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.'

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.