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In cases of unlawful sexual intercourse and confession to it, only four [witnesses] are accepted. For one who has intercourse with an animal, two men suffice. In the remaining prescribed punishments, retaliation, and matters that are neither punishments nor property, are not intended to secure property, and are ordinarily observed by men—such as marriage, divorce, resumption of marriage, khul‘, lineage, clientage, and the appointment of an executor—two men are accepted.

The author has included this section to explain the required number of witnesses. The number of witnesses may be four, three, two, one, one man and two women, or one man together with the claimant’s oath. The author will mention all of this. The matter that necessarily requires four witnesses is unlawful sexual intercourse. He—may Allah have mercy on him—said: “In cases of unlawful sexual intercourse and confession to it, only four [witnesses] are accepted.”

His words, “four,” are in the feminine form, meaning that the counted noun is masculine; that is, four men. Thus, in cases of unlawful sexual intercourse, only four men are accepted. The evidence for this is Allah’s saying:

“Why did they not produce four witnesses to it? Since they did not produce the witnesses, then it is they who, in the sight of Allah, are the liars.” [al-Nur 24:13]

That is, the four witnesses. If three testify and the fourth refrains, the testimony is incomplete, and we administer the prescribed punishment for false accusation to those three witnesses. As for the one who refrains, we do not flog him, though we may subject him to discretionary punishment. Thus, if four men come intending to testify that a man committed unlawful sexual intercourse—and it has already been stated that they must explicitly mention the act—and three of them explicitly state, “We saw the man’s sexual organ in this woman’s vagina,” while the fourth refrains, then the first three are false accusers, each of whom is flogged eighty lashes. The fourth is given discretionary punishment because he did not explicitly allege unlawful sexual intercourse.

If eight women testify, their testimony is not accepted, because women have no role in cases involving prescribed punishments. In such cases, only the testimony of men is accepted. Likewise, if four men who have not reached puberty testify, their testimony is not accepted, due to the absence of the condition of puberty.

His words, “and confession to it”: regarding a confession to unlawful sexual intercourse, four men must testify that a particular person confessed before them to having committed unlawful sexual intercourse. The testimony of two or three is not accepted;