Majority of ‘Ulemā (scholars) of our age1 are of the view that Islam gives equals right to women i.e. in Islam all men and women are equal, but, at the same time, they also stress that a woman is considered ‘half’ as compared to a man. In this regard, evidence is brought forth from the Holy Qur’ān:
eAnd get two witnesses out of your own men. And if there are not two men [available], then a man and two women, such as you agree for witnesses, so that if one of them [the two women] errs, the other can remind her. (2:282)
On the basis of this verse, Muslim scholars and jurists derive the conclusion that a witness borne by a woman counts half in contrast to that of a man. I am afraid I do not think Islam gives equal rights to women and also that the witness of a woman carries half weight as compared to that of a man. According to my opinion, it is a ‘fallacy of relevance’2 to draw such a conclusion from the quoted verse.
I would briefly explain my viewpoint regarding the topic in question.
a) I am of the opinion that Islam does not deal with men and women in terms of equality because Islam is not a religion which advocates equality but justice and equity.
Equality means that all persons should be dealt with equally, irrespective of their needs, abilities, responsibilities, rights and strength or weakness. In other words, an Equality Bannered Society is one that places equal responsibilities on and gives equal privileges and authority to its members regardless of gender or any other kind of discrimination.
Justice means that a person should be dealt with on the basis of what he deserves. Simply put, a Justice Bannered Society is one that places responsibilities on and gives privileges and authority to its members according to their abilities and qualities and also keeping in perspective the specific characteristic of each gender.
Islam has based its teachings on the irrefutable basis that all human beings are not equal as far as their physical attributes are concerned, though they are equal in so far as they are humans in their individual capacity. Therefore, all humans are equal in the context of respect etc but they cannot be treated equal in the practical daily activities of life. Islam allows differentiation among individuals, but this is not based on the gender discrimination of the individuals rather their inherent abilities - inner potential. Islam wants to develop a sound social environment. It is possible only through strengthening the family set up i.e. the basic unit of society. Islam wants the family to become a well governed institution. Allah has created man and woman in such a way that they complement each other. In short, they are of the same genre yet are distinct from each other; they are two interconnected poles or two units of a pair, to be more precise.
Hence, the difference in their mental, physical and emotional qualities decides for them different spheres of activities in the family.
According to the Qur’ān, a husband should be the head of the family. For this, it presents two arguments:
i) Men have been given the responsibility of earning livelihood for the family i.e. to strive for the provision of the financial requirements of the family.
ii) Men are given more suitable mental, physical and emotional qualities for this purpose. On the other hand, women are given certain qualities that make them more suitable for responsibilities in other spheres. So, it is only in the particular relationship of husband and wife that Islam gives a degree of authority to man over woman. Beyond this sphere, both are considered equal. So, it would be wrong to say on this basis that Islam gives women lower status in the social set up as compared to men. In fact, Islam gives different rights and assigns different responsibilities to men and women according to their inherent abilities.
b) Now, I come to the other part of my proposition i.e. ‘should a witness borne by a lady be considered half in comparison to that of man?’ My critique on this view is based on the views of Mr Javed Ahmad Ghamidi.
First of all, I want to clarify that there is no verse anywhere in the Qur’ān, which directs a court of law to consider a woman’s witness to be half reliable as that of a man. As for the verse 282 of Al-Baqarah, which is presented to substantiate the viewpoint in question, it has quite a different meaning and implication than what is construed from it. The conclusion drawn from this verse is not more than a logical fallacy, in my humble opinion. For my thesis, a close analysis of the verse is submitted here.
The above quoted verse is presented by the proponents of this view. They stress that women are deficient in terms of intellect. This conclusion derived from this verse is absolutely erroneous. In fact the real context of the original verse itself does away with this misconception.
Actually this verse addresses the common man. It does not relate to the law and thus gives no directive regarding judicial matters. In other words, it does not call upon the state, the legislative council or the legal authorities. This verse just invokes the common man’s attention for taking precautionary measures in case of a particular situation of conflict. It is a piece of advice to a common man in a matter far beyond the jurisdiction of law and order unless conflicts somehow arise to make it a point of law; but this is entirely another scenario.
The verse states that when two or more individuals enter into an agreement for a loan for a fixed period of time, they should write it down thereby avoiding any misunderstanding or dispute. As a further safeguard to avoid such misunderstanding, they should make two men witnesses to the agreement. In case they are not able to find two men, then they may take two women instead of a man so that if any of the two women become nervous, the other may help her. Obviously, if this were a directive pertaining to judicial matters, it would have addressed the state or legal authorities. At this place, I quote the verse again:
O you who believe! when you contract a debt for a fixed period, write it down. Let a scribe write it down in justice between you. No scribe should refuse to write as Allah taught him, so let him write. Let him [the debtor] who incurs the liability dictate, and he must fear Allah, his Lord, and diminish not any thing of what he owes. But if the debtor is of poor understanding, or weak, or is unable to dictate for himself, then let his guardian dictate in justice. And get two witnesses out of your own men. And if there are not two men [available], then a man and the two women, such as you agree for witnesses, so that if one of them [two women] errs, the other can remind her. And the witnesses should not refuse when they are called [for evidence]. You should not become weary to write it [your contract], whether it be small or big, with [record of the term] thereof, that is more just with Allah; more solid as evidence, and more convenient to prevent doubts among yourselves, save when it is a present trade which you carry out on the spot among yourselves, then there is no sin on you if do not write it down. But take witnesses whenever you make a commercial contract. Let neither scribe nor witness suffer any harm, but if you do [such harm], it would be wickedness in you. So be afraid of Allah; and Allah teaches you. And Allah is the All-Knower of each and every thing. (2:282)
It is evident from these verses that it has nothing to do with criminal proceedings of a court of law; it is a word of caution to the Muslims to save them from disputes in matters of contracts and agreements. Let’s see the issue from another perspective. If the witness of two women is equal to a man’s witness then why is it said that two of your men should be made witnesses to this agreement. Why are two men required for the documentary evidence? Is one man not enough? The simple point is that this verse peculiarly relates to bearing witness on documentary evidence i.e. sale deeds, leasing agreements, loan agreements, guarantee cards and trust deeds etc. In the above related cases, one is free to choose the witnesses. But, in cases of accidents, theft, murder, robbery, rape, and hijacking etc the witnesses are not a matter of choice. Whosoever is present at the scene should and can be taken as a witness. Thus we cannot say that the witness of a woman in cases other than documentary evidence, as explained above, will be affected by this verse.
Lastly, as far as I think, Islam has not bound a court of law to accept or reject any witness. Basically, acceptance or rejection of a witness is a matter of value judgment based on the subjective analysis of the cases derived from the objective context of the whole matter. In this regard, the reliability of a person’s character and statement counts very much. Precisely, no objective principle can be framed regarding the acceptance or rejection of a witness. A court is free in this respect. It may not be satisfied with a large number of male witnesses, due to their contradictory statements, while the statement of a single female witness may be clear enough to convince the court or vice versa.
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1. For instance, the followers of Imām Mālik, Imām Shāfi‘ī, Imām Ibn-i-Kathīr and many prominent scholars of Hanafite School e.g. Mawlana Muhammad Yousuf Ludhyanvi, Peer Karam Shah, Mawlana Mawdudi, and Mawlana Shafi Usmani etc.
2.When an argument relies upon premises that are not relevant to its conclusion and therefore cannot possibly establish its truth, this is termed as fallacy of relevance. It is not to deny that the premises may often be psychologically relevant to the conclusion by virtue of which there seems to be an apparent link and correctness.