What is the liability of two witnesses who initially testified to a divorce (which led to judicial separation after consummation), and then retracted their testimony?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
If the judicial separation decree occurred after consummation, the witnesses bear no financial guarantee (daman) for the dower. This is the position of Abu Hanifa. The rationale is that after consummation, the full dower is established, and the witnesses neither confirmed a liability upon the husband nor caused the removal of property from his ownership. This situation is analogous to cases where the husband's ownership is removed entirely through the wife's apostasy or her killing herself.
Supporting text
A narration from Ahmad holds that they are liable for the stipulated dower, reasoning that they caused the loss of a marriage for which a substitute payment (dower) was obligatory, thus they should guarantee what became obligatory. Al-Shafi'i holds that they owe the husband the *mahr al-mithl* because they caused the destruction of the marital intimacy. This is distinguished from the pre-consummation case because after consummation, the entire dower is established, and they neither confirmed half the dower (which was subject to nullification) nor removed anything from his possession.