Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Muhammad ibn Amr ibn Hazm from his father from Abdullah ibn Amr ibn
Uthman from Abu Amra al-Ansari from Zayd ibn Khalid al-Juhani that the
Messenger of Allah, may Allah bless him and grant him peace, said,
"Shall I not tell you who is the best of witnesses? The one who brings
his testimony before he is asked for it, or tells his testimony before
he is asked for it."
Malik related to me that Rabia ibn Abi Abd ar-Rahman said, "An
Iraqi man came before Umar ibn al-Khattab and said, 'I have come to
you because of a matter which has no beginning and no end.' Umar said,
'What is it?' The man said, 'False testimony has appeared in our
land.' Umar said, 'Is that so?' He said, 'Yes.' Umar said, 'By Allah!
A man is not detained in Islam without just witnesses.' "
Yahya said from Malik that he heard from Sulayman ibn Yasar and
others that when they were asked whether the testimony of a man
flogged for a hadd crime was permitted, they said, "Yes, when
repentance (tawba) appears from him."
Malik related to me
that he heard Ibn Shihab being asked about that and he said the like
of what Sulayman ibn Yasar said.
Malik said, "That is what is
done in our community. It is by the word of Allah, the Blessed, the
Exalted, 'And those who accuse women who are muhsan, and then do not
bring four witnesses, flog them with eighty lashes, and do not accept
any testimony of theirs ever. They indeed are evil-doers, save those
who turn in tawba after that and make amends. Allah is Forgiving,
Merciful.' " (Sura 24 ayat 4).
USC-MSA web (English) reference : Book 36, Hadith 4
Hadith 514080
Chapter 36: Judgements - كتاب الأقضية
قَالَ يَحْيَى قَالَ مَالِكٌ عَنْ جَعْفَرِ بْنِ مُحَمَّدٍ، عَنْ أَبِيهِ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَضَى بِالْيَمِينِ مَعَ الشَّاهِدِ .
Yahya said, "Malik said from Jafar ibn Muhammad from his father
that the Messenger of Allah, may Allah bless him and grant him peace,
pronounced judgement on the basis of an oath with one witness."
From Malik from Abu'z-Zinad that Umar ibn Abd al-Aziz wrote to
Abd al-Hamid ibn Abd ar-Rahman ibn Zayd ibn al-Khattab who was the
governor of Kufa, "Pronounce judgement on the basis of an oath with
one witness."
Malik related to me that he heard that Abu Salama ibn Abd ar-
Rahman and Sulayman ibn Yasar were both asked, "Does one pronounce
judgement on the basis of an oath with one witness?" They both said,
"Yes."
Malik said, "The precedent of the sunna in judging by
an oath with one witness is that if the plaintiff takes an oath with
his witness, he is confirmed in his right. If he draws back and
refuses to take an oath, the defendant is made to take an oath. If he
takes an oath, the claim against him is dropped. If he refuses to take
an oath, the claim is confirmed against him."
Malik said,
"This procedure pertains to property cases in particular. It does not
occur in any of the hadd-punishments, nor in marriage, divorce,
freeing slaves, theft or slander. If some one says, 'Freeing slaves
comes under property,' he has erred. It is not as he said. Had it been
as he said, a slave could take an oath with one witness, if he could
find one, that his master had freed him.
"However, when a
slave lays claim to a piece of property, he can take an oath with one
witness and demand his right as the freeman demands his right."
Malik said, "The sunna with us is that when a slave brings
somebody who witnesses that he has been set free, his master is made
to take an oath that he has not freed him, and the slave's claim is
dropped."
Malik said, "The sunna about divorce is also like
that with us. When a woman brings somebody who witnesses that her
husband has divorced her, the husband is made to take an oath that he
has not divorced her. If he takes the oath, the divorce does not
proceed . "
Malik said, "There is only one sunna of bringing
a witness in cases of divorce and freeing a slave. The right to make
an oath only belongs to the husband of the woman, and the master of
the slave. Freeing is a hadd matter, and the testimony of women is not
permitted in it because when a slave is freed, his inviolability is
affirmed and the hadd punishments are applied for and against him. If
he commits fornication and he is a muhsan, he is stoned. If he kills a
slave, he is killed for it. Inheritance is established for him,
between him and whoever inherits from him. If somebody disputes this,
arguing that if a man frees his slave and then a man comes to demand
from the master of the slave payment of a debt, and a man and two
women testify to his right, that establishes the right against the
master of the slave so that his freeing him is cancelled if he only
has the slave as property, inferring by this case that the testimony
of women is permitted in cases of setting free. The case is not as he
suggests (i.e. it is a case of property not freeing). It is like a man
who frees his slave, and then the claimant of a debt comes to the
master and takes an oath with one witness, demanding his right. By
that, the freeing of the slave would be cancelled. Or else a man comes
who has frequent dealings and transactions with the master of the
slave. He claims that he is owed money by the master of the slave.
Someone says to the master of the slave, 'Take an oath that you don't
owe what he claims'. If he draws back and refuses to take an oath, the
one making the claim takes an oath and his right against the master of
the slave is confirmed. That would cancel the freeing of the slave if
it is confirmed that property is owed by the master."
Malik
said, "It is the same case with a man who marries a slave-girl and
then the master of the slave-girl comes to the man who has married her
and claims, 'You and so-and-so have bought my slave-girl from me for
such an amount of dinars. The husband of the slave-girl denies that.
The master of the slave-girl brings a man and two women and they
testify to what he has said. The sale is confirmed and his claim is
considered true. So the slave-girl is haram for her husband and they
have to separate, even though the testimony of women is not accepted
in divorce."
Malik said, "It is also the same case with a man
who accuses a free man, so the hadd falls on him. A man and two women
come and testify that the one accused is a slave. That would remove
the hadd from the accused after it had befallen him, even though the
testimony of women is not accepted in accusations involving hadd
punishments."
Malik said, "Another similar case in which
judgement appears to go against the precedent of the sunna is that two
women testify that a child is born alive and so it is necessary for
him to inherit if a situation arises where he is entitled to inherit,
and the child's property goes to those who inherit from him, if he
dies, and it is not necessary that the two women witnesses should be
accompanied by a man or an oath even though it may involve vast
properties of gold, silver, live-stock, gardens and slaves and other
properties. However, had two women testified to one dirham or more or
less than that in a property case, their testimony would not affect
anything and would not be permitted unless there was a witness or an
oath with them."
Malik said, "There are people who say that
an oath is not acceptable with only one witness and they argue by the
word of Allah the Blessed, the Exalted, and His word is the Truth,
'And call in to witness two witnesses, men; or if the two be not men,
then one man and two women, such witnesses as you approve of.' (Sura 2
ayat 282). Such people argue that if he does not bring one man and two
women, he has no claim and he is not allowed to take an oath with one
witness."
Malik said, "Part of the proof against those who
argue this, is to reply to them, 'Do you think that if a man claimed
property from a man, the one claimed from would not swear that the
claim was false?' If he swears, the claim against him is dropped. If
he refuses to take an oath, the claimant is made to take an oath that
his claim is true, and his right against his companion is established.
There is no dispute about this with any of the people nor in any
country. By what does he take this? In what place in the Book of Allah
does he find it? So if he confirms this, let him confirm the oath with
one witness, even if it is not in the Book of Allah, the Mighty, the
Majestic! It is enough that this is the precedent of the sunna.
However, man wants to recognise the proper course of action and the
location of the proof. In this there is a clarification for what is
obscure about that, if Allah ta'ala wills."
Yahya said, "Malik said about Jamil ibn Abd ar-Rahman al-Muadhdin
that he was present with Umar ibn Abd al-Aziz when he was judging
between people. If a man came to him with a claim against a man, he
examined whether or not there were frequent transactions and dealings
between them. If there were, the defendant could make an oath. If
there was nothing of that nature he did not accept an oath from him."
Malik summed up, "What is done in our community is that if
some one makes a claim against a man, it is examined. If there are
frequent transactions and dealings between them, the defendant is made
to take an oath. If he takes an oath, the claim against him is
dropped. If the defendant refuses to take an oath, and returns the
oath to the claimant, the one claiming his right takes an oath and
takes his due."
Yahya said, "Malik said from Hisham ibn Urwa that Abdullah ibn
az-Zubayr gave judgment based on the testimony of children concerning
the injuries between them."
Malik said, "The generally agreed
on way of doing things in our community is that the testimony of
children is permitted concerning injuries between them. It is not
accepted about anything else. It is only permitted between them if
they testify before they leave the scene of the incident and have been
deceived or instructed. If they leave the scene, they have no
testimony unless they call just witnesses to witness their testimony
before they leave."
Yahya said, Malik related to us from Hisham ibn Hisham ibn Utba
ibn Abi Waqqas from Abdullah ibn Nistas from Jabir ibn Abdullah al-
Ansari that the Messenger of Allah, may Allah bless him and grant him
peace, said, 'If someone swears a false oath near this mimbar of mine,
he will take his seat in the fire.' "
Malik related to me from al-Ala ibn Abd ar-Rahman from Mabad ibn
Kab as-Salami from his brother Abdullah ibn Kab ibn Malik al-Ansari
from Abu Umama that the Messenger of Allah, may Allah bless him and
grant him peace, said, "Whoever cuts off the right of a muslim man by
his oath, Allah forbids him the Garden and obliges the Fire for him."
They said, "Even if it is something insignificant, Messenger of
Allah?" He said, "Even if it is a tooth-stick, even if it is a tooth-
stick," repeating it three times.
Yahya said that Malik had said from Da'ud ibn al-Husayn that he
heard Abu Ghatafan ibn Tarif al-Muriyi say, "Zayd ibn Thabit al-Ansari
and Ibn Muti had a dispute about a house which they shared. They went
to Marwan ibn al-Hakam who was the Amir of Madina. Marwan decided that
Zayd ibn Thabit must take an oath on the mimbar. Zayd ibn Thabit said,
'I swear to it where I am.' Marwan said, 'No, by Allah! only in the
place of sorting out claims (i.e. the mimbar).' Zayd ibn Thabit began
to take an oath that his right was true, and he refused to take an
oath near the mimbar. Marwan ibn al-Hakam began to wonder at that."
Malik said, "I do not think that anyone should be made to
take an oath near the mimbar for less than a fourth of a dinar, and
that is three dirhams."
USC-MSA web (English) reference : Book 36, Hadith 12
Hadith 514160
Chapter 36: Judgements - كتاب الأقضية
قَالَ يَحْيَى حَدَّثَنَا مَالِكٌ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" لاَ يَغْلَقُ الرَّهْنُ " .
Yahya said, "Malik related to us from Ibn Shihab from Sa'id ibn
al-Musayyab that the Messenger of Allah, may Allah bless him and grant
him peace, said, 'The pledge given as security is not forfeited.' "
Malik said, "The explanation of that according to what we
think - and Allah knows best - is that a man gives a pledge to
somebody in security for something. The pledge is superior to that for
which he pawned it. The pledger says to the pawn-broker, 'I will bring
you your due, after such-and-such a time. If not, the pledge is yours
for what it was pawned for.' "
Malik said, "This transaction
is not good and it is not halal. This is what was forbidden. If the
owner brings what he pledged it for after the period, it is his. I
think that the time condition is void."
Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan
gave a judgment that the rapist had to pay the raped woman her bride-
price.
Yahya said that he heard Malik say, "What is done in
our community about the man who rapes a woman, virgin or non-virgin,
if she is free, is that he must pay the bride-price of the like of
her. If she is a slave, he must pay what he has diminished of her
worth. The hadd-punishment in such cases is applied to the rapist, and
there is no punishment applied to the raped woman. If the rapist is a
slave, that is against his master unless he wishes to surrender him."
Yahya related to me from Malik from Zayd ibn Aslam that the
Messenger of Allah, may Allah bless him and grant him peace, said, "If
someone changes his deen - strike his neck!"
The meaning of
the statement of the Prophet, may Allah bless him and grant him peace,
in our opinion and Allah knows best, is that "if someone changes his
deen, strike his neck!" refers to those who leave Islam for other than
it - like the heretics and their like, about whom it is known. They
are killed without being called to tawba because their tawba is not
recognised. They were hiding their kufr and publishing their Islam, so
I do not think that one calls such people to tawba, and one does not
accept their word. As for the one who goes out of Islam to something
else and divulges it, one calls him to tawba. If he does not turn in
tawba, he is killed. If there are people in that situation, I think
that one should call them to Islam and call them to tawba. If they
turn in tawba, that is accepted from them. If they do not turn in
tawba, they are killed. That does not refer as we see it, and Allah
knows best, to those who come out of Judaism to Christianity or from
Christianity to Judaism, nor to someone who changes his deen from the
various forms of deen except for Islam. Whoever comes out of Islam to
other than it and divulges that, that is the one who is referred to,
and Allah knows best!
Malik related to me from Abd ar-Rahman ibn Muhammad ibn Abdullah
ibn Abd al-Qari that his father said, "A man came to Umar ibn al-
Khattab from Abu Musa al-Ashari. Umar asked after various people, and
he informed him. Then Umar inquired, 'Do you have any recent news?' He
said, 'Yes. A man has become a kafir after his Islam.' Umar asked,
'What have you done with him?' He said, 'We let him approach and
struck off his head.' Umar said, 'Didn't you imprison him for three
days and feed him a loaf of bread every day and call on him to tawba
that he might turn in tawba and return to the command of Allah?' Then
Umar said, 'O Allah! I was not present and I did not order it and I am
not pleased since it has come to me!' "
USC-MSA web (English) reference : Book 36, Hadith 16
Hadith 514200
Chapter 36: Judgements - كتاب الأقضية
حَدَّثَنَا يَحْيَى، عَنْ مَالِكٍ، عَنْ سُهَيْلِ بْنِ أَبِي صَالِحٍ السَّمَّانِ، عَنْ أَبِيهِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ سَعْدَ بْنَ عُبَادَةَ، قَالَ لِرَسُولِ اللَّهِ صلى الله عليه وسلم أَرَأَيْتَ إِنْ وَجَدْتُ مَعَ امْرَأَتِي رَجُلاً أَأُمْهِلُهُ حَتَّى آتِيَ بِأَرْبَعَةِ شُهَدَاءَ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" نَعَمْ " .
Yahya related to me from Malik from Suhayl ibn Abi Salih as-
Samman from his father from Abu Hurayra that Sad ibn Ubada said to the
Messenger of Allah, may Allah bless him and grant him peace, "What do
you think if I find a man with my wife? Shall I grant him a respite
until I bring four witnesses?" The Messenger of Allah, may Allah bless
him and grant him peace, replied, "Yes."
Malik related to me from Yahya ibn Said from Said ibn al-Musayyab
that a Syrian man called Ibn Khaybari found a man with his wife and
killed him, or killed them both. Muawiya ibn Abi Sufyan found it
difficult to make a decision and he wrote to Abu Musa al-Ashari to ask
Ali ibn Abi Talib for him about that. So Abu Musa asked Ali ibn Abi
Talib and AIi said to him, "Is this thing in my land? I adjure you,
you must tell me." Abu Musa explained to him how Muawiya ibn Abi
Sufyan had written him to ask Ali about it. Ali said, "I am Abu Hasan.
If he does not bring four witnesses, then let him be completely handed
over," (to the relatives of the murdered man).
Yahya said that Malik related from Ibn Shihab that Sunayn Abi
Jamila, a man from the Banu Sulaym, found an abandoned child in the
time of Umar ibn al-Khattab. Sunayn took him to Umar ibn al-Khattab.
He asked, "What has induced you to take this person?" He answered, "I
found him lost, so I took him.'' Umar's advisor said to him,' 'Amir
al-Muminin! He is a man who does good." Umar inquired of him, "Is it
so?" He replied, "Yes." Umar ibn al-Khattab said, "Go, he is free, and
you have his wala' inheritance, and we will provide for him."
Yahya said that he heard Malik say, "What is done in our community
about an abandoned child is that he is free, and his wala' inheritance
belongs to the muslims, and they inherit from him and pay his blood
money."
Yahya said from Malik from Ibn Shihab from Urwa ibn az-Zubayr
that A'isha, the wife of the Prophet, may Allah bless him and grant
him peace, said, ''Utba ibn Abi Waqqas disclosed to his brother, Sad
ibn Abi Waqqas, that he was the father of the son of the slave-girl of
Zama, and made him promise to look after him (after his death). In the
year of the conquest, Sad took him and said, 'He is the son of my
brother. He covenanted with me about him.' Abd ibn Zama stood up and
said, 'He is my brother and the son of my father's slave-girl. He was
born on his bed.' They went to the Messenger of Allah, may Allah bless
him and grant him peace. Sad said, 'Messenger of Allah! He is the son
of my brother, he made a covenant with me about him.' Abd ibn Zama
said, 'He is my brother and the son of my father's slave-girl and was
born on my father's bed.' The Messenger of Allah, may Allah bless him
and grant him peace, said, 'He is yours, Abd ibn Zama.' Then the
Messenger of Allah, may Allah bless him and grant him peace, said, 'A
child belongs to the household (where he was born) and the adulterer
is stoned.' Then he told Sawda bint Zama, 'Veil yourself from him,'
since he saw in him a resemblance to Utba ibn Abi Waqqas." A'isha
added, "He did not see her until he met Allah, the Mighty, the
Majestic!"
Malik related to me from Yazid ibn Abdullah ibn al-Hadi from
Muhammad ibn Ibrahim ibn al-Harith at-Taymi from Sulayman ibn Yasar
from Abdullah ibn Abi Umayya that a woman's husband died, and she did
the idda of four months and ten days. Then she married when she was
free to marry. She stayed with her husband for four and a half months,
then gave birth to a fully developed child. Her husband went to Umar
ibn al-Khattab and mentioned that to him, so Umar called some of the
old women of the Jahiliyya and asked them about that. One of the women
said, "I will tell you what happened with this woman. When her husband
died, she was pregnant by him, but then the blood flowed from her
because of his death and the child became dry in her womb. When her
new husband had intercourse with her and the water reached the child,
the child moved in the womb and grew." Umar ibn al-Khattab believed
her and separated them (until she had completed her idda). Umar said,
"Only good has reached me about you two," and he connected the child
to the first husband.
Malik related to me from Yahya ibn Said from Sulayman ibn Yasar
that Umar ibn al-Khattab used to attach the children of the Jahiliyya
to whoever claimed them in Islam. Two men came and each of them
claimed a woman's child. Umar ibn al-Khattab summoned a person who
scrutinized features and he looked at them. The scrutinizer said,
"They both share in him." Umar ibn al-Khattab hit him with a whip.
Then he summoned the woman, and said, "Tell me your tale." She said,
"It was this one (indicating one of the two men) who used to come to
me while I was with my people's camels. He did not leave me until he
thought and I thought that I was pregnant. Then he left me, and blood
flowed from me, and this other one took his place. I do not know from
which of them the child is." The scrutinizer said, "Allah is greater."
Umar said to the child, "Go to whichever of them you wish."
Malik related to me that he had heard that Umar ibn al-Khattab or
Uthman ibn Affan gave a judgement about a slave woman who misled a man
about herself and said that she was free. He married her and she bore
children. It was decided that he should ransom his children with their
like of slaves.
Yahya said that he heard Malik say, "To
ransom them with their price is more equitable in this case, Allah
willing."
Yahya said that Malik related from Ibn Shihab from Salim ibn
Abdullah ibn Umar from his father that Umar ibn al-Khattab said,
"What's the matter with men who have intercourse with their slave-
girls and then dismiss them? No slave-girl comes to me whose master
confesses that he has had intercourse with her but that I connect her
child to him, whether or not he has practised coitus interruptus or
stopped having intercourse with her."
Malik related to me from Nafi that Safiyya bint Abi Ubayd
informed him that Umar ibn al-Khattab said, "What is the matter with
men who have intercourse with their slave-girls and then leave them to
go? No slave-girl comes to me whose master confesses that he has had
intercourse with her but that I connect her child to him, whether or
not he has practised coitus interruptus or left off from intercourse
with her."
Yahya said that he heard Malik say, "What is done
in our community about an umm walad who commits a crime is that her
master is liable for what she has done up to her value. He does not
have to surrender her, and he cannot be made to bear more than her
value for her crime."