Are women and children required to take the ritual oath (Qasamah)?

Chapter on Qasamah (Oaths regarding murder)

Al-Mughni

Book of Blood-Money (Diyyāt)

Book 48 · Issue 7 · Bab 3

Open in Qurani

Primary text

Children are unanimously agreed upon by the scholars as not taking the oath, whether they are claimants or defendants, because the oath is evidence for the swearer, and a child's statement does not establish evidence, just as a confession made by a child against himself is not accepted. As for women, if they are among the heirs of the slain person, they are not made to swear. This is the position of Rabi'a, Al-Thawri, and Al-Layth, and Al-Awza'i. The oath is evidence that establishes intentional homicide (Qatl al-'Amd), and women's testimony is not accepted for this, similar to witness testimony. The injury that necessitates Qasamah is killing, and women have no role in establishing it; rather, financial compensation is established derivatively, which is unlike a man claiming his deceased wife's marriage status to inherit from her, which is not established by a man's testimony and an oath, nor by the testimony of a man and two women, even though the intent is financial gain.

Supporting text

Malik opined that women have a role in the Qasamah for accidental killing (Qatl al-Khata') but not for intentional killing. Ibn al-Qasim stated that in intentional killing, no fewer than two men swear. Al-Shafi'i argued that every adult heir swears because it is an oath in a claim, which is legislated for women, just like all other oaths.