Hadith 37610

Malik related to me that he heard that Abu Salama ibn Abd ar-Rahman and Sulayman ibn Yasar were both asked, "Does one pronouncejudgement on the basis of an oath with one witness?" They both said,"Yes."Malik said, "The precedent of the sunna in judging byan oath with one witness is that if the plaintiff takes an oath withhis witness, he is confirmed in his right. If he draws back andrefuses to take an oath, the defendant is made to take an oath. If hetakes an oath, the claim against him is dropped. If he refuses to takean oath, the claim is confirmed against him."Malik said,"This procedure pertains to property cases in particular. It does notoccur in any of the hadd-punishments, nor in marriage, divorce,freeing slaves, theft or slander. If some one says, 'Freeing slavescomes under property,' he has erred. It is not as he said. Had it beenas he said, a slave could take an oath with one witness, if he couldfind one, that his master had freed him."However, when aslave lays claim to a piece of property, he can take an oath with onewitness and demand his right as the freeman demands his right."Malik said, "The sunna with us is that when a slave bringssomebody who witnesses that he has been set free, his master is madeto take an oath that he has not freed him, and the slave's claim isdropped."Malik said, "The sunna about divorce is also likethat with us. When a woman brings somebody who witnesses that herhusband has divorced her, the husband is made to take an oath that hehas not divorced her. If he takes the oath, the divorce does notproceed . "Malik said, "There is only one sunna of bringinga witness in cases of divorce and freeing a slave. The right to makean oath only belongs to the husband of the woman, and the master ofthe slave. Freeing is a hadd matter, and the testimony of women is notpermitted in it because when a slave is freed, his inviolability isaffirmed and the hadd punishments are applied for and against him. Ifhe commits fornication and he is a muhsan, he is stoned. If he kills aslave, he is killed for it. Inheritance is established for him,between him and whoever inherits from him. If somebody disputes this,arguing that if a man frees his slave and then a man comes to demandfrom the master of the slave payment of a debt, and a man and twowomen testify to his right, that establishes the right against themaster of the slave so that his freeing him is cancelled if he onlyhas the slave as property, inferring by this case that the testimonyof women is permitted in cases of setting free. The case is not as hesuggests (i.e. it is a case of property not freeing). It is like a manwho frees his slave, and then the claimant of a debt comes to themaster and takes an oath with one witness, demanding his right. Bythat, the freeing of the slave would be cancelled. Or else a man comeswho has frequent dealings and transactions with the master of theslave. He claims that he is owed money by the master of the slave.Someone says to the master of the slave, 'Take an oath that you don'towe what he claims'. If he draws back and refuses to take an oath, theone making the claim takes an oath and his right against the master ofthe slave is confirmed. That would cancel the freeing of the slave ifit is confirmed that property is owed by the master."Maliksaid, "It is the same case with a man who marries a slave-girl andthen the master of the slave-girl comes to the man who has married herand claims, 'You and so-and-so have bought my slave-girl from me forsuch an amount of dinars. The husband of the slave-girl denies that.The master of the slave-girl brings a man and two women and theytestify to what he has said. The sale is confirmed and his claim isconsidered true. So the slave-girl is haram for her husband and theyhave to separate, even though the testimony of women is not acceptedin divorce."Malik said, "It is also the same case with a manwho accuses a free man, so the hadd falls on him. A man and two womencome and testify that the one accused is a slave. That would removethe hadd from the accused after it had befallen him, even though thetestimony of women is not accepted in accusations involving haddpunishments."Malik said, "Another similar case in whichjudgement appears to go against the precedent of the sunna is that twowomen testify that a child is born alive and so it is necessary forhim to inherit if a situation arises where he is entitled to inherit,and the child's property goes to those who inherit from him, if hedies, and it is not necessary that the two women witnesses should beaccompanied by a man or an oath even though it may involve vastproperties of gold, silver, live-stock, gardens and slaves and otherproperties. However, had two women testified to one dirham or more orless than that in a property case, their testimony would not affectanything and would not be permitted unless there was a witness or anoath with them."Malik said, "There are people who say thatan oath is not acceptable with only one witness and they argue by theword of Allah the Blessed, the Exalted, and His word is the Truth,'And call in to witness two witnesses, men; or if the two be not men,then one man and two women, such witnesses as you approve of.' (Sura 2ayat 282). Such people argue that if he does not bring one man and twowomen, he has no claim and he is not allowed to take an oath with onewitness."Malik said, "Part of the proof against those whoargue this, is to reply to them, 'Do you think that if a man claimedproperty from a man, the one claimed from would not swear that theclaim was false?' If he swears, the claim against him is dropped. Ifhe refuses to take an oath, the claimant is made to take an oath thathis claim is true, and his right against his companion is established.There is no dispute about this with any of the people nor in anycountry. By what does he take this? In what place in the Book of Allahdoes he find it? So if he confirms this, let him confirm the oath withone witness, even if it is not in the Book of Allah, the Mighty, theMajestic! It is enough that this is the precedent of the sunna.However, man wants to recognise the proper course of action and thelocation of the proof. In this there is a clarification for what isobscure about that, if Allah ta'ala wills."