The same is said by Abu Yusuf and Muhammad, based on the statement of the Prophet (peace and blessings of Allah be upon him): "But the oath is upon the defendant." Furthermore, because it is a right belonging to a human being, an oath is to be taken in it, just like property. Then they disagreed; Abu Yusuf and Muhammad said: An oath is taken in marriage, and if [the defendant] refuses, the marriage is enforced. Al-Shafi'i said: If [the defendant] refuses, the oath is returned to the husband, who then takes it, and the marriage is established. Our position is that this is something that cannot be rightfully yielded [to the claimant solely by refusal], so an oath is not taken in it, like [the case of] prescribed legal punishments (hudud). This is corroborated by the fact that honor (al-abda') is a matter requiring precaution, thus it is not made permissible by refusal [to swear], nor by that along with the claimant's oath, just as in the case of hudud. This is because refusal is not a strong proof; it is merely silence, which could be out of fear of taking an oath, ignorance of the true state of affairs, or shyness to swear and be humiliated in the judge's court. With these possibilities, it should not be judged upon in matters that require precaution. The oath of the claimant is merely his own word; it should not be the basis for granting something involving immense danger and great sin, nor [should one be] empowered to have intercourse with a woman who might be a stranger to him.

As for the Hadith, it only covers property and blood, so marriage does not enter into it. If every claim were covered by it, then it would be exclusively applicable to hudud, and marriage is in that same meaning; in fact, marriage is more deserving of this [precaution] because it almost never lacks witnesses—since testimony is a condition for its validity—or it is publicly known, and thus it is testified to by common notoriety, whereas hudud are different. Once this is established, they shall be separated, he shall be barred from her, and she shall be released. If we say that she must take an oath, according to the other possibility, and she refuses, a verdict is not issued based on the refusal; rather, she is imprisoned in one of the two opinions until she confesses or swears, and in the other, she is released. The purpose of prescribing the oath is for intimidation and deterrence, so that she may confess if the claimant is truthful, or swear and be exonerated if he is a liar.

Section: If a man claims to have married a woman, he needs to mention the conditions of the marriage, saying: "I married her with a guardian who is of sound judgment, two just witnesses, and her consent," if she is one whose consent is considered. This is what is explicitly stated by al-Shafi'i. Abu Hanifah and Malik said: He does not need to mention its conditions, because it is a type...