Why is an oath not administered to the woman denying marriage when the claimant lacks evidence?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
Marriage is not subject to an oath because it involves matters of honor that cannot be easily dissolved; thus, it is not permissible to establish it merely through non-swearing, analogous to prescribed punishments (hudud). Matters concerning intimacy (Abda'u) are treated with extreme caution; they cannot be made permissible either by the defendant's non-swearing or by the claimant's oath, similar to punishments. Non-swearing is not strong evidence, as it might stem from fear of swearing, ignorance of the situation, or reluctance to swear publicly before a judge. Given these possibilities, a ruling should not be passed on matters requiring extreme caution based on non-swearing. Similarly, the claimant's oath is merely his own statement, which should not be used to establish something of great risk and immense sin, potentially allowing intercourse with a woman who may be someone else's.
Supporting text
The supporting Hadith regarding the oath specifically addresses blood and property, thus excluding marriage. If it were to encompass all claims, marriage, being more deserving of caution due to requiring witnesses for validity or notoriety, would imply that hudud (punishments) are also included, which is less fitting than marriage. If the woman refuses to swear, she must be separated from him and her path cleared. If we adopt the view that she can swear regarding the alternative possibility and she refuses, one opinion suggests she should be detained until she confesses or swears, while another suggests her path should be cleared, making the benefit of legislating the oath to be one of deterrence, leading her to confess if the claimant is truthful or to swear and be acquitted if the claimant is false.