What is the liability of two witnesses who initially testified to a divorce (which led to judicial separation before consummation), and then retracted their testimony?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
If two witnesses testify to a divorce, leading to judicial separation before consummation, and they subsequently retract their testimony, they are liable for half of the stipulated dower (mahr al-musamma). This position is held by Abu Hanifa. The basis for this ruling is that the witnesses caused the obligation of half the dower to fall upon the husband by their testimony, and since the obligation rests upon him due to their action, the liability reverts to them, similar to cases where a marriage is dissolved before consummation due to fostering (rada'a) or other causes for immediate dissolution.
Supporting text
Al-Shafi'i holds two views: one opinion suggests that the witnesses owe the equivalent of a full *mahr al-mithl* (the customary dower) because they caused the destruction (itlaf) of the marital intimacy (bud'). In another opinion, they owe half of the *mahr al-mithl*, based on the argument that only half of the intimacy was possessed, evidenced by the fact that only half the dower is incumbent in such a case. The argument that only half the intimacy was possessed is rejected because the intimacy cannot have half of it owned, and the entire dower was stipulated in the contract, with the entirety becoming incumbent, even if it is only partially due upon divorce before entry into the marriage.