If two fetuses, male and female, are miscarried, and only one is confirmed to have made sounds of life, with disagreement on which one it was, what is the ruling?
General Chapter
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
If the striker claims the female made the sounds, and the heir of the fetus claims it was the male, the striker's statement prevails with his oath, as the original assumption is the absence of sounds from the male and the acquittal of the striker from liability beyond the female's *diyya*. If one party has evidence, it is preferred. If both have evidence, the male's *diyya* is obligatory because proof has been established for its *istihlal*, and the opposing evidence is merely negating. Affirmation is preferred over negation.
Supporting text
The female's *diyya* is not obligatory because the claimant for it has denied the evidence proving the male's *istihlal*. If both are claimed to have made sounds of life, this is established by the two pieces of evidence. If there is no evidence, and the striker confesses the male made sounds but the *aqilah* denies liability, the *aqilah*'s statement prevails with their oaths, resulting in the female's *diyya* and *ghurrah* (if applicable) being due from them, and the striker owing the remaining half *diyya* for the male, which the *aqilah* does not bear as it is established by confession. If they agree one made sounds but are uncertain which, the female's *diyya* is due because it is certain, and the male's full *diyya* is doubtful; the default is acquittal from doubt, but the *ghurrah* for the one that did not make sounds is due.