By Naseer Ahmed, New Age Islam
27 May, 2015
There is only a single verse (2:282) and context in which the Quran says that financial contracts may be witnessed by two men or a man and two women.
“O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as Allah Has taught him, so let him write. Let him who incurs the liability dictate, but let him fear His Lord Allah, and not diminish aught of what he owes. If they party liable is mentally deficient, or weak, or unable Himself to dictate, Let his guardian dictate faithfully, and get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her."
It may be noted that a contract is valid even if:
1. It Is Only A Verbal Contract
2. A Written Contract But Not Witnessed
3. A Written Contract With Only One Witness Man Or Woman Etc.
4. A Written Contract With Many Witnesses
Certainly, a written contract duly witnessed by two witnesses who will be able to testify reliably, if the need arises, is to be preferred and a woman is given the freedom to take support of another woman so that together, they can testify if the need arises. This verse is not about the admissibility of a woman's testimony but a concession to a woman witness of seeking help of another woman while witnessing and providing testimony when the need arises.
As far as providing testimony as witness to a crime is concerned, no distinction is made. A case will have to rely on the available witness male/female. If any lesson can be brought forward from 2:282 to apply to other cases, it is that a woman witness is free to take the help of another woman witness while providing testimony while a male will have to testify on his own.
Nowhere does the Quran say that a woman's testimony is worth half that of a man's. All that it says is that commercial deals be reduced to writing and duly witnessed. Even to this day, any document witnessed has two witnesses. The function of the witness is simply a safeguard against repudiation of the contract on the grounds that it was never executed and that it is a forgery. The witnesses then provide evidence that it was duly executed in their presence. The defendant and witnesses are cross examined to explore inconsistencies in their versions to try to prove that the event of execution of the document never took place. If the testimonies of the two witnesses differ, then the plaintiff has a good chance to repudiate the contract.
A witness has no role to play unless one of the executants repudiates the contract on the grounds that (s)he never executed it. There is no need for a witness to have even read the contract let alone be aware of its contents. All that is required of a witness is to testify when called upon to do so, that the signatures appearing on the document were executed in his/her presence and answer the questions that may be asked while examining/cross examining the witness. The role of the witness is limited to establishing that the contract was executed in their presence but have no role to play as far as the contents of the contract is concerned or the performance or non-performance of the obligations under the contract is concerned.We also know that witnessed contracts are almost never repudiated on the grounds that the contract was never executed since there is little chance of achieving success by making such a false allegation. However, if the plaintiff has a strong reason to believe that he could get the two witnesses to give materially varying accounts of the event of execution of the contract which can help him to repudiate the contract, then he may take his chances by denying that he executed the contract. If the witnesses were a man and a woman, then he is likely to take such a chance or if two women alone (in which case they would be giving separate testimonies) but unlikely when the witnesses are two men or one man and two women jointly.
While entering contracts, a person has the luxury of choosing witnesses and the Quranic verse is merely an advice on how to choose witnesses. In criminal cases, the law has to do with the available witnesses.
Also, it may be noted, that the two women will not testify separately but will give a single testimony jointly. If the verse had implied separate testimonies, then interpreting a woman’s testimony as half of a man’s would have been correct. However, what the verse implies is that a woman is less likely to remember the circumstances surrounding the contract on account of which her testimony may not stand cross examination on account of which female witnesses are allowed the concession of taking the help of another woman. This is merely a concession granted to female witnesses and not a legal requirement.
If it was the intention to treat a woman’s testimony as half of that of a man, the requirement would have been for taking separate testimonies from the two women. Doing so increases the chances that their separate versions would not match with each other or with that of the man defeating the very purpose of having contracts witnessed! The verse does not envisage the women to testify individually and independently and therefore it is not a case of two female testimonies being treated as that of one man. The verse only allows two women to give testimony together in consultation with each other.
The advice of taking two women together jointly is also based on the following:
(43:18) Is then one brought up among trinkets, and unable to give a clear account in a dispute (to be associated with Allah)?
Jointly, two women who have witnessed the same event are more likely to give a clear account consulting each other. Two separate unclear accounts however do not make for one clear account.
In a criminal case, where the requirement to prove a charge is two witnesses, the legal requirement is two clear accounts which could be provided by two males, a male and a female, two females individually, a male individually and two females jointly or one female individually and two females jointly or two sets of two females jointly. What constitutes a clear account is established through the legal process of examination and cross examination and has nothing to do with gender.
I have not seen anyone voice a similar opinion on the same subject and that is surprising. Any person with a good knowledge of the law should have come to the same conclusion. All the four imams have however erred on the subject and the classical Shariat law treats a woman’s testimony as half that of a man’s in most cases!
There are many other instances of the classical Shariat law having erred seriously incorrectly interpreting the Quran.
There is no movement however for a uniform and correct interpretation of the Quran. There has to be debate, discussion and consensus building and reaching a stage where we can have the majority of the Muslims to subscribe to the same common view and a single version of the truth.
Let us consider the verse:
(43:18) Is then one brought up among trinkets, and unable to give a clear account in a dispute (to be associated with Allah)?
It is possible today through Behavioural Studies to validate or invalidate the verse with empirical data. While generalizing for seventh century society may have been justified, we need to establish through studies whether what the verse says holds true even today. Mindlessly rejecting it however would mean that we deny female witnesses the option of giving testimony jointly. We should however bear in mind that this is an option and a concession and not a requirement and that a woman is within her rights to choose to go alone.
Naseer Ahmed is an Engineering graduate from IIT Kanpur and is an independent IT consultant after having served in both the Public and Private sector in responsible positions for over three decades. He is a frequent contributor to NewAgeIslam.com.
11:13 PM
Moderate Islamist here
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