. G F (cont.)

But if nothing of that nature occurred earlier, her claim of rape when her pregnancy had become apparent would not be accepted. According to the Hanafis, Shafiees, Ahmad and the Dhaahiris, her becoming pregnancy is not a clear enough sign to charge her with the crime of illegal sexual intercourse. It is possible that she became pregnant due to rape although she is not able to prove that. It is also possible that a man's semen could have entered her body without the actual act of penetration. Therefore, they argue that she should not be punished for the act of illegal sexual intercourse since such punishments are not to be enacted when there is any amount of doubt involved.1 Nowadays, the moral laxity of the people is much greater. At the same time, though, there are many more ways by which a woman could get pregnant even without her knowledge.2 Therefore, it is difficult to say which of the above opinions is the stronger. The overriding principle, though, is that the person is free of blame until proven otherwise. Umar ibn al-Khattaab seemed to take an approach based on the situation. Malik records that he said that the punishment is to be implemented when the woman becomes pregnant or admits her crime.3 On the other hand, ibn Abu Shaibah records that the people were accusing a woman of fornication. Umar was told good things about the woman, so he went to her to ask her about her situation. She stated that she prayed during the late night and fell deep asleep. When she awoke, she was being raped. Based on her statement, Umar let her go.4 "the taking of an oath is upon the one who denies [the allegation)." If a case is presented to a judge, he first listens to the claim. 5 Then he asks the defendant if he admits to the charges made against him. Admission is considered one of the strongest proofs against a person. If a person admits to something, he is bound by his own admission. Therefore, if the defendant admits the charges, the case is decided in favor of the plaintiff.6 1 Cf., al-Sadlaan, pp. 61-67. The two sides also present different reports to substantiate their claims. Al-Sadlaan himself concludes that the second opinion, that of the majority, is the stronger opinion. 2 Such as being artificially inseminated while having a gynecological check-up or even being raped while under anesthesia and so forth. 3 According to al-Albaani, this report is sahih. See al-Albaani, lrwa, vol. 8, p. 3 1 . 4 Al-Albaani says that this report is sahih. See al-Albaani, /rwa, vol. 8, p. 30. 5 It is also the role of the judge to determine if the case is a valid case. There are some conditions that the plaintiff and the case must meet in order for the case to be considered valid. Cf., al­ Zuhaili, vol. 6, pp. 5 1 1-5 13. 6 It should also be noted that if a person admits to something or confesses something, he is not entitled to retract that admission if it involves the rights of other individuals. Cf., Mahmassani, p. 174. Commentary on the Forty Hadith of al-Nawawi If the defendant does not admit to the charges, the plaintiff is then requested to present his proof. In general, if the plaintiff presents sufficient evidence, the case is decided in his favor. However, the defendant does have the right to respond to the plaintiffs evidence. 1 Indeed, there is a hadith that states, "If two disputants sit in front of you, do not decide the case for one of them until you listen to the other as you listened to the first."2 If the claimant cannot offer any clear proof for his allegation, he may ask that the defendant to take an oath that he is free of the charges.3 The defendant may then have the charge or claim dropped simply by taking an oath by Allah that the charge or claim is false. Since the defendant is claiming what seems to be the apparent fact, he is not required to presept any proof for his position. By mere appearance, he always seems to be innocent of the claim or charges. Therefore, all that is required of him to clear himself when the claimant cannot offer any strong proof or witnesses is an oath. He is not forced to present any proof that he is innocent or free of the claims against him. When is the Defendant Asked to Make an Oath? According to Abu Hanifah, al-Shafi'ee and Ahmad, in every case that the plaintiff requests it, the defendant is to be asked to make an oath. They do not distinguish between any particular defendants. The Malikis, on the other hand, say that the defendant is not forced to take an oath unless it is proven that there is some relationship, such as a business relationship, between the plaintiff and the defendant or if it is plausible that the plaintiff could have such a claim against the defendant.