Book of Claims and Evidence

A claim (da'wa) [in linguistics] refers to: an individual attributing something to themselves, whether it be ownership, entitlement, a contract, or similar. In the Shari'ah, it is one's attribution to oneself of entitlement to something in the possession of another, or [a debt] in their liability. The defendant (mudda'a 'alayh) is the one to whom the entitlement of something is attributed. Ibn 'Aqil said: A claim is a request. Allah the Almighty says: {And for them is whatever they request} [Surah Ya-Sin: 57]. It is also said: The claimant (mudda'i) is the one who, by his statement, seeks to take something from the hand of another or to establish a right in their liability. The defendant is the one who denies that. It is also said: The claimant is the one who, if left alone, would not remain silent, whereas the defendant is the one who, if left alone, would remain silent. It is possible for both parties to be both a claimant and a defendant, such as when they differ over a contract, and each of them claims that the price is other than what the other mentioned. The foundation regarding claims is the statement of the Prophet (peace and blessings of Allah be upon him): "If people were given based on their claims, a group would claim the blood of a people and their wealth, but the oath is upon the defendant" [Reported by Muslim]. In another Hadith: "The evidence is upon the claimant, and the oath is upon the defendant." A claim is not valid except from one who has the legal capacity to act.

1934 - Issue: Abu al-Qasim, may Allah have mercy on him, said: (And whoever claims the marriage of a woman, and she denies it, and he has no evidence, they shall be separated, and she shall not be made to take an oath.)

The sum of this is that the marriage [case] does not involve swearing an oath, according to a single narrative. The Qadi mentioned this, and it is the position of Abu Hanifah. It is inferred that an oath should be taken in every right belonging to a human being, which is the position of al-Shafi'i and Ibn al-Mundhir.