Whose statement is accepted regarding the timing of the oath (Ila') when the spouses disagree on when it occurred?
General Chapter
Al-Mughni
Book of the Oath of Abstention (Ila')
Primary text
The husband’s statement is accepted regarding whether the specified period of abstinence has elapsed. This is because disagreement about the completion of the period is contingent upon disagreement about the time of the oath. If they agree on the time of the oath, the period is counted from that time, clarifying whether the period has ended or not, and the dispute is resolved. If they disagree on the time, such as the husband claiming he swore on the first of Ramadan and the wife claiming it was the first of Sha'ban, the husband's statement prevails because the oath originated from him, and he is most knowledgeable of it. This follows the principle that the husband's statement is accepted, similar to a dispute over the existence of the Ila' itself. Furthermore, the original state is that no oath was sworn in the first of Sha'ban, making his denial consistent with the default state.
Supporting text
Abu Bakr holds that no oath is required of either party. Al-Qadi considers this view more correct because disagreement concerning the rulings of marriage does not necessitate an oath, similar to a case where a man claims marriage and the woman denies it. The justification for Al-Kharqi’s view and that of Shafi'i is the Prophet's saying, 'The oath rests upon the defendant' (Al-yamin 'ala al-mudda'a 'alayh). Additionally, since the matter concerns a right belonging to a human being that can be waived, an oath should be administered, analogous to debts.