What is the ruling if the judge or ruler takes the right from the debtor and gives it to the rightful owner?

Chapter on Explicit Divorce and Others

Al-Mughni

Book of Divorce

Book 39 · Issue 2 · Bab 2

Open in Qurani

Primary text

The ruling established by the Qadi (judge) is that the oath is not broken, which is the position of Imam Al-Shafi'i. This is because the debtor did not personally take the right from the creditor. However, the transmitted opinion from Ahmad ibn Hanbal, supported by Abu Bakr, is that the oath is broken in both scenarios (forced taking and official taking). This view is consistent with the Hanbali school's principle that oaths relate to causes (*al-asbab*) rather than mere literal names or actions. The reference is made to verses such as "And We took from them a solemn covenant" (Quran 4:154) and "And Allah had already taken the covenant from the Children of Israel..." (Quran 5:12), suggesting that facilitating the reception of the right constitutes taking in a broader, conventional sense.

Supporting text

If the oath was phrased as, 'Do not take your right from me,' and the creditor takes it, the oath is broken because the right owed by the debtor has been taken.