:: UPS 2612 ::

EVIDENCE & PROCEDURE IN SYARIAH COURT

 Literal :

Right side,

Oath A person who takes an oath usually does so by
putting up his right hand.

oath = al-halaf, al-istihlaf, al-qasam
Technical:

A solemn pronouncement in the name of Allah or His
Attributes to affirm the truth of ones statement or to
strengthen an allegation

An utterance or pronouncement accompanied by the
invocation of the name of Allah or His Attributes for the
purpose of stressing (tahqiq) something over a matter
which will not be proved except by way of oath


An oath shall be considered in a case in which no other

evidence is available at all. If a person brings a claim
against another & the latter denies the claim, the
Plaintiff must produce evidence If he fails to produce any
evidence he may ask that the Defendant be required to
deny the claim under oath.

The court may impose certain formalities on taking oath
by a person. The court shall ask for taking oath. The oath
shall be taken by the person whom the court asks to
take oath & not by his agent or other substitute.

1) Surah Al Maidah 5: 89
God does not take you to task for a slip (or blunder of speech) in your
oaths, but He takes you to task for what you have concluded by solemn,
deliberate oaths...
2) Surah Al Nahl 16: 91
And fulfill God's covenant when you have made the covenant (and any
commitment that you made among yourselves in God's Name), and do
not break your oaths after having confirmed them; indeed, you have
made God your guarantor. Surely God knows all that you do.
3) Surah Yunus 10:53
They ask you, "Is it true?" Say: "Yes, by my Lord, it is surely true; and you
cannot evade it."
4) Surah Al-Taghabun 64:7
Those who disbelieve claim that they will never be raised from the dead.
Say: "Yes indeed, by my Lord, you will certainly be raised from the dead

1.

2.

3.

Ibn 'Umar said: The Prophet said, "Allah has prohibited you from
taking an oath by your fathers. He who must take an oath, may do
so by swearing in the Name of Allah or he should remain silent.
Ibn 'Abbas narrated that the Messenger of Allah said: "Were
people to be given according to their claims, some would claim
the wealth and blood of others. But the burden of proof is upon
the claimant and the taking of an oath is upon the one who
denies (the allegation).
Ali b. Yazid b. Rukanah reported on the authority of his father
from his grandfather that he (Rukanah) divorced his wife
absolutely; so he came to the Prophet and the Prophet asked:
What did you intend? He said: A single utterance of divorce. He
said: Do you swear by Allah? He replied: I swear by Allah. He said:
It stands as you intended

 Should it be intended to put one of the parties

on his oath, he shall be caused to take the oath
in the name of Allah.

 The burden to produce evidence in a civil case lies

on the person who alleges or asserts a fact (alMuddaii) and the person who takes the oath to
deny or disputes a fact (al-Muddaa alaih).

 The invocation of the name of Allah or his Attributes is to

strengthen the oath makers statement & the content of
the oath itself with regards to whether what the oath is
all about has been completed or not.
The jurists have unanimously agreed that an oath is valid
when coupled with name of Allah such as wallahi, wa
billahi watallahi or coupled with His Attributes such as
wa al rahman, wa al rahim, wa Rab Al-Alamin

 Verily Allah have forbidden you from making oaths

in the name of your ancestors, but whoever wishes
to make an oath, do so with the name of Allah.
Whomsoever swears in the name of other than
Allah verily he has associated Allah with other
partners (shirk)
Whomsoever who swears in the name other than
Allah verily he is a transgressor (kafir).

 It is invalid for an oath to be coupled with

insyaallah or God willing as this nullifies the
object of the oath & it is a qualifier/conditional
to the oath itself.
Hadith: Whoever had sworn an oath & later he
says Insyaallah he therefore have broken his own
oath.

1. OATHS TAKEN OUT OF COURT

General rule : cant be used as a means of proof.
However, the person making an oath is still liable for
punishment (kaffarah) if he makes an untruthful oath &
his act shall be considered a sin.
2. OATH TAKEN IN COURT
An oath taken on the request of a judge is considered as
one of the means of proof in the judicial process.
It is originally to be taken by the defendant when the
Plaintiff fails to produce evidence and it shall be taken in
the name of Allah or His Attributes.

1. To prove a fact :
To prove a fact with regards to an act done by someone
else. The oath must be made with firm, clear & precise
words.
Eg: Oath by the claimant as a support to a single witness
2. To deny a fact :
To deny matters with regards to the acts of others, the
oath must be made in the form of a denial.
The oath shall be taken firmly denying knowledge or
information about such a persons act

1. Islam
The jurists have divided into several views but MAJORITY
have opined that an oath by a non-Muslim is acceptable
based on the case of Umar who vow to perform Itikaf at
Masjidil Haram before he embrace Islam
2. Mukallaf
Sane, reach the age of puberty
3. Intention
4. Oath in the name of Allah
5. The Defendant must have denied the claim of the
Claimant.
6. The Claimant have requested the Judge to make an order
for taking the oath.

7. The oath shall be taken personally

An oath cannot be delegated to any one else as an
oath related to ones responsibility
If the defendant is a minor/child, the guardian
cannot take the oath on behalf of the child and shall
wait until the child reaches his age of puberty
8. The oath shall not be in cases concerning Right of Allah
e.g. hudud and religious ritual.
9. The oath shall be in cases where admission is possible.
If the person is not allowed to make an admission,
then his oath also is not allowed
10. The Claimant does not have conclusive evidence

 Only in cases of had or worship which contains

rights of man.
Property cases, family law i.e. marriage, divorce,
dower.
Qisas cases.

1) Oath by a witness
2) Oath by the Defendant
3) Oath by the Plaintiff
a) Yamin Al-Jalibah
b) Yamin al-Tuhmah
c) Yamin Al-Istishaq / Istizhar

 Taken before giving evidence but taken in the form

of tazkiyyah and to strengthen testimony .
This is ccepted by Ibn Qayyim, Maliki and Zaidiyyah.
Maliki: If there is any doubt in the witness, then
court may ask the witness to take oath.
Hanafi: If the witness is going to give Shahadah, no
need to take oath as shahadah implies oath.
Credibility of witness established and not necessary
for witness to take oath.

 The oath taken by the Defendant on order of a judge to

strengthen his defence against the charge. Also known
as:
a. Original oath(yamin asliyah)
b. Mandatory oath (yamin wajibah)
c. Denying oath (yamin rafiah) If the Defendant took an oath (following the failure of
the Plaintiff to bring conclusive evidence), the Defendant
will then be acquitted of the charge.
Issue : whether the Plaintiff is entitled to tender further
evidence after the taking of oath?

 Subsequent evidence can be admitted. Oath is a weak

form of argument and act as a substitute evidence when
there is no evidence tendered by the Plaintiff
Authority:
Umar Al Khattab says: A lying oath is more deserving
of rejection than trustworthy evidence.
This view has been accepted by Salafi jurists
Hanafi: This type of insident is very rare because the
Defendant will only be allowed to take oath when
Plaintiff had failed to produce evidence.

 Plaintiff is allowed to give evidence but if the

Plaintiff purposely conceals the evidence , he will
not be allowed to give evidence.
Some Syafie scholars agreed with this view

 Does not allow Plaitiff to adduce evidence anymore.

The oath is the decider of a dispute. The oath has
overridden the right of the Plaintiff

 A plaintiff who has stated that he has no

witnesses will not be heard to say that he intends
to call witnesses. And if he has stated that he
intends to call a certain witness and no other, he
will not be allowed to call any other witness.

 It is designed to set aside any doubts against him/to

prove his right or interest/the oath which is returned
to him (yamin al mardudah)
Three types: Yamin Al-Jalibah, Yamin Al-Tuhmah &
Yamin Al-Istishaq/Istizhar.
Effect of plaintiffs oath Jumhur except Hanafi:
When Plaintiff had taken the oath, judgement can be
passed in Plaintiffs favour. The claim is
maintainable.

 This oath is to support the Plaintiff`s claim and

allegation. This oath can arise in 5 situations:
1. The Plaintiff`s oath and 1 witness
2. Yamin al mardhudah
3. Yamin al qasamah (oath taken by 50 persons when
the killer is unknown)
4. Lian
5. A person to whom a thing has been entrusted for
safekeeping shall make a statement on oath as regards
any question of his release from liability (Art. 1774, The
Majelle)

 Oath taken by Plaintiff to deny allegations

against him e.g. counterclaim i.e. If Defendant
objected Plaintiff`s claim, Plaintiff can asked the
permission of judge to take this type of oath.
This type of oath is only accepted by the Maliki
and Zaidiyyah.

 Oath taken by Plaintiff in a request made by Qadi to

discharge any tohmah against himself after
submitting his evidence in the course of his suit. It
serves to perfect his claim/allegations.
Usually it is applied in the case of missing person
e.g. husband did not attend the court case.
Ibn Qayyim : Rely on the Practice of Sayidina Ali:
Ordered Plaintiff to take oath although he produce 2
witnesses.
Maliki: applicable in dharurat.

 s.87(1) In a civil case, evidence shall be given by the

plaintiff and the defendant, and if the defendant denies
the claim made against him he shall be required to take
an oath according to Islamic Law.
s.87 (2) (a) When Defendant takes the oath, Plaintiff`s
claim is rejected in toto.
s. 87(2)(b) If Defendant refuse to take oath, the court
may ask Plaintiff to take oath and after oath taken the
Plaintiff`s claim will be accepted.
s. 87(3) In criminal cases, evidence shall be given by
Plaintiff and Defendant unless Defendant plead guilty.

 Refusal of the Defendant to take the oath whereas in ordinary

circumstances it is he who supposed to take the oath.
After the Plaintiff had successfully brought evidence to
substantiate his claim, judgment shall be given in his favour.
In contrast, if the Plaintiff adduce weak evidence or witnesses
or that his argument is considered weak & not satisfactory ,
the Plaintiff may make request that Defendant should take an
oath.
Issue : if the Defendant refused to take the oath, could he be
convicted ?

 Refusal amounts to admission and judgement can

be made against the Defendant. Oath shall not be
shifted to Plaintiff because the original is for
Defendant to take the oath. If the right is on
Defendant side , he should not refuse to take the
oath.
Hanafi doesnt recognise Yamin al Mardhudah.
Authority: Hadith reported by Ibn Abbas

 No judgment to be given against the Defendant

because oath is weak method of proof. It must be
corroborated with Plaintiffs oath, whether or not
from Defendants request.
Therefore, the oath should be returned to be taken
by the Plaintiff. When the Plaintiff take the oath, the
judgment shall be decided in his favour. If Plaintiff
refuse then case struck off.

 Surah Al Maidah 5:107

But if it gets known that these two were guilty of the
sin (of perjury), let two others stand forth in their
places,- nearest in kin from among those who claim a
lawful right: let them swear by Allah: "We affirm that
our witness is truer than that of those two, and that
we have not trespassed (beyond the truth): if we did,
behold! the wrong be upon us!"
Hadith: Umar said that the Prophet s.a.w. use to give
judgement based on Yamin al Mardhudah.

No judgment to be given against the Defendant &

the oath shall not be return to the Plaintiff (Yamin
al-Mardudah). The Defendant shall be detained
until he admits or takes the oath.
Proof : based on several exceptions to the general
rule i.e. the oath shall be taken by the Defendant
except in several cases. Therefore, if someone
refuses to take the oath in matters which is not
exclusion list, then he can be detained in prison
until he accedes to the law by taking the oath or
by admitting the claim against him.

 The 2nd view is the view adopted by the majority

of the jurists.
S. 87 (2), Syariah Court Evidence (FT) Act

1.

2.

The type of oath which is returned to the Plaintiff when

the Defendant refuses to take the oath.
Issue : whether the return oath can be accepted or
not? The scholars differs in their views :
The refusal cannot be used to prejudice the
Defendants case. The oath shall be return to the
Plaintiff
The judgment shall be given against him. There are no
return of the oath to the Plaintiff.

 Conclusion : the returned oath is admissible as

one of the means of proof in cases not involving
hudud & qisas (valid only in minor offences
liable to taazir).