Women & Islamic Cultures Family, Law and Politics

Overview

Throughout Islamic history as well as during the
contemporary period, Muslim jurists, reformers,
and latterly feminists have discussed the concept of
women as witnesses in Islamic law, yet the topic has
not achieved a prominent status within Islamic
legal discourse.
Providing legal evidence is imperative in uphold-
ing the Sharì≠a, or divine law in Islam. The three
methods through which legal evidence can be pro-
vided in the Sharì≠a are confession (iqràr), testi-
mony (shahàda), and oath (yamìn). Testimony is
defined as a statement in court concerning the
rights of others, which is based on observation, and
introduced by the word “ashhadu” (I testify)
(Peters 1997). The prerequisite for testifying is that
the person be ≠adl, that is, be of honest, just, and
upright character. The person should have reached
puberty; be sound in body and mind; must never
have been punished or been guilty of a serious
offence; and must not have engaged in immoral
behavior. One cannot testify for one’s immediate
family. Testifying is considered a collective obliga-
tion, far∂≠alàal-kifàya, but becomes an individual
obligation in cases where it is necessary for a spe-
cific person to testify in order to protect the rights
of another. This obligation is adhered to in all mat-
ters of testifying within the Sharì≠a except when
dealing with Islamic criminal law (the ™add
offences), because of the severity of both the crime
and the penalty. The act of testifying is an extremely
noble act as well as a grave responsibility.
Throughout much of Islamic history the percep-
tion and practice has been that witnesses were
required to be male for most legal cases. For
instance, in the area of the ™addconcerning adul-
tery (zinà), the four schools of jurisprudence,
namely £anafì, Màlikì, Shàfi≠ìand £anbalì, accept
only four male witnesses. For ™addoffences other
than adultery, such as the law of retaliation for
murder (qißàß), theft (sariqa), highway robbery or
brigandage (™iràba), and involvement with intoxi-
cants (khamr), the four juristic schools require two
male witnesses. The Qur±ànic verses utilized to sup-
port their claim are 65:2, which describes the num-
ber of witnesses required during a divorce, and
5:106, which deals with the writing of a will. In
other issues – for example, marriage (nikà™); divorce

Law: Women as Witnesses

(†alàq); remarriage with one’s divorced wife (raj≠a);

annulment of a marriage after the husband’s sworn

testimony to have refrained from marital inter-

course for a period of at least four months (ìlà≠);

repudiation (Ωihàr); relationship by marriage (nasab);

submission to the will of God (islàm); apostasy

from Islam (ridda); declaring witnesses unreliable

(jar™); declaring reliable witnesses (ta≠dìl); death

and poverty (mawt wa-i≠sàr); appointment of a rep-

resentative, agent, deputy, proxy or delegation of

authority (wakàla); guardianship (wilàya); and

witnessing over another witness (shahàda ≠alà

shahàda) – the four schools, with the exception of

the £anafì, require three male witnesses. The

£anafìschool accepts two male or one male and

two female witnesses for these cases based on

Qur±àn 2:282:

O ye who believe! When ye deal with each other, in

transactions involving future obligations in a fixed

period of time, reduce them to writing; let a scribe write

down faithfully as between the parties; let not the scribe

refuse to write: as Allah has taught him, so let him

write. The liability dictate, but let him fear His Lord

Allah and not diminish aught of what he owes. If the

party liable is mentally deficient, or weak, or unable

himself to dictate, let his guardian dictate faithfully.

And get two witnesses, out of your own men, and if

there are not two men, then a man and two women,

such as ye choose, for witnesses, so that if one of them

errs, the other can remind her. The witnesses should not

refuse when they are called on (for evidence) disdain

not to reduce to writing (your contract) for a future

period. Whether it be small or big: it is juster in the sight

of Allah, more suitable as evidence, and more conven-

ient to prevent doubts among yourselves but if it be a

transaction which ye carry out on the spot among your-

selves there is not blame on you if ye reduce it not to

writing. But take witnesses whenever ye make a com-

mercial contract; and let neither scribe nor witness suf-

fer harm. If ye do (such harm), it would be wickedness

in you. So fear Allah; for it is Allah that teaches you.

And Allah is well acquainted with all things.

Regarding financial transactions, the four schools

require two male or one male and two female wit-

nesses based on Qur±àn 2:282. Lastly, in many

cases dealing with only women – such as childbirth,

stillbirths, and breast-feeding – only female wit-

nesses are allowed. However, jurists differ in the

number of female witnesses required taking into

account the woman’s level of knowledge with

respect to the subject matter and qiyàs, or analogi-

cal deduction, based on several verses and ™adìth,