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Tutorial 5 – Yamin

The word oath derived from an arabic word which literally means “right side”. Since a
person who takes an oath usually does so by putting up his right hand. An oath is considered
in a case when no other evidence is available. If a person brings a claim against another and
the latter denies the claim, the plaintiff must produce evidence if he fails to produce any
evidence he may ask that the defendant be required to deny the claim under oath. Generally,
there are three types of oath. They are (i)oath by a witness, (ii)oath by the defendant and
(iii)oath by the plaintiff.

Oath by the defendant refers to the oath taken by the defendant on order of a judge to
strengthen his defence against the charge. They are also known as: (i)original oath,
(ii)mandatory oath and (iii)denying oath. If the defendant took an oath following the failure of
the plaintiff to bring conclusive evidence, the defendant will then be acquitted of the charge.

One of the issue arise as to whether the plaintiff is entitled to tender further evidence
after the taking of oath? According to the view of Hanafi, Shafie and Hambali, subsequent
evidence can be admitted. Oath is a weak form of argument and act as a substitute evidence
when there is no evidence tendered by the Plaintiff. They base their view on the authority,
Umar Al Khattab, who says: “A lying oath is more deserving of rejection than trustworthy
evidence.” This view has also been accepted by Salafi jurists. According to Hanafi, this type
of incident is very rare because the defendant will only be allowed to take oath when plaintiff
had failed to produce evidence.

Furthermore, Imam Malik view that Plaintiff is allowed to give evidence but if the
plaintiff purposely conceals the evidence, he will not be allowed to give evidence. Syafie
scholars had also conformed to this view.

On the other hand, The oath of the plaintiff is desgined to set aside any doubts against
plaintiff or to prove his right or interest or the oath which is returned to him. Basically, oath of
the plaintiff can be further subdivided into three types, namely, yamin al-Jalibah, yamin al-
Tuhmah and yamin al-Istishaq/Istizhar.

Firstly, Yamin al-Jalibah refers to oath to support plaintiff’s claim and allegation. This
oath can arise in five situations, namely, (i) the plaintiff’s oath and one witness, (ii)yamin al-
mardhudah, (iii)yamin al-qasamah, (iv) lien and (v) a person to whom a thing has been
entrusted for safekeeping shall make a statement on oath as regards any question of his release
from liability.
Secondly, Yamin al-Tohmah refers to oath taken by plaintiff to deny allegations against
him, e.g. counterclaim. If defendant objected plaintiff’s claim, plaintiff can asked the
permission of judge to take this type of oath. This type of oath is only accepted by the Maliki
and Zaidiyyah.
 Thirdly, Yamin al-Istizhar refers to oath taken by plaintiff in a request made by Qadi to
discharge any tohmah against himself after submitting his evidence in the course of his suit. It
serves to perfect his claim or allegations. Usually it is applied in in the case of missing person
e.g. husband did not attend the court case. According to Ibn Qayyim, it relies on the Practice
of Sayidina Ali who ordered Plaintiff to take oath although he produce 2 witnesses. Further,
according to Maliki, it is applicable in dharurat.

Basically, the effect of plaintiff’s oath is so that the judgement can be passed in favour
of plaintiff. This claim is maintainable.

Moving on, there are also circumstances where the defendant refuses to take oath reas
in ordinary circumstances it is he who supposed to take the oath. After the plaintiff had
successfully brought evidence to substantiate his claim, judgement shall be given in his favour.
In contrast, if the plaintiff adduce weak evidence or witnesses or that his argument is considered
weak and not satisfactory, the plaintiff may make request that defendant should take an oath.

The issue arise is that what if the defendant refused to take oath, could he be convicted?
According to Hanafi & One opinion from Hambali, refusal amounts to admission and
judgement can be made against the defendant. Oath shall not be shifted to plaintiff because the
original Is for defendant to take the oath. If the right is on defendant side, he should not refuse
to take the oath. Hanafi doesn’t recognise Yamin al-Mardhudah. This can be seen in the
authority where Hadith was reported by Ibn Abbas.

On the other hand, Maliki, Syafie and Imam Ahmad Ibn Hambal view that no
judgement to be given against the defendant because oath is weak method of proof. It must be
corroborated with Plaintiff oath, whether or not from defendant request. Therefore, the oath
should be returned to be taken by the plaintiff. When the plaintiff takes the oath, the judgement
shall be decided in his favour. If plaintiff refuses, then case struck off. According to AQ
(5:107), “But if it gets known that these two were guilty of the sin (of perjury), let two others
stand forth in their places, nearest in kin from among those who claim a lawful right: let them
swear by Allah: "We affirm that our witness is truer than that of those two, and that we have
not trespassed (beyond the truth): if we did, behold! the wrong be upon us!"

Moving on, according to Zahiri school, no judgment to be given against the Defendant
& the oath shall not be return to the Plaintiff (Yamin al-Mardudah). The Defendant shall be
detained until he admits or takes the oath. This is based on several exceptions to the general
rule i.e. the oath shall be taken by the Defendant except in several cases. Therefore, if someone
refuses to take the oath in matters which is not exclusion list, then he can be detained in prison
until he accedes to the law by taking the oath or by admitting the claim against him.

In conclusion, oath is important as it can be use to either to prove a fact or to deny a

fact. Most importantly, for an oath to be valid, all the conditions must be satisfied particularly
the oath must be made in the name of Allah or His Attributes.