Pacas, Shaira Micah B.

2nd year, Arellano

1. Oath in Islam is divided into three main categories, namely; Yamin

al-Laghw (Accidental Oath), Yamin Mun’aqidah (Determined Oath)
and Yamin Ghamus (Immersed/False Oath). Insha Allah we shall
try to explain these three divisions of oath in the light of Qur‟an
and Sunnah. Accidental oath is regarded as an unintentionally
uttered oath by an individual. Such oath, according to scholars, is
not regarded as sinful act and no expiation will be paid for it. This
opinion is based on a Qur‟anic injunction which says:

Allah will not call you to account for that which is

unintentional in your oaths, but He will call you to account for
that which your hearts have earned... (al-Baqarah, 225).

Determined Oath is swearing to do something in the future. It may

also refer to an oath taken to undertake or not to undertake
something. Then, if such a person after swearing breaks his oath,
expiation is binding upon him. Islamic scholars further divide
Determined Oath into three sub-divisions as: mursal, muwaqqat
and fawr.

Immersed/False Oath connotes swearing over something in the

past and deliberately lying about it. In other words, it is committing
perjury deliberately about something in the past or present. The
undertaker of this oath is sinful, but there is no expiation for it other
than seeking forgiveness from Allah (SWT). It is called an
Immersed Oath because one immerses and plunges oneself in sin.
According to Hanafi, Hanbali and Maliki scholars, there is no
 kaffarah (atonement) for false oath. They reiterate that the only
way out for such a person is to ask forgiveness from Allah and
make sincere repentance and desist from such in future. They
maintain that such an oath is a great boldness against Allah (SWT)
and disdaining Him. Due to the gravity of the sin, it is not possible
to eliminate such a sin with kaffarah. In the same vein, Prophet
Muhammad (SAW) was reported to have said in a hadith that there
was no kaffarah for five things and he listed the oath that a person
had to keep among them. (Nayl al-Awtar, 8/264). In other words,
kaffarah is not sufficient to cleanse the victim from the sin
accumulated from such oath. Al-Kasani (d 587/1191) is however of
the opinion that sincerely repenting and asking for forgiveness are
kaffarah for false oath (Kasani, 3/15). According to Shafi‟ scholars,
kaffarah is necessary for that oath (Ibn Qudamah, 11/178).

Section 7 of the Special Rules of Procedure in Shari'a Courts

(ljra-at-al-Mahakim al Shari'a) provides as follows:

The plaintiff (mudda'i) has the burden of proof, and the taking
of an oath ("yamin") rests upon the defendant (mudda'aalai).
If the plaintiff has no evidence to prove his claim, the
defendant shall take an oath and judgment shall be rendered
in his favor by the Court. Should the defendant refuse to take
an oath, the plaintiff shall affirm his claim under oath in which
case, judgment shall be rendered in his favor. Should the
plaintiff refuse to affirm his claim under oath, the case shall
be dismissed.

2. No, said provision effectively deprives a litigant of his constitutional

right to due process. It denies a party his right to confront the
witnesses against him and to cross-examine them.9 It should have
no place even in the Special Rules of Procedure of the Shari'a
courts of the country.The possible deletion of this provision from
the said rules should be considered. For this purpose, a committee
should be constituted by the Court to review the said special rules,
including the above discussed provision, so that appropriate
amendments thereof may be undertaken by the Court thereafter.