Channel: Navaid Aziz
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Without him and then hamdulillah hinomoto who wants to know when I will be done even surely on fusina woman CIT Amina Maria de la Fernando de la la la la la la la la la la la sharika was shadow Wanda Mohammed Abdullah Rasulullah sallallahu alayhi wa ala alihi wa sahbihi wa seldom at the Sleeman kathira. My bad, my dear brothers and sisters Salaam Alaykum warahmatullahi wabarakatuh.
So let's start off with a question. A man comes into the masjid. And he says, also, and so I'm deciding for you to be a judge in our decision. And you're like, fantastic. You know, I'm just attending a class on being a judge. I will be your judge. And the case is as follows that the man claims he had an iPod in his pocket and insula, someone came and took the iPad out of his pocket. How do you judge this case? I want to hear from you guys. How would you guys judge this case?
What do you guys do?
The his claim that this? No. Yeah, yeah, he found the person he says that this person specified an individual this person stole my iPod.
So he's guilty automatically.
Don't become a judge.
They someone else, what do you do in this situation? What does the show do require you to do? Go ahead the Jeep
asked where the convicted side of the story.
So what if he says what side of the story you're talking about, you know, why am I being questioned? Why don't you question someone else?
Interesting, when they have to go ahead.
Okay, so you don't even listen until the guy brings some sort of proof. Okay, fantastic. Now, what if the guy says I don't have any proof? How can I prove something that's missing?
I know and then a and this man is responding. How am I supposed to prove that someone else took it? You know, allow me to inspect him. Right? That's what he's gonna say. No, are you?
Okay? This is like the literal meaning of the Hadith. That is the literal meaning of the Hadith. Okay, good. Uncle, what were you gonna say?
And then cases dismissed that if there's no proof whatsoever, you dismiss the case. Okay.
Dismissed immediately. Dinesh last one month. Go ahead. Check the video. Definately. Fantastic. That would be the first thing you should do. Is there any recorded video evidence of this? Because the video evidence particularly when it's close, you know, to the time of the of the accusation, it can't be tampered with right? over a long period of time goes by it can be tampered with. Someone can claim tampering, but it was right after the event. So that's like the very first question you're going to ask is there any video recording of this, and this would be the equivalent of in our daily life, you know, testimonies, people that witnesses can, you know, testify to this or against it. So
that's what you will be looking for. So as you can see, our discussion today is going to be how do you resolve an Islamic court case. Now, just to be clear, even after this video, you will not be qualified to be a judge in Islam, but at least you will be able to appreciate where Islamic law is coming from, why it you know, dictated certain conditions and what it was trying to achieve through those conditions. Be the light Allah. So let's start off with the Hadith. And if they are not your loved one whom Allah Rasulullah sallallahu alayhi wa sallam of God, no, you know to be da da da, da da region, and wha la comida de la la la Kenan Bina to Alma de la Amina lm an anchor. Howdy Suhasini
La La hockey was a Lou Hakka, so on the authority of a bus or de la Juan Houma. The Messenger of Allah sallallahu alayhi wa sallam said were people to be given according to their claims, men would claim the wealth and blood of the people, but the burden of proof is upon the plaintiff and the taking of the oath is upon the one who denies the allegation, and the taking of oath is upon the one who denies the allegation started off with general comments about this hadith general comments about this hadith Urban Decay one of the great Shafi scholars and the great scholars of Hadith. He said this hadith is the foundational Hadith in disputes, meaning that when you look at how disputes arise
In Islam, all decisions will be coming back to the foundation of this hadith. So it's a very foundational Hadith, particularly for the judges, particularly for those practicing Islamic law to know. And it's what's interesting is that at the University of Medina, we spent two semesters basically studying this hadith we had quarter one quarter to two semesters of, you know, judgment in Islam. And the whole discussion always revolved around how do we interpret this hadith in light of the case? How would you interpret this idea, in light of the case, so it's a very important thing to know. Number two, is that we've discussed this before but Islamic law, it came to preserve five
things Islamic law, see came to reserve five things. And there's a sixth one that some of the scholars added on or considered it to be another of the fifth. So Islamic law came to preserve the deen. It came to preserve one's intellect, it came to preserve one's wealth, it came to preserve one's life, it came to preserve continuation of life, or genealogy and progeny. And it came to preserve honor. So these are the six things that scholars mentioned the different on what the fifth one was, was it the continuation of life in terms of progeny in genealogy, or was it honor within of itself. And in reality, Allah Subhana Allah knows best, but it seems like it was a continuation of
life, because honor would fall under the preservation of life honor would fall under the preservation of life within love itself. So when you look at Islamic law, disputes that are going to be recognized, are going to be infractions on based upon these five things, infractions. Based upon these five things, were either is an infraction of the religion, there's an infraction on one's wealth, there's an infraction of one's life, and so on and so forth. And even in terms of the intellect, there's an infraction of intellectual property in that that could be claimed, as well. So those are the infractions that a judge will actually look at, that a judge will actually look at. So
the Messenger of Allah sallallahu, Alayhi, salaam, he starts off by saying where people to be given according to their claims, men would claim the people's wealth and blood. So here, the Messenger of Allah wa Salaam is putting it very, very clear that two things need to be understood, the general nature of mankind is one of transgression, the general nature of mankind is one of transgression. That opened until people refrain themselves and have a reason to refrain themselves, the general, you know, innate nature of mankind will want to be tamed to take people's wealth, and to want to take people's blood and not be held accountable for it. And you notice this, you know, if you, if
you look at the crimes that are done in our times, you know, how many of them are related to, you know, killing and how many of them are related to finances, those are like a, you know, a lot of the situations. In fact, anytime you know, money comes into play somewhere, you'll notice that it always messes up the system, when society if people don't know how to handle that was one of the primary causes, you know, between a husband and wife breaking up after compatibility and after the in laws. The third reason is there, you know, financial capability, where if the woman is earning more than the man, he doesn't know how to handle it, or the man is like, you know, the woman is absolutely
useless. She's not contributing to the house at all, you know, these sort of claims. So even wealth in terms of marriage is the third reason why a couple will get separated. The second thing that you notice over here is that the Messenger of Allah sallallahu alayhi wa sallam, he specifically used the word religion, meaning the male species of mankind, why would the Messenger of Allah Azza wa sallam use the male species over here, this is not to show that they're the only ones you know, that are going to commit crimes, but it is to show that they are the predominant, you know, criminals, they are the predominant criminals in terms of the species. And this is proven even in in our times,
that if you look at, you know how failed male prison cells are, as opposed to female prison cells, literally, the numbers are like triple and quadruple in terms of the male prisoners in opposition to the female prisoners. So this is not to show that, you know, men are the only ones that can be convicted and be proven guilty, but they are the ones that are clearly the majority. And this is something that was proven at the time of the Messenger of Allah sallallahu alayhi wa sallam. And this is why the Messenger of Allah Sonam uses the term Legion in a specific sense, but it encompasses both just to show the majority. So now the Messenger of Allah sallallahu alayhi wa
sallam he goes, will be enough to accommodate that the proof the bayona is upon the mark, the one making the claim the proof is upon the one making the claim. Now the first thing you need to do as a judge is you need to figure out who is the defendant and who is the plaintiff, who is the defendant. And who is the plaintiff. Now, in certain situations, it's very easy, you know, in the situation of someone stealing the iPod, the one saying that, you know, this person stole my iPod, he is the plaintiff, the one defending himself. He is the defendant. That's very, very easy. But let me give you a trickier scenario, right? And that is you have two people that are non Muslim. They accept
Islam, okay. The wife, she comes to you and she says, I accepted Islam.
First, and you have to dissolve our marriage, and you have to dissolve our marriage. And the man comes and he says, No, that's not true. In fact, we both accepted Islam at the same time. And this marriage does not need to be dissolved, this marriage does not need to be dissolved. Who is the plaintiff? And who is the defendant in the situation? So who's making the claim? And who needs to prove the defense? So it's very important that you, you understand, who is the plaintiff, and who is the defender in the situation, and will every you know, situation, have a played defendant defendant, that's another thing to look at. So a man or an individual comes to you. And he says, you
know, what? My Muslim neighbor, she's, you know, a young teenager, and she's pregnant. Right? So it, you know, go look into this situation. So now this woman is pregnant, she's not married, she should not have any reason to become pregnant. So who is the plaintiff in this situation? And who is the defendant, right. So that's another thing to look at over here. That's another thing to look at. So let us look at what the mother have said, in terms of how we view the plaintiff and how we view the defendant. And we have three opinions on this matter. opinion, number one, is that the plaintiff is the one who is not charged, and is allowed to remain silent, the plaintiff is the one who is not
charged and is allowed to remain silent. So who the defendant to become the defendant is the one that is being charged, and is not allowed to remain silent, the defendant is the one that is being charged, and they're not allowed to remain silent, meaning that they have to, you know, defend themselves in this situation, or they would have to take an oath. At the very least, this is opinion, number one, opinion number two,
the plaintiff is the one that is claiming something other than what is appearance, the plaintiff is the one that is claiming something other than what is appearance, and the defendant is the one who is arguing according to what is appearance, and the defendant is the one that is arguing according to what is a period. So now, before we even get to opinion, number three, let's go back to this case that I was mentioning to you that you have husband and wife both were non Muslims. They both accepted Islam. But there's a timeline, there's a claim that there's a time lapse in between. And obviously a Muslim woman is not allowed to be married to a non Muslim man, this is not this is
something that islamically is not allowed. And if that would have happened, the marriage needs to be dissolved, the marriage needs to be dissolved. so in this situation, how do you decide, you know, who the plaintiff is and who the defendant is? Let's look at it from both of these definitions. If we go according to definition number two, that the plaintiff is the one that is going against what is the norm, and the defendant is arguing what the norm is, the defendant is arguing what the norm is. So when a couple a Muslim couple will accept Islam, what is the usual, you know, timeline that follows? Do they usually accept Islam together? Or is it usually the fact that one accepts Islam?
And they become like a cause? And the other person accepting Islam? What would happen? In most cases? What do you think? It's the second case, right? That's usually the case. Right? So who's fighting the norm over here? fighting the norm over here is the plaintiff. So the plaintiff over here needs to prove that you know what this is the the proof that we accepted Islam at different times. So the plaintiff over here is the woman she needs to provide the evidence that locally accepted Islam over here, where the defendant is the one that is arguing, no, we accepted Islam at the same time. So upon him is just the oath upon him is just the oath. Now looking at the first one,
the one that is being charged, and the one that can remain silent. So over here, is there an actual charge taking place, like no accusations are actually being made, right? So over here, you cannot really apply the first definition, the first definition really wouldn't come into application, because no one is being charged in this situation. So we'd actually not use the the first definition whatsoever, you wouldn't use the first definition whatsoever. So now let's move on to the third and last definition. The third and last definition. The third view is that the defendant is the one rejecting a claim while the plaintiff is the one making the claim. So anyone that goes on the
defensive, naturally puts himself as the as the defendant, and the one that is not defending themselves and is making the claim, then they are the ones that is the plaintiff. So now if you look into to the marriage situation again, then again, the woman is the one that's making the claim over here, and the man is the one that is defending, putting himself in the defensive. So naturally, the flow of the events will decide who the plaintiff and the defendant is. So these are three ways how the judges looked at who would be the plaintiff and who would be the defendant. Now the Messenger of Allah sallallahu alayhi wa sallam, he says, albena to Allah die, that the bringing of proof is, you
The individual making the claim. What is Islam consider as proof what is Islam consider as proof. Islam considers explicit proof to be two things. Islam considers explicit proof to be two things. Number one is a confession. So if a confession is made, then this is considered explicit proof. And this is considered the end of the case, this is considered the end of the case. The second type of evidence that Islam would consider explicit is testimonies of people is testimonies of people. This will be considered explicit evidence in this situation, particularly when it comes to the word big enough. Some of the scholars actually claimed that they said that when the Messenger of Allah uses
being over here, it has to be witnesses, there's nothing else that is allowed to be introduced as explicit evidence other than witnesses. Now, what's important to understand over here is that when Islamic judicial law was formulated, this was at a time when there was no video recordings, no audio recordings, no DNA testing, no, you know, rape kits, no fingerprints, none of that was present at that time, the science had not evolved to that degree. And you'll notice that these are some of the challenges that the Muslim judges have today are facing that since those things were not present. To what degree of flexibility? Do we allow those things to represent and be used as evidence in a
Muslim court law? What use you know, to what degree would we allow them, and generally, from what I've seen, in my experience, is that this is left up to the jurisdiction of the judge himself, some of the judges will be you know, very open and accepting other forms of evidence, others will be very, very reserved, they're like, you know, what, I'm only going to be accepting as explicit forms of evidence, the witnesses, and, you know, testimony, or confession, and anything other that is considered like a secondary form, or tertiary form of evidence, some judges will go to that degree. Now, what's important to understand is that even during the time of the companions, you saw that
there was room for flexibility in terms of what was considered evidence, and what was considered in terms of evidences. And that's something that we'll discuss as we go on bit later on. So the first thing we want to discuss is what are the requirements for a witness in Islam, you have a Muslim courthouse, you're looking for witnesses, what are the requirements for the witness to be actually valid, and we have five conditions that needs to be met, in order for the witness to be considered a valid witness, in your case, number one, the witness must be sane and competent, the witness must be sane, and competent. So if their insanity is proven, or their incompetence is proven, then they can
be removed as a witness, and their testimony would not be valid. Number two, the general ruling is that witnesses can only be adults, the general rule is that witnesses can only be adults. Now, what do we mean by adults over here, we don't mean, you know, 18, by Western law, but we mean that they're at the age of puberty, at least in Islamic law, they're at least at the age of puberty. Now, this is a general rule across the spectrum. However, there are certain cases where the testimony of children may be used, the testimony of children may be used. But then what they would stipulate in that case is that if the testimony would child is going to be used and they haven't hit puberty,
then they would stipulate they're at least at the age of distinction, what is the age of distinction, that they're able to distinguish between right and wrong. So as long as they're able to distinguish between right and wrong, that their testimony would be valid. However, if their testimony if that child's testimony, you know, that person is unable to distinguish between right and wrong, then that child's testimony will not be accepted. Number three, the witness if it is a Muslim case, the witnesses must be Muslim. So it is a case dealing with Muslims only, then the witnesses being used in the courthouse must be Muslim. However, if there is a court case that
involves a non Muslim, then non Muslim witnesses would be allowed into the court case, or number two, is if there's a need for a non Muslim witness, and no Muslim witnesses can provide that testimony and justification, then the non Muslim would be allowed as well, particularly in the second case, when you have experts testimony. So for example, you need an expert to testify in a particular size and branch that you don't find a Muslim in that in those situations, even a non Muslim would be allowed to testify in an Islamic courthouse. Number four, the witness must be of sound memory, the witness must be of sound memory. And this is something that if the judge feels
uncomfortable with the witness, he can actually test him to, you know, test his memory to see how sound his memory is, because of his memory is not sound, then you can throw the whole court case out the window, because how can you prove that this person will actually remember and recollect facts according to how they actually occurred. And the fifth and last one, and this is perhaps the
The most important one is that the witness has to be a person of integrity and honesty, they have to be a person of integrity and honesty. So if this person is known as a person who openly commits sin, publicly commit sin has no care whatsoever, their testimony will not be allowed. Number two, if they were ever caught lying in the court case, then their testimony would not be allowed. If they're not if they're caught lying in a court case, the testimony would never be allowed. Number three, is if you have many, many people claiming that this person is a liar, and is not honest, then the testimony would not be allowed, then the testimony will not be allowed. So those are three integral
conditions that need to be met in terms of in the integrity of an individual or the Central Council. And if a person's integrity is not intact, then the testimony obviously, will not be valid. Now, adding a sub condition over here, and that is that when you look at most court cases, it is very important to understand that people will always have their own agendas, people will always have their own agendas. So when it comes to witnesses, the judge will always look at, does he have any direct relationship with the plaintiff or the defendant? If there's a close relationship? You can't be a witness to this case? Number two, is there any possible way to prove that the witness would
benefit from this case? If there's a way to prove that the witness would benefit from this case, then that is possible clause to exclude him as a witness? Number three, you would look at? Does this witness have a vendetta against anyone? Right? Does he have a vendetta against the plaintiff or the defendant? In that case, if it comes to be known that this, this, this witness has a vendetta against anyone, then the testimony would also not be allowed into court. So it shows you know, the great deal, the amount of diligence that needs to be taken, and how meticulously witnesses need to be chosen? In a court case? We move on to the importance of giving testimony. Right. So now you
witness something, and you think to yourself, do I actually want to testify in this case? You know, what do I get out of it? Do witnesses actually get anything out of court cases. And this is like the really messed up part, from the Islamic perspective, a witness is not allowed to take or receive anything for their testimony, you are not allowed to receive anything for your testimony, it would be considered impermissible to do so. You look at Western cases, and expert witnesses are actually allowed to receive, they're actually allowed to receive, you know, to a certain degree, I don't remember what the exact number was. But I think something like $25,000 for like justification in the
in the case. Now you can imagine someone's giving you an incentive of $25,000 is like who needs me as a witness, I'm available, because all you have to do is like show up in case in a court case. And you can do like multiple court cases a day, and you have like your lifetime salary and like a month on a law. So this shows you again, some of the, you know, discrepancies that need to be looked at. So now what is the one second, what is the encouragement that Islam gives to the individual that you know, they should testify? Number one is the fact that testimony is considered a communal obligation in Islam, testimony is considered a form of keyfile. Meaning that if no one from the community is
doing it, and you have knowledge of that incident, and you witness that incident, then it actually becomes mandatory for you to do it. It's considered a fourth key fire. So if you don't end up doing it, you're actually considered sinful at that time, you are actually considered sinful at that time. And in fact, the Messenger of Allah Salam and Allah subhanho, wa Taala, both in verses of the Quran and the Hadith, they reprimanded the people that conceal knowledge, right, there's a severe reprimanded for those people that conceal knowledge. So that's something else to keep in mind that, you know, it's highly encouraged in Islam, that you step up, and you will be a witness that you
fulfill the fourth key fire, you get a great amount of reward for it, and you're also saved from sin. Now, Dinesh, what are you going to say?
Okay, so if there is an abnormal expense that is required, then in that situation, yes, the court is allowed to compensate them. But that would be from the court itself, not from the defendant and the plaintiff. So the court itself would have access to the beta man and saying, look, we need to, you know, use this expert witness that's coming all the way from Edmonton. And we need to pay for like a plane ticket hotel and meals and stuff like that. The court case would take care of something like that, and that would not be in the in the hands of the defendant or the plaintiff. And again, the obvious reason being that you know, that could persuade the witness to a certain degree. So now,
what is the witness requirement? What is the witness requirement, meaning how many witnesses are actually required? The general ruling in Islam is that every single case should have
At least two witnesses, every single case should have two witnesses. And this is the default ruling. If two witnesses are not available, then the exceptions might be made. or second case scenario. There are certain cases where you require at least four witnesses, there are certain cases where you require at least four witnesses, and then suddenly we're going to discuss Bismillahi Tada. And then the second discussion we have is, how does it work in terms of men and women now one of the clearest, one of the biggest claims against you know, the misogyny of Islam or the chauvinism of Islam is a claim that they always consider the testimony of a woman to be half of the testimony of a
man, does this hold true across the spectrum, and we'll come to see that later Allah. So in Islam, we break down testimony into
Hadoop cases and non fraud cases. So cases of where there's punishment prescribed for it, and cases where there's no punishment prescribed for it. cases where there's no punishment prescribed for it, then in that situation, it is always two witnesses in that situation. It is always two witnesses, in cases where the punishment is prescribed, then in that situation, you will have two or four witnesses in that situation, you will have two or four witnesses, and the two or four witnesses. The famous case is if a person wants to testify against another individual, that they will promiscuous that they perform some form of adultery, that they committed Zina, then at that time four witnesses
are needed at that time, four witnesses are needed. Now, what is the wisdom behind the four witnesses over here? Who can think of a wisdom behind it? Why would Islam stipulate that there has to be four witnesses, catching people in the act of committing Zina?
Number one, it's so rare. And what's the second reason behind it?
It's such a heavy
you have to convince for people to actually
that's what I'm looking for. Exactly. It's that second point of view, that the consequences are so severe, that if the person is, again, this is in a hypothetical situation, you're in, you know, living in a country that abides by Sharia law, and you know, you have four, you know, trustworthy witnesses that fulfill the conditions, then in that situation, if the person is actually convicted over here, then in this situation, if the person was the single, they were not married, then at the very least they're receiving lashes, and they're going to be exiled from the land for one year, that if it's, that's if it's the male, and if it's a female lashes, but they're not exiled from the land.
Now, if they're married, then this is where it becomes extremely severe. This is where it becomes extremely severe when it comes down to the castle. Because in this situation, the courthouse, the judge could stipulate that this person, these two individuals are to be to be killed if they were both married, or one of them, if they are met, then this individual is to be killed. And this shows you the sanctity of a family life in Islam, the sanctity of chastity and Islam, that this is the great punishment in it. Now, what a lot of people fail to see when they when they look at this punishment is this punishment is so severe in this life, so that they will not have to go through
severe punishment in the hereafter. That is like a point that's usually not boardercross that the people you know, who understand this punishment, they'll actually step forward to it to be purified in this life, so they don't have to be punished in the hereafter. And we saw this in the time with the Messenger of Allah, Allah while he was send them in to clear cases. One was the Hadith of the garmendia the woman where she came to the Messenger of Allah, she's like Jada sola, and I'll come in and say, Now she asked, Are you pregnant? She said, Yes. He said, wait till the baby's born, she came back. He said, wait till he done breastfeeding, when he could find no more excuses at that
time. You know, she was she was killed at that time. But how did the Messenger of Allah wa sallam describe her after that was done? He said that she had performed such a Toba, that it was equivalent to the total of 70 of you, right? So meaning that, yes, she fell into a mistake. But look at what the end result was, at least she earned the pleasure of Allah subhanho wa Taala. And she was forgiven for her sin in this life. She was forgiven for her sin in this life so that there wouldn't be accountability in the next. Number two is that the people who make claims against such laws are usually ignorant of the laws that exist in their own countries are usually ignorant of the laws that
exist in their own countries. So people that argue you know what killing someone in law is something that is impermissible and something that is inhumane and it's something that is barbaric. Almost every single country in the world today has laws of treachery, and that law of treachery and treason is that person needs to be killed, even in a place like Canada, even in like a place like the US
It states, the laws of treason are that the person is to be killed. This is like a, you know, a law within the within the their system. When it's implemented, obviously, that's up to them for them to decide when they will actually implement it. But that law is actually there. So this shows us that, you know, there are laws, even in the western systems that a person has to be killed in particularly the United States. I remember up until 2010, there were approximately states that still had, you know, Corporal punishments for other than treason. So if you killed someone, if you raped someone, or something along those lines, nine states in the United States had corporal punishment for those
cases. So it's just about having the facts in front of you having the knowledge and knowing how to present it when you're arguing such cases.
I can't even remember why I got to that case. Okay, we were talking about the witnesses, how many are needed. So in the case of, you know, accusing someone of Xena, then you need four witnesses. Now, continuing on to this case, what happens? If you can't find a fourth witness? What happens in the case that you can't find a fourth even though Go ahead, the remaining witnesses are lashed. This happened at the time of the Prophet sallallahu, alayhi wasallam that three people actually directly for people that saw someone committing Zina, and they stepped forward. And then one person they become, they became unsure, they said, you know, it was nighttime, I wasn't really sure what I saw,
you know, I wouldn't be right if I if I testify in this situation. So when they were unable to provide a fourth witness, and no one came forward, then those three people were lashed. They were given at lashes for an accusation. They were they were they were not able to provide any evidence for and this shows us the severity of it, that you know, if you're going to accuse someone's honor, and you know, tarnish someone's honor, be ready for the ramifications of it. Because even if you're not getting the punishment in this life, with Allah subhanho wa Taala, that's something great in in our day and age, with like social media, they have like no problem accusing people of, you know,
losing their chastity and things like that. You have a question whether it is good
as a punishment.
And if you get the lashes, yes, of course. So any punishment that is received in this life, it absolves the person that punishment in the hereafter it absolves the punishment from the person of the hereafter. and in this situation, there's actually like,
like a second case scenario, it is that what if the person is actually telling the truth. So this witness is actually telling the truth, they still got the lashes because they couldn't provide a fourth witness, then this person in the hereafter the reward is actually multiplied because they receive lashes for something that you know, they they shouldn't have received lashes for. So that is the condition in terms of how many witnesses you will need. Now, what is the ruling on female witnesses? What is the ruling on female witnesses? So let's talk about where there is consensus. There is consensus amongst the scholars, that when it comes to business transactions and financial
transactions, then at that time, two female witnesses are needed, along with one man, two female witnesses are needed along with one man. And if it's just men, then it is only two male witnesses that are needed. There's only two male witnesses that are needed.
Can you have four witnesses to compensate for the other men as well? And the answer to that is no, that in those situations, you can have one man and two women, but to have four women altogether, the majority of scholars disliked that the majority of scholars disliked that. Now, why is this stipulation present? Why is this stipulation present? The wisdom behind this stipulation is the first thing he needs to understand was the role of women in society. Back then, women, their primary role was a caretaker of the home. And that is what they were responsible for. And the Sorry, I didn't want to want to burden the women to show up in courthouses and to leave what was then their
primary responsibility, what was then their primary responsibility. Number two, is that since this is the most frequently asked case, where testimony is required, Islam did not want to put that pressure upon women, that they are required to do so. And in the case where they are required to do so then at least she has some support from another female with her jelly, she has some support with another female with her. And that is why it is only in financial transactions and business transactions, that this is the ruling in all other situations. There's a difference of opinion and the you know, the correct opinion. And then Allah, Allah knows best is that in all other cases, the
testimony of a woman is equivalent to the testimony of a man the testimony of a woman is the quality of testimony of a man. So now what's important to understand over here is that Islam clearly told us why this is the case that you know, the woman's primary role in in family and society and community is that she's too meant to be a caretaker. And if we're busying her with other matters, then this is taking her away from her.
primary responsibility. So we want to try to discourage people from taking female witnesses as much as possible. How do we do that? Then if you need a female witness, not only do you need one, but you will need two of them. And finding witnesses is not something easy, right? It's something that is actually quite difficult. So in that situation in this scenario, the Sharia stipulated that they will need two witnesses, the Cydia witness stipulated that they will need two witnesses during the time of the law, one who you actually saw that him as a judge, he would sometimes even accept the testimony of, you know, one woman in other cases. So for example, a woman comes and she says, Look,
I've been living with my husband for 25 years. And this is a real scenario. without mentioning the actual number of years, I've been living with my husband for X number of years, and he's constantly drinking his, you know, wasting the family's money. He's very abusive towards me and the children. And even though it was only one witness, and she had circumstantial evidence with her, like, you know what, we had X amount of money, it's no longer here, here are the bruises on me that he's, you know, very, that he is abusing me in the relationship, even though just one female witness, bla bla bla and accepted her testimony even with one witness, and this you know, as a as a primary proof
that even the Sahaba de la gnome understood that outside of business transactions, the testimonial mail is equivalent to a female and the generic ruling behind it was based upon the role of women in society upon that time based upon the role of women upon that time. Now, a person may claim if you look inside,
a Muslim, the Messenger of Allah sallallahu alayhi wa sallam he says, Shahada to Emirati into Judo Shahada, t Shahada torajan that the testimony of two women is equivalent to the testimony of a man and this is the actual Hadith. How do we understand this hadith? Number one is that we say that this hadith is meant to be understood in light of the ayah in, in sort of Baccarat, where Allah subhana wa tada says that the woman's testimony in business transactions, this is how it's meant to be that it's only in business transactions. Number two, is that this Hadeeth it requires further context as well, when the messenger bots are seldom said this, you know, what was he actually referring to? So
those that said that the messenger also said them, you know, set this with context, he said that this is the encouraged thing to do, that encouraged thing to do is that a woman should never give testimony by herself, but she should always have another woman with her that this is the encouraged thing to do. And this is not something that is mandatory when of itself. However, some of them are that have said that this is the foundational principle, that the foundational principle is that the testimony of a man is equivalent to one where the testimony of a woman is equivalent to half and this was the the understanding that some of the judges or you know schools of law actually took in
Islam. Now obviously this was proven wrong during the time of the Sahaba particularly during a thought and unable to be thought about a lot one that you'll see that a lot of the court cases were rulings are derived from were from these two Caliphate periods, the time of thought and the time of it even be thought at the time of thought and it been a be polyp. Now, let us get to the meaning of what can be in actually mean able to claim Rahim Allah He says Bina and the speech of Allah subhanaw taala. And his messenger and the speech of the companions is a word for everything that makes the truth, plain and clear. So anything that can be used to make the truth plain and clear, is
considered a beginner is considered a beginner.
Now, for our modern day context, what would this include? This would include video recordings, it would include audio recordings, it would include DNA tests, it would include fingerprinting, it would include rape kit tests, and all these things would be considered things that can make the truth clear. Now I want you to think about something. Why would some of the judges feel a bit apprehensive in using these forms of of proof? Go ahead.
Fantastic, it can be manipulated, right? So these forms of evidence that can be manipulated, but how about if someone responds, so can a testimony so can you know, someone's testimony be manipulated?
That is true. So what's the response to it though? Why go ahead.
So explain what you mean by accountable.
The person that's manipulating it, right, Dinesh Go ahead.
But the clear and obvious response to that is, these methods weren't available at the time of narcissism enough they were we always thought the processing always took the appropriate means
So those means were available, it is safe to presume that he would have taken them. We're missing one crucial point over here though. Go ahead.
What was the shirt? Fantastic. Yeah. Okay, so our response to that, number one is that that is from the city of the people before us, right? And then number two, is that actually being used as a primary evidence?
We'll discuss that at a later time inshallah. Now, the thing that I think what everyone is missing out on, is that when it comes to another human being, you can remind them of the severity of sin, you can remind them of the severity of accountability in front of Allah. And we have quite a few Hadith returning to that, that the person that falsifies testimony, he has the anger of Allah subhanho wa Taala, that he will be in the Hellfire and some narrations mentions for a prolonged period of time, and he will never smell the fragrance of paradise. Right. So a person that's making a false testimony, you can, you know, persuade them that be honest, be truthful, you remind them of
Allah subhanaw taala. But in all those other cases, you can remind the videotape the audio tape, the DNA test, the fingerprinting test of Allah subhanaw taala, they're not human, they're not cognitive, right? You can only remind the person that's trying to manipulate them, but you can actually remind those things themselves. And that is why the judges are apprehensive towards that, because they have good faith in the people that, you know, people are reminded of Allah subhanho wa Taala, and the punishment of Allah subhanaw taala. Hopefully, that will set them straight, hopefully, that will set them straight. Whereas with those things, once they're manipulated, there's no way to, you know,
bring about honesty in them. There's no way to bring about honesty in them.
I was going to give you the topic of circumstantial evidence, circumstantial evidence. And
so we get to the case of remember where I was telling you,
a neighbor comes and they say that there's this young teenage girl, she's unmarried, she's become pregnant. Right? So what do you do in that situation? What do you do in that situation? And it's obviously in our day and times, you know, someone says they're pregnant, the all like, the typical answer would be so what, you know, so is every other 1617 year old girl. In fact, the I'm not making this up, there's actually a TV show on MTV. It's called 16 and pregnant. And it is like the it's like in its fifth season right now, where they're like interviewing girls that got pregnant when they were 16, and how they coped with life. Now, what was the wisdom behind this, that there's so
many girls getting pregnant at the age of 16? let them find solace and tips in you know, solving the issue or taking or handling that issue? In sinus in Islamic court. Obviously, someone getting pregnant out of wedlock is something that is very, very worrying, right? It is very, very worrying, and concerning. So now is this woman's pregnancy enough to incriminate her? Is this woman's pregnancy enough to incriminate her? Are you asking a question or answering? Go ahead, give me an answer.
Okay, and what happened?
But Why though?
Okay, good. You go ahead.
Okay, so she's making the claim she has to provide the proof right now.
Let's just ignore that point. Number two, go ahead.
I remember playing with sperm, but artificial insemination or someone's put under an anesthetic, and, you know, like a prank is played at that time. Yes. So now, traditionally, from amongst them without him, and the Maliki method. They said that this would this circumstantial evidence would be enough to incriminate her, the circumstantial evidence is enough to incriminate her up, and until she brings proof that she was raped, or to the contrary, or put until she brings proof that there's proof to prove the contrary. This is the position of the Maliki method, the position of women Samia and the position of a bloke Liam as well and the position of ignore claim as well. Then you have the
overwhelming majority, the HANA fees, the sharp raise, the humble is and even the ladies in this situation, right.
They said that, you know what, this is not proof enough. This is considered circumstantial evidence, and you cannot incriminate someone based upon circumstantial evidence enough alone, there has to be, you know, evidence without the shadow of the doubt without a shadow of a doubt. And from their perspective, it's, you know, it's it's better to lead off someone off the hook and for the court to be wrong. And then Allah subhanaw taala
judged that individual, then for the court to, you know, punish someone without just cause and without proof and then the judge is held accountable in front of Allah subhanaw taala. And then the judge is held accountable in front of Allah subhanho wa Taala. So that is how circumstantial evidence would be treated, that the journal case scenario circumstantial evidence will not itself cannot be used to incriminate, so it cannot be used to incriminate. Now, we move on to the last portion of the Hadith. And that is that if the plaintiff does not bring proof
sorry if the plaintiff brings proof, and then one helpful element anchor the taking of the the oath is upon the person who is denying it, the person who is denying it is meant to take an oath. The first thing that is meant to be understood is what is an oath taken by in Islam? Can an oath be taken? You know, I swear upon my mother's head, I swear upon my great grandfather, you know, I swear upon my religion, that I'm telling the truth with all these oaths be valid in Islam. And the answer to that is no. In Islam, the only oath you're allowed to take is an oath by Allah subhanho wa Taala you're only allowed swearing by Allah subhana wa Tada. This is explicit words are the Messenger of
Allah sallallahu alayhi wa sallam, men can have different values below that whoever is meant to take an oath, then let him take an oath by Allah subhanho wa Taala alone. Now this becomes a bit tricky. Are we allowed to swear by the Koran, are we allowed to swear by the Quran. And the first thing that's meant to be understood is that the jurists the discouraged swearing by the Koran, and they said it is something disliked, it should not be done, but one should clearly just swear by Allah subhanho wa Taala. For those of them that actually allowed it, for those of them that actually allowed it, then those of them that actually did allowed, they said, a person needs to understand
what he's taking an oath by when he swears by the Koran, if he's swearing by the speech of Allah subhanho wa Taala, that I swear by the speech of Allah subhanho wa Taala, then this is an oath that would be valid, this is an oath, that would be valid. Whereas if he's taking an oath, just by the book known as the Koran, meaning the physical book that is known as the Koran, then this oath would not be valid, then this oath would not be valid, because the sanctity of the Quran is not in the paper and in the book that it is, but it is in the actual speech in the words, that is where the sanctity of the Quran actually lies. Right. So that is, you know, about the issue of taking an oath.
when is the defendant asked to take an oath, when is the defendant asked to take an oath. According to available hanifa Imam Shafi and Imam Ahmed, that in every single court case, the defendant is asked to take it off. So regardless of what the court case is, the defendant is asked to take it off the Maliki method, they said, No, they said up until you can prove probable cause of relationship, then you are not required to take an oath up until you can prove probable cause in a relationship, you're not required to take an oath. And in that situation, they said, there's no oath until you can prove relationship, and you can see where they're coming from. Because what they're trying to do is,
you will get some people in the community that they just like to falsely accuse everyone, right? So if this person is falsely accusing everyone, and there's no proof of relationship between them, we're just going to ignore this person altogether. The majority responded to this claim of the Maliki's. And they said in the situation where someone is known to make up allegations and false claims, then that person then that person's case, we want to require a person to testify up until proof is brought up until proof is brought. That is how the majority responded. Now, in terms of the responsibility of the judge towards the defendant, the judge is always required mandatory for the
judge to remind the defendant about Allah subhanho wa Taala. It is imperative that the judges mind the defendant of Allah subhanho wa Taala that remind him of the punishment of the person who does not take the time to speak the truth. We have clear examples of this, that even Ambassador de la Noma when he was brought witnesses, and he was asked to judge he reminded the witnesses of the verse in Surah, Allah, Allah subhanaw taala. He says, Verily, those who purchase a small gain at the cost of Allah's covenant and their oath, they should have no portion than the Hereafter, neither will Allah speak to them, nor look at them on the Day of Resurrection, nor will he purify them, and they
will have a painful tournament torment. Now I understand that the person who makes a false claim and a false oath, what is the punishment are not promised for them in this verse, that He will not speak to them, nor will he look at them, nor will he purify them, and then on top of that, they will have a painful punishment. Now, what is the key word and operative word over here, that he will not purify them? So some of the scholars interpreted this as saying that they will be in the Hellfire for a very, very long period of time, till up to the Jewish you know, discretion of Allah subhanho wa Taala when he decides to take these people out, and if they were Muslim
entered into paradise at that time. So very severe punishment. The Messenger of Allah sallallahu alayhi wa sallam he says, Whoever swears an oath and he has been treacherous in it just to misappropriate the right of a Muslim. He will meet along the deer of resurrection and Allah subhanho wa Taala will be angry with him. Allah subhanho wa Taala will be angry with him that is reporting in Makati. Then another narration the Messenger of Allah Azza wa sallam said, Whoever, for he who wrongfully appropriated the rate of a Muslim by false oath. Allah obligates the Hellfire and forbids paradise. A man says to him, even if it is something minor or messenger of Allah sallallahu alayhi
wa sallam, and he said even if it is from a branch of a tree, mean that even even if he's just lying about a branch of a tree, then this is something great in the sight of Allah subhanho wa Taala. So when you make a false oath, don't consider you know what you're taking a false oath about. Consider the fact how great is the punishment of Allah subhanho wa Taala when you make a false oath.
Now we move on to the last case. The last two cases is what if the defendant refuses to take an oath? What if the defendant refuses to take an oath? Does this automatically incriminate him or not? According to the higher fees and the humbleness? They said, yes, this automatically incriminated the defendant. If he refuses to take an oath, then the case is put against him, and is in the favor of the plaintiff, the Maliki's and the Sharpies, they took a very different approach. They said, No, at that point, two things will happen. Two things can happen. Number one, we want to find out why this person is not willing to take an oath. So if it's because they're unsure about something, and
there's a valid reason as to why they're not taking an oath, then this is something that the court will allow. And then number two, they said, If you know there is like, even a spiritual cause behind it. And if this person, you need to prove that the truthfulness behind this, but the person that says that you know what, in minor and petty cases, I don't believe it is appropriate to take an oath by Allah subhanho wa Taala. It should only be done in great and severe cases, then this is something that the court could accept as well. But it needs to be proven that this person is of a level of righteousness of that magnitude, where the speech is actually upheld. So in that situation, what is
to be done? In that situation, when the defendant refuses to take an oath, then the plaintiff is asked to take an oath, along with his evidence, along with his evidence. And then in that situation, the court case proceeds in that situation, the court case proceeds. Now there is an issue with can the plaintiff be asked to take an oath or not? Can they claim to be asked to take an oath or not. And according to the Shafi method, there was no issue whatsoever. And he said, You know, this is something that is normal. If the plaintiff is asked to take an oath, this is something that is acceptable. The majority is that said no, the clear text of this Hadith, it says that the defendant
is meant to take the oath. So the plaintiff is not meant to taken the oath. Now, in most situations, the plaintiff will not take the oath, unless there's an extraordinary circumstance where there's a need to take the oath. So for example, in a case where a person only has one witness, but two are required. In that situation, the plaintiff will provide that one witness and he will take the oath, and he will take the oath. And in the code, the case will go against the defendant, the case will go against the defendant, even if the defendant takes the oath. And this is what happened during the time of Omar blah, blah, blah, and this will happen during the time of ommitted nakazato De La Hoya.
And similarly, the case that we're talking about before a woman became pregnant during the time of openable hottub. And this woman, she was known to be a righteous woman. This is the the the Corinne over here that she was known for her righteousness, her neighbors testified that she wakes up in the middle of the night to pray, the testified to her reading of the Koran throughout the day. And he said that this is a woman which is righteous. So based upon the testimony of the neighbors, saying that she was righteous, in that case, I'm going to stop did not hold her to account. And he actually approached and asked her, you know, how did you get pregnant? If you know, Xena was not committed?
And she said, Yeah, mural mode, meaning, I do not know of what happened exactly, except that I was asleep. And then when I woke up, I realized that I was being raped, that she was in a state of unconsciousness. And then when she came into consciousness, she realized that she was being raped at that time, and that is how she became pregnant. She didn't know who raped her, she didn't have any proof of rape. So in that situation on what a macabre de la Juan, he accepted her own testimony. In that case, he accepted her own testimony in that case, with the secondary testimony of the neighbors that she was a righteous on the secondary testimony that she was a righteous neighbor. Now the last
case and issue for the night is can evidence be accepted after the old has been taken?
So the plaintiff provides his, whatever evidence he may have, and the defendant takes their the oath. can further evidence be entered in into that time. The majority said no, the Maliki might have said yes, on the condition that the plaintiffs did not know of this evidence that the plaintiffs did not know of this evidence, if the plaintiff knows of the evidence, and does it bring about that evidence at the beginning of the court, yes, intentionally, then that new evidence cannot be can cannot be brought into play cannot be brought into play.
summarizing the discussion, the maliko opinion seems strongest in the situation that other plaintiffs really did not know of other evidence available, then in that situation, extra evidence can be allowed into play after the oath has been taken.
And then the last situation is, what is important to understand is that the judges human at the end of the day, the judge is human at the end of the day. So what does that actually mean? That people that are actually found guilty, it should always be taken with a certain grain of salt, unless there's overwhelming evidence to their guilt. So the general rule is when someone is found guilty, we take it at, you know what, let's try to find an excuse for this individual, perhaps they were at the wrong place at the wrong time, and perhaps, you know, something just got the best of them. That is the general case scenario of how we should treat people that are guilty. With the exception of
when there's overwhelming evidence, that cannot be denied, that cannot be questioned, then in that situation, that person clearly is guilty and should be looked at in the eyes of guilt. But at the end of the day, the door of tober should always be open for them at the end of the day, door, October should always be open for them. And that's like a very crucial point that when a judge judges, it is very possible that he makes a mistake, it is very possible that he may, you know, make a decision in haste. It is very possible that something could go wrong in the court case, and he just decides in the wrong side. Right? The judges accountability is with Allah subhanho wa Taala. At
that time, our responsibility towards the person convicted is to look at you know what, we should try to make Toba easy for this person, judging this person brings about no good, but try to rectify the relationship with Allah subhanho wa Taala. We benefit from that, and that person benefits from that as well. And I'll conclude with this Hadith of the Messenger of Allah sallallahu alayhi wa sallam, where he says, you come to me as litigants, perhaps one of you is better in presenting his argument than the other. For whatever day I decided his favor according to what I have heard. If I have decided anything for someone from the rights of his brother, he should not take it for I have
portioned for him a portion of the Hellfire, meaning that the judge, even if he decides in your favor, and you know you're doing something wrong, then let him remember that he will meet Allah subhanho wa Taala on that day, and that any injustice that is done, will be made correct on that day. So rather than, you know, facing humiliation, disgrace, and punishment on that day, just withdraw your case in this life, just withdraw your case. And this life, and this is something that's very, very crucial that the people are constantly reminded of Allah subhanho wa Taala. And this is why it's important to live in a society in a community where people have the fear of God,
because when the people no longer have the fear of God, they're capable of of doing anything. And that's what we're seeing in our times, people that have no belief in God and no fear of God. They're capable of doing anything. And that's a very scary reality to live in. Because at least have a person that believes in God, you can remind him of the reprimanding of God. But of course, he doesn't believe in God, why should he care, he'll probably just laugh at the concept of being reprimanded by God. And this shows us the importance of living in communities and societies, where the concept of morality, the concept of belief in God is considered a virtuous one and not one that
is mocked, which, you know, unfortunately, are the testing and trying times that we actually live in the pray that Allah subhanaw taala rectifies our situation. The last thing I'll conclude with is another Hadith of the Prophet Salaam, where he says, judges are three categories, one in Paradise, and two in the hellfire. As for the one in Paradise, it is a man who recognises the truth, and judges in accordance with it, as with a man who recognize the truth, but it's unjust with his ruling, he is in the Hellfire, and the man who judges amongst the people with ignorance. He is also in the hellfire. So this shows that a person who has knowledge and tries his best to judge with
them, then it shows that he will be rewarded for his decision, even if he is wrong. Even if he tried his best, and he had knowledge and he was wrong. He's still rewarded for that, right? But the individual that judges according to his desires, that this person isn't the alpha or the person that judges based upon ignorance, that he's not even worthy of being a judge that he says you put some self worth and says, makes me a judge, then this person will also be put into the health fair. So it's very important that we don't put ourselves in positions that you know, we're not worthy of and I pray that Allah
Panama grants the topic to be in the proper places and the proper positions that were worthy of and not in those that were not worthy of. I mean, we'll conclude with that with Allahumma barik ala nabina, Muhammad wa ala alihi wa sahbihi wa sallam, I will take three questions in Sharla. Are you good?
The same kind of
Yeah, that same reasoning that, you know, it's better for the judge, decide on the side of caution, and not punish someone that is guilty, because their, their punishment will still come from Allah subhana wa, Tada. Whereas if this person is actually innocent, and we're still killing them, then the punishment is upon the judge at that time, right?
Dead is something different. This this stealing is something that is severe. Right? That because they would have like the height, the punishment to it. So in that situation, I think more, you know, precaution is required.
I think that's something minor, we'd be encouraged the person to forgive at that time. Allah, Allah, I'll go ahead.
Potential potential witness.
No, the witness needs to come forward. But the judge or the courthouse needs to provide protection for this witness. So the court would be responsible for protecting that witness. Yeah, they will be responsible for protecting that witness.
And go ahead after a decision has been given.
evidence comes forward. Two, three years later, yeah. Shouldn't be overturned. If that that evidence was not known at that time, then yes. If that evidence was known and not brought forth out of laziness, then no.
So if it's new evidence, yes. Yeah. came after the case. Well, I mean, evidence has to have existed during the time of the case, it just was unknown. That's what we're saying. Right. So in that situation, yes, it would be accepted. Yeah. What?
What do we do the topic of marriage and divorce, inshallah, we'll talk about Leon at that time, inshallah, because that has a whole chapter of his life within of itself. Not take a long time, which I'm sure go ahead and go.
So, in financial rulings, there's a simple rule, always follow the money, the money will always lead you to the criminalist. So as long as you follow the trail of the money, you'll find out who the criminal is, and that trail The money is the source of evidence. Now, when there's no trail of money, then that's when you have no proof whatsoever, and the case will not be upheld in court. Even the case will not even be heard if there's no proof of it. So a person can make a claim but if they have no proof, the case will not be heard in court, or mahana. head will conclude that Spanish alone will be handing a shadow in a circle to boyack