in support of it, because his testimony is then suspect. Further evidence that someone who has undergone a prescribed punishment and a slave may engage in mutual imprecation is that, whenever an oath is required of someone or accepted in his favour, the righteous and the sinful, the slave, the Muslim, and the non-Muslim under Muslim protection are all treated alike. The same must therefore apply to mutual imprecation. This is also the apparent meaning of the words of Allah—Almighty and Majestic—in the Quran. The reason Allah distinguished between a husband and another man regarding accusations of adultery is the husband’s need to disown a child whose paternity he denies and for whose conception he knows no cause. This need applies equally to a free man and a slave, and to someone who has undergone a prescribed punishment and someone who has not. Abū Hanīfa and his companions have contradicted their own principle here by holding that a man notorious for his sinfulness may engage in mutual imprecation, although his testimony is inadmissible. Likewise, a blind man may engage in mutual imprecation, although they deem his testimony inadmissible. Their position is thus invalid, while the position of Mālik and those who follow him is correct. Mutual imprecation is an independent legal provision which Allah instituted as a mercy to His servants; it must not be treated as testimony or judged by analogy with it.

Section

Mutual imprecation arises in six circumstances: three are agreed upon, and three are disputed. The three circumstances in which its necessity is agreed upon are as follows. First, the husband disowns a pregnancy he had not previously acknowledged and claims to have ascertained through menstruation that she was not pregnant after their last intercourse. Second, he claims to have witnessed her committing adultery and not to have had intercourse with her thereafter, when she is not visibly pregnant. Third, he denies having had intercourse with her altogether, saying, “I have never had intercourse with her,” or denies having done so since a specified time sufficiently remote that paternity cannot be attributed to him.

The three circumstances in which the necessity of mutual imprecation is disputed are as follows. First, he accuses his wife of adultery without claiming to have witnessed it. Second, he disowns a pregnancy without claiming to have ascertained through menstruation that she was not pregnant after their last intercourse. Third, he claims to have witnessed her committing adultery and not to have had intercourse with her thereafter, when she is clearly pregnant. Regarding this last case, Ibn al-Jallāb transmitted three reports from Mālik: the first requires the prescribed punishment and does not permit mutual imprecation; the second requires mutual imprecation while retaining the attribution of paternity; and the third requires mutual imprecation and removes the attribution of paternity.

Ibn al-Qāsim’s statements concerning insinuation differ. On one occasion, he treated it as an explicit accusation of adultery and required mutual imprecation. This is his position in the Book of Accusations of Adultery in al-Mudawwana, and the apparent meaning of his statement in its Book of Mutual Imprecation. On another occasion, he said that the husband receives the prescribed punishment for insinuation and may not engage in mutual imprecation. This is also Ashhab’s position in Ibn al-Mawwāz’s book: he receives the prescribed punishment for insinuation and may not engage in mutual imprecation unless the insinuation amounts to something like an explicit accusation.

As for statements such as, “I found her with a man, both naked under one cover,” or, “I found her underneath him,” he may not engage in mutual imprecation on this basis, but is subject to disciplinary punishment. Were he to say this about a woman other than his wife, he would incur the prescribed punishment, except when he says, “I saw her kissing a man.” If he returns to the accusation against her, having been punished for the insinuation