Islamic Fiqh > Marriage and family > Breastfeeding and its legal effects (rada'a) > Doubt concerning the suckling or its number
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full chapter: See all parts.
The second hadith is that of Sahla concerning Salim, in which the Prophet said to her: "Nurse him five sucklings", and that of Aisha in the same sense. Whoever prefers the apparent sense of the Qur'an over these hadiths says that the suction and the two suctions prohibit. Whoever makes the hadiths explanatory of the verse and prefers the implication of the argument of address in "the suction and the two suctions do not render unlawful" over that of Salim's hadith says that it is three sucklings and more that prohibit: the implication of the first text requires that what exceeds prohibit, that of the second that what is below five does not prohibit; the matter is the weighing of one of the two arguments.
The Shafi'is and the Hanbalis, who stipulate the number, state explicitly that if the wet nurse doubts whether she nursed the child or not, or whether she gave five sucklings or four, the prohibition is not established: the default is non-existence, and one does not descend from certainty to doubt. It is like the husband who would doubt whether he divorced his wife, and whether he divorced three times or two (al-Muhadhdhab, 2/156; al-Mughni, 8/138).
Third pillar: the infant (the duration of breastfeeding). The jurists agree that the child who suckles during a period of less than two years has the prohibition established. Imam Ibn Rushd said: they agree that suckling prohibits within the two years (Bidayat al-Mujtahid, 2/27). The vizier Ibn Hubayra said: they agree that the prohibition through suckling is established within two years (al-Ifsah, 2/27).
They differ, however, over the case of the woman who nurses a child after the two years: is the prohibition established or not? Abu Yusuf and Muhammad among the Hanafis, Malik in the Muwatta, and the Shafi'is and Hanbalis hold that nursing given after the two years does not establish the prohibition: it is established only if the suckling takes place within the two years, weaning not being taken into account, but time only. Even if she weaned him and then nursed him again within the two years, the prohibition is established. They rely on the word of Allah:
"Mothers breastfeed their children two complete years, for whoever wishes to complete the nursing."
Surah Al-Baqara, 233
What is beyond completion has no ruling: Allah placed the completion of suckling within the two years, showing that no ruling attaches to suckling after them, the suckling having been completed with their term. No suckling after the two years is taken into account. And to the word of Allah:
"... and his weaning is in two years."
Surah Luqman, 14
And to the word of Allah:
"... his gestation and weaning last thirty months."
Surah Al-Ahqaf, 15
The minimum duration of pregnancy being six months, there remains for the duration of weaning two years. And to what is reported from Ibn 'Abbas (may Allah be pleased with them both) from the Prophet: "There is no suckling except what takes place within the two years": a weak hadith reported by al-Daraqutni (4364), an explicit text for this chapter. And to his word: "Nothing renders suckling unlawful except what splits the intestines and takes place before weaning": an authentic hadith reported by al-Tirmidhi (1152). And according to Masruq, Aisha (may Allah be pleased with her) said:
The Prophet entered upon me while there was a man in my house. He said: "O Aisha, who is this?" I said: "My brother through suckling." He said: "O Aisha, examine well who your brothers are: suckling takes place only in case of need for food."Reported by al-Bukhari (2647) and Muslim (1455)
That is, at the moment of the need for food and milk (Bada'i' al-Sana'i', 4/6-7; al-Ikhtiyar, 3/146; Mukhtasar al-Wiqaya, 1/381; al-Jawhara an-Nira, 4/371; al-Lubab, 2/61-62; Tafsir al-Qurtubi, 3/162; al-Umm, 5/29; al-Ishraf, 5/119; al-Muhadhdhab, 2/155-156; al-Mughni, 8/142; Majmu' al-Fatawa, 34/59-60).
Imam al-Shafi'i said: Malik reported to us from Yahya ibn Sa'id that Abu Musa said: "I see that the suckling of the adult is prohibitive." Ibn Mas'ud said: "Consider well what the man gives as a verdict." Abu Musa said: "What do you say, then?" He replied: "There is no suckling except what took place within the two years." Abu Musa then said: "Do not ask me about anything while this eminent scholar is among you."
Al-Shafi'i said: the sum of the difference between the small and the big is that the suckling take place within the two years: if the infant is nursed within the two years according to five sucklings as I described, his prohibiting suckling is complete. Whether he was nursed less than two years then his suckling was interrupted and he was nursed again before the two years, or his suckling was continuous until a woman nursed him five times within the two years; and if his suckling was prolonged without interruption, three years, or two years, or six months, or less or more, then he was nursed after the two years, that suckling prohibits nothing: it then counts as food and drink. And if he was nursed within the two years four sucklings, and the fifth and others after, there is no prohibition: only five complete sucklings within the two years prohibit; feeding from a vessel equals suckling (al-Umm, 5/29; al-Muhadhdhab, 2/155-156).
Ibn Qudama (may Allah have mercy on him) said: this ruling being established, consideration is given to the two years, not to weaning. If he was weaned before the two years and suckled within them, the prohibition occurs; and if he was not weaned before exceeding the two years and suckled after them before weaning, the prohibition is not established.
Ibn al-Qasim, the companion of Malik, said: if he suckled after weaning within the two years, he does not become unlawful to her, by virtue of his words "and takes place before weaning". Our proof is the word of Allah: "Mothers breastfeed their children two complete years" (Surah Al-Baqara, 233). And it is reported from him: "There is no suckling except what takes place within the two years": weaning is taken into account by its term, not by itself. Abu al-Khattab said: if he suckled after the two years by even an hour, he does not become unlawful. And al-Qadi said: if he began the fifth suckling and the two years were completed before its completion, the prohibition is not established.
That is not sound: what took place of the suckling within the two years suffices for the prohibition, because of its separation from what follows; no ruling should fall through the addition of what has no effect (al-Mughni, 8/143).
Imam Abu Hanifa holds that the duration of suckling is thirty months, and that nothing prohibits after, whether the child was weaned or not, by virtue of the word of Allah: "your mothers who breastfed you, and your sisters through nursing" (Surah An-Nisa, 23). The verse established the prohibition through suckling absolutely, without concerning itself with the time of nursing; then the proof was established that what is beyond the thirty months is not intended, and its absence of restriction applies to what is below. And to the word of Allah:
"If they both decide on weaning, by mutual consent and after consultation between them..."
Surah Al-Baqara, 233
The argument drawn from it is on two sides. First, Allah established for them both the will to wean after the two years: the conjunction indicating sequence, that presupposes that suckling remains after the two years so that weaning takes place within them. Then, Allah established for them both the will to wean without restriction of time, and weaning only takes place from suckling: the ruling of suckling therefore remains at all times, as long as no proof of restriction is established. And to the word of Allah: "And if you wish to have your children nursed" (Surah Al-Baqara, 233): Allah established for them both the will to have nursed without restriction of time; whoever claims the restriction to the two years bears the burden of proof.
Suckling renders unlawful only because it makes the flesh grow and strengthens the bone, as the hadith establishes; but it is habitually impossible that it make the flesh grow up to the two years and then cease an hour later: Allah has not established the habit of change of food without a considerable duration. A woman may give birth in extreme cold or extreme heat: when two years have passed over the child, it is not permitted to order the woman to wean him, for fear of his loss; if he has not been accustomed to other foods, she must necessarily be ordered the sucklings, and it is impossible to order the sucklings and prohibit suckling at the same time: that shows that suckling after the two years is indeed suckling.
Abu Hanifa nevertheless deemed good, in his estimation, to extend the ruling of suckling by six months after the two years, because that is the minimum duration of the child's change: the fetus remains six months in its mother's womb, feeds there, then separates to become founded upon food.
Imam Zufar holds that the duration of the prohibiting suckling is three years: he extended the consideration by a full year after the two years, saying that the ruling of suckling being established at the beginning of the third year according to Abu Hanifa's words, it is established in its remainder as in the first and second year.
As for the first verse, the two years are the duration of suckling for the one who wishes to complete it, which does not exclude that the surplus be the duration of suckling for the one who does not wish to complete it. The mention of a thing in its completeness does not prevent admitting a surplus: consider His words "whoever reaches 'Arafat has completed his pilgrimage", which does not prevent an additional obligation, the tawaf of the visit being a pillar of the pilgrimage. In the noble verse, the two years are indeed the completion of the duration of suckling, but as the completion of the duration with regard to the prohibition or the obligation of the wage of suckling upon the father: the text does not concern it. According to Abu Yusuf and Muhammad, the completion of the duration of suckling applies to the obligation of the wage upon the father, to the point that if the divorced mother claims the wage after the two years and does not nurse without wage, the father is not compelled to pay the suckling beyond the two years; or the verse is interpreted so for the sake of reconciling the proofs, the proofs of Allah not contradicting one another.
As for the second verse, weaning within two years does not exclude weaning beyond, as it does not exclude weaning in less, by mutual consent and consultation: that is an argument from the unmentioned, like His words "make contract with them, if you know there is good in them" (Surah An-Nur, 33), which does not prevent the validity of contractual emancipation in the absence of known good.
Imam al-Kasani (may Allah have mercy on him) said: suckling prohibits during the duration on which they differ, whether the child was weaned during that duration or not: that is the answer of the apparent sense of the transmission of our companions, to the point that if the infant was weaned during the duration of suckling and then fed afterwards within that duration, that was a prohibiting suckling. Weaning is not taken into account, time alone is: the prohibition is established, according to Abu Hanifa, for what took place within the two and a half years, and, according to his two companions, for what took place within the two years; suckling in its time is a habit rendered prohibitive by the Law (Bada'i' al-Sana'i', 4/6-7; al-Ikhtiyar, 3/146; Mukhtasar al-Wiqaya, 1/381; al-Jawhara an-Nira, 4/371; al-Lubab, 2/61-62).
The Malikis, in the view upon which their madhhab relies, hold that the condition for the establishment of the prohibition through suckling is that the arrival at the stomach take place within the two years from birth, or with a slight surplus sharing its ruling, like a month or two; it has been said three months, for this slight surplus is taken into account by virtue of the word of the Prophet: "Suckling is only a remedy against hunger" (Reported by al-Bukhari, 2647, and Muslim, 1455). The child cannot do without food a day or two after his weaning, and that equals a suckling within the two years; and a suckling in the face of hunger equals the two years.
This holds as long as he remains limited to suckling, or eats with it what restriction to it alone would harm: if he was weaned and then a woman nursed him a day or two after his weaning or thereabouts, he becomes unlawful, for if he returned to milk, it would be a strength in his lunch and his dinner. If the weaning is clear, what he obtains of milk afterwards is not taken into account, even if independence occurred within the two years, and whether that independence, according to the most well-known view, lasted long or little: that is the madhhab of the Mudawwana, in opposition to the two brothers and to Asbagh in maintaining the prohibition until their full term.
Al-Dasuqi (may Allah have mercy on him) said: the result of the fiqh, as it appears in al-Tawdih, is as follows: if the suckling took place within the two years and the child has not reached independence, either because he was not weaned at all, or because he was weaned but was nursed a day or two after his weaning, the prohibition is established by consensus, even if he has reached independence. Then, if the suckling occurs after independence, at a distant or near term: if distant, it is not taken into account; if near, it is likewise not, according to the most well-known view, which is the madhhab of the Mudawwana: suckling after independence does not prohibit, whether the term be near or far. In opposition to that, Mutarrif, Ibn al-Majishun and Asbagh, in al-Wadiha, hold that the prohibition is established until the completion of the two years, even if the suckling takes place after independence, near or far be the term (the hashiyya of al-Dasuqi on al-Sharh al-Kabir, 3/469; at-Taj wa-l-Iklil, 3/221-222; Sharh Mukhtasar Khalil, 4/178; al-Ishraf 'ala nakt al-masa'il al-khilafiyya, 4/54-55).
The Malikis and the Hanbalis state explicitly that if the woman asserts that her husband is her brother through suckling and he calls her a liar, her word is not accepted for annulling the marriage: it is a right resting upon her, and she is suspected of aiming at separation.
The Malikis say: if it took place before consummation, she has nothing of the dowry (mahr), by virtue of her acknowledgment of the invalidity of the contract; if he wishes to separate from her after consummation, she has the dowry, because it is settled by consummation (at-Taj wa-l-Iklil, 3/226; Sharh Mukhtasar Khalil, 4/181; Tahrir al-Mukhtasar, 3/398; al-Sharh al-Kabir with the hashiyya of al-Dasuqi, 3/474).
The Hanbalis say: if he wishes to separate from her, be it before consummation, she has no dowry, because she acknowledges not deserving it; if she has already received it, the husband cannot take it back from her, because he acknowledges it to be a right for her. If it is after consummation and she acknowledged that she knew she was his sister, knew their union was unlawful and submitted to him in intercourse, she has no dowry either, because she acknowledges being a consenting fornicator. If she denied any of that, she has the dowry: intercourse took place under a doubt (shubha), and she remains his wife in appearance of the ruling, her word against herself not being accepted.
As for what is between her and Allah: if she knows the truth of what she acknowledged, it is not permitted for her to cohabit with him nor to expose herself to his intercourse; she must distance herself from him and ransom her soul as much as she can, intercourse with him being fornication; she must free herself from it by every possible means, as we said of the one who knew her husband had divorced her three times and whom he denied it. The dowry due to her after consummation must be the lesser between the stipulated amount and the dowry of the equivalent: if the stipulated amount is lesser, her word is not accepted for an additional debt; if the lesser is the dowry of the equivalent, she does not deserve more, since she acknowledges that her right comes from intercourse, not from the contract.
If her acknowledgment met an established marriage nullifying it, and her acknowledgment against herself was accepted for its being unlawful, the same applies if the man acknowledges that this woman is his sister through suckling, or unlawful to him through suckling or otherwise, and truthfulness is possible: it is no longer permitted for him to marry her, in appearance of the ruling. As for what is between him and Allah, it depends on his knowledge of the reality (al-Mughni, 8/155; Sharh al-Zarkashi, 2/558; al-Majmu', 8/181; al-Insaf, 9/348; Kashshaf al-Qina', 5/535-536; Matalib Uli al-Nuha, 5/204).
The Shafi'is hold that if the wife claims the suckling and the husband denies it, the husband is believed on his oath if she was married with her consent by someone she knew specifically: either she designated him in her permission, or he was designated to her and she did not object where her silence suffices, her consent being included therein. If the husband swore to the denial of the suckling, the conjugal bond continues in appearance, and it is incumbent upon her, if she speaks truly, to withhold herself from him as much as she can.
Otherwise, if she was married without her consent, by a guardian compelling for reason of insanity or virginity, or if she gave a general permission without designating the husband, the sounder view is to believe her on her oath: what she claims is possible and nothing preceded it contradicting it, like the case where she would have mentioned the suckling before the marriage. Second opinion: the husband is believed on his oath, owing to the continuation of the marriage deemed valid in appearance. The place of disagreement is the case where she did not expose herself to his intercourse of her own choice: if she did, her word is not accepted.
She has, in both cases, the dowry of the equivalent if he had intercourse with her while she was unaware of the suckling, then learned of it and claimed it, whether the equivalent equals the stipulated amount or is below it; she cannot claim the stipulated amount, since she does not deem it her due. If the husband paid it to her, he cannot claim its return, according to his assertion that it is hers; if the dowry of the equivalent exceeds the stipulated amount, the wife does not claim the surplus, accepting the husband's truthfulness. Piety would have him divorce her once, so that she becomes lawful to another if she is lying. If there has been no consummation, she has nothing (Rawdat al-Talibin, 6/37-38; Kanz al-Raghibin, 4/168; al-Najm al-Wahhaj, 8/219; Mughni al-Muhtaj, 5/145; Tuhfat al-Muhtaj, 10/136-137).
The Hanafis say: if the woman asserts "this man is my father through suckling, or my brother, or my brother's son" and the man denies it, then she retracts herself saying "I was mistaken", he may marry her and the marriage is valid; the same applies if he married her before her retraction. And if the woman says after the marriage: "I had acknowledged that you were my brother; what I acknowledged was true at that time, and the marriage took place invalidly", no difference is made between the two situations, whereas a difference would be made if those words came from the husband.
Imam al-Haskafi, the Hanafi (may Allah have mercy on him), said: if the woman acknowledges that then retracts herself saying "I was mistaken", it is permitted for him to marry her, as if he had married her before her retraction, even if she persists in it, because the prohibition does not rest upon her. They said: by this the fatwa is given in all cases. Source: the Bazzaziyya. Imam Ibn 'Abidin (may Allah have mercy on him) comments: his words "it is permitted for him" mean the marriage is valid. His words "because the prohibition does not rest upon her" mean the Lawgiver did not establish it for her, so her acknowledgment is not taken into account. His words "in all cases" mean: whether she acknowledged before the contract or not, whether she persisted in it or not, in contrast to the man whose persistence establishes the prohibition, as you have known.
It is understood from al-Bahr, quoting the Khaniyya, that her persistence before the contract prevents her from marrying him, and the same is found in al-Dhakhira; but the reasoning mentioned negates that. His words "Bazzaziyya": this is mentioned in the Bazzaziyya, at the end of the book of divorce, where it is said: a woman said to a man "this one is my father through suckling" and persisted: it is permitted for him to marry her if the man denies it; likewise if she acknowledged it then retracted, she is not believed; because the prohibition does not rest upon her, even if she acknowledges it after the marriage, it is not taken into account: proof that it is permitted for her to marry herself to him in all cases, and by this the fatwa is given.
This content is found in the Khulasa, from al-Sughra of Sadr al-Shahid, with this wording: therein is proof that if she claims the three divorces and the husband denies, it is permitted for her to marry herself to him. And he mentions it in the Bazzaziyya, at the end of divorce: if she says "he divorced me three times" and then wishes to marry herself to him, that is not for her, whether she persisted or retracted. And he states explicitly, in the matter of suckling, that if she says "this one is my son through suckling" and persists, it is permitted for him to marry her, because the prohibition does not rest upon her. They said: by this the fatwa is given in all cases. Those are the words of the Bazzaziyya.
His words "he stated explicitly" aim at the argument for her marriage in the question of divorce, as he did in the Khulasa. By that is known what is in the commentator's words, shortly before the chapter of i-la', where he related this passage of the Bazzaziyya and omitted his words "and he stated explicitly, in the matter of suckling". His words "it is permitted for him to marry her": because divorce, in her case, is hidden, the man being independent in it; her retraction is therefore valid. Commentary of the Nahr: that is, lawful in the ruling; as for what is between her and Allah, no, if she knew the three divorces (the hashiyya of Ibn 'Abidin on al-Durr al-Mukhtar, 3/223-224; see al-Muhit al-Burhani, 3/187; the Fatawa al-Hindiyya, 1/347).
The second means of establishing suckling is the proof (bayyina), namely the witnesses who testify that such a woman nursed such a child. The jurists agree on establishing suckling by testimony. They differ over the number required to testify to suckling, over the place of men in that testimony, and over the acceptance of the testimony of women alone.
The Hanafis hold that no testimony of women alone, without a man with them, is accepted concerning suckling: the testimony of a single woman is not received, whether she is a stranger or the mother of one of the two spouses, and her word makes no difference between them. Two men, or one man and two upright women ('adil), must testify, and nothing less is accepted, no more than the isolated testimony of women.
Suckling is among what men can observe: the relative of the prohibited degree looks at the breast and his testimony is admissible therein. And because the prohibition, which occurs through the suckling of the breast, also occurs through feeding from a vessel, which men can observe. Their proof is the word of Umar (may Allah be pleased with him): "Nothing is accepted in the matter of suckling except the testimony of two men, or of one man and two women"; that took place in the presence of Companions, without objection from anyone: it was therefore a consensus. And because it is a domain observable by men in general: the breast of the slave woman may be seen by strangers, the breast of the free woman by her relatives of the prohibited degree. The acceptance of the isolated testimony of women in the principles of the Law rests upon necessity, which is the impossibility for men to observe the object of testimony: as soon as observation becomes possible in general, the necessity is no longer realized.
If the witnesses testify, a distinction is made: if it took place before consummation, she has no dowry; if after, she has the lesser between the stipulated amount and the dowry of the equivalent, without right to maintenance or housing during the waiting period ('idda). If a single woman testifies to the suckling, it is preferable for the husband to separate from her, by virtue of the hadith of 'Uqba ibn al-Harith cited above (Reported by al-Bukhari, 4816), of which al-Nasa'i reports a version with the words "let her go". The Prophet's order belonged to mere precaution: he turned away a first and then a second time, and had separation been obligatory, he would not have turned away nor ordered separation from the first request.
It is likewise reported that a man had married, that a woman came claiming to have nursed them both, and that he asked 'Ali, who said: "She is your wife, no one forbids her to you; if you take precaution, that is better"; and that he asked Ibn 'Abbas, who told him the same. And because she may be telling the truth in her testimony, precaution being separation. If he separates from her, it is preferable for him to give her half the dowry if the separation took place before consummation, because of the possibility that the marriage be valid should her testimony be false; and it is preferable for her to take nothing, because of the possibility that the marriage be invalid should her testimony be true.
If it is after consummation, it is preferable for the husband to give her the full dowry, maintenance and housing, because of the possibility that the marriage be valid; and it is preferable for her to take the lesser between the dowry of the equivalent and the stipulated amount, without maintenance or housing, because of the possibility of invalidity. If he does not divorce her, he has full latitude to remain with her, the marriage standing in the ruling. The same applies if a single woman testifies, or two, or a man and a woman, or two non-upright men, or a man and two non-upright women.
And if two upright men, or a man and two upright women, testify and separation is made: before consummation, she has nothing, because it becomes clear that the marriage was invalid; after consummation, the lesser between the stipulated amount and the dowry of the equivalent is due to her, maintenance and housing not being due in any invalid marriage (al-Mabsut, 5/137; Bada'i' al-Sana'i', 4/14-15; al-Jawhara an-Nira, 4/386 and 388; al-Lubab, 2/69).
The Malikis hold that suckling is established between the two spouses by the testimony of two upright men, without disagreement; that it is also established by the testimony of a man and a woman if the matter was widely known (fashy) from their words before the contract; and that it is also established by the testimony of two women if it was widely known before the contract, according to the most well-known view, which is that of Ibn al-Qasim. Sahnun, Mutarrif and Ibn al-Majishun say: suckling is established by the testimony of the two women without it being widely known, on condition that they be upright, whether they are their mothers or strangers, for it is a matter that generally only women can observe; if it was not widely known before the contract, it is not established.
The condition of wide knowledge applies to both questions; as for the man together with the two women, wide knowledge is not required there. Is the uprightness of the man and the woman, or of the two women, required together with the wide knowledge? There is hesitation, and the preferred view is that uprightness is not required with it. Suckling is established between the two spouses by the testimony of two upright men, by consensus, widely known or not; it is not established by the testimony of a single woman, even widely known before the contract and even if she is upright.
Precaution is recommended in any testimony that does not oblige separation: the testimony of a single woman, mother of one of them or stranger; the testimony of a single man, even upright; the testimony of two women without wide knowledge before the contract. Precaution consists in not marrying her if she is not his wife, or divorcing her if she is (al-Mudawwana al-Kubra, 5/211-212; at-Taj wa-l-Iklil, 3/227-228; Sharh Mukhtasar Khalil, 4/182; al-Sharh al-Kabir with the hashiyya of al-Dasuqi, 3/475-476; Tahrir al-Mukhtasar, 3/399-400).
The Mudawwana al-Kubra reports, concerning testimony about suckling, the following dialogue. (I asked): a woman testified that she nursed a man and his wife; are they separated according to Malik's view? (He answered): Malik said: one says to the husband: take precaution regarding her if you trust her sincerity, and I do not see him remaining with her; the judge does not separate them on her testimony alone, even were she upright. (I asked): two women testified to the suckling of a man and his wife; are they separated according to Malik's view? (He answered): yes, if the matter was widely known from their words before that moment. (I asked): and if it was not known from their words? (He answered): their word is not accepted, for lack of wide knowledge among the families and neighbors before the marriage. (I asked): and if those two women are the mother of the wife and the mother of the man? (He answered): their word is not accepted, unless it was known from their words and widely known before the marriage; they are equal to the strangers in my view.
(I asked): if a single woman testified that she nursed them both, and that was known from her words before the marriage? (He answered): the judge does not separate them in my view; separation takes place only with two women, testimony being complete at two; a single woman does not effect separation, but one says to the husband: take precaution regarding her between you and your Creator. (I asked): a man proposed to a woman and a woman said "I nursed you both"; is she forbidden to him according to Malik's view, and if he marries her, are they separated? (He answered): Malik said: she is forbidden to him by way of precaution, not by way of prohibition; if he marries her, the judge does not separate them (al-Mudawwana al-Kubra, 5/211-212).
The Shafi'is hold that suckling is established by the testimony of two men, or a man and two women, because everything in which the isolated testimony of women is accepted accepts that of men; or of four women, owing to the special capacity of women to observe this matter, as with childbirth; it is not established with fewer than four women, two women being like a man.
The place of accepting the testimony of women is the dispute over the suckling at the breast; if it is over drinking or being fed from a vessel, the isolated testimony of women is not accepted there, they having no special capacity of observation; but they are accepted to testify that the milk of the vessel is the milk of such a woman, men not usually observing the milking. Acknowledgment of suckling requires two men and is not established otherwise, owing to men's habitual observation. The testimony of the wet nurse herself, together with others, is accepted if she does not demand a wage for her nursing and does not mention her deed, testifying only that there is between them a prohibiting suckling: she draws no benefit and repels no harm by that testimony. Likewise if she mentions her deed saying "I nursed him": she is accepted; if she demands a wage, she is not, being suspect.
According to the sounder view, it does not suffice, in testifying to suckling, to say "there is between them a prohibiting suckling": one must add the mention of the time when the nursing took place, namely before the two years for the infant and after nine years for the wet nurse, the mention of the number, namely five sucklings, and the precision "separate", most people not knowing that moving from one breast to the other, or the infant's interruption to play and breathe followed by a return, counts as a single suckling; one must likewise mention the arrival of the milk at the stomach at each suckling. According to the opposite view, "there is between them a prohibiting suckling" suffices. And if the threshold of testimony is not reached, as when one, two or three women testified to the suckling, it is recommended for the husband to divorce her, and remaining with her is disapproved for him (Rawdat al-Talibin, 6/39-40; al-Najm al-Wahhaj, 8/220-221; Mughni al-Muhtaj, 5/146-147; Kanz al-Raghibin, 4/170-171; Tuhfat al-Muhtaj, 10/139-140; Nihayat al-Muhtaj, 7/214-215; al-Dibaj, 3/611).
The Hanbalis, in the madhhab, hold that suckling is established by the testimony of a single upright ('adil) woman on her own deed, testifying that she nursed him five sucklings within the two years; or by that of an upright woman on the deed of another, testifying that such a woman nursed him five sucklings within the two years; or by the testimony of a single man to that effect: suckling is thereby established, with no oath required of the one in whose favor testimony is given nor of the woman who testifies. They rely on the hadith of 'Uqba ibn al-Harith cited above (Reported by al-Bukhari, 4816) and on its al-Nasa'i version with the words "let her go": that shows the sufficiency of a single woman.
Al-Zuhri said: in the time of 'Uthman, families were separated on the testimony of a single woman. Al-Awza'i said: 'Uthman separated four men from their wives on the testimony of one woman concerning suckling. Al-Sha'bi said: judges used to separate a man from his wife on the testimony of a single woman in matters of suckling. And because it is a testimony bearing upon an intimate part: the isolated testimony of women is accepted therein, as with childbirth; it is a matter in which the word of women alone is accepted, so the wet nurse, the woman claiming affiliation and others are received equally; the one who is not acceptable is not received.
Imam Ahmad has another transmission: only the testimony of two women is accepted, men being worth more than women and women more than men: only two men are accepted for the former. And he has a third transmission: the testimony of a single woman is accepted and she is made to swear along with her testimony; that is the view of Ibn 'Abbas and Ishaq. Ibn 'Abbas, concerning a woman who claimed to have nursed a man and his family, said: "If she is trustworthy, she is made to swear and he separated from his wife." And he said: "If she is lying, it will not be lawful for her for a year, until her two breasts turn white", meaning she would be afflicted with leprosy as punishment for her lie; but no analogy nor opinion leads to that: he holds that word only by transmission (tawqif).
The testimony of the wet nurse on her own deed is likewise accepted therein, as the hadith of 'Uqba shows, where the black slave woman said "I nursed you both" and the Prophet accepted her testimony; and because it is a deed procuring her no sought benefit nor repelling any harm, her testimony on her own deed is accepted therein like that of another.
Testimony about suckling is accepted only as explained: if she says "I testify that this man is the son of this woman through suckling", it is not accepted, because people differ over the prohibiting suckling, some prohibiting through the little, others after the two years. The witness must therefore state its modality so that the judge may rule according to his ijtihad: he must testify that this man suckled the breast of this woman five separate sucklings, the milk reaching his stomach therein within the two years.
If it is objected that the arrival of the milk at the stomach cannot be observed by sight, we answer: when he knows that this woman has milk and sees the child take her breast, move his mouth in suction and his throat in swallowing, a conviction near certainty is established that the milk reached his stomach; what escapes observation by sight is content with apparent signs, like testimony concerning ownership, the establishment of a debt, or testimony concerning descent by fame. If the witness says "he put his head under her clothes and took her breast", that is not accepted: he may put his head without taking the breast, and take the breast without suckling; one must therefore mention what indicates it. If he says "I testify that this woman nursed this man", it apparently suffices for establishing the basis of the suckling, since contentment was had with the word of the one who said "I nursed you both" (al-Mughni, 8/153-154; Sharh al-Zarkashi, 2/557; Kashshaf al-Qina', 5/535; Matalib Uli al-Nuha, 5/612).
Imam Ibn Rushd (may Allah have mercy on him) said: as for testimony about suckling, some people said that only the testimony of two women is accepted therein; others that of four, and al-Shafi'i and 'Ata' said so; others that the testimony of a single woman is accepted therein. Among those who accept two women, some stipulate the wide knowledge of their words before the testimony: that is the madhhab of Malik and Ibn al-Qasim; others do not stipulate it: that is the view of Mutarrif and Ibn al-Majishun. Among those who also accept a single woman, some do not stipulate the wide knowledge of her words before the testimony: that is the madhhab of Abu Hanifa, although it was mentioned that it is not established with him by the testimony of a single woman; others stipulate it, and it is a transmission from Malik, from whom it is also reported that the testimony of fewer than two women is not valid therein.
The cause of their disagreement: between the four women and the two, it concerns the testimony of women: is the equivalent of each man two women where the testimony of men is impossible, or do two women suffice? And their disagreement over accepting a single woman stems from the transmitted report in the matter contradicting the agreed principle, namely that fewer than two witnesses among men is not accepted; and women therein are either weaker than men, or their equals. Consensus is established that no judgment is rendered upon the testimony of one. The report in question is the hadith of 'Uqba ibn al-Harith; some interpreted it as a recommendation, thereby reconciling the report with the principles, and that is the most likely view; it is a transmission from Malik (Bidayat al-Mujtahid, 2/29-30).