. G F (cont.)

0ts" 01' tXಸ J  . • , .) , .r" J - ஘ - .) i...r' J , , , "For he who [wrongfully] appropriated the right of a Muslim man by a [false] oath, Allah obligates the Hell-fire and forbids Paradise." A man said to him, "Even if it is something minor, o Messenger of Allah (peace be upon him)?" He answered, "Even if it is a branch from the Araak tree."1 Siddiqi's comment on this hadith is as follows, For a Muslim nothing is so damaging as the fact that he should go to the extent of taking a false oath in the name of Allah and that too for some material benefit over which he has no legitimate claim. It implies that such a person has no fellow feeling, no respect for the Lord, and he is absolutely bereft of the sense of fairness and justice and is consumed by a lust for material possessions.2 1 In their commentary to this hadith, al-Khinn, et al., wrote, "The apparent meaning of the hadith is the one who misappropriates a right shall be forever in the Hell-fire. However, it is understood to refer to the case where a person considers that act permissible and dies with that belief without repenting." [See Mustafa Saeed al-Khinn, Mustafa al-Bugha, Muhyi al-Deen Mistu, Ali al­ Shirbihi and Muhammad Ameen Lutfi, Nuzhat al-Mutaqeen Sharh Riyaadh al-Saaliheen (Beirut: Muassasat al-Risaalah, 1984), vol. I , p. 239.) Unfortunately, they only present one interpretation for that hadith. Another interpretation that seems more likely and is applicable in a wider sense is: The hadith means that the person is deserving of Hell, although Allah may forgive him or he may make a sincere repentance; otherwise, the person will be forbidden Paradise when the fust group of believers enter Paradise. It will be a must that he be sent to Hell. After some time, he will be removed from Hell and entered into Paradise due to his faith. Cf., al-Nawawi, Sharh Sahih, vol. 2, p. 1 6 1 . 2 Siddiqi, vol. I , p. 78, fn. 239. His note continues, "Imam Nawawi has made it clear that it is wrong to infer on the basis of this hadith that highhandedness is permissible in case of a non­ Muslim. The right of a non-Muslim must also be respected, for Islam does not permit its Hadith #33: "Were People to be Given . . . " What ifthe Defendant Refuses the Oath? According to the Hanafis and the Hanbalis, if the defendant is requested to take the oath but he refuses to do so, the case is decided in favor of the plaintiff. The reasoning is that, obviously, if the charges against the defendant were not true, there would be no reason for him to refuse the oath. The Prophet (peace be upon him) said, "The oath is upon the defendant." (Recorded by al-Bukhari.) The word ala ƹ ("upon") implies obligation. The sane and religious person would not fail to fulfill this obligation upon him if the plaintiffs case were not true. The Malikis and Shafiees take a very different approach to this question. According to them, if the defendant refuses to take an oath, he can ask that the plaintiff be made to take an oath. This is because the defendant is assumed to be innocent and, therefore, he cannot be asked to do anything if there is no evidence against him. Simply because he is not willing to make an oath is not sufficient to prove that he must be guilty. He may be avoiding a false oath as well as, out of fear of Allah, not wanting to make too many oaths out of fear that he might make a mistake. Perhaps he simply does not recall the details of the case. Given these possibilities, the case cannot be decided against him solely because he is not willing to make an oath. 1 Based on the hadith, though, it seems that the defendant must be forced to take an oath. Only if the defendant offers a good reason for refusing the oath should the case not then be decided against him. For example, if he swears that he cannot recall the details of the case, he should not be forced to take an oath nor should the case automatically be decided against him. Allah knows best. Can the Plaintiff be Asked to Make an Oath? Suppose the defendant refuses to make such an oath-- since something is alleged against him concerning which no proof has been given-- and the judge then makes the plaintiff make an oath that what he claims is true, must the plaintiff now make the oath? According to the Shafiees, the plaintiff must now make the oath. If he refuses to do so and is not willing to make such an oath, in essence, he is deciding the case against himself. This might be based on the hadith from ibn Umar that the Prophet (peace be upon him) turned the making of the oath back infringement.