Fifth point: the number of witnesses in testimony about breastfeeding

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This section is part of the full chapter: All sections of this chapter.

Fifth point: the number of witnesses in testimony about breastfeeding

The jurists agreed that breastfeeding is established by testimony ; they differed, however, on the number required for testimony about breastfeeding, on whether men have any part in such testimony, and on whether the testimony of women on their own is accepted in it.

The Hanafis hold that the testimony of women on their own is not accepted for breastfeeding unless a man is with them. The testimony of a single woman on breastfeeding is therefore not accepted, whether she be a stranger or the mother of one of the 2 spouses, and the husband may remain with her until 2 men, or one man and 2 upright women, testify to it : nothing less is accepted for breastfeeding, nor the testimony of women on their own ; for breastfeeding is among the things men know about, since the mahram relative may look at the breast and is qualified to testify about it ; and because the prohibition arises from suckling at the breast just as it arises from milk given through a vessel, a thing men know about, so the testimony of women alone is not admitted in it.

Our proof is what Umar, may Allah be pleased with him, said: « In breastfeeding, only the testimony of 2 men, or of one man and 2 women, is accepted. » This took place in the presence of the Companions without anyone objecting : it was thus a consensus. It is moreover a domain men know about : the testimony of women alone is therefore not accepted in it, just as with property. We say this because breastfeeding is among the things men know about : the breast of a slave woman may be looked at by strangers, and that of a free woman by her mahram relatives. It is thus established that this testimony concerns a thing men know about, and the testimony of women alone is not accepted in it ; for the acceptance of their testimony on their own rests, in the foundations of the Law, on necessity, namely the inability of men to ascertain the object of the testimony ; but when that ascertainment remains possible in general, the necessity is not realized.

If they testify to it, the spouses are separated : if it is before consummation, she is entitled to no dower ; if it is after, she is entitled to the lesser of the stipulated sum and the equivalent dower, and she is entitled, during her waiting period (idda), to neither maintenance nor lodging.

If a woman testifies to the breastfeeding, it is preferable for the husband to leave her, because of the hadith of Uqbah ibn al-Harith:

« I married a woman, then a black slave-girl came to us and said: I suckled you both. I went to the Prophet (peace and blessings of Allah be upon him) and said: I have married so-and-so, daughter of so-and-so, and a black woman came to us and said to me: I have indeed suckled you both, but she is lying. He turned away from me ; I then came around before him and said: she is lying. He said: "What can be done with her when she has claimed to have suckled you both ? Leave her." »reported by al-Bukhari 4816

In a version of al-Nasa'i: « I came around before him and said: she is lying. He said: "What can be done when she has claimed to have suckled you both ? Release her." » The Prophet (peace and blessings of Allah be upon him) ordered him this only by way of precaution : does one not see that he turned away from him a first and then a second time ? If separation had been obligatory, he would not have turned away and would have ordered him to separate at his very first question ; since he did not, this indicates that he meant precaution.

It is reported that a man had married a woman when another woman came claiming to have suckled them both. The man asked Ali, may Allah be pleased with him, who answered: she remains your wife, no one forbids her to you ; but if you keep away from her out of precaution, that is better. He also asked Ibn Abbas, may Allah be pleased with him, who answered him likewise. And since she may be truthful in her testimony, precaution lies in leaving her.

If he leaves her : if it is before consummation, it is preferable for him to give her half the dower, because of the possible validity of the marriage if she lied in her testimony ; and it is preferable for her to take nothing from him, because of the possible invalidity of the marriage if she spoke the truth. If it is after consummation, it is preferable for the husband to give her the full dower, maintenance and lodging, because of the possible validity of the marriage ; and it is preferable for her to take the lesser of her equivalent dower and the stipulated sum, and not to take maintenance or lodging, because of the possible invalidity. If he does not divorce her, he is free to remain with her, for the marriage is legally in force.

The same applies if 2 women testify, or one man and one woman, or 2 men who are not upright, or one man and 2 women who are not upright, for the reason we have given.

And when 2 upright men, or one man and 2 women, testify and separation is pronounced : if it was before consummation, she is entitled to nothing, for it becomes clear that the marriage was invalid ; if it was after, she is entitled to the lesser of the stipulated sum and the equivalent dower, and maintenance and lodging are not due, as in other invalid marriages (al-Mabsut 5/137, Bada'i' as-Sana'i' 4/14 and 15, al-Jawhara an-Nayyira 4/386 and 388, al-Lubab 2/69).

The Malikis hold that breastfeeding is established between the spouses by the testimony of 2 upright men, with no disagreement about that. It is also established by the testimony of one man and one woman if the matter was widely known from them before the conclusion of the contract. It is also established by the testimony of 2 women if the matter was widely known before the contract, according to the prevalent view, which is that of Ibn al-Qasim. Sahnun, Mutarrif and Ibn al-Majishun said: breastfeeding is established by the testimony of 2 women even without wide notoriety, if they are upright, whether they be their mothers or strangers, for this is a matter that, as a rule, only women know about. If the matter was not widely known before the contract, it is not established : the condition of notoriety is thus a restriction in both questions ; as for the man together with the 2 women, notoriety is not required.

Is the uprightness of the man and the woman, and that of the 2 women, required despite the notoriety, or is it not required with it ? There is hesitation, and the preponderant view is that uprightness is not required in case of notoriety.

Breastfeeding is established between the spouses by the testimony of 2 upright men, by consensus, whether the matter was widely known or not ; it is not established by the testimony of a single woman, even if the matter was widely known before the contract and even if she is upright.

It is recommended to keep away out of precaution in the face of any testimony that does not entail separation : whether it is the testimony of a single woman, be she the mother of one of the 2 or a stranger, the testimony of one man alone, even if upright, or the testimony of 2 women without notoriety before the contract. Precaution means not marrying her if she is not yet his wife, or divorcing her if she is (al-Mudawwana al-Kubra 5/211 and 212, at-Taj wa-l-Iklil 3/227 and 228, Sharh Mukhtasar Khalil 4/182, al-Sharh al-Kabir with the commentary of ad-Dasuqi 3/475 and 476, Tahbir al-Mukhtasar 3/399 and 400).

One finds in al-Mudawwana al-Kubra, on testimony about breastfeeding :

(I said): What do you think of a woman who testifies that she suckled a man and his wife : are they to be separated according to Malik's view, or not ? (He said): Malik said: the husband is told : keep away from her out of precaution, if you have confidence in her ; I do not think he should stay with her ; the judge does not separate them on the basis of her testimony, even if she is upright. (I said): What do you think if 2 women testify to the breastfeeding of a man and his wife : are they separated according to Malik's view ? (He said): Malik said: yes, they are separated if the matter was widely known from them beforehand. (I said): What do you think if the matter was not widely known from them ? (He said): Malik said: I do not think their word is accepted if the matter was not widely known from them before their marriage among the families and the neighbors.

(I said): What do you think if the 2 women who testified to the breastfeeding are the husband's mother and the wife's mother ? (He said): their word is not accepted unless the matter was known from them and widely known before the marriage. (I said): are they, in this, on the same footing as strangers according to Malik's view ? (He said): yes, in my opinion. (I said): What do you think if a single woman testifies that she suckled them both, husband and wife, and this was known from her before the marriage ? (He said): in my opinion the judge does not separate them ; he separates only on the basis of 2 women, for it is when they are 2 women that the testimony is complete ; as for the single woman, no separation takes place on her testimony, but the husband is told : keep away from her out of precaution, between yourself and your Creator. (I said): What do you think if a man asks for a woman in marriage and a woman says to him : I have suckled you both : must he refrain from her according to Malik's view, and, if he marries her, are they to be separated ? (He said): Malik said: he refrains from her by way of precaution, not by way of prohibition ; if he marries her, the judge does not separate them (al-Mudawwana al-Kubra 5/211 and 212).

The Shafi'is hold that breastfeeding is established by the testimony of 2 men or of one man and 2 women, for everything in which women alone are admitted also admits men ; and by 4 women, for it is they who, as a rule, have access to it, as with childbirth. It is not established by fewer than 4 women, each pair of women counting as one man.

The acceptance of women's testimony applies when the dispute concerns suckling at the breast ; if it concerns milk drunk or given through a vessel, the testimony of women on their own is not accepted, for they have no special access to it ; they are however admitted to attest that the milk in the vessel is the milk of such a woman, for men do not usually attend the milking.

An acknowledgment of breastfeeding requires 2 men and is not established otherwise, for men usually know about it.

The testimony of the wet nurse is accepted, together with others, if she did not ask for payment for her breastfeeding and did not mention her own act, but attested that a prohibiting breastfeeding exists between the 2, for she draws no benefit from this testimony and wards off no harm by it. Likewise if she mentions her act and says: I suckled him, it is accepted ; unlike the case where she demands payment : it is then not accepted, for she stands under suspicion.

The more correct view is that it does not suffice, in testimony about suckling, to say : there is a prohibiting breastfeeding between them ; the time of the suckling must also be mentioned, namely before the age of 2 years for the child and beyond 9 years for the wet nurse, as well as the number, namely 5 feedings, and it must be said : separate ones, for most people are unaware that moving from one breast to the other, or the child's interrupting his suckling to play, breathe or the like before resuming, counts as only one feeding.

Likewise, mention must be made that the milk reached his stomach at each feeding.

Opposite the more correct view is another view according to which it suffices to say : there is a prohibiting breastfeeding between them.

If the quorum of testimony is not reached, for instance if one, 2 or 3 women testify to the breastfeeding, it is recommended for the husband to divorce her, and it is disliked for him to remain with her (Rawdat at-Talibin 6/39 and 40, an-Najm al-Wahhaj 8/220 and 221, Mughni al-Muhtaj 5/146 and 147, Kanz ar-Raghibin 4/170 and 171, Tuhfat al-Muhtaj 10/139 and 140, Nihayat al-Muhtaj 7/214 and 215, ad-Dibaj 3/611).

The Hanbalis, according to the adopted view of the school, hold that breastfeeding is established by the testimony of a single satisfactory woman about her own act, attesting that she suckled him 5 times during the first 2 years, or by the testimony of a satisfactory woman about another's act, attesting that such a woman suckled him 5 times during the first 2 years.

Or by the testimony of a single man : breastfeeding is thereby established, without an oath being required from the party in whose favor it is testified nor from the witness, because of what Uqbah ibn al-Harith reported :

« I married a woman, then a black slave-girl came to us and said: I suckled you both. I went to the Prophet (peace and blessings of Allah be upon him) and said: I have married so-and-so, daughter of so-and-so, and a black woman came to us and said to me: I have indeed suckled you both, but she is lying. He turned away from me ; I then came around before him and said: she is lying. He said: "What can be done with her when she has claimed to have suckled you both ? Leave her." »reported by al-Bukhari 4816

In a version of al-Nasa'i: « I came around before him and said: she is lying. He said: "What can be done when she has claimed to have suckled you both ? Release her." » This proves that a single woman suffices.

Az-Zuhri said: entire households were separated in Uthman's time on the testimony of a single woman.

Al-Awza'i said: Uthman separated 4 men from their wives on the testimony of a woman in a matter of breastfeeding.

Al-Sha'bi said: the judges used to separate a man and a woman on the testimony of a single woman in matters of breastfeeding.

And it is a testimony about a private part, in which the testimony of women on their own is accepted as with childbirth ; and it is a matter in which the word of women on their own is admitted, in which the testimony of the woman, of the volunteer and of any other is accepted alike ; one who offers no guarantee is not accepted.

Another view is reported from Imam Ahmad : only the testimony of 2 women is accepted ; for men take precedence over women and, in principle, only the testimony of 2 men is accepted : yet here the women take precedence.

A third view from Ahmad : the testimony of a single woman is accepted and she takes an oath in addition to her testimony ; this is the view of Ibn Abbas and Ishaq, for Ibn Abbas said about a woman who claimed to have suckled a man and his family: « If she is satisfactory, she takes the oath and he leaves his wife ; if she is lying, the year will not elapse before her 2 breasts turn white. » He means : she will be struck with leukoderma in punishment for her lie. This follows from no analogical reasoning, and no human reflection attains it : apparently he can only say it by way of received revelation.

The testimony of the wet nurse about her own act is accepted, because of the hadith of Uqbah already mentioned : the black slave-girl said: I have suckled you both, and the Prophet (peace and blessings of Allah be upon him) accepted her testimony ; and because it is an act that brings her no intended benefit and wards off no harm from her, her testimony about it is accepted as about another's act.

Testimony about breastfeeding is accepted only when spelled out : if she says: I testify that this one is the son of this one through breastfeeding, it is not accepted ; for people differ about the prohibiting breastfeeding : some hold a small quantity prohibitive, others beyond the age of 2 years ; the witness must therefore set out its manner so that the judge may rule on it according to his own effort of interpretation.

The witness needs to testify that this one suckled at this woman's breast 5 separate feedings, whose milk reached his stomach, during the first 2 years.

If it is said : the arrival of the milk in his stomach cannot be observed, how can testimony about it be valid ? We answer : when it is known that this woman has milk and one sees the baby take the breast, move his mouth in sucking and swallow, a presumption close to certainty arises that the milk has reached his stomach ; and what cannot be ascertained by direct observation is assessed by outward appearance, like testimony to ownership, the establishment of a debt upon the debtor, or testimony to lineage by widespread report.

If the witness says: he put his head under her garments and took the breast, it is not accepted, for he may put his head without taking the breast, and take the breast without sucking : what indicates it must be mentioned.

If he says: I testify that this woman suckled this one, the apparent view is that it suffices to establish breastfeeding in principle, for of the woman who said: I have suckled you both, her word was held sufficient (al-Mughni 8/153 and 154, Sharh az-Zarkashi 2/557, Kashshaf al-Qina' 5/535, Matalib Uli an-Nuha 5/612).

Imam Ibn Rushd, may Allah have mercy on him, said: as for testimony about breastfeeding, some said : nothing is accepted in it except the testimony of 2 women ; others said : nothing is accepted in it except the testimony of 4, which is the view of al-Shafi'i and Ata' ; still others said : the testimony of a single woman is accepted in it.

Among those who admit the testimony of 2 women, some require that their word about it have been widely known before the testimony : this is the view of Malik and Ibn al-Qasim ; others do not require it : this is the view of Mutarrif and Ibn al-Majishun.

Among those who also admit the testimony of a single woman, some do not require that her word have been widely known before the testimony : this is the view of Abu Hanifa, although it was noted above that breastfeeding is not established in his view by the testimony of a single woman ; others require it : this is a version reported from Malik, and it is reported from him that the testimony of fewer than 2 women is not valid in it.

The cause of their disagreement is as follows : between 4 and 2, it lies in the testimony of women : in matters where a man's testimony is impossible, is the equivalent of each man 2 women, or do 2 women suffice...

As for their disagreement on accepting the testimony of a single woman, it arises from the opposition between the transmitted report on the matter and the principle agreed upon : I mean that nothing less than 2 is accepted from men, and that the standing of women in this is either weaker than that of men or equal to it ; now consensus is established that no ruling is made on the basis of a single testimony.

The report transmitted on the matter is the hadith of Uqbah ibn al-Harith:

« Messenger of Allah, I have married a woman, and a woman came and said: I have suckled you both. The Messenger of Allah (peace and blessings of Allah be upon him) said: "How, when this has been said ? Leave her." »abridged version of the hadith of Uqbah reported by al-Bukhari 4816

Some understood this hadith as expressing a mere recommendation, in order to reconcile it with the established principles : this is the most plausible interpretation, and it is a version reported from Malik (Bidayat al-Mujtahid 2/29 and 30).

Fourth point: the acceptance of the testimony of women on their own

The jurists agreed that the testimony of women is accepted in what men are unaware of, such as childbirth, menstruation, virginity, women's defects and what they usually conceal from men ; a number of scholars have transmitted consensus on this point.

Imam al-Shafi'i, may Allah have mercy on him, said: as for childbirth and women's defects, I met no one who disagreed that the testimony of women in them is valid without a man with them (al-Umm 7/87).

Al-Mawardi, may Allah have mercy on him, said, after citing the words of Imam al-Shafi'i, may Allah have mercy on him: as for childbirth, there is no disagreement among the jurists on the validity of the testimony of women on their own ; they differed only on the cause of this validity : according to al-Shafi'i, it is a matter men do not attend ; according to Abu Hanifa, a matter only women handle. As for testimony on the other states of their bodies, it falls into 3 categories. The first : what they agreed on as to the validity of the testimony of women on their own : what the mahram relatives are forbidden to deliberately look at, between the navel and the knees, whether in the private part, such as the growth (qarn) and the imperforation (ratq), or elsewhere, such as leukoderma or otherwise ; the justification according to al-Shafi'i being that men do not witness it, and according to Abu Hanifa that only women handle it. If it is objected : it is a private part of the woman that men and women are both forbidden to look at, why did you admit women's testimony for it when they share the prohibition with men ? The answer is : because its prohibition is stricter in the rights of men than in the rights of women : for men it rests on 2 grounds, the covering of the private part and the cutting off of desire.

For women it rests on one ground only : the covering of the private part. When the necessity of testimony arose in this matter, it was therefore permitted to the gender under the lighter prohibition.

The second category : what only men are accepted in, to the exclusion of women : what is not part of the private parts of their bodies, such as the face and the hands ; defects in these are established only by the testimony of men, by consensus, for they lie outside the private part both with respect to men and to women, and necessity therefore did not require women on their own.

The third category : what is disagreed upon : what is a private part with respect to strangers without being one with respect to mahram relatives, such as what lies above the navel and below the face and hands ; breastfeeding at the 2 breasts belongs to it. According to Malik, the testimony of women on their own is valid in it, for it is forbidden to strangers ; according to Abu Hanifa, it is not, for it is permitted to mahram relatives. This question has already been treated under breastfeeding (al-Hawi al-Kabir 17/19 and 20).

Imam Ibn Battal, may Allah have mercy on him, said: they agreed that their testimony, on their own, is valid for menstruation, childbirth, the newborn's first cry and women's defects, as well as for what of their private parts men are unaware of, out of necessity (Sharh Sahih al-Bukhari 8/21).

Imam Ibn Hubayra, may Allah have mercy on him, said: they agreed that their testimony is accepted in what men are unaware of, such as childbirth, breastfeeding, virginity and women's defects, and what is usually hidden from men.

Sixth point: testimony in marriage and divorce

The jurists differed on testimony concerning marriage and divorce : is the testimony of women together with men accepted in it, or are only men admitted ?

The Hanafis hold that women's testimony is not accepted for the hudud punishments and retaliation (qisas) ; in every other right, 2 men, or one man and 2 women, are accepted, whether the right be financial or not, such as marriage, divorce, agency and bequest, according to the word of Allah the Most High : « Summon 2 witnesses from among your men ; if there are not 2 men, then one man and 2 women from among those you accept as witnesses » (al-Baqarah 282). Allah the Most High made the testimony of one man and 2 women an unqualified testimony : He counted them among the witnesses, and the unqualified witness is he whose testimony holds without restriction ; it follows that they are qualified to testify in all rulings except what a specific proof restricts.

It is reported from our master Umar, may Allah be pleased with him, that « he admitted the testimony of women together with men in marriage and separation », and it is not reported that any Companion objected to him : it was thus a consensus of theirs on its validity. And because the testimony of one man and 2 women equals, in making the testified matter manifest, the testimony of 2 men, through the preponderance of truthfulness over falsehood by uprightness ; not that it was excluded as a proof in what is averted by suspicions because of a kind of deficiency and suspicion in it, as we have mentioned ; now these rights are established by a proof containing a suspicion (Ahkam al-Quran 2/231 and 232, Bada'i' as-Sana'i' 6/279 and 280, al-Ikhtiyar 2/168, al-Jawhara an-Nayyira 6/143).

The majority of the jurists, the Malikis and, according to the adopted view of the school, the Shafi'is, hold that what is not property, does not aim at property and is known to men, such as marriage, the resumption of the marriage tie, divorce, emancipation, agency and bequest, as well as intentional killing and the hudud punishments, with the exception of the punishment for fornication, is established only by 2 male witnesses : the testimony of women, alone or together with men, is not accepted in it, because of his word (peace and blessings of Allah be upon him) on the resumption of the marriage tie : « And take the testimony of 2 just persons from among you » (at-Talaq 2), and because of what Ibn Mas'ud, may Allah be pleased with him, reported : the Prophet (peace and blessings of Allah be upon him) said :

« There is no marriage without a guardian and 2 just witnesses. »reported by Ibn Mas'ud

He said regarding the bequest : « When death approaches one of you at the time of the bequest, 2 just persons from among you » (al-Ma'idah 106) : He explicitly referred to the testimony of men ; it is therefore not permissible to accept women's testimony in it, as with fornication.

Malik reported, from Aqil, from Ibn Shihab, who said : « The established sunna of the Messenger of Allah (peace and blessings of Allah be upon him) is that the testimony of women is not valid for the hudud punishments, nor for marriage, nor for divorce. » We extended this rule by analogy to everything that does not aim at property and that men know about.

And because rights are of 2 kinds : the rights of Allah the Most High and the rights of human beings. Since a distinction was drawn among the rights of Allah the Most High between the highest and the lowest in number, the highest being fornication and the lowest wine, a distinction had to be drawn among the rights of human beings between the highest and the lowest in kind : the highest being bodily rights, the lowest financial rights.

And because women's testimony is a proof of necessity : it was instituted as a proof in the domain of religious obligations only in the absence of men ; now there is no necessity in non-financial rights, since the need there is met by men's testimony ; this is why it was not instituted as a proof for the hudud punishments and retaliation, nor as a proof of women on their own in what men are unaware of (al-Mudawwana al-Kubra 5/44 and 45 and 12/139, Sharh Sahih al-Bukhari 8/22, al-Kafi 1/469, al-Ishraf ala naka't masa'il al-khilaf 5/54 and 55, point 1817, al-Hawi al-Kabir 17/9, al-Muhadhdhab 2/333, al-Bayan 13/330 and 331, al-Mughni 10/156 and 157, al-Insaf 12/79 and 80, Manar as-Sabil 3/512 and 513).

A view is reported from Imam Ahmad that in marriage, the resumption of the marriage tie and emancipation, the testimony of one man and 2 women is accepted (al-Mughni 10/156 and 157, al-Insaf 12/80).