Rules Nikah-e-Mut'a (Part 2)

The statutes (Ahkam) of Mut'a

Conditions in the Contract

It is permissible for one or more conditions to be mentioned in the contract of mut'a, so long as they are legitimate. A condition must be accompanied by a declaration and an acceptance. Fulfilling the condition then becomes necessary, since it is part of the contract.

It is permissible for the contract to stipulate as a condition a particular time for meetings between the husband and wife, such as daytime or night-time. It is also permissible for a given number of sexual acts for a given period to be stipulated, as for example, during one day or over the whole period of the marriage. These are legitimate conditions and in no way contradict the requirements of the contract. However, if only a given number of sexual acts are stipulated without mention of a time period, the contract is invalid, since the time period must be stated.
It is permissible for a condition to be stipulated that the marriage not be consummated, since again the condition is legitimate and does not contradict the requirements of the contract. However, according to the most widely held opinion, in such a case if the woman should give permission for intercourse during the time period, intercourse is then permissible. For the contract warrants intercourse, but if the condition of non-intercourse is laid down, that is the woman's right over the man. In other words, she has been 'rented' for the purpose of sexual intercourse, and the condition has become the barrier to this end. So if she chooses to waive the condition, she is then at the man's disposal.

As for conditions not mentioned in the text of the contract itself, but stated before or after the contract, their fulfillment is not obligatory.

Coitus Interruptus

It is permissible to perform coitus interruptus, even if it is not mentioned as a condition in the contract. In addition, in contrast to permanent marriage, the basic aim of mut'a is enjoyment, not the production of offspring.

If the woman becomes pregnant such that the pregnancy derives from the period of mut'a, the child belongs to the husband, even if he performed coitus interruptus. This statute applies to every legitimate act of sexual intercourse, not specifically to mut'a. However, if the man should deny the child, then it does not belong to him; the 'sworn allegation' required in permanent marriage is not necessary. Although sworn allegation is unnecessary in mut'a, this is the outward and exoteric statute, and there is another 'statute' established between man and God. In this second respect it is not permissible for the man to deny the child just because he performed coitus interruptus or suspects his wife of adultery. He must have definite knowledge that the child does not belong to him. Hence it is encumbent upon him to observe what exists between him and God, even though his word alone will be accepted and there is no need for him to make a sworn allegation.

Divorce

By a consensus of the ulama there is no divorce in mut'a. The man and woman become separated from each other through the expiration of the time period, or else by the man's 'returning' the remaining time to the woman.

Forswearing

In mut'a there is no forswearing, since forswearing's very definition has to do with divorce, which does not exist in mut'a. Moreover, the woman cannot demand a right to sexual intercourse in temporary marriage, a demand which is essential in the establishment of forswearing in permanent marriage. The only thing the woman may demand is the dower, to which she is entitled as a 'rented' woman.

Sworn Allegation

Sworn allegation does not take place in muta. Moreover, in the case of denying parentage, by a consensus of the ulama' it is unnecessary for the man to make the sworn allegation, as we have already seen.

Zihar

There is a difference of opinion as to whether or not zihar may take place in temporary marriage. The majority of the ulama' hold that it can take place, since the Qur'anic pronouncements concerning it are general and not delimited. The verse: 'Those of you who say, regarding their women: 'Be as my mother's back', they are not truly their mothers' (58:2) indicates that zihar pertains to any woman with whom intercourse may legitimately take place, a category within which a wife by muta is included. Al-Shahid al Thani, al Tabataba'i, and al-Muhaqqiq al-HiIIi all hold this opinion.

But al-Shaykh al-Ansari and al-Shaykh Muhammad al-Hasan seem to prefer the opposite opinion, that zihar does not take place in muta. For the result of zihar is either returning to the wife, or finally divorcing her. As for the second possibility, there is no divorce in mut'a. And 'returning to the wife' is unnecessary in mut'a, whereas it is necessary in permanent marriage. When a man pronounces the formula of zihar in permanent marriage, the woman remains his wife. According to permanent marriage's statutes, she has a right to sexual intercourse. Once the man pronounces the formula of zihar, she may demand her right at any time. At that time the man must either pay the expiation or divorce her. But since the woman has no right to sexual intercourse in mut'a, the problem of 'return' to her does not present itself. At any rate, when the time period expires, separation takes place. Thus if zihar exists in mut'a it comes down to this: the man returns the remainder of the time period to the woman. There is no reason to claim that this returning is equivalent to divorce.

Inheritance

According to the most widely held view, there is no inheritance between husband and wife in mut'a unless it should be specifically mentioned as a condition of the contract. One of the spouses may be named heir to the other, in which case the inheritance is one-sided; or it may be stipulated that if either spouse should die, the other will inherit.

Two other positions are worth quoting on this question. Certain ulama' hold that inheritance cannot take place as a result of mut'a, whether or not it is mentioned in the contract. While others believe that inheritance takes place as long as there is no condition negating it in the contract.

There is also the question of inheritance by a child born as the result of a temporary marriage: its inheritance from its father is one-half of that of a child by permanent marriage, while its inheritance from its mother is the same as it would be in permanent marriage.

The Waiting Period

As in permanent marriage, so in muta there is a waiting period which must be observed after the time period of the marriage has expired or the man has returned the remainder of the period to the woman. It consists of two menstrual periods, provided she menstruates.

If the woman is of menstruating age but for some reason does not menstruate, her waiting period is 45 days, whether she is free or a slave. If the husband by mut'a of a free woman should die, her waiting period is four months and ten days, so long as she is not pregnant and whether or not the marriage was consummated. If the wife should be a slave, her waiting period is two months and five days, a point established by a large number of hadith.

If the wife should be pregnant, her waiting period will be either the usual one of four months and ten days (two months and five days for a slave) or the time it takes to give birth-whichever of the two is longer.
Renewing the Contract

A contract of mut'a cannot be renewed before the time period expires. Hence, if the parties wish to renew the contract, it is only necessary for the man to return the remainder of the time period to the woman, thus in effect ending the marriage. Then they may conclude a new contract. When she remarries the same man, she has no waiting period.

This method of renewing the contract is established by a hadith related from the Imam Ja'far. He was asked about a man who married a woman for a period of one month, but then found that a love for her was developing in his heart. Before the period expires, could he renew the contract and increase the time period and dowry? The Imam answered that such a course of action was not permissible so long as the first contract remained in effect. Therefore: 'He must return to her the remainder of the days [of the contract] and then conclude a new contract.'