1525 - Issue: He said: "Women and children do not perform qasamah (oath-taking)."

This means that if the parties entitled to the claim are women or children, they do not perform the qasamah. As for children, there is no disagreement among scholars that they do not perform the qasamah, regardless of whether they are among the guardians (awliya') or the defendants, because the oaths are proof for the one who swears, and the child's statement does not establish proof. Even if he were to make a confession against himself, it would not be accepted; therefore, that his statement is not accepted against someone else is even more appropriate. As for women, if they are from the family of the slain, they are not to be made to swear. This is the opinion of Rabi'ah, al-Thawri, al-Layth, and al-Awza'i. Malik said: They have a role in the qasamah of unintentional homicide, but not in intentional homicide. Ibn al-Qasim said: Only two or more can perform the qasamah in intentional homicide, just as no one is killed except by two witnesses. Al-Shafi'i said: Every adult heir performs the qasamah, because it is an oath in a claim, and it is therefore prescribed for women, like all other oaths. Our evidence is the saying of the Prophet, peace and blessings of Allah be upon him: "Fifty men of you shall perform the qasamah, and you shall establish the claim to the blood of your companion." Furthermore, it is a proof by which intentional killing is established, so it is not heard from women, like testimony. Also, the crime being claimed that necessitates the qasamah is killing, and women have no role in establishing that; wealth is only established as a secondary consequence. This is similar to a man claiming the marriage of a woman after her death in order to inherit from her, as that is not established by one witness and an oath, nor by the testimony of one man and two women, even if the intention behind it is money. As for if the woman is the one accused of the killing, if we hold that only men from the agnates (asaba) perform the qasamah, then the woman also does not perform it, because that is specifically for men. If we hold that the defendant performs the qasamah, then she should be made to swear, because she does not establish a right or a killing by her statement, rather it is to exonerate herself from it, so the oath is prescribed for her, as if there were no lawth (evidence of suspicion). Thus, if there are women and men among the guardians, the men perform the qasamah and the ruling for the women is dropped. If there are children and adult men among them, or if there are those who are present and those who are absent, we have mentioned before that the qasamah is not established until the absent person is present; likewise, it is not established until the child reaches puberty, because the right is not established except by its complete proof, and the proof is the oaths of all the guardians, and the oaths do not permit delegation (niyabah); and because