al yamin

Week week 8

outline.

Definition

Legal basis

Types of oath & intention

Elements of oath

Strengthen the oath

Conditions of oath

Types of oath

Principles of nukul al yamin ‫ & )) نكول اليمين‬yamin al mardudah ‫) ) يمين المردودة‬

Application of yamin in criminal cases

- Cases

definition
1. Technically:
i) Certain words used in the name of Allah to state the definite stand with regards
to certain matters that cannot be authenticated unless sworn upon, includes
matters past & future.

a. last resort when the case cannot be authenticated, unless for the oath by the
party.

b. cannot be added in syaa Allah

ii) Words uttered in the name of Allah / His attributes to show the seriousness
/emphasize in a matter that cannot be established without the
pronouncement of yamin.
e.g “ Wallahi, what is said by that person is true”

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 “ Wallahi, I did not commit it.”

(Either to establish facts/to deny facts.)

authority
1) Al Quran
1) Al Maidah: 89
2) Al Nahl : 91

3) Yunus : 53
4) Al- Saba :3
5) Al Taghabun :7
2) Hadith
i) Reported by Ibn. Abbas : the Prophet said, “........................evidence is on those
who claim, and oath is on those who denies”.
ii) One who wants to swear, take with the name of Allah or just keep silent.
iii) Reported by Abu Hurairah : the Prophet said “Do not take oath unless in the name
of Allah”.

3) Mejelle

Chapter 111 – Art. 1742 – 1753 (administering the oath to one of the parties)

article 76 - evidence for the person who claims, and the oath is for the person
who denies

art 77- evidence is for the proof of what is not clear, an oath is for the
confirmation of what is presumed.

rart 1742: one of the ground of judgement also is the oath, or refusal of oath.

4) FT Act

•Section 87 (1) & s.88

87. Manner of giving evidence.

(1) In a civil case, evidence shall be given by the plaintiff and the defendant, and
if the defendant denies the claim made against him he shall be required to take

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 an oath according to Hukum Syarak.19 - yamin asliah

(2) (a) Where the defendant takes the oath under subsection (1), the claim made
by the plaintiff shall be dismissed. - judgement will be given in favour of the
def.
(b) If the defendant refuses to take such oath (nukul al yamin) , the Court may
ask the plaintiff to take the oath upon which his claim shall be accepted.
(3) In a criminal case, evidence shall be given for the prosecution and the
accused unless the accused pleads guilty.

kalau pf claim, pastu tal cukup evidence, the court boleh orde rthe def to take an
oath. kalau def take an oath, the court will decide in favour of the def. kalau tak
agree nak take an oath, (nukul al yamin), pastu the oath is returned to the pf.
(yamin al mardudah) . alternative: tengok s88.

88. Evidence by a single witness and oath by plaintiff.

Where in a civil suit, there is only one witness produced by the plaintiff, the
evidence of such witness shall only be admissible if his evidence is given
together with the oath of the plaintiff. - condition: the witness is qualified.

ILLUSTRATION
In a claim for the repayment of a debt by the plaintiff against the defendant, the
evidence of a witness produced by the plaintiff given together with the oath of the
plaintiff shall constitute sufficient proof of his claim.

types of oath.
1. made outside court

cannot be considered as evidence.

if break, pay kafarah. (al maidah 89)

Intention must be based on the intention of the maker

whether it does it voluntarily/upon request by someone else

hukum

1. haram.

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 1) Haram – take oath to abandon a compulsory thing/to commit a sinful act.
– Mandatory to transgress the oath and pay kafarat.

2. Sunat – take oath to do something which is makruh / to abandon what is sunat –

sunat /commendable to breach & has to pay kafarat.

3. Harus- take oath to do/ not to do something which is harus - has to obey the oath
& not to transgress it.

(Oath outside court is not a means of proof and whether it need to be obeyed
/not, depends on the subject of the oath.)

2. before the court.

Acceptable as evidence. Done upon request by the judge.

Done in the name of Allah /His attributes.

Intention – depending on the intention of the judge /kadhi

not according to the intention of the maker except:-

Oath to divorce / free a slave

Done unjustly

if the judge order the defendant to take oath to deny the claim- the intention of
the oath must be based on the intention of the judge.

Hadith : “The oath is dependent on the intention of the person who request
upon the taking of the oath”

However, Shafie & maliki specified two conditions where yamin before the court
is not based on the intention of the judge:-

1) In case of talaq/ freedom of slave

2) When it is done unjustly i.e it violates its right in ordering someone to take
oath

elements of oath
1) Must be made in the name of Allah/His qualities/ His attributes and cannot be
added with the word Insya’ Allah.

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 Art. 1743 –when the oath is to be administered to one of the two litigants, the
oath is taken in the name of God , the Highest by saying, Wallahi, Wabillahi.

Hadith

dont you swear in the name of your father, mother or ..

whoever swear in the name other than Allah has committed syirik.

2) Clear firm and definite – unqualified, unequivocal - sbb tu takleh tambah insya
Allah. sbb unequivocal.

strengthen the oath.

1. lafaz

Utterance (lafz) by added few lazf to the name of Allah

e.g. Maliki : ‫بالله الذى لااله الا هو‬

Shafie’ : It is recommended in case of:-

1. Oath taken by the plaintaiff /claimant (Yamin al mardudah) -sec. 87

2. Evidence is based on 1 male witness

2. place and time.

Mandatory & sometimes it is only recommended,-

Muslim/non-Muslim, if there is a place that can fear them to tell lies – then it
is mubah to swear at that particular place.

Maliki: ‫ تغليظ اليمين‬can be done at a particular place only in case of

qasamah & li’an.

e.g.- Oath taken in Madinah need to be done at the Podium of the mosque of
Rasul Allah (mimbar Rasul Allah ).

Other places : at mimbar of the mosque.

Time: After asar.

3. Oath is taken by the claimant/accused in the case of marriage, divorce, lian,

qisas, wakalah and cases relating to property where its value reach the nisab.

Hanbali , Hanafi & Shafi’e : if the person is a non-Muslim, then his oath need
to be strengthened based on his believes.

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 conditions
1. Islam

some jurist opined that only muslim.

shafii, ibn qudamah: non muslim’s oath admissible.

2. Mukallaf (aqil and baligh)

exclude the insane, forced etc.

intoxicant:

1. oath is still valid bcs drunken is considered as mukallaf if he was drunk by

choice.

2. oath is invalid bcs the they lost their mind, unconcsious, not accountable.
(wo looking at why he was drunk)

3. Intention

if before the court; tgk intention of the person who request for the oath.

4. With the name of Allah/His qualities.

wallahi etc, arrahman etc. cannot use other names.

5. Defendant denied the plaintiff’s claim.

if def admit, no issue.

but if the def denied,

6. Plaintiff requested the judge to order the defendant to take oath.

7. Must be done personally – art 1745

8. In cases other than the right of Allah

9. Plaintiff has insufficient evidence.

Cases where oath is admissible

1) Cases involving the right of people

2) Cases relating to property

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 3) Family matters like marriage, divorce, mahr, etc.
4) In qisas and injury cases.
###Oath is not admissible to establish hudud cases and cases related to
religious practice such as prayers, fasting, hajj etc.

types of oath.
1. by defendant

a. original oath

b. s87

c. nukul al yamin & yamin al mardudah

2. by plaintiff

a. yamin al jalibah

b. yamin al tuhmah - not accepted by jumhur.

c. yamin al istizhar/ istishaq -

3. oath by witness.

a. s129

b. to replace examination of witnesses.

1. oath by defendant.
Made by the defendant who was accused / charged, on request by the plaintiff
in case the plaintiff fail to provide sufficient evidence.

tgk nisab syahid.

kalau pf takleh fulfil nisab syahid, then boleh request the def to take an oath.

Effect : Defendant will be freed / plaintiff’s claim will be rejected.

the court will decide in favour of the defendant.

purpose of the oath: to deny the allegation by the pf.

Section 87(2) - the claim by the pf shall be dismissed.

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 if the def refuse:

Issue: What if the plaintiff is able to produce evidence after that?

3 views:-

1) First view-(Al Zahiris, Ibnu Abi Laila, Abu Ubaid).

Evidence by the plaintiff after that is not acceptable

cannot consider the evidenc eby the pf after the oath was taken.

Arguments:-

Oath represents a definite & conclusive evidence in any dispute.

Art 1753 - cannot call witness after saying he has none.

after pf has said he has no witness, but then he said he has another
witness, it will not be accepted.

(Adopted by our statute) = no provision

2) Second view

Evidence by the plaintiff after that is acceptable.

( Accepted by Saidina Umar, and few jurists including Abu Hanifah, Shafi’e &
Ahmad, Imam Bukhari)
Arguments:-

Evidence is the original method of proof, while oath is the substitute which
could be overridden by the evidence.

Saying of Saidina Umar “A lying oath is better rejected than trustworthy

evidence”

However according to Mahmassani this prob hardly occurs because:-

1) A defendant shall not be requested to take oath unless the plaintiff failed
to produce sufficient evidence.
2) Art. 1753 – plaintiff cannot call witness after saying it has none.

3) Third view

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 Acceptable with condition .i.e

the plaintiff manage to prove that he was ignorance of the existence of

evidence before the defendant was ordered to take an oath.

( Opinion of Imam Malik –accepted by some of the Shafi’e including al Ghazali).

If he knows that he has evidence but still request the judge to order the
defendant to take oath and after that, claimed that he has evidence, it is
inadmissible- because it has been invalidated by the oath of the defendant.

Conditions for the admissibility of the defendant’s

Oath
1. Ordered by the judge on request of the plaintiff

2. Plaintiff failed to produce sufficient evidence

3. The charge is very clear

4. No signs / indication which shows that the plaintiff is lying/making a false charge.

5. Oath is not related to the rights of Allah.

Effect of the defendant’s oath

The conflict will end, and the charge will be dropped.

1. Jumhur: The conflict end temporarily until further evidence can be produced by
the plaintiff.

jumhur might consider the evidence by the pf after the oath was taken.

without stating celarly to what extent.

2. Maliki: The claim is dropped absolutely.

Plaintiff can no longer bring evidence unless by reason of his weaknesses

(forgetfulness / ignorance) about the existence of evidence and he
(PF) must also take an oath upon his weaknesses.

2. oath by plaintiff.

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 yamin al jalibah. = takmilah
Oath taken by the plaintiff in order to:-

i) establish his right together with the testimony of a single witness (s.88)

untuk melengkapkan claim dia.

s88- evidence by one witness (who is qualified) will be admissible if

accompanied by the oath of the pf.

ii) As a result of the refusal of the defendant to take oath (nukul al yamin) where
the oath is returned to the plaintiff (yamin al mardudah)

the pf can take the oath, = yamin al jalibah.

iii) al qassamah (23 min) (refer recording)

in case of murder. the body was found.

some ulama said the

iv) to avoid qazf and lian.

v) to strengthen trust

Hadith: The Prophet accepted one male witness with oath by the plaintiff.

Sec. 88.

Norazaha case.

cerai taklik

oath taken by pf together with one witness.

appellant claim that the claim shall be dismissed.

Azizah binti Musa V Mohd Kamal @ Raja Kumaran bin Abdullah

s88

division of harta sepencarian.

pf claim that the house at taman desa serdang as matrimonial property.

def said that the house at kg sungai serai and kancil as matrimonial property.

issue whetehr the property acquired during marriage.

pf bawak 1 witness to prove that the house was matrimonial.

def failed to prove his case.

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 court order the pf to take an oath to strengthen the evidence by the one
witness. s88

arahan no 2

Azhar bin Mat Noor V Wati bin Kamali

poligamous marriage.

parties want to register.

applicant contended that the marriage was in sumatera barat indo.

apart from providing the evidence, the applicant provoide one witness.

the court order the applicant to take an oath.

held: valid.

yamin tuhmah.
In case the plaintiff cannot ascertain the truth of his claim/ allegation against the
defendant.

Purpose: to deny the doubtful of his claim

Only accepted in case involved a small amount of money.

Accepted by Malikis and Zaidiyah.

not much discussion about this.

yamin istizhar.
in marital cases. (min 33 recording)

Cannot be regarded as an evidence . Only to discharge any tuhmah against the

plaintiff right after furnishing the required no. of witnesses.

cannot be regarded as an evidence. the case has been proven already.

Thus, it serves to perfect and strengthen the evidence.

Applicable in claim relating to rights against a missing /dead person.

Ibnu Qayyim in Turuq al Hukmiyyah at p.145 observed that :-

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 - This opinion is not against a’qidah / syara’ especially in cases where there is a
tuhmah. As a matter of fact, Saiyidina Ali had requested the plaintiff to take oath even
though there are two male witnesses. Qadhi Syuraih even asked a man to take oath
despite the existence of evidence/proof. This is also the opinion of Al-Auzai’e, al-
Nakhai’e, al-Syibie and others.

s121 of shariah court civil procedure

about missing person.

Absence of parties.
121. (1) If, when any action is called on for hearing—

(a) neither party appears, the Court may dismiss the action;
(b) the defendant does not appear, the Court may, subject to proof of due
service, hear and determine the action in his absence; or

(c) the plaintiff does not appear, the Court may dismiss the action and hear and
determine any counterclaim.

(2) The Court shall, before making any judgment on the plaintiff’s claim under
paragraph (1)(b) or the defendant’s counterclaim under paragraph (1)(c), order
the
plaintiff or the defendant, as the case may be,
to take an oath of istizhar.
(3) Where there are more than one plaintiff or defendant and only one of them is
present, the Court may hear the action against the one present and determine
the

action against the parties absent in accordance with subsection (1) or (2).

(4) The Court may in its discretion in any of the cases specified in subsection (1)
or

oath by witness.
To make people believe the truth of his evidence & to replace ‫تذكية الشهود‬

Accepted by Malikis, Zaidiyah & Ibn Qayyim but rejected by Jumhur.

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 Section 129.

Principles of nukul al yamin (‫نكول اليمين‬

)& yamin al mardudah (‫) يمين المردودة‬
Nukul al yamin

Refusal of the defendant to take oath when he is ordered to do so.

Effect – 3 views:-

1. Judgement will be passed against the defendant & oath will not be returned
back to the plaintiff . ( Shuraih, Hanafis and first opinion of Imam Ahmad)

if the def refused, the court will straitgh away pass judgment.

Arguments:-

i) Refusal is amount to admission.

ii) Based on the practice of Saidina Uthman
iii) Hadith narrated by Ibnu Abbas. -

iv) ‫ البينة على المدعي واليمين على من انكر‬- art 76

v) Art. 1751: Effect of refusal to take oath - (min 41) -

2. Judgement cannot be passed against the defendant and the oath must be
returned to the plaintiff. (Majority of sahabah such as Umar, ali and agreed
by Ibnu Sirin, Shafi’is, Malikis and according to one tradition , it is also
agreed by Imam Ahmad in his second opinion).

s87

Arguments:-
i) Al Maidah : 107 & 108
ii) Hadith reported by Ibn. Umar that the Prophet has returned the oath to
the plaintiff

3. Judgement cannot be passed and oath cannot be returned to the plaintiff but
the defendant will be detained until he admit. (Ibn Hazm)

Arguments:-

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 i) ‫البينة على المدعي واليمين على من انكر‬

Nukul al yamin cannot be the basis of judgement except :-

i) In case of al- qasamah
ii) Bequest in a journey &there is no Muslim witness
iii) In case the plaintiff has 1 male a’dil witness/ 2 female a’dil witnesses

cases

Siti Zamrah v Maliki

oath by def.

wife applied for taklik

filed a suit to claim anciliary right after divorce.

husb said it has been remitted. so that she can get the divorce easier. husb
said the wife agreed.

not necessary that the pf need to prove. husb failed to prove the claim.

court ordered the wfe to take the oath to dney the agreemtn.

application was granted.

Adiba Yasmin v Abd. Rani

oath by def.

taklik

abuse

pf failed to provide sufficient evidence.

one male witness only.

def was asked to take an oath.

judgement given in favour of def.

Tuminah v Ariffin

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 oath by pf.

yamin istizhar.

desertion.

husb failed to appear at the court. even has been advertise.

whether the court can accept the evidence by petitioner in the absence of the
def.

court asked the pf to take yamin istizhar.

judgement was apssed in favour of the pf. -

Siti Zainab v Mohammad Ishak

oath by pf.

yamin istizhar

taklik.

desertion.

def failed to appear.

pf produced the witnesses, and the court asked the pf to take oath.

Zainuddin v Anita

matrimonial property

highlithed : if the proportion of contiribution can be determined, the division

can be done in accordance of the contribution.

in the absence of contribution, both parties should take an oath. property will
divide equally.

if both refuse, equally

if one party agree, one refuse, the property will be given absolutely to the
party who agrees.

oath if the last resort.

the party need to produce evidence first.

Zainoon v Mohammed Zain

harta sepencarian.

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 held: if neither of them to prove their claim, and to take an oath, the property
will be devided equally.

Wan Azizah v Kassim

oath by pf.

cerai taklk

deserted without maintenance

2 witnesses

since the husband is missimng, the pf need to take yamin istizhar,

granted.m

Susilawati Lawiya v Jamaludin bin Elias (Nash)

Nor Aniza [Link] v Mohammad Fauzi bin Ahmad

Azizah binti Musa V Mohd Kamal @ Raja Kumaran bin Abdullah

s88

one witness tetheoher with oath by pf

Azhar bin Mat Noor V Wati bin Kamali

mamat v fatimah

harta sepencaria

trial court: if the appellant did not take oath, it is to be returned to the pf or
resp. when the oath is taken, the right is established.

yamin al mardudah. (dipulangkan.)

application of yamin in criminal cases.

pakistan

art 163(3) - not applicable in hudud and other criminal cases.

mohd arshad v the states

supreme court decided that oath is not applicable in criminal cases.

FT

malaysia and bruei has no provision.

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 s87 - in mal cases: manner of giving evidence

syariah criminal procedure: s96 a-e: procedur in trial -

nothing mentioned about oath in criminal case. so not applicable.

takzir:

not differentiate the right of Allah and right of mankind. oath is

admissible.

differentiate:

Halimah V Pendakwa Jenayah Kelantan (zina case)

halimah confess, but the other one took oath to deny. accepted.

•Pendakwa Jenayah Kelantan V Omar & dan Seorang lagi (Khalwat case)

(as long as takzir case, oath is admissible)

Pendakwa Syarie v Mohamad Sabu & Seorang lagi

•(Khalwat case - Right of Allah, oath is not admissible)

KPS v AMZ (2018)

charged under s26 of selangor criminal.

muqaddimah of zina - accused claim trial - refused to make confession

prosecution tendered 3 witnesses,

accused request to take oath to deny the charge. and defend himself.

issue: whether oath taken by the accused is admissible?

held: s87, oath is applied in mal cases only.

for criminal cases: s87(3) - to deny the charge, the evidence must bring
evidence. cannot use oath.

view:

commented: once it is clearly stated that only mal cases is applicable, not
mentioned in s96 = that is the position in malaysia.

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 pakistan
Chapter X1I :Decision of Case on the Basis of oath

•Art 163: Acceptance or denial of claim on oath

brunei
PART 111 - CHAPTER 11 :Yamin

Sc 100: Burden to produce evidence

Sc 101: Manner of giving evidence

similar with s87 FT

Sc 102: Court to order taking of yamin

takde yg sama dlm FT

arahan amalan

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