What is the ruling on disputed property between a man and a woman who do not have established judicial possession or clear evidence, when the property is not marital paraphernalia?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
If a man and a woman dispute an item that is not communal property, and they do not have established judicial possession or evidence, neither can claim superiority based on suitability. If the item is in their joint possession, it is divided between them. If it is in the possession of one, it belongs to that person. If it is in the hands of a third party, lots are drawn, and the winner swears an oath to take it. This applies because they lack established judicial possession, making them similar to all other disputing parties.
Supporting text
The reasoning for prioritizing the possessor's oath over suitability when judicial possession is absent is that if they both have physical possession, neither has a right to prevail over the other, similar to property suitable for both, or when physical possession is acknowledged by those who accept judicial possession. The proof that their joint possession of household items is strong is that if a stranger disputes both of them, their combined testimony prevails. Their ability to recourse against each other based on possession necessitates prioritizing one over the other, like in a dispute over a mount where one is riding and the other holds the reins.