INTRODUCTION

1.0 1.1

Introduction Definition and concept of li`an The term li`an is derived from an Arabic word laan which means to drive

away. It is infinitive of the past tense laana. When the husband makes a charge accusing his wife of adultery (which term includes all cases of unlawful sexual connection whether incest, fornication, whoredom or adultery) the procedure for settlement of the accusation is by swearing and imprecation upon them is curse of God. This technical procedure is called li`an (Verma, 1971).

Li`an or otherwise known in English as imprecation is an oath taking process resulting in the separation of a husband from his wife due to his inability to prove a charge of adultery against his wife. By invoking li`an, the husband is excluded from the hadd of false accusation of zina (Mahmud Saedon, 2000).

In the literal sense li`an means to turn away or to exclude oneself from Allahs Mercy, as a person who invokes li`an will also invoke the wrath of Allah if he is lying. From the shari sense, li`an consists of specific and understood words used as argument for those who invoke it for the purpose of accusing their wives of zina or to deny their paternity over a child (Mahmud Saedon, 2000).

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Most ulama consider li`an as part of the family law. There are others however who thought that it is also part of the law of evidence as it is a type of oath while in another view li`an was thought of as a type of testimony (Mahmud Saedon, 2000).

1.2

Causes that may lead to li`an There are two cases that may lead a husband commits lian. First, if a man found his wife committing adultery or if a husband accused his wife of fornication with other man but he could not prove it by bringing four trusted eye-witnesses, he may be liable for the hadd al-qazaf. Another case would be where a husband refuses to acknowledge a child as his and he could not prove that such a child was not his; he may be liable for hadd alqadhaf. To avoid the hadd the husband is allowed to resort to the process of li`an (Mahmud Saedon, 2000).

Qadhaf means accusation of zina or fornication upon a woman (Muhammad Mokhtar, (2007). According to the strict Muslim law, if the husband makes a false charge of adultery against his wife, he is to receive a punishment of eighty stripes, and this punishment for slander is known as hadd al-qazaf or specific punishment for slander (Verma, 1971). Therefore, li`an is the best resolution to the husband to prevent him from the punishment if his accusation upon his wife his true.

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The authority (dalil) of li`an is in Surah Nur sentences 6-10,

Meaning: And for those who launch a charge against their spouses, and have (in support) no evidence but their own,- their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly telling the truth; and the fifth (oath) (should be) that they solemnly invoke the curse of Allah on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) By Allah, that (her husband) is telling a lie; and the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth. If it were not for Allah.s grace and mercy on you, and that Allah is Oft- Returning, full of Wisdom, (Ye would be ruined indeed). (Source: Yusuf Ali translation)

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1.3

The pillars and conditions in committing li`an Before committing li`an, some important pillars and conditions are needed to be

considered. The pillars of li`an are very important as the li`an will not meant if one of them is missing. There are four pillars of li`an. First, the man who invokes the li`an shall be a husband to the woman accused of zina. Second, the woman who is the subject of li`an shall be a wife to the accuser. Third, the cause for li`an shall be zina, and/ or the repudiation of the paternity of a child whether still unborn or a newly born child. Lastly, to invoke li`an specific words carrying the meaning of li`an shall be used (Mahmud Saedon, 2000). The conditions for li`an can be categorized into two divisions i.e. the prerequisite conditions and the conditions for validity.

1.3.1

The pre-requisites for li`an Ulama are in different views upon the pre-requisites for li`an. According to the

Hanafis there are three prerequisites, first, there is a marital tie exists between the accuser man and the woman accused of zina even though the woman had not had any sexual relations with him or she is in iddah of a revocable talaq. It is mean that there shall be no li`an between a man and a woman who are not joined by marital ties or with a foreign woman. Second, the marriage of the spouses must be a valid marriage and not a fasid marriage. There is no li`an in respect of a zina charge against a woman married as a result

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of a fasid nikah because such a woman is considered as a foreign woman (Mahmud Saedon, 2000).

Such condition is however contested by the majority opinion which stated that li`an is still maintainable against a woman who is a wife due to a fasid nikah because the paternity of a child in such a case is still assignable to the man. Third, the husband must be a person who qualifies as a witness for Muslims and the couple involved must be free from slavery, sane, baligh (puberty), Muslim and capable of speech. There is no li`an between two non-Muslims or in cases where one of them is non-Muslim, slaves, children, lunatics, convicted qadhaf offenders or mutes as in all these cases shubhah or doubt is present. However, li`an is maintainable between two blind persons or two fasiq persons as long as they are qualified to be witnesses (Mahmud Saedon, 2000).

The majority of the ulama however did not lay down the conditions that had be pointed out by Hanafis. According to the Malikis, the prerequisites for li`an require that the husband shall be a Muslim while the same need not apply equally to the wife. A zimmi woman may undergo li`an to clear her name. The parties to the li`an shall also be baligh, sane, both parties are free or both are equally slaves, adil or fasiq. The li`an may be invoked during a marriage or during the iddah of a revocable talaq or within talaq bain

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and also after the iddah in cases where paternity is repudiated. Li`an may also be invoked in cases of fasid or valid marriages (Mahmud Saedon, 2000).

According to the Shafiis and Hanbalis, both the two schools do not require that the parties involve in li`an shall be Muslims. According to them, li`an is maintainable for a husband who can validly pronounce a talaq. Both parties shall be mukallaf i.e. baligh and sane. Factors which need not be taken into consideration are whether they are Muslims or non-Muslims, adil or fasiq, or convicted qadhaf offenders. Li`an is also maintainable by free men, slaves, mukatab, safih, and drunks who are capable of speech or mutes whose gestures can be understood. Li`an can also be invoked by a man who divorces his wife through the bain talaq in order to deny paternity of a child. As had been stated earlier, the majority of the ulama are of the view that a li`an to deny paternity over a child of a woman who had had sexual intercourse with the accuser as a result of a fasid nikah or shubhah sexual intercourse is valid. Similarly, the ulama are of the unanimous view that a li`an made by a child or an insane person is not valid. If one of the parties is a nonmukallaf, li`an is not maintainable between them as it is a process which entails separation of the parties thereafter (Mahmud Saedon, 2000).

1.3.2

Conditions for validity of li`an

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There are few conditions to ensure the li`an is validly performed. First, the li`an shall be performed in the presence of a judge or his assistant. This condition is agreed by all the ulama. A li`an made by a husband and wife without the presence of a judge is considered as invalid. Second, the li`an shall be made after it is requested by the judge. If it is made before such a request then it is invalid. This condition is agreed by all the ulama. Third, the words effecting li`an shall be pronounced perfectly. The li`an will not be valid even if only one of the conditions for its validity is absent. Next, both the husband and wife shall pronounce the word li`an as had been stated by the Quran (Mahmud Saedon).

According to the Shafiis and the accepted opinion in the Hanbali schools substituting the words I bear witness with the words I hereby swear is not allowed. They are of the view that the word shahadah in li`an could not be substituted by any other word as its purpose is to strengthen the li`an. This view is also agreed by the Malikis and Hanafis. The lian should be affected according to the procedure outlined earlier. It should be started by the man and followed by the woman. This view is accepted by all the ulama. Another condition is, during the lian proceedings, while one of the parties is pronouncing the lian, he or she should indicate with gesture the other party if both parties are present. This rule is also followed by the second party. If one of the parties is absent his or her

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name should be mentioned together with his or her paternity. This rule is agreed by all the ulama (Mahmud Saedon, 2000).

1.3.2.1

The method and words used in li`an The oath of taking li`an can be performed in any languages instead of using

Arabic one as long as the parties involve in the process of li`an understand and aware of what they are saying (Mohammad Mokhtar Shafie, 2007).

As mentioned in the Quranic sentences in Surah Nur earlier, li`an requires the specific words that show specific meanings that cause li`an to be valid. The li`an process is started by the petitioner husband on the order of a judge using the following invocation, I bear witness in the name of Allah, that I am among the righteous in my claim and that she has committed adultery. If the husband wants to deny paternity then the following shall be added: Verily this child is not mine and the above oath shall be repeated four times. After the four oaths, the husband shall say, May the wrath of Allah be upon me if I am among those who lie with regards to my zina accusation against her. If paternity is again denied, then the following shall be added: Verily this child was born out of zina and it is not my child. The wife shall reply by taking the oath: I bear witness in the name of

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Allah verily my husband is among the liars with the regards to this zina accusation against me and verily this child is his and not the product of zina. The oath is repeated four times. After the fourth oath, the wife shall say: The wrath of Allah shall befall me if my husband is among the righteous. (Mahmud Saedon, 2000).

1.4

The effects of refusal in taking li`an At other times one of the parties may have a change of heart and therefore refuses

to undergo the li`an process even after being requested to do so by the judge or perhaps a person who had the li`an oath retracts his oath. In this issue there are two views; first Hanafis are of the view that the husband who refuses to pronounce the li`an oath should be detained until he is ready to pronounce the li`an. After that he is punished according to the hadd al-qadhaf. If it is the wife who refuses to take the oath she too should de detained until she agrees to take the oath and admits the truth of her husbands oath. If she admits then she is freed without any had punishment. Second, the majority of the ulama are of the view that if the husband refuses to take the li`an then he should be liable for the hadd al-qadhaf. This is the opinion of the Malikis, Shafiis and Hanbalis. If the wife refuses to take the oath then she is subjected to the punishment of zina. This is the opinion of the Malikis and Shafiis (Mahmud Saedon, 2003).

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At other times the refusal of a husband to take the li`an oath may cause him to be punished for committing a tazir offence if the charge of adultery is directed against Kitabiah women, slaves, insane wives or children as all these women are not Muhsinah women. Nevertheless the husband will be subjected to tazir. If the husband exposes himself as a liar due to his refusal to take the li`an, e.g. by withdrawing the charge of zina after the li`an process he is then subjected to the hadd al-qadhaf as opined by the imams of the Hanafis, Malikis, Shafiis, and Hanbalis. If he subsequently retracts his lie by saying that he had fresh evidence that his wife had committed zina or that he wishes to avoid the hadd through li`an then such a claim cannot be entertained. This is because the testimony and li`an is for the purpose of substantiating his claim whereas he had made an admission which had caused his contrary statement to his earlier charge being thrown out by the court (Mahmud Saedon, 2000).

The above will apply to cases where the qadhaf is directed against chaste women. If the charge is made against unchaste women then the accuser would be subjected only to tazir. If the man had accused his wife of zina before the li`an process and then the woman had refuted this claim then the husband would be subjected to qadhaf. The woman still remains as his wife. Their separation will only come about if the wife had undertaken the li`an (Mahmud Saedon, 2000).

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1.5 Consequences of committing li`an The li`an process will render the several effects. First, the accuser husband will no longer be exposed to the risk of the hadd al-qazaf or tazir while for the wife, the hadd of zina drops if she retracts the charge by also taking the oath of li`an. Second, the parties are not allowed to resume sexual relations or even to engage in acts of intimacy between each other after the li`an process is concluded even before separation is decreed by the judge. The third effect is the separation of the parties is a talaq bain. In respect of remarriage, li`an differs from talaq as in the case of a talaq perpetual prohibition does not arise from three talaqs but in the case of li`an, the prohibition becomes perpetual unless the lian drops. Therefore, the parties are prohibited from remarrying (Abdur Rahman, 1984).

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