Does the return of stolen money by the wife constitute legitimate proof of the theft, thereby permitting the husband to swear to that effect in order to obtain her waiver of the deferred dower, especially since Iraqi law considers this as proof of theft?

Theft that necessitates the ḥadd punishment is not established except by confession or clear evidence (bayyinah), which is the view of the majority of scholars. Some jurists believe that it can be established by circumstantial evidence (qarāʾin), such as the stolen item being found with the accused, which Ibn al-Qayyim considered stronger than bayyinah and confession. Sheikh Ibn Uthaymeen stated that circumstantial evidence can be considered proof if the accused does not claim a mitigating factor (shubhah) that would prevent the ḥadd punishment. If a person undertakes to return the stolen item or its value without confessing to the theft, or if the stolen item is found with them, this does not necessarily mean they are the thief, as they might have known the thief or found the item discarded. Therefore, it is not permissible to administer an oath of theft based on this, nor is it permissible to bear witness except with certain knowledge (ʿilm al-yaqīn). The oath is upon the defendant, and the burden of proof (bayyinah) is upon the plaintiff.