. G F (cont.)

There is a consensus that a woman's testimony is acceptable in these matters and that her testimony is equal to "one-half' of a man's. This view is clearly based on the verse in the Quran, ,, .... ,.I J.J. .... J ;::; {T|s .. 1\ % 0j:.;:,:> u!-: 91 /;i_;1j g;J т) GƐ FJ 0Ϯ "And if there are not two men [available as witnesses], then a man and two women, such as you agree for witnesses" (al-Baqara 282). The purpose of that command is that when such contracts are to be witnessed, male witnesses should be sought. However, if they cannot be found or are not available, female witnesses may be used although females are usually not involved in such procedures. The Malikis and the Hanbalis say that a judge may decide a case based on two female witnesses and the oath of the plaintiff. Ibn Taimiya says that one female witness and the oath would be sufficient. Note that the verse above is simply talking about the procedure of getting witnesses during the contract or agreement. This does not mean, however, as ibn al-Qayyim pointed out, that a judge can only decide a case if there is at least one male witness and two female witnesses. The above procedure is simply to safeguard one's wealth. If a plaintiff has a male witness and two female witnesses, that should be sufficient to prove his case. However, that is different from a judge deciding a case. The judge has much more latitude and flexibility. He may decide a case even with just two female witness or one female witness if he has reason to believe the testimony given. According to many scholars, the issues of marriage, divorce, returning to one's divorced wife, paternal and maternal relations and similar matters are dealt with in the same way as monetary matters. In other words, two female witnesses will be equivalent to one male witness in such cases. This is the view of the Hanafis, Dhaahiris, ibn Taimiya, ibn al-Qayyim as well as a number of early scholars. The Hanafis, however, state that one man must testify with them, as explicitly stated in the verse quoted above concerning financial transactions. The evidence that woman's testimony is to be accepted in such cases is found in the verse, .J. / I / À ÁÂ hji IJ¥ij "And take as witnesses two just persons among you [Muslims)" (al-Talaaq 2). This verse is considered mujmal or "undetailed, ambiguous". Its explanation or details are found in al-Baqara 282 quoted above: two just men are required or one man and two women. Hadith #33: "Were People to be Given . . . " Furthermore, ibn Hazm records an incident in which a man divorced his wife and there were four women present at that incident. Umar accepted the evidence of those four women and separated that man from his wife.1 In addition, there are some hadith of the Prophet (peace be upon him) that are stated in a general fashion, not implying that they are particular for the case of business transactions only. For example, the Prophet (peace be upon him) stated, "The witness of two women is equal to the witness of a man." (Recorded by Muslim.) Indeed, it is argued, if the woman's testimony is accepted in the case of business transactions, it should be accepted in the case of divorce and a man returning to his wife. This is because this would be something that she may witness on a more regular basis and would be something that she would be more familiar with. Hence, if her witness is accepted in the one case, it should also be accepted in the other. This was part of ibn Taimiya's and ibn al­ Qayyim's argument on this question.2 In cases of "unintentional felonies," such as involuntary manslaughter, which require monetary retribution, the four schools of fiqh accept the testimony of women. However, the Hanafis, Shafiees and Hanbalis require the addition of one man to the women's testimony. The Malikis, Dhaahiris and one opinion among the Hanbalis is that such is not a requirement. This view is based on the judgments made by Ali in which only women were witnesses of such offenses. The Hanbalis and Malikis also accept women's testimony in cases of voluntary or intentional "felonies" which do not require a hudood punishment. There are some areas in which the four schools of fiqh do not accept female testimony because, in general, they are areas in which they are not very much familiar and the resultant penalties are heavy. If there is any doubt concerning a crime, the hudood punishments are not to be meted out. Such crimes must be proven in a definite fashion. For this reason, these scholars do not implement the hudood punishments based on the testimony of female witnesses. Al-Zuhri is reported to have said, "The sunnah since the time of the Messenger of Allah (peace be upon him) and the two caliphs after him is that 1 Ali ibn Hazm, Al-Muhalla (Beirut: al-Maktab al-Tijaari), vol. 9, p. 397.