In recent times, the view of our jurists about the testimony of women has remained a subject of hot debate. The general view in this regard is that in cases of Hudūd, female witnesses are in no way acceptable. As far as other affairs are concerned, their testimony is acceptable only when in place of a male witness two of them testify alongside another male witness.
In our opinion, this view of our jurists is not correct. They have based it on the following verse of the Qur’ān:
O ye who believe! When you acquire a loan for a fixed period, record it in writing, and let a scribe write it down between you with fairness; the scribe should not refuse to write, and just as Allah has taught him to write, he should also write for others; the one who has incurred the debt should have [the document] written and fearing Allah his Lord, he should not make any reduction in it. If the debtor is indiscreet or feeble or unable to have it written, let his guardian do so with justice. And call in two male witnesses from among your men, but if two men cannot be found, then one man and two women from among your likeable people so that if one of them gets confused, the other reminds her. And witnesses must not refuse when they are summoned. And whether the loan is big or small, be not negligent in documenting the deal up to its period. (2:282)
Two implications of this verse are very clear:
Firstly, the verse relates to bearing of witness over a document and has nothing to do with the bearing of witness over an incident. Documentary evidence and circumstantial evidence, it is clear, are distinctly different from each other: in the first case, witnesses are selected by an external agency while in the second case, the presence of witnesses at the site of an incident is an accidental affair. If we have written a document or signed an agreement, the selection of witnesses rests upon our discretion, while in the case of adultery, theft, robbery and other similar crimes whoever is present at the site must be regarded as a witness. The difference between the two cases is so pronounced that no law about one can be deduced on the basis of the other.
Secondly, the context and style of the verse is such that it cannot relate to law or the judicial forums of the state. It is not that after addressing the courts it has been said that if such a law suit is presented before them by a claimant then they should call in witnesses in the prescribed manner. On the contrary, the verse directly addresses people who lend or borrow money over a fixed period. It advises them that if they are involved in such dealings, an agreement between the two parties must be written down, and to avoid dispute and damage, only witnesses who are honest, reliable and morally sound should be appointed. At the same time, their personal involvements and occupations should be suited to fulfil this responsibility in a befitting manner. The verse does not at all mean that a law suit shall stand proven in a court only if at least two men or one man and two women bear witness to it. The verse, it is reiterated, is merely a guidance for the general masses in their social affairs and counsels them to abide by it so that any future dispute can be avoided: it is for their own benefit that this procedure should be adopted.
Consequently, about all such injunctions the Qur’ān says:
This is more just in the sight of Allah; it ensures accuracy in testifying and is the most appropriate way for you to safeguard against doubts. (2:282)
Ibn Qayyam comments on this verse in the following manner:
It relates to the heavy responsibility of testifying by which a person of wealth protects his rights. It has no concern with the decision of a court. The two are absolutely different from each other. (Vol:1, Pg:91)
If both these implications are kept in consideration, it can be safely said that the premises upon which our jurists have based their opinion about the testimony of women is, in fact, not valid at all. Hence, in our view, in cases of Hudūd, Tā‘zirāt, Qisās, Dīyah and indeed in all such matters it is upon the discretion of the judge whether he accepts someone as a witness or not. In this regard, there is to be no discrimination between a man or a woman. If a woman testifies in a clear and definite manner, her testimony cannot be turned down simply on the basis that there is not another woman and a man to testify alongside her. Likewise, if a man records and ambiguous and vague statement, it cannot be accepted merely on the grounds that he is man. If a court is satisfied by the statements of witnesses and by any circumstantial evidence, it has all the authority to pronounce a case as proven and if it is not satisfied, it has all the authority to reject it even if ten men have testified.
There is nothing against our view in any of the traditions of the Prophet (sws) which have been reported by reliable means. In the Qur’ān also, testifying over will testaments, divorce, fornication and qadhaf has been mentioned in a manner that has no discrimination for gender---just like many other Qur’ānic injunctions which must be obeyed by both men and women alike. The words that constitute these verses, their structure and context besides all requisites and stipulations of reason and common sense, custom and convention about the meaning of these verses---all are such that women cannot be set apart from the directives they imply.