is not among the people of testimony concerning acts; the obligation of the punishment upon them and upon those with them is therefore even more fitting ("Al-Moughni", 9/66, 68; see "Al-Jawhara an-Nayyira", 5/311, 312).

Imam al-Kasani said: if fewer than four testify to zina, their testimony is not accepted because of the shortfall of the required number; do they receive the punishment of slander? Our companions (Hanafis) said: yes.

And ach-Chafi'i (may Allah have mercy on him) said: if they came in the manner of witnesses, no punishment upon them. The disagreement remains in this case: three testify and the fourth says: "I saw them under one blanket" and no more: the three are lashed with us (Hanafis), and no punishment upon the fourth, for he did not slander, unless he had first said: "I testify that he committed zina", and then explained zina by that statement: he is then lashed.

Ach-Chafi'i's view rests on this: when they come in the manner of witnesses, their intention is to establish the testimony in devotion to Allah the Most High, not the slander; there is thus no aggression, and hence no slander.

Our argument: what is reported: three persons testified to zina against al-Mughira, and the fourth stood and said:

I saw feet appearing, a breath high and a repugnant thing, and I do not know what is beyond that. Our master 'Omar (may Allah be pleased with him) said: "Praise be to Allah who did not disgrace a man among the companions of Muhammad", and he lashed the three

That took place in the presence of the noble Companions (may Allah be pleased with them), and it is not reported that anyone objected: it is therefore a consensus; and because the existing part of the witnesses is slander in reality: slander is the attribution of zina, and the existing part of the witnesses is its reality, so that they fall under the verse of slander; it is only in consideration of the completeness of the number of four that, when they come in the manner of witnesses, they intend the establishment of an obligation in devotion to Allah the Most High: their statement then leaves slander and becomes legal testimony; in case of shortfall, it remains slander in reality and therefore requires the punishment ("Bada'i' as-Sana'i'", 7/47, 48).

Imam Ibn Hubayra said: they agreed that if the number of witnesses to zina does not reach four, they are accusers and receive the punishment, except what is narrated from ach-Chafi'i in one of his two positions: that they are not lashed ("Al-Ifsah", 2/260).

Secondly: what is established by two male witnesses

The jurists of the four madhhabs agreed that all the legal punishments (hudud) and legal retaliation (qisas), except the punishment of zina, accept the testimony of two just Muslim men, according to the word of Allah the Most High:

"And bring two just witnesses from among your men"

Surat Al-Baqara, 282

Imam Ibn al-Moundhir said: they reached consensus that the testimony of two just witnesses is accepted in killing and that judgment is rendered by their testimony ("Al-Ijma'", 276). He also said: they reached consensus that the thief's hand is cut off if two just witnesses, Muslim and free, testify to the theft describing what requires the cutting, and then he does it again: his hand is cut off ("Al-Ijma'", 621).

Imam Ibn Rouchd said: they agreed that all rights, except zina, are established by two just male witnesses, except al-Hasan al-Basri, who said: they are not accepted with less than four witnesses, by analogy with stoning; and this view is weak, according to His word:

"And bring two just witnesses from among your men"

Surat Al-Baqara, 282

("Bidayat al-Moujtahid", 2/348). He also said: they agreed that theft is established by two just witnesses ("Bidayat al-Moujtahid", 2/340).

Imam al-Mawardi said: what accepts two witnesses in which there is no woman is everything other than zina among the punishments of Allah the Most High: the cutting for theft, the punishment of brigandage (hiraba), the flogging for wine (khamr), the killing for apostasy; this is the view of the majority of jurists. Al-Hasan al-Basri said: everything that requires killing, I do not accept with less than four, like zina; and this is invalid, for zina varies: part of it requires stoning and part of it flogging, while the testimony in both is one; so he would have had to differ from the others in what requires killing, and the testimony being single in it does not require that ("Al-Hawi al-Kabir", 17/7).

Imam Ibn Qoudama said: the punishments and retaliation accept only the testimony of two men, except what is narrated from 'Ata and Hammad, who said: a man and two women are accepted in it, by analogy with the testimony concerning property.

Our argument: these are rights whose causes of cancellation one guards against, and for that reason they are waived by doubts (choubouhat); but the testimony of women carries a doubt, according to the word of Allah the Most High:

"so that if one of the two errs, the other can remind her"

Surat Al-Baqara, 282

And their testimony is not accepted, however numerous they may be, without the presence of a man: so it must not be accepted in this domain; and the analogy with property is not valid because of the difference we have mentioned. This is the view of Sa'id ibn al-Moussayyab, ach-Cha'bi, an-Nakha'i, Hammad, az-Zouhri, Rabi'a, Malik, ach-Chafi'i, Abou Oubayd, Abou Thawr and the people of opinion; these and others agreed that everything is established by two male witnesses except zina, except al-Hasan, who said: the testimony concerning killing is like the testimony concerning zina, for the destruction of life attaches to it and it resembles zina.

Our answer: killing is one of the two types of retaliation and therefore resembles retaliation in its branch; as for what he mentioned of description, it has no effect: zina that requires the punishment is established only by four; and the punishment of zina is a right of Allah the Most High in which retracing one's admission is accepted ("Al-Moughni", 10/156).

The testimony of women in the legal punishments

Imam az-Zarkachi (may Allah have mercy on him) said: there is no dispute among us concerning what we know: only the testimony of two men is accepted in it, and women have no place in it; this is the view of the majority, for the testimony of women carries a doubt, error and forgetfulness being able to slip into it, as the text attests:

"so that if one of the two errs, the other can remind her"

Surat Al-Baqara, 282

And this is what is waived by the doubt, so it must not be accepted ("Charh az-Zarkachi", 3/390).

The testimony of women in the legal punishments: the jurists of the four madhhabs and others agreed that the testimony of women is not accepted in the punishments and retaliation, testimony in them being restricted to men only, according to what is narrated from az-Zouhri:

The Sunna has passed from the Messenger of Allah and the two caliphs after him: the testimony of women is not permitted in the legal punishmentsWeak hadith reported by Ibn Abi Chayba in "Al-Mousannaf" (29307)

Several scholars reported consensus on this. Imam ach-Chafi'i (may Allah have mercy on him) said: I know of no one among the people of knowledge who differed over the fact that only men are admitted in zina ("Ahkam al-Qur'an", 2/133; "Al-Hawi al-Kabir", 17/6).

Imam Ibn al-Moundhir said: all the Muslims reached consensus that their testimony in the punishments is not accepted ("Al-Iqna'", 2/140; "Al-Ijma'", 272). Imam al-Mawrouzi said: they reached consensus that their testimony is not permitted in the punishments ("Ikhtilaf al-'Oulama'", 1/284). Imam Ibn Battal said: most of the scholars reached consensus that their testimony is not permitted in the punishments and retaliation ("Charh Sahih al-Boukhari", 8/21).

Imam al-Mawardi said: they agreed that the testimony of women in the punishments is not accepted, except what is narrated from 'Ata and Hammad ibn Abi Soulayman: that the testimony of women in the punishments is accepted like that concerning property; and this is invalid, according to the word of Allah the Most High:

"And take as witnesses two just witnesses from among you"

Surat At-Talaq, 2

And because the punishments of Allah the Most High are waived by doubts: testimony in them is therefore weightier than testimony in what is not waived by doubts; likewise, zina being graver than theft, for it spreads to two persons and removes the attribution of lineage from the father, testimony in it is weightier than in what surrounds it ("Al-Hawi al-Kabir", 17/7). Imam Ibn Hubayra said: they agreed that the testimony of women is not accepted in the punishments and retaliation ("Al-Ifsah", 2/412).

Imam Ibn Rouchd said: as for the consideration of number and sex: the Muslims agreed that zina is not established with less than four just male witnesses... they differed over the acceptance of women in the punishments; the position of the majority is that the testimony of women is not accepted in the punishments, neither with a man nor alone; and the Zahirites said: they are accepted if a man is with them and if the women are more than one, in everything, upon the apparent meaning of the verse ("Bidayat al-Moujtahid", 2/348).

Imam Ibn Qoudama said: they must all be men, and the testimony of women is not accepted in it in any way; we know of no disagreement on this, except what is narrated from 'Ata and Hammad: that three men and two women are accepted in it, and this is an anomaly that is not relied upon; for the word "four" is the name of the number of males and requires that nothing less be sufficient. And there is no disagreement that four including some women do not suffice, whereas less than five would suffice, contrary to the text; because their testimony carries a doubt, error being able to slip into it:

"so that if one of the two errs, the other can remind her"

Surat Al-Baqara, 282

And the punishments are waived by doubts ("Al-Moughni", 9/64, 65). The hafiz Ibn Hajar (may Allah have mercy on him) said: their agreement on prohibiting the testimony of women in the punishments and retaliation is due to the word of Allah the Most High:

"then they did not bring four witnesses"

Surat An-Nur, 4

("Fath al-Bari", 5/266).

Thirdly: what is established by one man and two women (debts and property)

The people of knowledge agreed that the testimony of one man and two women is accepted in debts and property, according to the word of Allah the Most High:

"And bring two just witnesses from among your men; and if there are not two men, then one man and two women from those you approve as witnesses"

Surat Al-Baqara, 282

This statement is mentioned in the context of credit transactions with a deferred term, and therefore it is accepted in them. Likewise, testimony in theft is accepted concerning the property from one man and two women, and is only accepted concerning the cutting from two men: if one man and two women testify to a theft, the property is established without the cutting.

Imam Ibn al-Moundhir said: they reached consensus that the testimony of women is permitted with men in debt and property ("Al-Ijma'", 271). Imam al-Kasani said: as for testimony concerning property, maleness is not a condition in it and femaleness is not a barrier, by consensus; the testimony of women is therefore accepted in it with men, according to the word of Allah (blessed and exalted) in the chapter of lending with a term: [the verse quoted above] ("Bada'i' as-Sana'i'", 6/279).

Imam Ibn Rouchd said: they agreed that property is established by one just male witness and two women, according to the word of Allah the Most High: "then one man and two women from those you approve as witnesses" ("Bidayat al-Moujtahid", 2/348). Imam Ibn Qoudama said: there is no disagreement that property is established by the testimony of women with men; Allah the Most High stated it explicitly in His Book in the verse of debt, from "O you who believe, when you contract a debt for a fixed term" to His word: "then one man and two women from those you approve as witnesses", and the people of knowledge agreed on this position ("Al-Moughni", 10/158).

Imam Ibn al-Qayyim said: the Muslims agreed that one man and two women are accepted concerning property, as well as in its derivatives: sale, deferred payment, the option of cancellation, the pledge, the bequest to a designated person, his gift, the endowment in his favor, the guarantee of property and its destruction, the claim of servitude of a person of unknown lineage, the specification of the mahr and the specification of the compensation of divorce by exchange (khoul'): one man and two women are accepted in all of that ("I'lam al-Mouwaqqi'in", 1/92). Imam Ibn Mouflih said: there is no disagreement that property is established by the testimony of women with men, by the text ("Al-Moubdi'", 10/258).

Fourthly: the acceptance of the testimony of women alone

The jurists agreed that the testimony of women is accepted in what men have no access to: childbirth, menstruation, virginity, the defects of women and what men generally do not see; several scholars reported consensus on this. Imam ach-Chafi'i said: childbirth and the defects of women are among what I know of no dissenter: the testimony of women is permitted in them without a man with them ("Al-Oumm", 7/87).

Al-Mawardi, after citing ach-Chafi'i's words, said: as for childbirth, there is no disagreement among the jurists: the testimony of women alone is permitted in it; they only differed over the cause of the permission: for ach-Chafi'i it is what men do not attend, and for Abu Hanifa it is what only women handle. As for testimony concerning what, of the states of their bodies, is other than that, it divides into three categories:

• The first: what they agreed to permit the testimony of women alone in: what it is forbidden for close relatives (dhaw al-mahram) to deliberately look at between the navel and the knee, whether it is of the genitals (such as the horn or imperforation) or beyond it, such as vitiligo or other; ach-Chafi'i's justification: men do not see it; Abu Hanifa's justification: only women handle it. If it is said: this is an intimate part ('awra) of the woman forbidden to men as to women, why did you permit the testimony of women although they share the prohibition with men? It is answered: its prohibition in the rights of men is graver than in the rights of women, for the prohibition to men aims at two meanings: concealing the intimate part and cutting off desire, whereas the prohibition to women aims at only one meaning: concealing the intimate part; when the necessity of testimony arose, it was permitted to the sex lighter in prohibition.
• The second: what only men are accepted in, to the exclusion of women: what is not part of the intimate parts of their bodies, such as the face and the two palms; only the testimony of men is accepted in its defects, by consensus, for it falls outside intimacy in the rights of men and women, and necessity therefore did not impose the exclusivity of women.
• The third: what they differed over: what is an intimate part with strangers without being an intimate part with close relatives: what exceeds the navel and descends below the face and the palms, including suckling from the breasts; according to Malik, the testimony of women alone is permitted in it, for it is forbidden to strangers; according to Abu Hanifa, it is not accepted in it, for it is permitted to close relatives; this issue was already dealt with under suckling ("Al-Hawi al-Kabir", 17/19, 20).

Imam Ibn Battal said: they agreed that their testimony is permitted alone in menstruation, childbirth, the bleeding of the first marital intercourse (istihlal), the defects of women and what men do not see of their intimate parts out of necessity ("Charh Sahih al-Boukhari", 8/21). Imam Ibn Hubayra said: they agreed that their testimony is accepted in what men do not see: childbirth, suckling, virginity, the defects of women and what generally escapes men.

Fifthly: the number in the testimony of suckling

They then differed over the number to be considered from among them: Abu Hanifa and Ahmad said: the testimony of a single just woman is accepted in it. Malik said: no less than one just witness and two women of middling justice is accepted. And there is a similar report from Ahmad. Ach-Chafi'i said: no less than four just women is accepted ("Al-Ifsah", 2/412). Imam Ibn Rouchd said: as for the testimony of women alone, I mean the women to the exclusion of men: it is accepted according to the majority concerning the rights of bodies that men generally do not see, such as childbirth, istihlal and the defects of women; and there is no disagreement over anything of this except suckling ("Bidayat al-Moujtahid", 2/348). Imam Ibn Qoudama said: we know of no disagreement among the people of knowledge over accepting the testimony of women alone in general ("Al-Moughni", 10/161).

The jurists agreed on establishing suckling by testimony; they differed over the number required in this testimony, over whether men have a place in this testimony or not, and over whether the testimony of women alone is accepted in it or not.

The Hanafis hold that the testimony of women alone is not accepted in suckling without a man being with them; a single woman is therefore not accepted in the testimony of suckling, whether she is a stranger or the mother of one of the two spouses, without distinction by her word; the standing with her suffices until two men, or one man and two just women, testify; nothing less is accepted concerning suckling, nor the testimony of women alone; for suckling is among what men see: the relative through prohibition looks at the breast, and his testimony is accepted in that; and the prohibition obtained by suckling from the breast is also obtained by the milk of the hired vessel, which men see: the testimony of women alone is therefore not accepted in it.

Our proof is the statement of 'Omar (may Allah be pleased with him):

Nothing is accepted in suckling except the testimony of two men, or of one man and two womenStatement reported from 'Omar ibn al-Khattab (may Allah be pleased with him)

That took place in the presence of Companions and no objection appeared from anyone: it therefore constitutes a consensus; and because this is a chapter that men see: the testimony of women alone is not accepted in it as in property; suckling is among what men see: the slave woman's breast, for the stranger may look at it; the free woman's breast, for her close relatives may look at it; it is therefore established that this is a testimony concerning what men see, and the testimony of women alone is not accepted in it; for the acceptance of their testimony alone in the principles of the Law is due to necessity, which is the impossibility for men to access what is testified to; once access is possible in general, the necessity is no longer realized.

When they testify to that, a distinction is made: if it was before consummation of the marriage, the woman has no mahr; if it was after, she has the lesser of the specified mahr and the mahr of her like; and during the waiting period ('idda) she has neither maintenance nor lodging.

If a single woman testifies to suckling, it is preferable for the husband to divorce her, according to the hadith of 'Ouqba ibn al-Harith:

I married a woman, then a black woman came to us and said: "I suckled you both." I went to the Prophet and said: "I married the daughter of so-and-so, then a black woman came to us and said to me: I suckled you both, and she is a liar." He turned away from me. I came back to him from the front and said: "She is a liar." He said: "How could that be, when she claims she suckled you both? Leave her."Reported by al-Boukhari (4816)

In a version of an-Nassa'i: "How could that be, when she claims she suckled you both? Let her go." The Prophet only commanded him on the way of precaution (tanzouh): do you not see that he turned away from him a first and a second time? If separation had been obligatory, he would not have turned away, and he would have commanded him to separate at his first question; since he did not do so, that indicates that he intended by it precaution.

It is reported that a man had married a woman when a woman came claiming that she had suckled them both; the man asked 'Ali (may Allah be pleased with him), who said: "She is your wife: no one forbids her to you; if you take precaution, that is better." He asked Ibn 'Abbas (may Allah be pleased with him), who told him the same; for it is possible that she is truthful in her testimony, and so precaution is separation.

If he divorces her, it is preferable that he give her half the mahr if it was before consummation, for the marriage may be valid if she lied in her testimony; and it is preferable for her not to take anything from it, for the marriage may be void if she is truthful. If it was after consummation, it is preferable for the husband to give her the full mahr, maintenance and lodging, for the marriage may be valid; and it is preferable for her to take the lesser of the mahr of her like and the specified mahr and not to take maintenance or lodging, because of the possibility of nullity; if he does not divorce her, he is in wide latitude to remain with her, for the marriage stands in its ruling.

The same applies if two women testify, or a man and a woman, or two men who are not just, or a man and two women who are not just, for what we have said.

When two just men, or one man and two women, testify and separation takes place: if it was before consummation, she has nothing, for it becomes clear that the marriage was void; if it was after, the lesser of the specified mahr and the mahr of her like is obligatory for her, and neither maintenance nor lodging is due in the other void marriages ("Al-Mabsout", 5/137; "Bada'i' as-Sana'i'", 4/14, 15; "Al-Jawhara an-Nayyira", 4/386, 388; "Al-Loubab", 2/69).

The Malikis hold that suckling is established between the two spouses by the testimony of two just men, with no disagreement; it is also established by that of a man and a woman if it had spread (fachi) before the contract through their statement; and by that of two women if it had spread before the contract, according to the most famous position (mashhour), the view of Ibn al-Qasim. Sahnoun, Moutarrif and Ibn al-Majichoun said: suckling is established by the testimony of the two women without it having spread, if they are just, whether they are their wet nurses or strangers; for this is a matter that generally only women see. If it had not spread before the contract, it is not established: the condition of spreading is a restriction in the two cases; as for the man together with the two women, spreading is not required in that. There is hesitation over whether the justice of the man and the woman, and that of the two women, is required along with spreading or not; the sounder view is that justice is not required along with spreading.

Suckling is established between the spouses by the testimony of two just men, whether it spread or not, and is not established by the testimony of a single woman, even if it spread before the contract and even if she is just. Precaution is recommended in every testimony that does not entail separation: whether the testimony of a single woman, the mother of one of them or a stranger, the testimony of a single man, even if just, or the testimony of two women without spreading before the contract; precaution means not to marry her if she is not his wife, or to divorce her if she is ("Al-Moudawwana al-Koubra", 5/211, 212; "At-Taj wa al-Iklil", 3/227, 228; "Charh Moukhtasar Khalil", 4/182; "Ach-Charh al-Kabir with the Hachiyat ad-Dassouqi", 3/475, 476; "Tahrir al-Moukhtasar", 3/399, 400).

It is stated in "Al-Moudawwana al-Koubra", concerning the testimony of suckling: (the narrator says): what do you think of a woman who testified that she suckled a man and his wife: are they separated according to Malik's view or not? (He answered): Malik said: the husband is told: "Take precaution with her"; if you trust her side, I do not see that he remains with her; and the judge does not separate them by her testimony, even if she is just. (The narrator says): what do you think of two women who testified to the suckling of a man and his wife? Malik said: yes, they are separated if it had spread and become known from their statement before this point. (The narrator says): and if it had not spread from their statement? Malik said: I do not see that their statement is accepted if it had not spread from their mouths before their marriage among relatives and neighbors. (The narrator says): and if the two women who testified to the suckling are the husband's mother and the wife's mother? He answered: their statement is only accepted if it had become known and spread before the marriage. (The narrator says): are these women and strangers equal according to Malik? He answered: yes, in my view. (The narrator says): and if a single woman testifies that she suckled them both, the husband and the wife, and this had become known from her statement before the marriage? He answered: the judge does not separate them in my view; separation takes place only with the two women, for when they were two, the testimony was complete; as for the single woman, no separation takes place by her testimony, but the husband is told: "Take precaution with her, between you and your Creator." (The narrator says): and if a man proposes marriage to a woman and a woman says: "I suckled you both": is he forbidden that woman according to Malik, and if he marries her, are they separated? Malik said: he is warned off her by way of precaution, not by way of prohibition; if he marries her, the judge does not separate them ("Al-Moudawwana al-Koubra", 5/211, 212).

The Shafi'is hold that suckling is established by the testimony of two men, or of one man and two women, for everything in which the testimony of women alone is accepted, the testimony of men is accepted; and by four women, for women are those who generally have access to it, like childbirth; it is not established with less than four women, for every pair of women equals one man. The place for accepting the testimony of women is when the dispute concerns suckling from the breast; as for the drinking or the milk of the hired vessel, the testimony of women in a state of ritual purification is not accepted in it, for they have no exclusive access to it; but they are accepted to say that the milk of the vessel is the milk of such-and-such a woman, for men generally do not see the milking.

The admission (iqrar) of suckling requires two men and is not established otherwise, for men generally have access to it. The wet nurse's testimony is accepted with others if she does not demand a wage for her suckling, does not mention her act, and simply testifies that there is a prohibition by suckling between them, for she derives no benefit from this testimony and wards off no harm from herself; likewise if she mentions her act, saying: "I suckled him": she is accepted; unlike the case where she demands the wage: she is then not accepted, for she is suspect.

The soundest view is that, in the testimony of suckling, it does not suffice to say: "between them a prohibition by suckling"; one must in addition mention the time of the suckling: before two years for the nursed child, and after nine years for the nurse; and mention the number: five sucklings; and say "separate" (moutafarriqat), for most people do not know that passing from one breast to another, or the infant stopping to play and breathe and then resuming, counts as a single suckling. One must also mention, in every suckling, that the milk reached his interior. There is a contrary opinion: that "a prohibition by suckling" suffices between them.

If the niçab of the testimony is not completed, as when one, two or three women testify to suckling, it is recommended for the husband to divorce her, and he is disliked to remain with her ("Rawdat at-Talibin", 6/39, 40; "An-Najm al-Wahhaj", 8/220, 221; "Moughni al-Mouhtaj", 5/146, 147; "Kanz ar-Raghibin", 4/170, 171; "Touhfat al-Mouhtaj", 10/139, 140; "Nihayat al-Mouhtaj", 7/214, 215; "Ad-Dibaj", 3/611).

The Hanbalis hold that suckling is established by the testimony of a single acceptable woman concerning her own act, testifying that she suckled him five times within two years; or the testimony of an acceptable woman concerning the act of another, testifying that such-and-such suckled him five times within two years; or if a single man testifies to that: suckling is established, and no oath is required either from the one in whose favor the testimony is given or from the woman who testifies, according to the hadith of 'Ouqba ibn al-Harith cited above (al-Boukhari, 4816), and in the version of an-Nassa'i: "Let her go"; and this indicates that a single woman suffices. Az-Zouhri said: couples were separated in the time of 'Othman by the testimony of a single woman. Al-Awza'i said: 'Othman separated four men from their wives by the testimony of a single woman concerning suckling. Ach-Cha'bi said: the judges used to separate the man and the wife by the testimony of a single woman concerning suckling. This is because it is a testimony concerning an intimate part in which the testimony of women alone is accepted, like childbirth; and it is a matter in which the word of women alone is accepted: the testimony of the wet nurse, of the woman devoted to the cause of Allah and others, all equally; the woman who is not acceptable is not accepted.

There is another report from Ahmad: only the testimony of two women is accepted, for men are more fitting than women, and only the testimony of two men is accepted: women are therefore so all the more. And there is a third report from Ahmad: the testimony of a single woman is accepted and she is put under oath together with her testimony; this is the view of Ibn 'Abbas and Ishaq; for Ibn 'Abbas said concerning a woman who claimed she had suckled a man and his family: "If she is acceptable, she is put under oath and he separates from his wife; if she is a liar, the year will not pass before her two breasts turn white", meaning she will be struck with vitiligo in them as a punishment for her lie; and no analogy requires it and no opinion reaches it: it can only be said by transmission (tawqif).

The wet nurse's testimony concerning her own act is accepted in it, for what we have mentioned of the hadith of 'Ouqba: the black slave woman said "I suckled you both" and the Prophet accepted her testimony; for it is an act that brings her no intended benefit and wards off no harm from her: her testimony was accepted like that of others concerning the act of another. The testimony of suckling is only accepted when explained: if she says "I testify that this one is the son of this one by suckling", it is not accepted, for the forbidden suckling varies among people: some establish it with few sucklings, others after two years; the witness must therefore explain its manner so that the judge rules according to his ijtihad.

The witness must testify that this one suckled from the breast of this one five separate sucklings in which the milk reached his interior, within two years. If it is said: the milk reaching his interior cannot be observed by sight, how is the testimony permitted? We answer: when it is known that this woman has milk, and the witness sees the infant latch onto her breast and move his mouth in sucking and his throat in swallowing, a supposition close to certainty arises that the milk reached his interior; and what cannot be established by observation suffices by its appearance, like the testimony of ownership, the existence of a debt, or the testimony of lineage by wide diffusion (istifada).

If the witness says: "he put his head under her garments and latched onto her breast", it is not accepted, for he may put his head without taking the breast, or take the breast without sucking: one must mention what indicates it. And if he says: "I testify that this one suckled him", the apparent is that it suffices for establishing the origin of the suckling, for the woman who said "I suckled you both" was sufficed by her word ("Al-Moughni", 8/153, 154; "Charh az-Zarkachi", 2/557; "Kachchaf al-Qina'", 5/535; "Matalib ouli an-Nouha", 5/612).

Imam Ibn Rouchd said: as for the testimony of suckling: some people said that only the testimony of two women is accepted in it; some people said that only four are accepted, and ach-Chafi'i and 'Ata said so; some people said that the testimony of a single woman is accepted in it. Among those who say that two women are accepted in it, some required that their statement have spread before the testimony: this is the madhhab of Malik and Ibn al-Qasim; others did not require it: this is the view of Moutarrif and Ibn al-Majichoun. Among those who permitted the testimony of a single woman as well, some did not require any spreading: this is the madhhab of Abu Hanifa (it has already been mentioned that with him the testimony of a single woman does not establish); others required it: this is a report from Malik, and it is narrated from him that testimony of less than two is not permitted in it.

The cause of their disagreement is as follows: between four and two, their difference concerns the testimony of women: is the counterpart of every man two women in what a man cannot testify to, or do two women suffice in that? As for their difference over accepting the testimony of a single woman, it is the contradiction of the tradition reported in this matter with the agreed principle, namely that nothing less than two men is accepted from men, and that the status of women in this is either weaker than that of men or equal to them; and consensus is established that judgment is not given by a single testimony. The tradition in this matter is the hadith of 'Ouqba ibn al-Harith:

"O Messenger of Allah, I married a woman, then a woman came and said: I suckled you both." The Messenger of Allah said: "How could that be, when it was said? Leave her."Cited by Ibn Rouchd in "Bidayat al-Moujtahid"

Some interpreted this hadith as a recommendation (nadb) in order to reconcile it with the principles, and this is what resembles the truth most; and it is a report from Malik ("Bidayat al-Moujtahid", 2/29, 30).