Source: Fatāwā Amunpuri — by Shaykh Ghulam Mustafa Zaheer Amunpuri
Should the oath be taken from the defendant (mad‘ā ʿalayh) in the presence of the claimant (mudda‘ī) or in his absence?
It is obligatory for the claimant to present evidence. If he has neither proof nor witnesses, then the defendant may free himself by taking an oath — and this oath must be taken in the presence of the claimant.
He reports from the Messenger of Allah صلى الله عليه وسلم:
“A man from Kindah and a man from Hadramawt presented their dispute before the Messenger of Allah صلى الله عليه وسلم regarding land they owned in Yemen. The Hadramī said: ‘O Messenger of Allah! This (Kindī’s) father unlawfully seized my land.’ The Prophet صلى الله عليه وسلم said to the Kindī: ‘What do you say?’ He replied: ‘The land is in my possession, and I inherited it from my father.’
The Prophet صلى الله عليه وسلم asked the Hadramī: ‘Do you have any evidence?’ He said: ‘O Messenger of Allah! I have no evidence, but let him swear by the One besides Whom there is no deity, that he does not know that this land is mine and that his father forcibly took it from me.’
The Kindī prepared himself to swear the oath, so the Messenger of Allah صلى الله عليه وسلم said: ‘Whoever takes (someone’s) wealth through a (false) oath will meet Allah on the Day of Resurrection while his hand will be cut off.’ When the Kindī heard this, he returned the land to him.”
(Musnad Aḥmad: 2/215; Sunan Abī Dāwūd: 3622; al-Sunan al-Kubrā by al-Bayhaqī: 10/180 — sanad ḥasan)
Imām Ibn Ḥibbān (5088) and Imām Ibn al-Jārūd (1005) declared it ṣaḥīḥ; Imām al-Ḥākim (4/295) said “ṣaḥīḥ al-isnād”, and Ḥāfiẓ al-Dhahabī also authenticated it.
❖ Question
Should the oath be taken from the defendant (mad‘ā ʿalayh) in the presence of the claimant (mudda‘ī) or in his absence?
❖ Answer
It is obligatory for the claimant to present evidence. If he has neither proof nor witnesses, then the defendant may free himself by taking an oath — and this oath must be taken in the presence of the claimant.
❀ Narration of Sayyidunā Ash‘ath bin Qays al-Kindī رضي الله عنه
He reports from the Messenger of Allah صلى الله عليه وسلم:
“A man from Kindah and a man from Hadramawt presented their dispute before the Messenger of Allah صلى الله عليه وسلم regarding land they owned in Yemen. The Hadramī said: ‘O Messenger of Allah! This (Kindī’s) father unlawfully seized my land.’ The Prophet صلى الله عليه وسلم said to the Kindī: ‘What do you say?’ He replied: ‘The land is in my possession, and I inherited it from my father.’
The Prophet صلى الله عليه وسلم asked the Hadramī: ‘Do you have any evidence?’ He said: ‘O Messenger of Allah! I have no evidence, but let him swear by the One besides Whom there is no deity, that he does not know that this land is mine and that his father forcibly took it from me.’
The Kindī prepared himself to swear the oath, so the Messenger of Allah صلى الله عليه وسلم said: ‘Whoever takes (someone’s) wealth through a (false) oath will meet Allah on the Day of Resurrection while his hand will be cut off.’ When the Kindī heard this, he returned the land to him.”
(Musnad Aḥmad: 2/215; Sunan Abī Dāwūd: 3622; al-Sunan al-Kubrā by al-Bayhaqī: 10/180 — sanad ḥasan)
Imām Ibn Ḥibbān (5088) and Imām Ibn al-Jārūd (1005) declared it ṣaḥīḥ; Imām al-Ḥākim (4/295) said “ṣaḥīḥ al-isnād”, and Ḥāfiẓ al-Dhahabī also authenticated it.
