Issue 5: In Islam the testimonial rights of women are half those of men
Even before the issue of ‘half’ testimonial capacity of women is discussed and refuted, it begets one to keep in mind that Quran sets the golden rules of testimony in plain words without differentiating between men and women:
2:140. …And who is more unjust than he who [Arabic: mimman – ‘one who’ i.e. man or a woman] conceals the testimony he has from Allâh. And Allâh is not at all unaware of what you do.'[1]
In light of above verses it is plainly clear that no witness, neither man nor a woman, can conceal the testimony. The deposition by either has to be accepted at par. For the sake of argument, the debate for alleged ‘half’ testimonial capacity of a woman would only arise if there was also a male co-witness, the alleged ‘full’ witness. If there is no male co-witness, then what will be the testimonial status of the woman witness? Will her ‘half’ then not be treated as ‘full’ because the verse 2:140 demands of her to be in witness stand for her testimony? At the same time one may ask a fundamental question that in the same verse since Allah Himself does not deny or dilute the testimonial rights of a woman then how can humans reduce it for her? On the reverse, in the words of Quran, anyone lowering the testimonial rights of a woman as compared to a man would be plain unjust, simply put, it will be against Quran.
In support of the allegation in current issue usually verse 2:282 is quoted. If we look closely at this verse it becomes obvious that critics confuse the factual concession afforded to women over men rather than her testimonial capacity being usurped:
2:282. O you who believe, if you borrow debt for a future period, then you shall record it. And let a scribe of justice record it for you; and let not the scribe refuse to record as God has taught him. Let him record and let the person who is borrowing dictate to him, and let him be aware of God, and let him not reduce from it anything. If the one who is borrowing is immature or weak or he cannot dictate himself, then let his guardian dictate with justice; and bring two witnesses from amongst your men; if they are not two men, then a man and two women from whom you will accept their testimony, so that if one of them becomes occupied[2], then the one can recall [in place of] the other. And let the witnesses not refuse to come if they are called. And do not fail to record it no matter how small or large until its maturity. That is more just with God and better for the testimony, and better that you do not have doubts; except if it is a trade to be done on the spot between you, then there is no sin upon you if you do not record it. And have evidence if you trade. No scribe shall be harmed nor any witness; for if you do so then it is vileness on your part, and be aware of God and God teaches you and God is aware of all things.[3][Emphasis added]
Firstly, nowhere in Quran is it stated that testimony of a woman is half of that a man. Neither does the Quran reduce the testimonial capacity of a woman to less than a man nor does it nullify it like that of a child. The examples of legal capacity of a woman as a witness at par with that of a man can be found in verse after verse and in diverse legal settings and circumstances that might be even more serious than those of verse 2:282. Some of these examples of equality of man and a woman as a witness can be found in Quran in matters of handing over the inheritance to orphans on attaining their majority, allegations of immodesty that might permanently damage a woman or end her marriage into a divorce, certification of a will or termination of marriage:
4:6. And keep on testing the orphans until they attain the (age of) marriage, then if you perceive in them sound judgment deliver to them their property and do not consume it extravagantly and hastily as they grow up (fearing lest they should claim it when they attain majority). And let him (- the guardian) who can afford to do without, let him avoid remuneration, but he who is needy may charge reasonable remuneration with equity. And when you hand over to them (- the orphans) their property let there be some witnesses [male and/or female] to attest. And Allah is enough as a Reckoner (and call you to account). "[4]
4:15. As to those of your women who commit sexual perversity, call in four of you [male and/or female] to witness against them, and if they bear witness then …[5]
5:106. O you who believe! when death comes to one of you (and you wish to make your will) let there be present among you, at the time of making the will, two just persons [male and/or female] from among you or two others [male and/or female] from among the outsiders, in case you are journeying in the country and the calamity of death overtakes you…[6]
24:4. Strike eighty times on the bodies of those who calumniate chaste women and who do not support (their accusation) with four witnesses [male and/or female], and never accept their testimony (because) it is they who are the disobedient (and break the law);[7]
24:11-13. Verily, those (- hypocrites) who brought the false accusation (against âishah, the wife of the Prophet), are a section of your own people. Do not think this (- incident) to be bad for you, rather it is good for you. (As for the accusers,) everyone of them shall receive (his due punishment according to) that which he has accomplished in the form) of sin. As for him (- Abdullâh bin Ubayy bin Salûl) who among them took the principal part thereof (in fabricating and spreading malicious scandal against her) there awaits him a grievous punishment. When you heard of this (accusation) why did not the believing men and believing women have a better opinion in respect of their own people and say, `This (charge) is an obvious lie?' Why did they (- the fabricators of this charge) not bring four witnesses [male and/or female] in support of this (accusation of theirs)? Since they failed to produce the (required) witnesses, it is they who are the very liars in the sight of Allâh.[8]
65:2. And when they are about to reach their prescribed term (of `Iddat) either keep them (by revoking the divorce) in an honourable and fair manner or part with them in honourable and fair manner and two honest and just persons [male and/or female] from among you witness (your decision). (Let the witnesses) bear true testimony for the sake of Allâh (regarding the situation that resulted in the pronouncement of divorce). Thus the person (who acts according to these guidelines and) who believes in Allâh and the Last Day is exhorted. And he who takes Allâh as (his) shield, He will always make a way out (of his ordeals) for him.[9]
Secondly, the above-mentioned stipulation in verse 2:282 is only for contracts and transactions and is not for the common understanding of a witness to an event in daily life for example witness to a crime. Nowhere in Quran can a woman not be the sole witness.
Thirdly, in verse 2:282 when it states – and bring two witnesses from amongst your men; if they are not two men, then a man and two women from whom you will accept their testimony, Quran is merely setting the stage for a possible future need. In doing so, Quran is only expanding the witness pool as a precaution if the witnesses are ever needed, irrespective of statutes of limitations – And let the witnesses not refuse to come if they are called. If a dispute does arise about the transactional matter and when called to testify, there is no requirement in Quran of more than one witness, though more than one may be called upon. In situations where there is a requirement of more than one witness for adjudication of the case, Quran quite explicitly enjoins so – Strike eighty times on the bodies of those who calumniate chaste women and who do not support (their accusation) with four witnesses (24:4); let there be present among you, at the time of making the will, two just persons among you or two others from among the outsiders (5:106).
Fourth, in big scheme of things, in verse 2:282 it is clearly a concession for a woman and her burden is shared by a peer if needed for a testimony. The woman is different than a man in that she could be occupied with issues unique to her gender, for example menstruation, pregnancy, labor, postpartum, menopause, childcare and home maker. Given her situation she may not be physically available, able to travel or bear the rigors of the court etc. Clearly in such extraneous circumstances she has a substitute and in doing so the justice is neither delayed nor denied for the dispute because provision of timely justice is one of the injunctions in Quran, for example:
38:21-22. Have you heard the news of the adversaries (of David) who scaled the rampart of the fortress (to take David unawares in his chamber)? When they intruded upon David and (found that) he had become alert (on account of) them, they said, (by way of an excuse,) `Have no fear. We are two parties litigants. One of us has transgressed against the other, therefore judge between us as justice demands, and delay not (by giving the date of decision,) and guide us (in our litigation) to the fair way.[10] [Emphasis added]
Conversely, it can be implied that if the woman witness is not occupied, then the aide is not needed.
Fifth, “The Holy Qur’an does not say that no case should be decided except on the testimony of two witnesses, but requires ordinarily the calling of two witnesses at the time of the transaction, so that the deficiency of one may be rectified by the other. Cases may be decided on circumstantial evidence as well, which is sometimes stronger than the evidence of witnesses. The Holy Qur’an itself speaks of Joseph’s innocence being established on circumstantial evidence”[11]
It is this emphasis on circumstantial evidence on which Quran makes its case in a different matter when it states about Jesus coming down alive from the cross:
2:72. And (recall also) when you had (nearly) killed a (great) man (- Jesus), then you differed among yourselves respecting it (- the crucifixion). And Allâh will bring to light that (- Jesus did not die on the cross) which you had been hiding.
2:73. So We said, `Judge it in the context of its other circumstances.' That is how Allâh brings the dead (for Jesus being dead to all appearances) to life, and He shows you His signs so that you may refrain (from evil). [12][Emphasis added]
Witnesses are the cornerstone of a justice system. The ultimate role of witness(es) is to prevent a dispute upfront and still if the dispute so arises, then witness(es) help in the resolution the dispute between the affected parties. The fundamental expectation of the disputants from the judge is – judge between us as justice demands, and delay not (38:22) the carrying out of justice in a timely manner while taking into account all the facts i.e. Judge it in the context of its other circumstances(2:73), irrespective of number of witnesses because witnesses too can err, for example:
5.106. O you who believe! when death comes to one of you (and you wish to make your will) let there be present among you, at the time of making the will, two just persons [male and/or female] from among you or two others [male and/or female] from among the outsiders, in case you are journeying in the country and the calamity of death overtakes you. In case you doubt (their honesty in giving evidence), you shall detain both (the witnesses) after Prayer, then let them both swear by Allâh (and bear witness) saying, `We will accept for this (-our oath) no price; (we will bear true evidence) even though he (in whose favour or against we bear evidence) be near of kin, nor will we hide the testimony (enjoined to be borne uprightly) by Allâh, for if we do so, we shall certainly be among the sinners.'
5.107. But if it be discovered that these two have become guilty of sin, then let two others stand in their place from among those (heirs) against whom the (former) two (witnesses) who were in a better position (to give true evidence) are sinfully deposed, and the two (latter witnesses) swear by Allâh (saying), `Surely, our testimony is truer than the testimony of those two and we have not exceeded the bounds of justice (in bearing the evidence) for, in that case, we shall certainly be of the wrongdoers.'
5.108. This way is more likely to ensure that they (-the witnesses) will give the testimony in its true form and nature or atleast they will be afraid that other oaths will be taken after their oaths (to counter them). Therefore take Allâh as a shield and listen (to Him) for Allâh guides not the disobedient people to the way of success.[13]
In Quran, the testimonial capacity of women is equal that of men. It is one of the many areas where distractors of Quran try to stirrup an argument where there is none to begin with. In Quran, the mutual relationships and the respective roles and obligations of men and women in the community are independent yet complementary, compassionate, considerate and cooperative. They are neither adversarial nor competitive.
[1] Al-Baqarah – The Cow: Nooruddin [1a] Al-Maidah – The Table Spread with Food: Nooruddin
[2] ‘taḍilla’ – from [Arabic] Dzalla:To lose one’s way, go astray, fail, disappear, err, wander from, forget, waste, deviate, be misled from the right path, go from the thoughts, wander away, lurch, adjudge to be erring. Dzallatun: Anxiety; Uncertainty; Absence. Dictionary of The Holy Quran, (c) 2010, Abdul Mannan Omar, p. 333.
[2] Al-Araaf – The Height of Discernment: Shabbir Ahmed.
[3] Al-Baqarah – The Cow: Free Minds
[4] Al-Nisa – The Women: Nooruddin
[5] Al-Nisa – The Women: Nooruddin
[6] Al-Maidah – The Table Spread with Food: Nooruddin
[7] Al-Nur – The Light: Nooruddin
[8] Al-Nur – The Light: Nooruddin
[9] Al-Talaq – The Divorce: Nooruddin
[10] Sad – The Truthful God: Nooruddin
[11] Yusuf – Joseph – Verses: 12:26-27: Explanatory footnote: Muhammad Ali – Zahid Aziz
[12] Al-Baqarah – The Cow: Nooruddin
[13] Al-Maidah – The Table Spread with Food: Nooruddin
From Zahid Aziz:
It is quite obvious that this verse deals with a situation in which the people involved are illiterate:
"And let a scribe of justice record it for you; and let not the scribe refuse to record as God has taught him… and let the person who is borrowing dictate to him".
In a literate country, would we today insist on getting a scribe and the borrower dictating to him? Would we not have some sort of a standard form which could be filled in, and which would be readable by both the lender and the borrower?
The next verse says:
"And if you are on a journey and you cannot find a scribe, a security may be taken into possession. But if one of you trusts another, then he who is trusted should deliver his trust, and let him keep his duty to Allah, his Lord." (2:283)
If a scribe, i.e. someone who can read and write, could not be found on a journey (itself highly unlikely today), would it be forbidden for the borrower to write down the same contract (which he would be dictating to the scribe) and the lender read it?
Do those who believe that "two women" (to replace one man) are essential as witnesses, also believe that it is essential to use the services of a scribe?
It is clear that this verse covers the situation of a least developed society, which certainly still exists in parts of the world. So, by way of precaution, two women are suggested as witnesses. Today you can take "man" in this verse as meaning a person (male or female) who is knowledgeable about financial matters, and "woman" as meaning a person (male or female) not knowledgeable in these matters. Thus, preferably you have two knowledgeable witnesses, but if not then at least one knowledgeable and two less knowledgeable ones.
From Rashid Jahangiri:
In democratic Muslim countries where citizens cast their votes to elect their politicians, weight and value of women’s vote is exactly equal to that of men’s.
In a country like Pakistan, where value of woman testimony is half of man, change is on the way. Woman testimony to elect or reject certain candidate to office is equivalent to man testimony, in form of vote.