What is the ruling regarding a man claiming marriage to a woman who denies it, in the absence of evidence (bayyinah) from the claimant?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
If a man claims to be married to a woman, and she denies it, and he has no evidence, they must be separated, and the woman is not to be made to swear an oath regarding the marriage contract. This is the position adopted by Abu Hanifa, and it is a single established narration. The principle is that an oath is not taken regarding marriage in any instance. This position holds that since marriage is a right pertaining to a human being, an oath should be taken, analogous to financial matters.
Supporting text
There is an alternative view, held by Al-Shafi'i and Ibn al-Mundhir, similar to the view of Abu Yusuf and Muhammad, based on the Hadith: "But the oath is upon the defendant." According to this view, if the defendant refuses to swear (nakul), the marriage is established. Furthermore, some hold that if the wife refuses to swear, the oath is returned to the husband, and if he swears, the marriage is confirmed.