Is it permissible to swear falsely if it is the only way to obtain one's right?
16-1-2014 | IslamWeb
Question:
What is the ruling on someone who takes a decisive oath in a claim made against him, denying that he owes the plaintiff something under the pretext that the plaintiff is also in debt to him with an amount of money that exceeds the claimed one? The swearer is certain that he owes nothing to the plaintiff, and thus he resorted to the principle of clearing. He has a good intention that he would not transgress the right of anyone on the one hand and seeks to protect his right from being transgressed by the plaintiff on the other hand. He fears that if he refuses to take an oath, the plaintiff will do it wrongfully. Hence, he has decided to take an oath. What is the ruling on that? What is the correct course of action to be taken under all cases?
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
It is due on anyone against whom a lawsuit is filed to be truthful in the oath he takes when asked to do it by the judge. Whoever swears falsely to deprive the plaintiff of his right is included under the statement of the Messenger of Allaah, sallallaahu ‘alayhi wa sallam, “He who takes (a false) oath thereby to deprive another of his property (wrongfully) in which he is a liar will meet Allaah Who Will Be Angry with him.” [Al-Bukhari and others]
But if the defendant has a right with the claimant and he is almost certain that he will deny it, it will be permissible for him to deny his right accordingly even by means of an oath, provided that he does resort to equivocation rather than explicit speech. This is the opinion of the Maaliki and Shaafi‘i scholars of Fiqh, and the one stated by Ibn Hajar Al-Haytami 
in his book Tuhfat Al-Muhtaaj, as he said: "It is permissible for anyone (the defendant) to deny the other’s (plaintiff) right if this other has already denied his right that is due to him. He can do so if the right that the other party owes him is equal to or more than the right that he owes the other party. In this case, the parties should resort to mutual clearing out of necessity, even though its conditions are absent. If, however, his right with the other is less than the other’s with him, he should deny of the other’s right as much as is equal to his right with him."
Ad-Dusooqi said in his footnote on Ash-Sharh Al-Kabeer, "If there are two persons and each has a right with the other, then one of them denies the other’s right with him, it will be permissible for the other to deny of the former’s right what is equal to his (the latter’s) right; and it will be permissible for him even to swear on that but equivocally (not explicitly)."
The basic rule for the permissibility of this goes back to the Statement of Allaah The Almighty (which means):
· {And the retribution for an evil act is an evil one like it...} [Quran 42:40]
· {And if you punish [an enemy, O believers], punish with an equivalent of that with which you were harmed.} [Quran 16:126]
We advise you to resort to equivocation because there are Hadeeths to this effect, which Al-Bukhari includes under a chapter which he entitled: 'A Chapter on the Fact that equivocations and indirect statements could be a way out of Lying.'
According to Ibn Al-Qayyim It is permissible for anyone to lie concerning himself or someone else if lying is the only way to obtain his right, provided that it should cause no harm to the other.
But if you are not certain enough that he will deny your right, it is impermissible for you to deny his right because there is no dire necessity for that. Rather, you should adhere to the basic rule which we have mentioned in the first part of the answer.
In our view, it is better for you to be truthful with the judge and not to take resort to multi-indicative statements in avoidance of the difference of scholarly opinions and in accordance with the rule of tolerance and forgiveness.
The basic rule for this goes back to the Statement of Allaah The Almighty (which means):
· {…but whoever pardons and makes reconciliation – his reward is [due] from Allaah.} [Quran 42:40]
· {And whoever is patient and forgives – indeed, that is of the matters [requiring] determination.} [Quran 42:43]
Allaah Knows best.