Rules of Nikah-e-Mut'a (Part 1)

Nikah-e-Mut'a resembles a Nikah-e-Daaimi ("permanent marriage") in many, but not all, aspects. It commences in the same way as a Nikah-e-Daaimi except that for some, a date of expiration for the marriage is added to the marriage contract. The duration is decided by the couple involved. There are no restrictions about minimum and maximum duration. If the period is longer than what can be reasonably expected to be a lifetime, it will transform into a Nikah-e-Daaimi.

During the period of the marriage, the couple is considered husband and wife, just as in a permanent marriage. At the expiration, the marriage is voided without undergoing a talaq "divorce". In case of sexual intercourse, the woman must observe the iddah "waiting period" before she can marry anyone else.

Sachiko Murata, a scholar of Theology from Tehran University, writes in his MA dissertation “Temporary Marriage in Islamic Law” (Published in Al-Serat, Volume, 13, Issue 1, in 1979):

"In some works a special term is applied to women who participate in mut'a: musta'jara, or 'rented woman'. Mut'a is considered a kind of 'rental' because in general a man's basic aim in this kind of marriage is the sexual enjoyment of a woman, and in return for his enjoyment the woman receives a certain amount of money or property. In defining 'rental' the jurisprudents say: 'It is to gain possession of a benefit in exchange for a specified sum.' This definition applies equally to temporary marriage. In this connection a number of hadith have been recorded in which the word musta'jara is employed."

(See: http://www.al-islam.org/al-serat/muta/3.htm)

Nikah-e-Mut'a is considered mustahab (recommended) by the Shi‘ah. The Shi‘ah also regard it as mustahab to extend the marriage or to transform it into a permanent one.

The following portion is mainly adopted from MA dissertation “Temporary Marriage in Islamic Law” Published in Al-Serat, Volume, 13, Issue 1, in 1979 by Sachiko Murata, a scholar of Theology from Tehran University.

Pillars (Arkans) of Temporary Marriage

Shi'i jurisprudence discusses temporary marriage with all the care it bestows upon permanent marriage. Like permanent marriage, mut'a has 'pillars' and 'statutes'.

The Formula

Since it is a contract, mut'a requires a declaration and an acceptance. As in permanent marriage, the declaration is the prerequisite of the woman. It must consist of one of three Arabic formulas, the same three which are employed by the Shi'is in permanent marriage.

The 'acceptance' is made by the man after the woman has made her declaration. His words must demonstrate that he is satisfied with the declaration. For example, he may say: 'I will accept the marriage', or 'I accept the mut'a.' If he should say only: 'I accept' or 'I am satisfied', the contract is valid.

The legal discussions of contracts assert that the persons who make the declaration and acceptance must be 'worthy of the contract' (ahl al 'aqd). In the question of mut'a this means that those who conclude the contract must be the man and woman themselves, or their representatives (wakil), or their fathers. Hence, for example, it is permissible for the father to say: 'I give my daughter in mut'a with her agreement.' If anyone other than the above persons should conclude the contract, it is 'uncommissioned' (fuduli) and therefore invalid.

The Persons

A man can conclude a contract of mut'a only with a Muslim or one of the 'People of the Book'. It is not permissible to engage in temporary marriage with an unbeliever or an enemy of the Household of the Prophet (ahl al-bayt, i.e., the Imams), such as a follower of the Khawarij. A Muslim woman cannot marry a non-Muslim.
If the man has a free, permanent wife, he cannot contract a mut'a with a slave without his wife's permission. Should he do so, the contract is invalid or in abeyance pending her permission. If the slave should belong to someone else, a mut'a cannot be contracted without her master's permission.

A man is not permitted to marry the daughter of his sister-in-Iaw or brother-in-law without his wife's permission. Should a contract be concluded without her permission it is invalid or in abeyance until she gives her permission. With these two exceptions, the relatives to whom marriage is not permitted are the same as in permanent marriage.

If someone makes an accusation against a woman, it is recommended that before concluding the contract of mut'a with her the man inquire from her about her situation, i.e., as to whether or not she has a husband and whether or not she is chaste. But asking is not a condition of the contract. According to ‘the principle of correctness’ in Islamic Jurisprudence, one must dismiss the possibility that a potential wife might be unchaste, so it is unnecessary to ask her.

It is reprehensible for a man to conclude a marriage of mut'a with a fornicatress. If a man should contract a temporary marriage with a fornicatress, it is his duty to command her not to perform adultery. But this is not a necessary condition of the marriage, by reason of the 'principle of correctness' as applied to the Muslim's act.
It is also reprehensible, without any exceptions, to contract a temporary marriage with a virgin, If a contract should nevertheless be concluded, it is not permissible for the man to consummate the marriage, unless the marriage took place with the permission of her father-a condition almost impossible to imagine in Muslim society.\

The Time Period (Muddah)

The time period of a temporary marriage must be delineate in a manner which allows no possibility of increase or decrease.

There is no upper or lower limit to the duration of the time period. It makes no difference if the period is extremely long, so that one doubts whether the parties will survive its duration; or if it is extremely short, so that there is no possibility of consummation. In other words, any time period is permissible, so long as both sides are aware of the situation and are satisfied.

Furthermore the beginning of the marriage can also be postponed to a future time and as that time arrives the contract period starts.

There is argument among the Shi'i Scholars, about if the couple fails to mention the time period of the contract, would it be legal or not. One group says if the time period is not mentioned, the contract is not invalidated; rather, the marriage becomes a permanent one. These scholars argue that a marriage contract is concluded either for temporary or permanent marriage. If a time period is mentioned, the contract is for mut'a; but if it is not mentioned, the contract is for permanent marriage. While there is another group of scholars who considers mut'a to be invalid in such a situation.

Once the contract is concluded the wife receives the whole dowry, whether or not the husband consummates the marriage before the time period expires. The wife is entitled to the dowry as long as she places herself at her husband's disposal and does not present him with any obstacles to consummating the marriage. The situation is exactly the same as renting a house, but then choosing not to take up residence before the rental period has expired. When the time period is over, the wife is freed from the obligations of the contract.

The Dower

The contract must mention a dower of known property, whether in cash or kind, whose amount is safe from increase or decrease. In order to gain knowledge of the property, it is sufficient for the woman to see it, but it is not necessary that it actually be weighed, measured, or counted-whatever the case may require. The contract of mut'a is not simply an exchange of goods, but a marriage. Even if it is defined as a 'rental', that also is different from an exchange. Hence it is sufficient that any possibility of misunderstanding which might arise from not seeing the dower be removed. As for goods which are not present, it is sufficient that the dower be described in such a manner that the woman's ignorance will be removed, i.e., that it be described exactly as it is.

There is no condition or requirement concerning the amount of the dower except that the two sides come to an agreement over articles which may properly be exchanged, even if they are no more than a few grains of wheat. If the dower is not mentioned, the contract is unanimously held to be invalid.

The woman may ask for the whole amount of the dower at the beginning of the marriage. In this case, the man may not take back any of the dower under any circumstances, unless for some reason the contract should have been invalid from the beginning.

In a situation where a contract is concluded, but before the beginning of the time period the man decides not to go through with the marriage but to 'give back' to the woman the contracted time, she is entitled to one-half the dower. The situation is similar to divorce before consummation in permanent marriage.