Is an oath prescribed in disputes concerning rights not involving wealth, such as fixed penalties (Qisas), slander (Qadhf), marriage, divorce, retraction of divorce (Raj'ah), emancipation (Itq), lineage (Nasab), acknowledgment of parentage (Istilad), manumission-based loyalty (Wala'), or slavery (Riq)?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
There are two narrations concerning rights that do not involve wealth or its objective, which require two male witnesses for establishment (like Qisas, Haddu al-Qadhf, marriage, divorce, Raj'ah, Itq, Nasab, Istilad, Wala', and Riq). The first narration states that the defendant is not made to swear the oath, nor is the oath presented to them. This view is held by Ahmad, who stated he had not heard earlier scholars permitting oaths except in matters of money and movable goods, and it aligns with the position of Malik and similarly with Abu Hanifa, who reasoned that the oath is only presented where a substitute payment is possible, which these matters (lacking monetary substitution) do not admit, just as fixed punishments do not admit an oath.
Supporting text
The second narration permits the oath to be taken in cases of divorce, Qisas, and slander. Al-Kharqi stated that if a husband claims retraction of divorce ('I retracted you') and the wife claims her waiting period ('iddah) expired before the retraction, her word is accepted along with her oath. This implies that the defendant is made to swear in every right belonging to a human being. This is the position of Al-Shafi'i, Abu Yusuf, and Muhammad, based on the Prophet's (peace be upon him) saying: "If people were given what they claimed, a group would claim the blood and wealth of others, but the oath belongs to the defendant" (Narrated by Muslim), which is general to every defendant and evident in claims involving blood (Dima').