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The following is a translation of the chapter on mut'a in the book Fiqh al-Imam Ja'far as-Sadiq (as), by Sheikh Muhammad Jawad Mughniyah. The translation and footnotes are by Hujjat al-Islam Sheikh 'Abd al-Hakeem Carney.
The Task from the Clergy:
There has been much talk, past and present, about mut'a. Much of this discussion has revolved around the question of whether or not this is halal according to Islamic law. Indeed, many people believe that mut'a is a kind of fornication, because they are ignorant about its realities. They believe that the child of mut'a amongst the Shi'a are not entitled to inheritance from his father, and is not entitled to any of the things that his brothers who were borne from a permanent marriage would be entitled to. They believe that there is no waiting period after the end of mut'a, or that it is permissible for a woman to be passed from man to man by merely ending the alloted period of time in mut'a. Because of these believes, people accuse mut'a of being something evil, and deny its permissibillity.
As such, it is obligatory on the clergy that they seek to enlighten the minds of people, especially in matters of religion, and guide them to the truth which is denied by fanatics and zealots, and of those people who have lost their reason and religion. We see that mut'a is something accepted by the Shi'a as something that is not an innovated opinion created in certain times and situations.
Meaning of Mut'a
Mut'a has many meanings. In some cases it may mean to take benefit, such as when Allah (swt) refers to "They take the benefits of the worldly life." It may refer to increase, or it may refer to remaining, such as when He says: "He let them remain for a while." It may also refer to a gift, such as when He, Blessed be His Names, says: "They are gifted of knowledge."
As far as the legal scholars, they talk about mut'a in the meaning of a gift, in the sense of what they make obligatory on a man who has married a woman without specifiying a dowry, and then divorces her before having sexual relations. They would necessitate that the divorced women be give her a gift that is appropriate for his economic status. This is based upon the ayat 236 of surah al-Baqarai: "There is no sin on you that you divorce women whom who you have not touched, and that you give them a gift (mut'a), the rich man based on his ablity, and the poor based on his ability, a righteous gift which is a right over the pure ones." They also talk about mut'a in terms of hajj, which we have discussed elsewhere.
Alongside of these uses, the scholars of law talk about mut'a in terms of a fixed-time marriage. There is universal consensus amongst Sunni and Shi'a scholars that Islam has legislated this, and that the Prophet (s) made this permissible. This is based upon ayat 24 of surat an-nisa': "When you have done mut'a with them, so give them the agreed upon dowry."
Also, we find in Saheeh al-Bukhar, volume nine, the section on marriage, that the Prophet (s) said to his companions during some of the wars: "I give you permisson to do mut'a, so do mut'a. A man and woman come together and agree to intimacy for three nights. If they desire to increase then they may increase, and if they desire to leave it, they may leave it."
We find also in Saheeh al-Mulsim, vol. 2, the chapter on mut'a, thatn Jabir ibn 'Abd Allah al-Ansari narrates: "We did mut'a on the convenant of the Prophet (s) and Abu Bakr and 'Umar." On the same page we find another hadeeth from Jabir, where he adds: "But then 'Umar forbid us from this."
After we have established that the Muslims have all agreed on the legislation and permissibility of mut'a in the convenant of the Glorious Prophet (s), they disagree as to when it was made impermissible. Did it become haram after the Allah the Glorious made ot halal? The Sunnis would argue that it was abrogated, and made haram after permission was given for it. Ibn Hajir Al-'Aswalani writes in his Fath al-Bary bi Sharh Saheeh al-Bukhari, volume 11, p. 70 of the 1989 edition, "We have numerous ahadeeth which are explicit in prohibiting mut'a after permission was given for it." In the sixth volume of Kitab al-Maghni of Ibn Qadamah, page 645, third eddition: "Imam Shaf'i said: I don't know anything that Allah permitted, then forbid, then permitted, them forbid again except mut'a."
The Shi'a say: All of the Muslims are agreed on the permissibility of mut'a, but they only disagree on its abrogation. This abrogation is not based on certainty, and we cannot deny mut'a based merely on whim or doubt. This abrogation must be based on certainty, and yet we have many narrations from the Ahl al-Bayt (as) that say that there was no such abrogation. Much of this is mentioned by Hurr al-'Amali in his Wasa'il. These narrations include the following hadeeth of Imam as-Sadiq (as), where he was asked if anything had come to abrogate the ayat of mut'a. He said: "No, and if it had not been denied by 'Umar, then no one would fornicate except a truly wretched person."
It is now important to discuss that mut'a shares in the permanent marriage many things, and is different from it in my things amongst the Shi'a. We will know embark on a short summary of the similarities and differences:
Similarities between Temporary and Permanent Marriage
The scholars of the Ja'fari school are in agreement that permanent and temporary marriage share in the following issues:
1. That it is necessary that in both kinds of marriages the women must be mature, of sound-mind, and be free from any kinds of prohibitions on marriage. It is not permissible to do marry a married woman, nor is it permissible to marry a woman who is in the waiting period of divorce or death, and not with a woman with whom marriage is forbidden because of family relationship, marriage or nursing. It is not permissible to marry a polytheist. Similarly, it is not permissible for the woman to marry any one except a Muslim who does not have any prohibitions on him in terms of marriage.
2. Mut'a is not correct by merely giving oneself over to another or being happy to be married. Rather, it requires explicit verbal confirmation of the marriage, just as it does with a permanent marriage. Nor is the contract vaild by saying "I give myself to you" or "I make myself permissible to you" or "I rent myself to you," or anything like that, but rather must involve the three words nikahtu, zawajtu, or mut'atu.1 The author of Al-Jawahir says:
As far as the marriage formula is cocnerned in mut'a, it must be words which have been designated by the Lawgiver for the marriage offering (ijab), such as zawajtuka or nikahtuka or muta'tuka. Any of these will make the contract valid, and it is not valid with other than these words, such as words that have to do with property or gifting or renting. As far as accepting the marriage offering, this is done by words which indicate upon intention, such as qabiltu (I accept) or radaitu (I am happy with this).
3. The marriage contract is binding upon the man and woman in both kinds of marriage. However, it is the right of the man to return the remaining time of the temporary marriage, just as he may divorce himself from a permanent marriage.
4. Prohibitions in terms of marriage flow from both temporary and permanent marriage. A man who does mut'a is not allowed to marry step-daughers from a temporary wife, nor may a man marry two sisters in mut'a just as he is not allowed to do so in a permanent marriage. We see that nursing from a fornicator has no effect, and the difference is that the wife of temporary marriage is a legal wife according to Islamic law, whereas the fornicator has only punishment.
5. The children of a tempory marriage are like the children of a permanent marriage in terms of inheritance and support, and all the rights which acrue to a child. A person asked Imam as-Sadiq (as) about what happens if a woman he is doing mut'a with becomes pregant, to which he said: "That child is your child."
6. The child is considered to be the child of the father by simple sexual relations, even if they are removed from each other, or his semen enters into her from outside. This is because mut'a is a legal marriage just like the permanent one, and the child is to the one who has copulatd with him, both by consensus of the 'ulama and by the canonical sources.
7. The dowry in both kinds of marriage is the same, in the sense that one may decrease it or increase it, whether the dowry be for a small amount or for millions. This is based on the ayat: "If you give to them the dowry, then you can not take back from them anything."
8. If a man divorces his wife before sexual relations, he only has to pay half the dowry. Similar is the case if a man, in a temporary marriage, returns the remaining time to the wife before sexual relations. If they finish the marriage period without having sexual relations, however, then she has the right to the entire dowry. Some, however, have said that she can only have half in this case.
9. In both kinds of marriage, there is no difference if the man and woman are separated from each other except for sexual relations, in terms of dowry and waiting period.
10. The woman who does mut'a must observe a waiting period after the end of the time of the temporary marriage, though there is no waiting period if there has been no sexual relations. This is the same as in a permanent marriage, when a woman is divorced without sexual relations. A woman in a permanent marriage and temporary one must both observe the complete waiting period if her husband dies, whether or not there has been sexual relations.
11. Every condition that has been agreed upon by the husband and wife is binding in a temporary marriage, so long as these conditions are allowed by Islamic law. This is the same as in a permanent marriage, in line with the hadeeth: "The believers are bound by the conditions they make."
12. It is impermissible to have sex with a woman during her menstral period in both permanent and temporary marriage.
13. If a contract is made for mut'a, and then the man and woman learn that the contract is invalid because of family relationship, then there is no dowry on the man, if they have not yet had sex. If they have had sex, then there is some speculation: If the woman was aware that they were forbidden to have sex with each other, but nonetheless does so anyways, then she has no right to a dowry, because she has sinned. This is in line with the hadeeth "No dowry for the sinner." However, if she does not know that she was not allowed to have sex, then she must be given her dowry, just as with a permanent marriage.
14. It is not permissible for a man to have sex with the nieses of his temporary wife except with her permission, just as is the case with a permanent marriage.
Differences between Temporary and Permanent Marriage
1. It is necessary in a temporary marriage that the time-period be explicitly fixed and specified, and it is not allowed for it to be able to be increased or decreased.2 In a permanent marriage, however, it is not allowed to fix any time period. This is a self-evident reality wherein analogy applies
If the man and woman intend to do a temporary marriage, and forgot to specifiy a time period in the marriage contract , does the marriage become a permanent one or a temporary one, or is the whole contract invalid?
It has been the famous opinion of the scholars that, in such a situation, that the marriage becomes a permanent one. The author of Al-Jawahir has said that this is because the marriage formula without words expresses a permanent marriage, and this is in line with the hadeeth: "If you fix the time, then it is mut'a, and if you do not fix the time, then it is nikah."
However, some of the scholars ahe said that the contract does not come into effect at all, neither permanently or temporarily. This is because what is merely intended does not come into effect, and what came into effect what was not intended.3
2. The dowry is a primary obligation [pillar, rukn] in the temporary marriage. If the man and woman fail to specifiy the dowry, then the marriage is invalid. Imam as-Sadiq (as) said: "There is no mut'a except with two things: A specified period, and a specified dowry." In another narration he says "A known period" and a "known dowry."4 As for the permanent marriage, however, the dowry is not a primary obligation, and the marriage is correct if the dowry has not been specified. If a man and woman marry in permanent marriage and have sex, and then get divorced, then the woman should be given a standard dowry.
3. If a permanent wife is divorced before sexual relations, then there is no waiting period for her. Such is the case with a temporary wife as well, if the time period finishes before sexual relations are consumated. If the permanent wife is divorced after sexual relations and she is not pregnant, then she must wait three menstral periods, or three months.5 As for the temporary wife, however, her waiting period (if they had sexual relations), then she must wait for two menstral cycles or a fourty-five days, if she is not pregant. For both types of women, if they are pregnant, than the waiting period is until after she has given birth. As far as the waiting period for a widow, then there is no difference between the two types of women, and sexual relations make no difference her. If the woman is pregnant, however, then she must wait until either she has given birth, or four months and ten days, which ever is longer.
4. There is disagreement amongst the scholars in terms of the wife's inheritance, depending on whether or not she was a permanent or temporary wife. Most scholars, such as Shaheed al-Awal and Shaheed ath-Thani, have said that a temporary wife does not inherit unless this condition was made in them arriage contract. This is because the marriage contract, by its nature, does not necessitate inheritance, or necessitate the absence of heritence. If this condition has been made, then it must be followed, in line with the hadeeth: "The believers are bound by the conditions they make," and the hadeeth of Imam as-Sadiq (as) where he says: "If you agree to inheritance, then you are bound by your conditions."
5. There is no daily living support for a temporary wife unless it is in the marriage contract. As for a permanent wife, than this is her right, even if the man and wife have agreed that this is not binding upon them.
6. It is makruh to do mut'a with a virgin girl, whereas it is recommend in permanent marriage. The author of Al-Haqa'iq narrates: "Imam as-Sadiq (as) was asked about mut'a, to which he said: "Her case is a heavy one, so have respect for the virgins."6
7. The scholars of law say that a permanent wife has the right that her husband sleep in a bed near her own bed one night every four days, visible to her face, even if their bodies do not connect. This assumes that the man is not always travelling; if he is this way, then it is wajib that the man have do this once every four months. She also has the right to seek her husband, whether or not he is there at the house or a traveller. For a temporary wife, however, none of this is obligatory. She is not gien the choice in this regards, and she does not have the right to seek her husband in this way, whether he is living locally or travelling. ???
8. If a man divorces his permanent wife in a revocable divorce after he has had sexual relations with her, then the man may return to her before the waiting period is finished. If the divorce is a khul'a divorce, where the man did not want a divorce but agrees to in exchange for part of the dowry, than the wife has to right to return to her husband during the waiting period. For a temporary wife, however, this she becomes seperated from the husband by the time period ending or by having the time period returned to her. There is no right to either one of them to return to each other during the waiting period. However, it is permissible for the man and woman to renew the marriage contract during that period, whether it be permanent or temporary.7 However, this is not permissible to any other man except until the waiting period has finished.
9. If a man has had sex with a permanent wife, then that wife is owed her entire dowry. If she refuses to be with him after this for whatever reason, then the dowry does not drop. However, the daily living expenses 8 drop, because the woman was being disobedient. However, in a temporary marriage, if the wife refuses the man sexual relations9, he may adjust the dowry based upon the time in which she refused. The author of Al-Jawahir says:
If the woman disrupts part of the alloted period, then the man may take what he wants from the dowry by ratio. If it is half, then, half, and if it is a third, then a third. I have found no disagreement on this point. There is, in fact, no problem in looking at the well-narrated hadeeth on this subject, such as the narration of Ibn Hunzalah, where he said: 'I asked Imam as-Sadiq (as) about a woman whom I married for a fixed time for a certain. She came to me during part of this month, but she did not for the other part.' The Imam (as) said: 'Then take from the dowry an amount equal to the time that she withheld herself from you, except for the days of her menstral cycle, for that part is to her.'"
10. It is permissible for a man to marry more than four temporary wives, whereas this is not allowed in a permanent marriage. Al-Hurr Al-'Amily has narrated many hadeeth on this subject in his Wasa'il. However, there are some narrations which indicate upon the imperimissibility of this, and that a man may not have more than four temporary wives. One of these narrations is that of 'Amar ibn Sabaty from Imam as-Sadiq (as). When he asked Imam as-Sadiq (as) about mut'a, he said that the temporary wives count as one of the four [that the man is allowed to have]. There is also the narration from Imam al-Baqir (as), on the authority of Zarara. He was asked about mut'a wives, if they are like slave girls whom one can have as many as one wants. The Imam (as) said: "No. She counts for one of the four."
Beyond all of this, there is the ruling that whatever is confirmed for a permanent wife is confirmed to a temporary wife except what has been differentiated in the evidence. We have mentioned the evidences which establish the differences we have already discussed, and whatever othe issues remain stand upon this general ruling. The author of Al-Jawahir says: "The root premise is that permanent and temporary marriages are the same in terms of rulings except in those things which are established by evidence." In Sharh al-Lu'mah, Shaheed ath-Thani states: "The rulings of a temporary wife and a permanent wife are the same in terms of everything we have discussed, such as conditions, guardianship, and prohibited marriages, except those things which are specifically excluded."
Many scholars of law have argued that the essential natures of permanent and temporary marriage are the same, and that the word "marriage" applies to individuations of this concept: One of them permanent marriage, the other temporary, just as the word "humanity" incompasses both men and women.
Mut'a with the Chaste
It is best to conclude with some of the narrations that have come about mut'a from the Ahl al-Bayt (as). Imam as-Sadiq (as) was asked about mut'a, to which he said: "It's halal, but do not marry anybody except the chaste, of whom Allah the Glorified has said: 'Those who protect their sexual parts.'" In another hadeeth the Imam (as) quotes the ayat: "The fornicator does not marry except the fornicatress or the polytheist, and the fornicatress does not marry except the fornicator or the polytheist, whereas this is forbidden upon the believers."
Sheikh As-Saduq also write: "He who does mut'a with a fornicator is also a fornicator," as is written in the book Al-Hada'iq.
In Wasa'il Ash-Shi'a, volume 3, page 74 of the 1324 Hijri edition, that Ali ibn Yaqteen asked Imam Rida (as), grandson of Imam as-Sadiq (as), about mut'a. The Imam (as) said: "What do you have of this, when Allah has made this unnecessary for you." Someone else asked him, and he said: "It is completely permissible for he whom Allah has not made this unnecessary by marriage.10 So seek chastity through mut'a. If Allah has made this unnecessary for you, then it is permissible to you if your wife is absent."
1All specific Arabic words referring to marriage. This issue has been discussed in the section on permanent marriage.
2This does not mean that the mut'a cannot be ended early. But the mut'a, if it is ended early, the dowry may be adjusted according to the time that the mut'a actually lasted. This is different from changing the period, because if the couple agreed to change the period and then ended it at that time, the dowry would remain the same.
3It is clear that this argument is the correct one. For it is impossible for people to enter into kind of contract, marriage, business, or what have you, by mistake. Two people cannot be permanently married to each other because of an accident. On the other hand, since a marriage formula is requried in order to finalize the marriage, and the time period is the most basic part of the marriage formula, the mut'a does not come into effect if this time period has not been mentioned. It is clear, as well, that the hadeeth of the Imam (as) was only intended to clarify that mut'a was a fixed time marriage and that a nikah was not, and does not apply to this kind of case. Beyond this, if two people forget to mention the time-period, and get married and have sexual relations, they would not be considered fornicators by Islamic law, oweing to the hadeeth of the Prophet (s) where he states that punishment is lifted from those who are unintentionally ignorant. In such a situation, if the man and woman realize their mistake, the marriage contract should be repeated, since it had not been done correctly, and if they were to continue, they would be knowingly operating on the base of an invalid marriage contract, and lilable to punishment. If they do not realize their mistake until later, does the woman receive her dowry? It would seem clearly so, since everybody's intention was for a temporary marriage, and mere forgetfulness should not mean that a woman is not entitled to her dowry. The point in all of this is that a man and woman should, when doing the marriage contract, specifiy a fixed term, and they should not knowingly fail to do so.
4Using this narration we could also justify a marriage contract done in forgetfulness before, since if the man and woman agreed on the dowry and the time period but then failed to metnion it explicitly in the marriage formula, the dowry and time are nonetheless known. Again, this applies in a situation where the man and woman have forgotten or unknowingly omitted this part of the marriage formula.
5The three months is for a woman who does not have menstral periods for some reason.
6This hadeeth itself is actually very weak in its isnad, but there are many other ahadeeth which indicate upon the same affect. We have discussed this in our section on taking permission from a girl's father before marriage.
7The meaning is that if a mut'a has ended, it has ended. However, the same man and woman can start a new marriage during the waiting period.
8These are required of the man during the waiting period.
9This assumes that the man and woman have not agreed in the marriage contract that the man does not have the right to sexual relations. If they agree to this, then none of these rulings apply.
10The meaning that it is makruh for a married man to do mut'a. There is, however, some question about this, as there are several ahadeeth which indicate that the Prophet (s) himself did mut'a while he is married, and there is some indication of the Qur'an to this (as we have discussed elsewhere). This, and the fact that there are innumerable narrations about the great spiritual reward and benefit of temporary marriage, some of which have been quoted even in this section. It seems apparent that the meaning of "made this unnecessary" refers to a man who is fully satisified with his wife or wives. If he is not, then there would not be a problem in him doing mut'ah, and he would obtain the same spiritual reward.