Woman as a witness

12 Nov 2010


THERE is a general impression today among Muslims that a woman's act of witnessing is equal to half that of a man, even though the Muslims have always accepted authentic hadith reported by women, the foremost among whom was the Prophet's (PBUH) wife, Hazrat Ayesha.

The Prophet acknowledged his wife as a religious authority and as a witness to what he had taught when he said, “Seek half of your religion from Ayesha.” When a woman's evidence is considered acceptable in the highest matters of faith, then how can it not be considered acceptable in a matter of worldly affairs? When the Prophet (PBUH) was overwhelmed by his first revelation, Hazrat Khadija gave him moral support. In convincing him that he was indeed capable of being a Prophet of God, she became witness to his prophethood, thus becoming the first person to accept Islam.

In the time of the third caliph, Hazrat Usman, when rebels jumped into his house, his wife Naila was the only person present who not only witnessed his murder but also tried to resist the attackers and lost three fingers in the process. As the eyewitness, she was later asked to give an account of the incident. Her witness was considered perfectly complete and legal by all the companions of the Prophet. An eyewitness is an extremely valuable witness and cannot be replaced, regardless of gender. It is only in matters of financial loans that the Quran mentions, “...one man and two women” as witnesses (2282). Even in this verse, however, one of the two women is the witness and the other is there “to remind her” (2283). But from this verse, Muslim scholars in later periods concluded that an individual woman is not fit to be a witness, while others think that even two women without a man are insufficient as witnesses.

In the time of the Prophet and the rightly guided caliphs, women were considered bona fide witnesses and authenticators in the most important matters. Later scholars justified their stance in declaring women as only half witnesses by saying that the injunctions about legal witnessing in the Quran are in the second person, plural, masculine gender of the Arabic language.

The fact is all injunctions in the Quran are in this very Arabic grammatical form, including instructions to believers about beliefs, prayers and duties. In Arabic, whenever both men and women are addressed together this plural masculine form is used as a common gender form, including both men and women. But many scholars believe that the verse related to witnessing are somehow an unusual exception to this rule, and insist that in those the plural masculine 'kum' (from amongst yourselves), 'hum' (them) and 'him' (them or their) refer to the Muslim male alone for witnessing.

According to Maulana Umar Ahmed Usmani, there are eight occasions in the Quran where the need to have witnesses is emphasised. In each of these the masculine gender forms mentioned above, that is, 'kum', 'hum' or 'him' are used one, regarding divorce (652); two, reporting obscenity (415), which should be done by “four witnesses from amongst you”; three, 'qazf' or slander (244), it should not mean that only the male slanderers will be punished and not the female slanderers; four, returning of the wealth of orphans (46), where the reference is to all orphans, both male and female; five, in the making of a will when travelling (5106); six, in the challenging of that will (5107) by the heirs, who can be both male and female; seven, in 'lian', when the husband accuses the wife of adultery, both have to swear five times each to support their case (246-9). When the wife swears five times, her evidence is upheld and given priority over his and she is not punished, and eight, in matters regarding loans it is said “The witnesses should not refuse when called” (2282), implying that the witnesses could be called at any time and any place.

In the last cited instance it would be difficult for a woman witness to go alone, so a second woman, who is not a witness, will accompany her for moral support. Imam Abu Hanifa's mother asked another woman to accompany her to court. When she was told that she (the mother) was a perfectly reliable witness herself, she said that since it was her prerogative to take another woman along, she would take advantage of it.

Besides this, one woman's evidence alone about hidden female matters, of which men have no knowledge, is also considered sufficient. The Prophet gave a judgment in such a case on the evidence of a midwife alone. Such an act of witnessing is required in a wide variety of cases, such as those of divorce, establishing pregnancy, paternity and rape.

Of the eight cited categories, two pertain to eyewitnesses only the person present can be the witness. Two are related to inheritance rights both men and women can be heirs. In one, the woman's evidence is given priority. In one case the available traveller will be the witness. In five cases the masculine pronouns 'kum','hum'or'him' are used, which refer to all Muslims,both men and women.Therefore, for most cases which require a witness a woman can stand alone as one.

In the one case of financial loans, which seems an exception, she is still the witness, but has the prerogative to take another woman along for moral support.