Waqar Akbar Cheema
Abstract
The non-admissibility of women’s testimony in Hudud cases is often understood as a categorical exclusion. This article revisits the issue within the framework of classical Islamic legal reasoning, situating it in relation to evidentiary standards, legal responsibility, and the role of doubt in criminal adjudication. It argues that the rule is embedded in a broader legal framework governing Hudud, in which exceptionally high thresholds of proof shape the admissibility of evidence. Read in this light, the discussion shifts from questions of status to the functioning of evidence within the law.
1. Introduction
A recurring point in discussions on Islamic criminal law is that women’s testimony is not admissible in Hudud cases. This claim is often framed as a disparagement of women. Such a reading, however, overlooks the structure of the classical Islamic legal discourse in which the issue is situated. When examined within that framework, the matter appears neither arbitrary nor absolute, but rather tied to deeper considerations regarding evidentiary standards, legal responsibility, and the nature of criminal adjudication.
2. The Juristic Position and Its Basis
Across the major schools of Islamic law, the dominant juristic position has been that Hudud and Qisas cases are not decided on the basis of women’s testimony. This position is widely reflected in the legal tradition and is embedded in schools such as the Hanafi school, which historically informed judicial practice across large parts of the Muslim world.[1]At the same time, the tradition is not without internal nuance. A minority view, most notably associated with Ibn Hazm (d. 456/1063), extended admissibility even to these categories.[2] Among earlier authorities, ‘Ata b. Abi Rabah (d. 115/733) is reported to have allowed reliance on women’s testimony even in cases of adultery,[3] while Tawus b. Kaysan (d. 106/724) appears to have restricted exclusion specifically to adultery while allowing it in other cases.[4] The presence of such disagreement is important, but it does not alter the fact that the majority position remained consistent across time and the juristic schools.
It is equally important to note that this rule is not derived from a single Qur’anic verse or a categorical prophetic statement phrased in direct legal terms. Rather, it emerges from the early legal practice of the Muslim community. Reports preserved in early sources indicate that, from the time of the Prophet (ﷺ) and the early caliphs, Hudud and Qisas cases were not adjudicated on the basis of women’s testimony. This continuity of practice forms a central basis of the juristic position.
عن الزهري، قال: مضت السنة من رسول الله صلى الله عليه وسلم والخليفتين من بعده: ألا تجوز شهادة النساء في الحدود
~
Al-Zuhri said: The established practice (sunnah) from the Messenger of Allah (ﷺ) and the two caliphs after him has been that the testimony of women is not accepted in Hudud.[5]
The same is also reported from the fourth Caliph, ‘Ali b. Abi Talib (d. 40/661).[6] Accordingly, several leading early scholars are reported to have held this view, including Ibrahim al-Nakha‘i (d. 96/714),[7] ‘Amir al-Sha‘bi (d. 103/721),[8]al-Hasan al-Basri (d. 110/728),[9] and Hammad b. Abi Sulayman (d. 120 /738).[10]
3. Testimony as Obligation, Not Entitlement
A central source of confusion in modern discussions lies in how testimony itself is conceptualised. Admissibility is often framed as a matter of status or entitlement, as though being allowed to testify were a form of recognition or privilege. In the Islamic legal framework, however, testimony is more accurately understood as a responsibility, and at times a burden. The Qur’an does not present testimony as a right to be claimed, but as a duty to be discharged:
وَلَا تَكْتُمُوا الشَّهَادَةَ وَمَنْ يَكْتُمْهَا فَإِنَّهُ آثِمٌ قَلْبُهُ وَاللَّهُ بِمَا تَعْمَلُونَ عَلِيمٌ
~
“Do not conceal testimony, for whoever conceals it—his heart is sinful” (Qur’an 2:283)
In the same vein, the Prophet (ﷺ) is also said to have not only warned against false testimony, placing it alongside the gravest moral wrongs, but also equated the concealment of testimony with moral distortion, stating that “whoever conceals testimony when called to it is like one who bears false witness” (man katama shahādatan idhā duʿiya ilayhā kāna kaman shahida bi’l-zūr).[11] At another instance, describing, among the signs of moral decline, he mentioned the spread of false testimony and the concealment of true testimony (shahādat al-zūr wa kitmān shahādat al-ḥaqq).[12]Together, these sources underscore the seriousness of testimony in both legal and ethical terms.
Reflecting this juristic understanding, the Kuwaiti Fiqh Encyclopedia, summarising the positions of the classical jurists, notes that “bearing and delivering testimony is a collective obligation (farḍ kifāyah),” the neglect of which incurs sin, such that if people collectively refrain, they are all blameworthy. It further characterises testimony as a trust (amānah) that must be discharged, while clarifying that this obligation itself is conditioned by function: it falls away where testimony does not serve its legal purpose—whether because it is not admissible or entails undue harm—since the objective of testimony would not thereby be realised. In certain circumstances, it may even rise to the level of an individual obligation where rights would otherwise be lost.[13] This juristic framing makes clear that testimony is not treated as a privilege to be claimed, but as a responsibility governed by its evidentiary function.
4. Evidentiary Standards and Legal Caution in Hudud
When this is coupled with the fact that criminal incidents, particularly those that fall under Hudud, are rarely straightforward and often involve layers of ambiguity, it becomes evident that testimony is not a privilege withheld but a weighty obligation one may be spared in specific legal contexts. The rationale underlying the juristic position becomes clearer when one considers the nature of the Hudud punishments themselves. These punishments are defined not only by their fixed character but by the exceptionally high evidentiary thresholds required for their application. The law seeks a level of certainty that leaves little room for doubt, a concern reflected in the well-known juristic maxim, grounded in prophetic reports, that Hudud punishments are to be averted in cases of doubt (idra’u al-hudud bi al-shubuhat).[14]
In such a setting, the reliability of testimony is not assessed in abstract terms but in relation to the demands of the case. A witness must be able not only to perceive the event accurately but also to articulate it with precision under sustained legal scrutiny. Classical juristic discussions of fornication/adultery (zina) illustrate how exacting this standard is in practice: even internal inconsistencies within otherwise valid testimony, such as disagreement over the nature of the act or its circumstances, can prevent the hadd from being imposed. Testimony in such cases is therefore subjected to rigorous examination, and even minor discrepancies can lead to the collapse of the case or expose the witnesses to adverse legal consequences.[15]
Within this broader framework of caution, jurists addressed admissibility not as a free-standing marker of status but as a function of evidentiary reliability and the management of doubt. In this regard, al-Sarakhsi (d. 483/1090), cited here as representative of the broader classical juristic approach, links the non-acceptance of women’s independent testimony in certain domains to the presence of shubuhat—matters in which doubt may arise—indicating that the concern is evidentiary rather than categorical.[16] At the same time, he affirms the acceptance of women’s sole testimony in matters to which men ordinarily have no access, such as childbirth and female bodily conditions, on the basis that rights must still be established before the judge and that proof is legislated according to what is possible.[17] Notably, al-Zuhri also reports this as part of the established practice.[18] A related line of reasoning appears in a reported view from Ahmad b. Hanbal (d. 241/855), according to which women’s testimony may be accepted even in Hudud where the offence occurs within exclusively female settings, such as gatherings at weddings or bathhouses,[19] again indicating that admissibility is tied to patterns of evidentiary access rather than categorical classification per se.
This functional distinction is illustrated in a report from al-Shaʿbi, where four men testify to zina while women testify to the woman’s continued virginity; the hadd is consequently not applied. As explained by later jurists, this is not because women’s testimony establishes a counter-fact in the full evidentiary sense, but because it introduces a contradiction at the level of the act itself—zina legally presupposes penetration, which virginity negates. The result is not a substitution of one proof for another, but the emergence of doubt (shubha), sufficient to avert the hadd. It thus shows that while women’s testimony does not function to establish liability in such cases, it retains evidentiary weight to raise doubt, particularly in matters within their domain of knowledge.[20]
Al-Sarakhsi’s discussion also reflects a broader juristic attempt to account for factors such as error, forgetfulness, and susceptibility to confusion, all of which were seen as bearing on the ability to sustain the level of precision required in Hudud cases. Observations along similar lines have been echoed by some modern-era writers, as noted by Daryabadi (d. 1977),[21] though such generalisations remain difficult to verify within contemporary empirical frameworks, particularly in a context where gender-related claims are often shaped by competing normative commitments. Their relevance lies not in their empirical conclusiveness but in their ability to illustrate how jurists situated evidentiary rules within a broader understanding of human behaviour and social conditions.
At the same time, testimony in Hudud cases carries an inherent procedural burden. Courts must test consistency across witnesses, probe discrepancies, and guard against irreversible error in the application of fixed punishments. Expanding the scope of admissible testimony would not simply increase participation; it would increase the burden of verification within an already exacting evidentiary regime. The jurists’ restrictive posture may thus also be understood as preserving procedural clarity in a domain where the margin for error is exceptionally narrow.
Seen in this light, the limitation of certain forms of testimony in Hudud is inseparable from the evidentiary structure within which these punishments operate. Given the gravity of the penalties and the need to avoid error, the law adopts a deliberately cautious approach. What emerges is not a distribution of privilege, but a calibrated allocation of evidentiary responsibility in a domain where error carries irreversible consequences.
5. No Impunity: Hudud and Ta‘zir Distinguished
This framework also makes clear that crimes do not go unpunished in the absence of such testimony. The distinction between Hudud and other forms of punishment is critical. If the strict evidentiary standard required for a Hadd punishment is not met, this does not amount to a dismissal of the offence itself. The court may proceed under the category of ta‘zir, where a broader range of evidence is admissible, and the judge exercises discretion in determining the appropriate penalty.¹ In this domain, the objective is not the application of a fixed punishment under narrowly defined conditions, but the administration of justice in light of the available evidence.
This distinction becomes particularly important in cases that are often raised as objections. If, for instance, a serious offence such as sexual assault occurs and is witnessed by women only, the failure to meet the evidentiary threshold for a Hadd punishment does not result in impunity for the offender. The crime remains punishable, and the court may impose severe penalties based on the available evidence, including, where warranted, capital punishment by discretionary means. As noted in the juristic tradition, “it is evident that this entails a broad discretionary authority, within which the ruler acts in accordance with what he deems to be in the public interest” (wa-la yakhfa ma fi hadha min sultat wasi‘ah yatasarrafu fiha al-hakim bima yara fihi al-maslaha).[22] What is restricted is not the recognition of the crime, but the application of a specific form of punishment that carries its own evidentiary requirements.
The discussion, therefore, cannot be reduced to a simple question of admissibility in isolation. It is embedded within a broader legal structure that distinguishes among categories of crime, standards of proof, and forms of punishment. Once these distinctions are restored, the issue appears less as a matter of exclusion and more as a reflection of a legal system that seeks to balance certainty, responsibility, and caution in the administration of justice.
6. Conclusion
At its core, the issue is not one of exclusion, but of evidentiary responsibility within a system defined by caution and high thresholds of proof. Testimony, in this light, is not a privilege to be claimed, but a burden carefully allocated, reflecting the law’s concern to regulate proof and guard against irreversible error.
References & Notes:
[1] Al-‘Asqalani, Ibn Hajar, Fath al-Bari bi Sharh Sahih al-Bukhari, (Beirut: Dar al-Ma‘rifa, 1379 AH) Vol.5, 266
[2] Ibn Hazm, Abu Muhammad, al-Muhalla bi al-Athar, (Beirut: Dar al-Fekr, n.d.) Vol.8, 488-489
[3] ‘Abdul Razzaq al-San‘ani, al-Musannaf, (Dabhel: Majlis al-‘Ilmi, 1983) Hadith 15414
[4] ‘Abdul Razzaq, al-Musannaf, Hadith 15413
[5] Ibn Abi Shaiba, al-Musannaf, Hadith 29307.
The report from al-Zuhri is not a direct Prophetic (ﷺ) report, as he was born after the time of ‘Umar. However, it reflects early transmitted practice (ʿamal), which carries weight in juristic reasoning. This is further supported by al-Zuhri’s own methodological remark in another ruling—also concerning women—that “this is what people have agreed upon, and we do not always find an isnad for everything,” indicating his reliance on established communal practice even where full transmission chains were not always preserved. See, ‘Abdul Razzaq al-San‘ani, al-Musannaf, (Dabhel: Majlis al-‘Ilmi, 1983) Hadith 1280
See also his report via Sa‘id b. al-Musayyib from ‘Umar on this issue; ‘Abdul Razzaq, al-Musannaf, Hadith 15407
[6] ‘Abdul Razzaq, al-Musannaf, Hadith 15405;
[7] ‘Abdul Razzaq, al-Musannaf, Hadith 13375; Ibn Abi Shaiba, al-Musannaf, Hadith 29308-9;
[8] ‘Abdul Razzaq, al-Musannaf, Hadith 13374; Ibn Abi Shaiba, al-Musannaf, Hadith 29310-11;
[9] ‘Abdul Razzaq, al-Musannaf, Hadith 15402; Ibn Abi Shaiba, al-Musannaf, Hadith 29312;
[10] Ibn Abi Shaiba, al-Musannaf, Hadith 29314
[11] Al-Tabarani, al-Mu‘jam al-Awsat, Hadith 4167. Al-Albani graded it as da‘if in Silsilah al-Ahadith al-Da‘ifa (no. 1267), due to its transmission through ‘Abdullah b. Salih, the scribe of al-Layth. Some scholars with a more lenient approach assessed it differently: al-Munawi (d. 1031/1622) and Azizi (d. 1070/1660) graded it as hasan. See al-Munawi, Zayn al-Din Muhammad Abd al-Rauf, al-Taysir bi Sharh Jami al-Saghir (Riyadh: Maktabat al-Imam al-Shafii, 1356 AH), Vol. 2, 440; and al-Azizi, Ali b. Ahmad, al-Siraj al-Munir bi Sharh Jami al-Saghir (Jeddah: Dar al-Minhaj, 2026), Vol. 9, 625.
The report is also transmitted through a slightly different chain; see al-Tabarani, Musnad al-Shamiyyin, Hadith 1942, 3462.
[12] Ahmad b. Hanbal, al-Musnad, Hadith 3870 – graded as hasan; Al-Bukhari, Muhammad b. Isma‘il, Adab al-Mufrad, Hadith 1049 – graded as sahih.
[13] Al-Mawsuʿat al-Fiqhiyya al-Kuwaitiyya, (Kuwait: Ministry of Awqaf and Islamic Affairs, 1992) Vol.26, 217;
[14] Al-Suyuti, Jalal al-Din, al-Ashbah wa al-Naza’ir, (Beirut: DKI, 1990) 122
[15] Al-Shaybani, Muhammad b. Hasan, Al-Jami‘ al-Saghir, (Beirut: Dar Ibn Hazm, 2011) 147-149
[16] Al-Sarakhsi, Abu Bakr, al-Mabsut, (Beirut: Dar al-Mar’rifa, 1993) Vol.16, 114; Vol.9, 169; Also see, Al-Sarakhsi, Abu Bakr, Sharh Jami‘ al-Saghir, (Istanbul: iSAM, 2020) Vol.1, 551
[17] Al-Sarakhsi, al-Mabsut, Vol.16, 142-143; Vol.5, 101; Vol.6, 48; Vol.9, 73-74; Vol.10, 217;
[18] ‘Abdul Razzaq, al-Musannaf, Hadith 15427; Ibn Abi Shaiba, al-Musannaf, Hadith 21098
[19] Ibn Taymiyya, Taqi al-Din, al-Fatawa al-Kubra, (Beirut: DKI, 1987) Vol.5, 576
[20] Ibn Hazm, al-Muhalla bi al-Athar, Vol.12, 215-16; ‘Uthmani, Zafar Ahmad, I‘la’ al-Sunan, (Karachi: Idara al-Qur’an wa ‘Ulum al-Islamiaya, 1415 AH) Vol.11, 611-12
[21] Daryabadi, Abdul Majid, Tafsir al-Qur’an – English Translation and Commentary of the Holy Qur’an, (Lucknow: Academy of Islamic Research and Publications, 2007) Vol.1, 197 n. 178
[22] Al-Jaziri, ‘Abd al-Rahman, al-Fiqh ‘ala al-Madhahib al-Arba‘a (Beirut: Dar al-Kutub al-‘Ilmiyyah, 2003), 5:350–351.
