A Dictionary of Islam / Being a cyclopedia of the doctrines, rites, ceremonies, and customs, together with the technical and theological terms, of the Muhammadan religion.

by Thomas Patrick Hughes

The evidence of one woman is admitted in cases of birth (as where one woman, for instance, declares that a certain woman brought forth a certain child). In the same manner also, the evidence of one woman is sufficient with respect to virginity, or with respect to the defects of that part of a woman which is concealed from man. The principle of the law in these cases is derived from a traditional saying of the Prophet: “The evidence of women is valid with respect to such things as it is not fitting for man to behold.” Ash-Shāfiʿī holds the evidence of four women to be a necessary condition in such cases.

The evidence of a woman with respect to istihlāl (the noise made by a child at its birth), is not admissible, in the opinion of Abū Ḥanīfah, so far as relates to the establishment of the right of heritage in the child; because this noise is of a nature to be known or discovered by men; but is admissible so far as relates to the necessity of reading funeral prayers over the child; because these prayers are merely a matter of religion: in consequence of her evidence, therefore, the funeral prayers are to be repeated over it. The two disciples, Muḥammad and Abū Yūsuf, maintain that the evidence of a woman is sufficient to establish the right of heritage also; because the noise in question being made at the birth, none but women can be supposed to be present when it is made. The evidence of a woman, therefore, to this noise, is the same as her evidence to a living birth; and as the evidence of women in the one case is admissible, so also is it in the other.

In all rights, whether of property or otherwise, the probity of the witness, and the use of the word ashhadu, “I bear witness,” is absolutely requisite, even in the case of the evidence of women with respect to birth and the like. If, therefore, a witness should say, “I know,” or “I know with certainty,” without making use of the word ashhadu, in that case his evidence cannot be admitted. With respect to the probity of the witness, it is indispensable, because it is written in the Qurʾān, [Sūrah lxv. 2], “Take the evidence of two just men”; and also because the probity of the witnesses induces a probability of the truth.

If the defendant throw a reproach on the witnesses, it is in that case incumbent on the Qāẓī to institute an enquiry into their character; because, in the same manner as it is probable that a Muslim abstains from falsehood as being a thing prohibited in the religion he professes, so also is it probable that one Muslim will not unjustly reproach another.

It is not lawful for a person to give evidence to such things as he has not actually seen, excepting in the cases of birth, death, marriage, and cohabitation.

But if a person, in any of the above cases, gives evidence from creditable hearsay, it is requisite that he give it in an absolute manner, by saying, for instance, “I bear testimony that A. is the son of B.,” and not, “I bear testimony so and so, because I have heard it,” for in that case the Qāẓī cannot accept it.

The testimony of any person who is property—that is to say, a slave, male or female—is not admissible; because testimony is of an authoritative nature; and as a slave has no authority over his own person, it follows that he can have no authority over others, a fortiori.

The testimony of a person that has been punished for slander is inadmissible, because it is said in the Qurʾān, [Sūrah xxiv. 4], “But as to those who accuse married persons of whoredom, and produce not four witnesses of the fact, scourge them with four-score stripes, and receive not their testimony for ever; for such are infamous prevaricators,—excepting those who shall afterwards repent.”

If an infidel who has suffered punishment for slander should afterwards become a Muslim, his evidence is then admissible; for although, on account of the said punishment, he had lost the degree in which he was before qualified to give evidence (that is, in all matters that related to his own sect), yet by his conversion to the Muslim faith he acquires a new competency in regard to evidence (namely, competency to give evidence relative to Muslims), which he did not possess before, and which is not affected by any matter that happened prior to the circumstance which gave birth to it.

Testimony in favour of a son or grandson, or in favour of a father or grandfather, is not admissible, because the Prophet has so ordained. Besides, as there is a kind of communion of benefits between these degrees of kindred, it follows that their testimony in matters relative to each other is in some degree a testimony in favour of themselves, and is therefore liable to suspicion.