Islamic Fiqh > Judgment and testimony > Testimony (chahada) > The number of witnesses by case
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
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 two spouses, and the husband may remain with her until two men, or one man and two 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 two men, or of one man and two 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 two women testify, or one man and one woman, or two men who are not upright, or one man and two women who are not upright, for the reason we have given.
And when two upright men, or one man and two 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 two 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 two 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 two 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 two women, notoriety is not required.
Is the uprightness of the man and the woman, and that of the two 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 two 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 two or a stranger, the testimony of one man alone, even if upright, or the testimony of two 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 two 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 two 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 two women, for it is when they are two 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 two men or of one man and two women, for everything in which women alone are admitted also admits men ; and by four women, for it is they who, as a rule, have access to it, as with childbirth. It is not established by fewer than four 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 two 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 two, 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 two years for the child and beyond nine years for the wet nurse, as well as the number, namely five 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, two or three 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 five times during the first two years, or by the testimony of a satisfactory woman about another's act, attesting that such a woman suckled him five times during the first two 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 four 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 two women is accepted ; for men take precedence over women and, in principle, only the testimony of two 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 two 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 two 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 five separate feedings, whose milk reached his stomach, during the first two 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 two women ; others said : nothing is accepted in it except the testimony of four, 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 two 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 two women is not valid in it.
The cause of their disagreement is as follows : between four and two, it lies in the testimony of women : in matters where a man's testimony is impossible, is the equivalent of each man two women, or do two 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 two 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).
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 three 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 two 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 two 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.
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, two men, or one man and two 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 two witnesses from among your men ; if there are not two men, then one man and two women from among those you accept as witnesses » (al-Baqarah 282). Allah the Most High made the testimony of one man and two 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 two women equals, in making the testified matter manifest, the testimony of two 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 two 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 two 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 two just witnesses. »reported by Ibn Mas'ud
He said regarding the bequest : « When death approaches one of you at the time of the bequest, two 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 two 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 two women is accepted (al-Mughni 10/156 and 157, al-Insaf 12/80).
The jurists differed on the ruling of testimony by one witness and an oath, that is, when the holder of the right swears an oath with his witness and thereby obtains his right : is it accepted or not ?
The majority of the jurists, the Malikis, the Shafi'is and the Hanbalis, hold that every right established by one witness and two women is also established by one witness and an oath : the holder of the right swears with his witness and obtains his right. If he refuses and declines to swear, the defendant swears ; if he does, that right falls away ; if he refuses, the right is established against him in favor of its holder. This applies to property exclusively : it does not occur in any hudud punishment, nor in marriage, nor divorce, nor theft, nor false accusation.
The proof of its validity is what Abu Hurayra reported :
« The Prophet (peace and blessings of Allah be upon him) ruled by the oath together with the witness. »sahih hadith: reported by Abu Dawud 3610, at-Tirmidhi 1343, Ibn Majah 2368 and Ibn Hibban in his Sahih 5073
And what Jabir, may Allah be pleased with him, reported :
« The Prophet (peace and blessings of Allah be upon him) ruled by the oath together with the witness. »sahih hadith: reported by at-Tirmidhi 1344 and Ibn Majah 2369
And what Ibn Abbas, may Allah be pleased with him, said :
« The Messenger of Allah (peace and blessings of Allah be upon him) ruled by the witness and the oath. »sahih hadith: reported by Ibn Majah 2370
Imam Ibn Abd al-Barr, may Allah have mercy on him, said, after citing a number of hadiths on this : we have mentioned in this chapter only the reports going back to the Prophet. Had we mentioned the chains of transmission of all who so ruled among the Companions, the Successors and the scholars of the Muslims, it would have been very long. Among the Companions from whom it is explicitly reported that they ruled by the oath together with the witness are Abu Bakr, Umar, Uthman, Ali, Ubayy ibn Ka'b and Abdullah ibn Umar, even if the chains from them contain weakness : we did not cite them by way of proof, for proof is already binding through the authentic sunna, and the sunna needs no one to corroborate it, since whoever contradicts it is confuted by it. It is not reported from any Companion that he rejected the oath together with the witness ; on the contrary, they affirmed it. And this is the view of the majority of the Successors in Medina : Sa'id ibn al-Musayyab, Abu Salama ibn Abd ar-Rahman, al-Qasim ibn Muhammad, Urwah, Salim, Abu Bakr ibn Abd ar-Rahman, Ubaydullah ibn Abdullah, Kharijah ibn Zayd, Sulayman ibn Yasar, Ali ibn al-Husayn, Abu Ja'far Muhammad ibn Ali, Abu al-Zinad and Umar ibn Abd al-Aziz ; no disagreement is reported from any of them on this point, except Urwah, about whom they differed. The same holds for Ibn Shihab : Ma'mar said : I asked az-Zuhri about the oath together with the witness, and he said : this is something people introduced later ; two witnesses are required ; yet it is reported from him that at the beginning of his judgeship he ruled by one witness and an oath. This is the view of Malik and his companions, of al-Shafi'i and his followers, of Ahmad ibn Hanbal, Ishaq ibn Rahawayh, Abu Ubayd, Abu Thawr, Dawud ibn Ali and a group of traditionalists ; it is, in my view, the position that cannot be departed from, given the numerous reports from the Prophet (peace and blessings of Allah be upon him) establishing it, and which the people of Medina applied generation after generation. Malik, may Allah have mercy on him, said : ruling by the oath together with the witness applies in all towns, and in his Muwatta he relied on no other question for it ; no disagreement is reported from him on ruling by the oath with the witness, nor from any of his companions in Medina, Egypt and elsewhere ; the Malikis in every town know no other position of their school, except among us in al-Andalus : Yahya ibn Yahya abandoned it, claiming that he had not seen al-Layth ibn Sa'd give rulings by it nor adopt it. Yahya thus contradicted Malik, thereby contradicting the sunna and the practice of the city of the Hijra. Malik used to say : the right of return (uhda) for slaves is ruled upon only in Medina specifically, or against one who stipulated it, but ruling by the oath with the single witness applies in every town. Al-Shafi'i, may Allah have mercy on him, devoted a whole book to this question, setting out the proof against those who reject it, and his followers produced even more. Abu Hanifa and his companions, al-Thawri and al-Awza'i said : no ruling is made by the oath with the single witness ; this is also the view of Ata', al-Hakam ibn Utba and a group. Ata' claimed that the first to rule by it was Abd al-Malik ibn Marwan : this is an error, a conjecture that avails nothing against the truth ; one who denies in ignorance is not like one who affirms in knowledge. We have cited the Companions and Successors we named : none of them owed his knowledge of it to Abd al-Malik ibn Marwan (at-Tamhid 2/153 and 154, al-Istidhkar 7/111 ; see al-Muwatta 2/721 and 722, Sharh Sahih al-Bukhari 8/59 and 60, al-Ishraf ala naka't masa'il al-khilaf 5/44 and 45, al-Hawi al-Kabir 17/68 and 70, al-Bayan 13/338 and 339).
Ibn Qudama, may Allah have mercy on him, said : most of the people of knowledge hold that property is established for its claimant by one witness and an oath ; this was reported from Abu Bakr, Umar, Uthman and Ali, may Allah be pleased with them, and it is the view of the seven jurists of Medina, Umar ibn Abd al-Aziz, al-Hasan, Churayh, Iyas, Abdullah ibn Utba, Abu Salama ibn Abd ar-Rahman, Yahya ibn Yamur, Rabia, Malik, Ibn Abi Layla, Abu al-Zinad and al-Shafi'i.
Al-Sha'bi, al-Nakha'i, the partisans of personal opinion and al-Awza'i said : no ruling is made by one witness and an oath. Muhammad ibn al-Hasan said : whoever rules by the witness and the oath, I annul his ruling, for Allah the Most High said : « Summon two witnesses from among your men ; if there are not two men, then one man and two women » (al-Baqarah 282) : whoever adds to this adds to the text, and addition to the text is abrogation. And because the Prophet (peace and blessings of Allah be upon him) said :
« The proof lies upon the claimant and the oath upon the one who denies. »reported in the two Sahihs
He thus confined the oath to the side of the defendant, just as he confined the proof to the side of the claimant.
Our proof is what Suhayl reported, from his father, from Abu Hurayra :
« The Messenger of Allah (peace and blessings of Allah be upon him) ruled by the oath together with the single witness. »reported by Sa'id ibn Mansur in his Sunan
The imams of the books of sunan and musnad also reported it. At-Tirmidhi said : this is a good and rare hadith ; on this chapter there are reports from Ali, Ibn Abbas, Jabir and Masruq. Al-Nasa'i said : the chain of the hadith of Ibn Abbas on the oath with the witness is an excellent chain.
And because the oath is instituted in favor of one whose truthfulness has appeared and whose side has grown strong ; hence it is instituted in favor of the holder, since possession strengthens his side, and in favor of the denier, since his side is strong, the principle being the innocence of his liability. Now the claimant here has had his truthfulness established : the oath must therefore be instituted in his favor. They can draw no argument from the verse, for it indicates the legitimacy of the two witnesses and of the witness with two women, about which there is no dispute. Their claim that addition to the text is abrogation is unsound : abrogation is removal and lifting, whereas addition to a thing confirms it and does not remove it ; ruling by the witness and the oath neither prevents nor annuls ruling by two witnesses. Moreover, if the addition were attached to what it is added to, it would not remove it and would not be abrogation ; the same holds if it is separate from it. Furthermore, the verse concerns the taking up of testimony, not its delivery before the judge ; this is why He said : « lest one of them err and the other remind her » (al-Baqarah 282) ; now the dispute concerns the delivery. Their hadith is weak, and it is not restrictive, as proven by the fact that the oath is instituted in favor of the depositary who claims to have returned the deposit or that it perished, in favor of trustees whose breach has become manifest, in favor of the husband in the imprecation procedure (lian), and in the qasama ; it is also instituted in favor of the seller and the buyer when they disagree over the price while the goods are still present.
The statement of Muhammad on annulling the ruling of whoever ruled by the witness and the oath implies annulling the rulings of the Messenger of Allah (peace and blessings of Allah be upon him) and of the caliphs who so ruled. Now Allah the Most High said : « No, by your Lord, they will not believe until they make you judge of what they dispute among themselves, then find within themselves no uneasiness over what you have decided and submit in full submission » (an-Nisa 65). And the ruling of Muhammad ibn Abdullah (peace and blessings of Allah be upon him) takes precedence over the ruling of Muhammad ibn al-Hasan, who contradicts him.
Point: the judge said : it is permissible to swear an oath over what does not lend itself to testimony, for instance finding in one's own handwriting a debt owed by someone while knowing one records only the truth, and having forgotten it, or finding in one's father's registers, in his hand, a debt owed by someone, knowing the father's probity and that he recorded only the truth : one may swear an oath over that debt, but one may not testify to it. Likewise, if a trustworthy person reports a right of one's father and one relies on it : one may swear an oath over it, but one may not testify to it ; this is the view of al-Shafi'i. The difference between the oath and testimony rests on two grounds. The first : testimony is for the benefit of another, and it is conceivable that the beneficiary of the testimony forged the handwriting ; this is inconceivable for what one swears an oath over, for the right belongs only to the swearer and no one forges against himself.
The second : what a man records of his rights is abundant, so that he forgets part of it, unlike testimony.
Point: wherever the witness and the oath are accepted, no distinction is drawn according to whether the claimant is a Muslim or a disbeliever, upright or sinful, man or woman ; Ahmad stated this explicitly, for the ruling of one in whose favor the oath is instituted does not change with these qualities, as with the denier when there is no proof.
Point: Ahmad said : the established sunna is to rule by the oath with the single witness ; if he refuses to swear, the oath is offered to the defendant ; this is the view of Malik and al-Shafi'i, and it is reported from Ahmad ; if the defendant refuses to swear, the right is established against him (al-Mughni 10/158 and 159).
Ibn al-Qayyim, may Allah have mercy on him, said : ruling by the witness and the oath is the doctrine of all the hadith jurists and of the jurists of the great cities, with the exception of Abu Hanifa and his companions (at-Turuq al-Hukmiyya, p. 113).
The Hanafis hold that no ruling is made by the witness and the oath : two witnesses, or one witness and two women, are required, according to the word of Allah the Most High : « Summon two witnesses from among your men ; if there are not two men, then one man and two women from among those you accept as witnesses » (al-Baqarah 282), which requires the invalidity of the thesis of the witness and the oath. The « summon two witnesses » comprises summoning witnesses to the loan contracts mentioned at the beginning of the discourse, as well as producing the testimony before the judge, who is bound to receive it, the wording admitting both senses. And since summoning witnesses to the contract aims at establishing it upon denial, the verse necessarily comprises the appearance of the two witnesses, or of the man and the two women, before the judge concerning the contract, and his obligation to rule accordingly. That being so, the apparent meaning of the wording requires obligation, for it is a command, and Allah's commands the Most High are obligatory : Allah made it obligatory for the judge to rule according to the number mentioned, like His word : « then flog them with eighty lashes » (an-Nur 4), and His word : « flog each of them with a hundred lashes » (an-Nur 2) : it is not permissible to rest content with less than the number mentioned ; likewise, for the number mentioned for testimony, it is not permissible to rest content with less, and admitting a smaller number amounts to contradicting the Book, as if one admitted the punishment for calumny to be seventy or the punishment for fornication ninety : one would be contradicting the verse.
Moreover, the verse embraced two data about the witnesses : the number and the quality, namely that they be free and acceptable, according to the word of Allah the Most High : « from among your men », and His word : « from among those you accept as witnesses ». Since the quality required of them cannot be dropped, nor rest be made with less than it, the number cannot be dropped : the verse requires, for the execution of the ruling by it, the fulfillment of both, the number, the uprightness and the acceptance, and neither may be dropped. The number deserves consideration before uprightness and acceptance, for the number is known with certainty, whereas uprightness is established only through outward appearance, not through inner knowledge ; if the required uprightness, established by outward appearance, cannot be dropped, neither can the number, known with certainty.
Furthermore, when Allah willed precaution in admitting women's testimony, He made the testimony of two women obligatory and said : « lest one of them err and the other remind her », then : « That is more just with Allah, more solid for testimony, and more likely to avoid doubt » (al-Baqarah 282) : He thereby removed the causes of suspicion, doubt and forgetfulness. The purport of the verse implies rejecting the claimant's oath and ruling in his favor on the basis of a single witness, for that would be ruling contrary to the precaution, the corroboration and the removal of doubt and suspicion that were commanded ; now accepting his oath carries the greatest doubt, suspicion and misgiving, contrary to the purport of the verse.
The invalidity of the witness and the oath is also established by the word of Allah the Most High : « from among those you accept as witnesses » : we know that the single witness is not accepted and is not meant by the verse ; the claimant's oath, for its part, cannot bear the witness's liability, nor can one be acceptable regarding what one claims for oneself. Ruling by a single witness and his oath therefore contradicts the verse in these respects and removes what the legislation of testimonies aimed at by way of precaution and guarantee, according to what Allah set out in this verse and the meanings intended by it. Indicating it likewise is the statement of the Prophet (peace and blessings of Allah be upon him) :
« The proof lies upon the claimant and the oath upon the defendant. »reported in the two Sahihs
He drew a distinction between the oath and the proof : the oath cannot therefore be a proof, for if the oath could be called a proof, it would amount to saying : the proof lies upon the claimant, and the proof lies upon the defendant. His word « the proof » is a generic name encompassing what falls under it : every proof is that which lies upon the claimant ; the oath cannot therefore lie upon him. Moreover, « the proof » is a general wording that may fall upon different meanings ; now they agreed that the two witnesses and the witness with two women are meant by this report and that the name applies to them : it is as if he said « the two witnesses, or the witness and the two women, lie upon the claimant » ; it is therefore not permissible to rest content with less (Ahkam al-Quran 2/247 and 249, Mukhtasar Ikhtilaf al-Ulama 3/343, Bada'i' as-Sana'i' 6/225).
Imam Ibn Rushd, may Allah have mercy on him, said : as for ruling by the oath together with the witness, they differed about it.
Malik, al-Shafi'i, Ahmad, Dawud, Abu Thawr, the seven jurists of Medina and others said : ruling is made by the oath together with the witness in property matters.
Abu Hanifa, al-Thawri, al-Awza'i and the majority of the people of Iraq said : no ruling is made by the oath with the witness in anything ; this is also the view of al-Layth among the companions of Malik.
The cause of the disagreement in this chapter is the conflict of transmissions.
Its partisans relied on many reports, among them the hadith of Ibn Abbas, the hadith of Abu Hurayra, the hadith of Zayd ibn Thabit and the hadith of Jabir ; but among these, the one Muslim transmitted is the hadith of Ibn Abbas, whose wording is :
« The Messenger of Allah (peace and blessings of Allah be upon him) ruled by the oath together with the witness. »reported by Muslim
It was transmitted by Muslim and not by al-Bukhari.
As for Malik, he relied on his mursal version reported from Ja'far ibn Muhammad, from his father :
« The Messenger of Allah (peace and blessings of Allah be upon him) ruled by the oath together with the witness. »mursal reported by Malik
for, in his view, applying mursal reports is obligatory.
As for the transmission that contradicts it, it is the word of Allah the Most High : « if there are not two men, then one man and two women from among those you accept as witnesses » (al-Baqarah 282). They said : this implies restriction, and addition to it is abrogation ; but the Quran is not abrogated by a non-mass-transmitted sunna. In the opponent's view, it is not abrogation but an addition that does not alter the ruling of what it is added to.
As for the sunna, it is what al-Bukhari and Muslim transmitted from al-Ash'ath ibn Qays :
« There was a dispute between a man and me over something ; we took our dispute to the Prophet (peace and blessings of Allah be upon him), who said : your two witnesses, or his oath. I said: then he will swear without caring. The Prophet (peace and blessings of Allah be upon him) said: whoever swears an oath by which he wrongfully appropriates the property of a Muslim while being wicked therein will meet Allah angry with him. »reported by al-Bukhari and Muslim
They said : this, from him (peace and blessings of Allah be upon him), is a restriction of the ruling and an invalidation of the argument of each of the two opponents ; and it is not admissible of him not to exhaust the means of proof for the claimant.
... the description has no effect : fornication entailing the hudud punishment is established only by four. And because the punishment for fornication is a right of Allah the Most High from which the maker of an acknowledgment may retract (al-Mughni 10/156).
Imam az-Zarkashi, may Allah have mercy on him, said : as far as we know there is no dispute : only the testimony of two men is accepted in this, and women have no part in it ; this is the view of the majority ; for women's testimony contains a suspicion, because of the error and forgetfulness that affect it, as the text attests in the word of Allah the Most High : « lest one of them err and the other remind her » (al-Baqarah 282) ; now this belongs to what is averted by suspicion, so it must not be accepted in it (Sharh az-Zarkashi 3/390).
The jurists of the four schools and others agreed that women's testimony is not accepted for the hudud punishments and retaliation : testimony in these two matters is confined to men only, because of what az-Zuhri reported, saying : « The established sunna of the Messenger of Allah (peace and blessings of Allah be upon him) and of the two caliphs after him is that women's testimony is not valid for the hudud punishments. » (weak hadith: reported by Ibn Abi Shayba in al-Musannaf 29307)
A group of scholars transmitted consensus on this.
Imam al-Shafi'i, may Allah have mercy on him, said : I knew of no scholar who disagreed that in fornication only men are admitted (Ahkam al-Quran 2/133, al-Hawi al-Kabir 17/6).
Imam Ibn al-Mundhir, may Allah have mercy on him, said : the Muslims, all of them, agreed that their testimony in the hudud punishments is not accepted (al-Iqna 2/140, al-Ijma 272).
Imam al-Marwazi, may Allah have mercy on him, said : they agreed that their testimony is not valid for the hudud punishments (Ikhtilaf al-Ulama 1/284).
Imam Ibn Battal, may Allah have mercy on him, said : most of the scholars agreed that their testimony is not valid for the hudud punishments and retaliation (Sharh Sahih al-Bukhari 8/21).
Imam al-Mawardi, may Allah have mercy on him, said : they agreed that women's testimony is not accepted for the hudud punishments, except what is related from Ata' and Hammad ibn Abi Sulayman : that women's testimony in them is accepted as in property matters. This is unsound, because of the word of Allah the Most High : « And take the testimony of two just persons from among you » (at-Talaq 2), and because Allah's hudud punishments the Most High are averted by suspicions : testimony in them is thus more demanding than testimony in other matters not averted by suspicions, just as fornication, being graver than theft because it wrongs two persons and prevents the establishment of the father's lineage, entails more demanding testimony than the others (al-Hawi al-Kabir 17/7).
Imam Ibn Hubayra, may Allah have mercy on him, said : they agreed that women's testimony is not accepted for the hudud punishments and retaliation (al-Ifsah 2/412).
Imam Ibn Rushd, may Allah have mercy on him, said : as for the examination of number and kind, the Muslims agreed that fornication is not established by fewer than four upright male witnesses... They differed on accepting the two women in the hudud punishments : the majority hold that women's testimony is not accepted in them, neither with a man nor on their own ; the Zahiris said : it is accepted if there is a man with them and the women are more than one, in everything, according to the apparent meaning of the verse (Bidayat al-Mujtahid 2/348).
Imam Ibn Qudama, may Allah have mercy on him, said : that they all be men, women's testimony not being accepted in any case ; we know of no disagreement in it except something related from Ata' and Hammad : that three men and two women are accepted in it ; this is an anomaly of no weight, for the word « four » is a name for the number of those mentioned and requires that four suffice. There is no disagreement that if some of the four are women they do not suffice, nor that fewer than five suffices : this contradicts the text. And because their testimony contains a suspicion, because of the straying that affects them ; Allah the Most High said : « lest one of them err and the other remind her » (al-Baqarah 282), and the hudud punishments are averted by suspicions (al-Mughni 9/64 and 65).
The hafiz Ibn Hajar, may Allah have mercy on him, said : as for their agreement on barring it from the hudud punishments and retaliation, it is because of the word of Allah the Most High : « and they did not produce four witnesses » (an-Nur 4) (Fath al-Bari 5/266).
Those who affirmed the oath with the witness remained faithful to their principle, namely that the oath is the proof of whichever of the two litigants has the stronger case in appearance ; now here the claimant's proof was strengthened by the witness, as it is in the qasama (Bidayat al-Mujtahid 2/350).
Imam Ibn Hubayra, may Allah have mercy on him, said : they agreed that ruling by the witness and the oath is not valid outside property and its rights.
They then differed over property and its rights : is ruling by the witness and the oath valid in it or not ? Malik, Ahmad and al-Shafi'i said : it is valid. Abu Hanifa said : it is not (al-Ifsah 2/418 and 419).
The jurists who affirm the witness and the oath differed : is ruling made by the oath with two women, or is there no ruling by oath except with a male witness ?
The Malikis hold that ruling by the two women together with the oath is valid, for the two women stand in place of the man in property matters, according to the word of Allah the Most High : « if there are not two men, then one man and two women » (al-Baqarah 282) ; if ruling by the man's testimony with the oath is permissible, then ruling by the testimony of two women with the oath is so as well ; and they are treated like testimony in property matters, like the single witness.
And because it is a cause affecting the ruling by which the claimant's proof is strengthened : he may therefore swear with it, like the single witness (al-Ishraf ala naka't masa'il al-khilaf 5/46, point 1809, Bidayat al-Mujtahid 2/350, Jami' al-Ummahat, p. 477).
The Shafi'is and the Hanbalis hold that the testimony of two women together with the claimant's oath is not accepted, for a proof concerning property, devoid of a man, is not admitted : just as if four women testify they are not accepted, for women's testimony on their own is not admitted in it.
And their argument collapses in this very case : if the two women stood in place of a man in every respect, four women would suffice in place of two men, and the testimony of one man and two women would be accepted outside property matters. And because the testimony of two women is weak and is strengthened by the man, while the oath is weak : a weak thing would be joined to a weak thing, and that is not accepted (Rawdat at-Talibin 7/433, al-Mughni 10/159, al-Insaf 12/115, Matalib Uli an-Nuha 6/632, Manar as-Sabil 3/514).
Ibn al-Qayyim, may Allah have mercy on him, said : ruling by the testimony of two women and the claimant's oath, in property and its rights, is the doctrine of Malik and one of the two views in the school of Imam Ahmad, which his shaykh related and chose. The apparent meaning of the Quran and the apparent meaning of the sunna indicate the soundness of this view : Allah, glorified be He, made the two women stand in place of the man, and the Prophet (peace and blessings of Allah be upon him) said in the authentic hadith :
« Is not the testimony of a woman like half the testimony of a man ? They said: yes. »authentic hadith
By its express wording this indicates that her testimony alone counts for half, and by its implied meaning that her testimony with her equal is like the testimony of a man. Nothing in the Quran, the sunna or consensus prevents it ; rather, sound analogy requires it : if the two women stand in place of the man when they are with him, they also stand in his place in his absence ; for the acceptance of their testimony was not because of the man, but because of a meaning in them, namely
This, according to the Shafi'is, applies outside testimony against the wife for fornication : the husband's testimony is an assertion of treachery against her and is therefore not accepted, like that of the depositor against the depositary for treachery in the deposit ; and because he is her adversary in what he testifies to, his testimony is not accepted, just as if he testified against her that she wronged him.
According to one view among them, the husband's testimony in favor of his wife is accepted, but not the reverse (al-Hawi al-Kabir 17/167, al-Muhadhdhab 2/330, al-Bayan 13/314, Rawdat at-Talibin 7/389, al-Kafi 4/529, al-Mubdi' 10/244, al-Insaf 12/68).
The testimony of parents for children and of children for parents occurs in two situations.
The jurists differed on the ruling of the testimony of parents for children and of children for parents : is it accepted or not ?
The majority of the jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis according to the adopted views of their schools, hold that the testimony of the father for his child, or for his child's child, however far the line descends, is not accepted, whether through sons or through daughters ; and the testimony of the child for his father or mother, for his grandfather or grandmother on his father's or mother's side, however high the line ascends, is not accepted ; this applies to parents and mothers and their own ascendants.
It is reported from Aisha, in attribution to the Prophet :
« Testimony is not valid : not that of a betrayer, male or female, nor of one lashed for a hudud punishment, male or female, nor of one bearing rancor against his brother, nor of one whose testimony has already proven false, nor of the dependent of a household testifying for its members, nor of one suspected in a matter of clientage or kinship. »weak hadith: reported by at-Tirmidhi 2298
Az-zinnin denotes the suspect : each of the two parents and the children is suspect with regard to the other, for he inclines to him by nature ; this is why the Prophet (peace and blessings of Allah be upon him) said :
« Fatimah is a part of me : what troubles her troubles me. »reported by al-Bukhari 5230 and Muslim 2449
And because he is suspect in his testimony for his child, like the enemy in his testimony against his enemy ; and the report is more specific than the verses, which are therefore restricted by it.
And because his person is like his own person and his property like his property ; this is why he said (peace and blessings of Allah be upon him) to Abu Mashar al-Darimi :
« You and your property belong to your father. »sahih hadith, cited earlier
And he said (peace and blessings of Allah be upon him) :
« The best of what a man eats is from his earning, and his child is part of his earning. »sahih hadith, cited earlier
This is why the relative slave is automatically emancipated when he acquires him, and he is entitled to maintenance from him when in need ; and the verse is restricted by what we have mentioned.
And because it is known from human nature that the father loves to benefit his son, to bring him advantage and to ward off harm from him, preferring him to himself : he may even call him to bear false witness for him and to brave every prohibition in his affair, in order to secure for him the advantage he seeks or to deliver him from the harm he wants to ward off. Allah the Most High pointed to this by His word : « Your wealth and your children are but a trial » (al-Anfal 28), and he said (peace and blessings of Allah be upon him) : « Fatimah is a part of me : what troubles her troubles me. » When this is established, suspicion is established, and his testimony becomes like testimony for himself (Tuhfat al-Fuqaha 2/362, Bada'i' as-Sana'i' 6/272, al-Hidaya 3/122, al-Jawhara an-Nayyira 6/159, al-Lubab 2/454, al-Fatawa al-Hindiyya 3/469, al-Ishraf ala naka't masa'il al-khilaf 5/69 and 71, al-Ifsah 2/420, al-Muhadhdhab 2/330, al-Bayan 13/311 and 313, Rawdat at-Talibin 7/388, al-Mughni 10/186, Sharh az-Zarkashi 3/404 and 405, al-Mubdi' 10/244, al-Insaf 12/68, Kashshaf al-Qina' 6/541 and 542, Sharh Muntaha al-Iradat 6/674, Manar as-Sabil 3/507).
Imam Ahmad in one version, al-Muzani, Abu Thawr and Ibn al-Mundhir (and it is the view reported from Umar, Umar ibn Abd al-Aziz, Dawud and Ishaq) hold that the testimony of parents for children and of children for parents is accepted, according to the word of Allah the Most High : « Summon two witnesses from among your men » (al-Baqarah 282) : the text is general and did not specify ; because they are like others in uprightness, they are like others in testimony ; and because he is an upright person whose testimony is accepted elsewhere, it is accepted here too, like a stranger.
A version is reported from Ahmad, may Allah have mercy on him : the son's testimony for his father is accepted, but not the father's for him ; for the son's property is legally like the father's property, which he may take possession of at will : his testimony for him is testimony for himself or draws benefit to himself. The Prophet (peace and blessings of Allah be upon him) said : « You and your property belong to your father », and : « The best of what a man eats is from his earning, and your children are part of your best earning : so eat of their property. » Now this is not found in the son's testimony for his father.
A third version from him : the testimony of each of the two for the other is accepted in what involves no suspicion, such as marriage, divorce, retaliation and property he can dispense with ; for neither of them benefits from what is established for the other : there is therefore no suspicion regarding him (al-Muhadhdhab 2/330, al-Bayan 13/311 and 313, Rawdat at-Talibin 7/388, al-Mughni 10/186, Sharh az-Zarkashi 3/404 and 405, al-Mubdi' 10/244, al-Insaf 12/68).
Imam Ibn al-Arabi al-Maliki, may Allah have mercy on him, said : my chosen view is that, according to the foundational principle of the Law, the testimony of the parent for the child and of the child for the parent is not valid, because of the conjugal bond between them. The Prophet (peace and blessings of Allah be upon him) said :
« Fatimah is but a part of me : what troubles her troubles me, and what hurts her hurts me. »reported by al-Bukhari and Muslim
A person's testimony for himself is not valid. Yet some predecessors said there was leniency in this, but it was never reported from anyone that a ruling based on the testimony of a child for his parent, or of a parent for his child, was executed. The leniency meant only that they did not explicitly reject such testimony and did not warn against it, because of the people's rectitude ; when they grew corrupt, the warning came and the scholars pointed to the principle, and one who pretended not to know, or did not know, thought the predecessors had permitted it : that was never the case. The Prophet (peace and blessings of Allah be upon him) said :
« Among the best of what a man eats is his earning, and his child is part of his earning. »sahih hadith, cited earlier
Allah made him a part of him in Islam and a follower of him in faith : he is a Muslim by his father's Islam by consensus, and a Muslim by his mother's Islam according to a differing view ; his property belongs to his father, during his life and after his death ; such is the foundation of the Law, and there is no explanation beyond this (Ahkam al-Quran 1/638).
The jurists agreed that when the friend is not obliging toward his friend, testimony for him and against him is valid, by virtue of the generality of the texts.
But the jurists differed on the testimony of the obliging friend toward the friend he treats with kindness and keeps ties with : is it accepted or not ?
The majority of the jurists, the Hanafis, the Shafi'is, the Hanbalis and most of the people of knowledge hold that it is accepted, with no difference between the obliging friend and the friend who is not, according to the word of Allah the Most High : « Summon two witnesses from among your men » (al-Baqarah 282) to the end of the verse, and His word : « And take the testimony of two just persons from among you » (at-Talaq 2) : He made no distinction.
And because neither of them is automatically emancipated if he acquires the other : his testimony for him is less open to suspicion, as if there were between them neither exchange of gifts nor obligingness (al-Bahr ar-Ra'iq 7/85, al-Hawi al-Kabir 17/162 and 163, al-Bayan 13/314 and 315).
Ibn Qudama, may Allah have mercy on him, said : the testimony of one of the two friends for the other is accepted according to the view of the generality of the scholars, except Malik, who said : the testimony of the obliging friend is not accepted, for he draws benefit from it and is one of the interested parties : his testimony is therefore not accepted, like that of the enemy against his enemy.
Our proof : the generality of the texts on testimony. His thesis would invalidate the testimony of the creditor for the debtor before the interdiction for insolvency, even though he might obtain his debt from him and thereby draw a benefit greater than what is hoped for here between the two friends.
As for enmity, its cause is forbidden, and testifying against the enemy heals the rancor he bears him : it therefore differs from friendship (al-Mughni 10/188, al-Bahr ar-Ra'iq 7/85).
The Malikis hold that the obliging friend, he whom what pleases you pleases and what harms you harms, has no testimony accepted for his friend except on two conditions : that he be outstandingly upright, and that he not live among his dependents, eating and lodging with them as one of their members, because of what is reported in attribution to the Prophet :
« The testimony of an adversary and of a suspect is not accepted. »weak hadith, cited earlier
And because suspicion between them is well established by custom : it is known that when friendship and affection exist between two persons, one showering the other with kindness and keeping ties with him, he loves to draw benefit toward him and ward harm from him, by analogy ; we say : it is a customary preponderant suspicion, rooted in natural dispositions, in the love of benefit and the repulsion of harm, like the testimony of father and child.
And because the suspicion arising from friendship, as we have described it, stands opposite the suspicion arising from enmity : since enmity bars testimony, so does friendship (al-Ishraf ala naka't masa'il al-khilaf 5/75, point 1828, Ahkam al-Quran 1/638, Tafsir al-Qurtubi 12/316, Sharh Mukhtasar Khalil 7/180, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/66).
This is also the view of Ibn Aqil among the Hanbalis. Al-Mardawi, may Allah have mercy on him, said : his wording « the testimony of the friend for his friend is accepted » is the position of the school, and it is that of the school's companions.
However, Ibn Aqil said: the testimony of a close friend for his friend is rejected because of confirmed friendship, and that of the lover for his beloved, because passion makes him irrational (al-Insaf 12/70).