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
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
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
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
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
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
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
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:
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.
The following is a link to a review of
James Fowler’s book on the stages of faith. The case of the Jew who went off the rails finds an explanation in Fowler's framework. The case of Rational is different because he is without a rational reason. All his questions running into several hundreds have been answered by me:
Dr James Fowler's work is presented in a
Judeo-Christian religious context and is based on his interviews with men,
women, and children aged four to eighty-four, including Jews, Catholics,
Protestants, agnostics, and atheists.
Most people remain at stage stage 3 which
is characterized as:
“Here authority is located outside the
self - in the church leaders, in the government, in the social group. Religious
concepts are what Fowler calls "tacitly" held - the person is not
fully conscious of having chosen to believe something. Thus the name
"Synthetic" - beliefs are not the result of any type of analytical
thought. Any attempts to reason with a person in this stage about his beliefs,
any suggestion of demythologizing his beliefs is seen as a threat.
Meaningful dialogue with such people
beyond reiterating what they already believe to be true is difficult.
The Agnostics and the atheists are those
who went off the rails in stage 4.