Chapter 4
The Legitimacy Of Mut'a
The ulama', both Sunni and Shi'i, agree that mut'a was permitted at the beginning of Islam. However, they disagree as to the reasons it was permitted.
The Shi'i View
In the sura entitled 'Women', after listing those women to whom marriage is forbidden, the Qur'an states as follows: 'Lawful for you is what is beyond all that, that you may seek, using your wealth, in wedlock and not in licence. So those of them whom you enjoy, give them their appointed wages; it is no fault in you in agreeing together, after the due apportionate. God is All-Knowing, All-Wise' (4:24). All Shi'i ulama' and some Sunni ulama' hold that this verse-especially the words: 'Such wives as you enjoy (istamta'tum)'-refers to the permissibility of mut'a. The Shi'is present several arguments to prove this point.1
This verse was revealed towards the beginning of the Prophet's stay in Medina, which lasted from AH 1/CE 622 to 10/632. At that time the men of Medina used to 'seek enjoyment' from women for a limited period of time in exchange for a specified sum of money. By its revelation this verse in effect confirmed an existing situation; and it emphasized that men must fulfill their promises concerning the agreed upon sum. In Medina this custom was looked upon as one kind of temporary marriage and was referred to by the term istimta', the same word employed in the Qur'anic verse-even though the literal meaning of the word is 'to seek benefit' or 'to take enjoyment'. Hence the meaning of the Qur'anic verse must be understood in terms of the conventional usage of the time, for as is well known in the science of Qur'anic commentary and Islamic jurisprudence, the Qur'an follows the conventional usage of the people in all statutes and legal prescriptions. If someone wants to understand a word in the Qur'an in other than the conventional meaning of the time, he must supply a strong reason for doing so.
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1. Sharh al-lum'a, v, 248-53, Note; Jawahir, v, 163.
The context of the verse also indicates that it is referring to temporary marriage. In the preceding verses the Qur'an forbids acts of injustice toward women. 'Oh believers, it is not lawful for you to inherit from women against their will; neither debar them, that you may go off with part of what you have given them' (4:19). The most commonly accepted interpretation of this verse is that it forbids the pre-Islamic Arab custom of inheriting stepmothers. When a man died, one of his sons would inherit his wife, as long as she was not his own mother. The stepson would place a cloth upon his dead father's wife and thereby become her owner. If he wished he could then marry her without paying her a dower. Or he could keep her a virtual prisoner. He could also marry her to someone else and take her dower for himself, or forbid her to marry anyone as long as he was alive. If the woman possessed property, he was entitled to take possession of it for himself.1
The next verse reads in part as follows: ' And if you desire to exchange a wife in place of another, and you have given to one a hundred-weight, take of it nothing' (4:20). In other words, if a man divorces a wife to marry a different wife, he must not take back any of the dower that he has given the first, even if the dower is a very large one and he desires only a small part of it.
The next subject referred to in this passage is the marriage of one's father's wife: ' And do not marry women that your fathers married ... .' (4:22). Both this verse and verse 19 were revealed after Abu Qays b. al-Aslat died and his wife was inherited and married by his son Muhsin. The son refused to pay the daily expenses of his stepmother and wife, nor would he give her, her share of the inheritance or allow her to visit her relatives. She came to the Prophet and explained what had happened. He told her to return to her husband and wait, that perhaps God would send down a statute that would clarify her situation. Then these verses were revealed.2
In the following verse (4:23) the Qur'an enumerates the women who are forbidden to men. These are divided into seven kinds stemming from blood relationship and seven more stemming from other causes: 'Forbidden to you are your mothers and daughters ...'. The next verse adds a
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1. Muhammad Husayn Tabataba'i (d. 1982), Tafsir al-mizan, Beirut, 1974; Persian translation by Muhammad Khatima, VIII, Qum, 1344/1965, 76.
2. Ibid., 84.
fifteenth category of women forbidden to men: ' And wedded women, save what your right hands own.' It continues with the words quoted above: 'Lawful for you is what is beyond all that.' In other words, any woman not belonging to one of the fifteen categories is permitted, whether by marriage or ownership.
Next the verse states: 'that you may seek, using your wealth, in wedlock and not in license.' Grammatically, this clause is in apposition to 'what is beyond all that.' It explains the legitimate mode of seeking sexual relationships with women, whether as the result of marriage or the purchase of slaves.
The next part of this same verse states as follows: 'So those of them whom you enjoy, give them their appointed wages.' The word 'so' (fa) shows that this part of the verse is the conclusion reached by the previous words. This section is either part of the previous subject matter, or an example of it; in other words, its relation to the previous section is either that of the part which is completing the whole, or the particular example to the universal principle. And since the previous section deals with the different kinds of legitimate sexual relationships, either by marriage or the purchase of slaves, we can conclude that this section of the verse is the exposition of a further kind of marriage, not mentioned previously; a kind which requires that the man pay the wages of his wife.
The next verse states that if a man is too poor to marry a free Muslim woman, he should marry a Muslim slave girl; and the following verse concerns certain statutes related to such marriages.
Finally this section of the chapter concludes with these words: 'God desires to make clear to you, and to guide you to the customs of those who went before you, and to turn towards you; God is All-knowing, All-wise' (4:26).
Many sayings have been related from the Companions of the Prophet and those who followed them (al-taibi'un) confirming the Shi'i view that verse 24 of this chapter concerns mut 'a. Several of the companions, including Ibn 'Abbas, the ancestor of the 'Abbasid caliphs, Ibn Mas'ud,
one of the first to accept Islam, and Ubayy b. Ka'b, one of the scribes of the revelation, hold that three words have been dropped form this passage in the Qur'an and that the original version read: 'So those of them whom you enjoy to a specified term (ila ajal musamma).' This clearly indicates that the verse refers to mut'a. For example, it has been related that Ibn 'Abbas was asked about mut'a. He answered: 'Have you not read the sura "Women" (4).' His questioner replied: 'Of course I have.' He said: 'Did you not read: "So those of them whom you enjoy to a specified term. .." , He answered: 'I did not read the verse like that.' Ibn 'Abbas then said: 'I swear by God, this is how God revealed it', and he repeated this statement twice.1
In Majma' al-bayan, al Tabarsi, the famous Shi'i commentator of the Qur'an summarizes the Shi'i arguments: the word 'enjoy' in this verse refers to the marriage of mut'a, i.e., a marriage for a specified dower and a determined time period. This opinion has been related from Ibn 'Abbas and many of the 'followers' of the Companions such as Isma'il b. 'Abd al-Rahman al-Suddi (d. 127/744-45) and Sa'id b. Jubayr al-Asadi (95/713-14). In fact, this clearly must be the case, for although the words istimta' and mut'a have the literal meaning of 'enjoyment', in the language of the shari'a they refer to the contract of temporary marriage, especially when they are followed by the word 'women'. Hence the meaning of the verse is: 'Whenever you draw up a contract of mut'a with a woman, you must pay her, her wages.'2
The Sunni View
As was indicated above, the Sunnis agree that at the beginning of Islam mut'a was permitted. For example, Fakhr al-Din al-Razi (d. 606/1209), the famous Sunni theologian, writes in his Great Commentary on the Qur'an that mut'a was at first permitted. The Prophet made a 'lesser pilgrimage' ('umra) to Mecca, and the women of Mecca made themselves up especially for the occasion. Some of the Companions complained about their long separation from their wives, and the Prophet replied: 'Then go and enjoy (istimta') these women.'3
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1. Abu 'Ali al-Fadl b. al-Hasan al Tabarsi (d. 548/1153), Majma' al-bayan, Tehran, 1339/1960, III, 32.
2. Ibid.
3. AI Tafsir al-kabir, Istanbul, 1307 / 1889-90, III, 286.
Those Sunnis who hold that the Qur'anic verse mentioned above (4:23) does indeed refer to the permissibility of mut'a also maintain that the verse was subsequently abrogated (naskh) by other Qur'anic verses. They offer three arguments to prove their point: other Qur'anic verses, the sermon of 'Umar banning mut'a, and hadith of the Prophet transmitted by the Companions. The Shi'i in turn reject each of the arguments.
1. The Qur'anic Argument
The Sunnis argue that sexual intercourse is forbidden except with one's wife or a slave by reason of the verse: 'Prosperous are the believers ... who guard their private parts save from their wives and what their right hands own.' (23:1-6)1 According to the Prophet's wife 'A'isha and others: ' Mut'a is forbidden and abrogated in the Qur'an where God says: "who guard their private parts. .."2
The Sunni argument continues by pointing out that without question a woman enjoyed through muta is not a slave. Nor is she a wife, for several reasons: If she were a wife, she and her husband would inherit from each other, since God says: ' And for you a half of what your wives leave ... .' (4:12). But everyone agrees that mut'a does not involve inheritance. If she were a wife, the child would belong to the husband, since according to the Prophet: 'The child belongs to the bed.' But again this is not the case. And finally, if she were a wife, it would be necessary for her to maintain the waiting period, since this is commanded by God (2:234); but this also is not the case.
We have already seen that some of these arguments, taken from al-Razi's Great Commentary, do not in fact apply to mut'a as the Shi'is understand it. However this may be, it will be useful to see how the Shi'is answer each of the Sunni claims:
As for the 'abrogation' of the verse concerning mut'a, historical considerations show that this cannot be the case. The verse mentioned as abrogating mut'a was revealed in Mecca, while the verse establishing it was revealed after the Prophet had emigrated to Medina. But a verse which
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1. Ibid.,287.
2. Muhammad b. Ahmad b. Abi Bakr al-Ansari al-Qurtubi (d. 671/1273), al-Jami' li ahkam al-Qur'an, Cairo, 1967 , v, 130.
abrogates another verse must be revealed after it, not before it.1
As for the Sunni claim that a wife by mut'a is not a legitimate wife because she does not fulfill the shari requirements for being a 'wife', this also is false. In the question of inheritance, the Qur'anic verse is a general one, and there is no reason to suppose that it may not have certain exceptions. In fact, the specific requirements of mut'a as established by the hadith literature show that mut'a is an exception. Nor is it the only exception, since an unbeliever cannot inherit from a Muslim, nor can a murderer inherit from his victim. In short, inheritance pertains to permanent marriage, but even in permanent marriage it has certain exceptions, so that the verse establishing it cannot be interpreted as nullifying mut'a's validity.2
In the question of the child, there is no reason to claim that it is illegitimate. In mut'a the 'bed' is legitimate, so the offspring is also legitimate.3 The Imam Ja'far was asked: 'If the wife becomes pregnant as a result of mut'a, to whom does the child belong?' He replied: 'To the father',4 i.e., the child is legitimate.
In a similar manner numerous hadith exist to prove that a wife by mut'a must observe the waiting period. Some of these are even related in Sunni sources. For example al-Razi himself quotes a relevant saying from Ibn 'Abbas. He was asked: 'Is mut'a fornication or marriage?' He answered: 'Neither the one nor the other.' The questioner then asked: 'Well then, what is it?' Ibn 'Abbas replied: 'It is mut'a', just as God has said.' The questioner continued: 'Is there a waiting period in mut'a?' He replied: 'Yes, a menstrual period.' 'Do the husband and wife inherit from each other?' He answered: 'NO'.5
Certain Sunnis also argue that mut'a cannot be considered a legitimate form of sexual union because it excludes such things as inheritance, divorce, sworn allegation, forswearing, and zihar. Since these necessary concomitants of marriage do not apply to mut'a, it cannot be considered marriage, so the woman cannot be considered a legitimate wife.
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1. Tafsir al-mizan, Persian version, VIII, 132; Husayn Yusuf Makki, al-Mut'a fi'l-Islam, Persian translation, Tehran, 1342/1963, p.59.
2. Abu'I-Qasim al-Musawi al-Khu'i, al-Bayan fi tafsir al-Qur'an, Najaf, 1375/1955-56, 219.
3. Sharh al-lum'a, v, 277, Note.
4. Wasa'il, XIV, 488, hadith I.
5. Al-Tafsir al-kabir,III, 286.
If she is neither a wife nor property, sexual intercourse with her is illegitimate: 'Prosperous are the believers, who ... guard their private parts, save from their wives and what their right hands own. ..; but whosoever seeks after more than that, those are the transgressors' (23:1-7). Hence, persons who engage in mut'a transgress God's law.
A typical Shi'i answer to this argument runs as follows: First, the Qur'anic verse is a general statement, and there is no reason why its specific applications may not be clarified by other verses and hadith. Second, it is not true that the above things are concomitants of marriage: there is no inheritance in the case of a non-Muslim wife, a murderer, or a slave-girl. A legitimate sexual relationship may be dissolved without divorce in the case of a wife who is the subject of a sworn allegation, a spouse who leaves Islam, or a slave-girl who is sold. Sworn allegation, forswearing, and zihar are all concomitants of permanent marriage, not of legitimate sexual relationships in general (i.e., they do not apply to sexual relationships with a slave). If we suppose that some proof is found-in the form of a Qur'anic verse or a hadith-demonstrating that these things do in fact pertain to legitimate sexual relationships, then it will be necessary to specify that there are certain exceptions. This is the only way we will be able to combine the Qur'anic verses and the hadith which show that these pertain to legitimate sexual relationships with those hadith which demonstrate that they do not pertain to mut'a.1
2. The Sermon of 'Umar
In a famous sermon2 the second caliph 'Umar banned mut'a with the following words: 'Two mut'a were practiced during the time of the Prophet [i.e. temporary marriage and mutat al-hajj],3 but I forbid both of them and will punish anyone who practices either.' Al-Razi summarizes the Sunni interpretation of 'Umar's words by saying that they were pronounced in a gathering of Companions and no one protested. Therefore, the situation must have been as follows: either (1) everyone knew that mut'a was forbidden, so they remained silent; or (2) they all knew that it was permitted, yet they remained silent out of negligence and in order to
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1. Jawahir, v, 163.
2. Ahmad b.Hanbal, al-Musnad, Beirut, n.d., 1,52.
3. Pilgrims who come to Mecca for the hajj from a long distance and want to perform the 'umra before the hajj are allowed to enter into a state of consecration (ihram) for the 'umra and then to leave it until they re-enter it for the hajj. During the intervening period they can 'enjoy themselves' (tamattu') with the activities of everyday life that are forbidden in the state of ihram. This tamattu' before the hajj is known as mut'at al-hajj.
placate 'Umar; or (3) they did not know whether it was forbidden or permitted, so they remained silent since the matter had just then been clarified for them, so they had no reason to protest.1
Al-Razi continues by saying that the first possibility is what he is trying to prove. If we maintain the second possibility, then we must call 'Umar and the Companions who were with him unbelievers. For they knew that the Qur'an and the Prophet had permitted mut'a, yet 'Umar went ahead and banned it without the Qur'anic verse permitting it having been abrogated. This is unbelief (kufr); and those who knew 'Umar was wrong without protesting shared in his unbelief. But such a supposition requires that we call Islam a religion of unbelief, which is absurd.
The third possibility-that 'Umar's listeners had not known whether mut'a was permitted or forbidden-is also absurd. For, if we suppose that mut'a was permitted, then people would need to have knowledge of that fact in their everyday lives, just as they need to have knowledge about the permissibility of marriage. So mut'a's legal situation must have been known, just as everyone knew about mamage.
Al-Razi concludes that as soon as we see that the second and third possibilities are in fact absurd, then we know for certain that the Companions remained silent only because they all knew that mut'a had already been abrogated.
The Shi'is answer al-Razi's arguments as follows:2 'Umar's sermon demonstrates that during the lifetime of the Prophet mut'a was permitted. The reason 'Umar attributed the banning to himself is that he wanted to show that he was expressing his own view. If the Prophet himself had prohibited mut'a, or if its permissibility pertained only to a specific period in time, then 'Umar would have attributed its prohibition to the Prophet, not to himself.
Another saying concerning muta is also attributed to 'Umar: 'God permitted for His Prophet what He willed, and the Qur'an has been revealed in its entirety. So complete the hajj and the 'umra as God has commanded you. But
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1. Al Tafsir al-kabir, III, 287.
2. Majma' al-bayan, III, 32.
avoid marrying these women, and do not bring before me any man who has married a woman for a specified period, or I will stone him.'1 The Shi'i ulama' point out that without question stoning as a punishment for having performed mut'a could not be permissible, even if we were to accept that mut'a is forbidden. For stoning can only be a punishment when a man has committed fornication with a married woman. Hence 'Umar had no basis for laying down this statute.2
Al-Razi answers this line of reasoning by saying that perhaps 'Umar only mentioned stoning to intimidate his listeners and make them think more seriously about the consequences of temporary marriage. Certainly such intimidation is permissible. The Prophet himself said: 'If anyone from among us fails to pay his alms (zakat), I will take it from him along with part of his property. ' But it is not permissible in Islam to take a part of someone's property in punishment for not paying his alms. The Prophet only said these words to press his point and to frighten his listeners.3
Concerning 'Umar's two sayings banning mut'a, the Shi'is argue as follows:4 If his prohibition was based on 'independent judgment' (ijtihad),5 then it is baseless, since all ulama' agree that independent judgment can never gainsay the Qur'an or the hadith. As for the Qur'anic basis of muta, we have already seen that-as far as the Shi'is and certain individual Sunnis are concerned-the Qur'an permits it in the chapter on Women, verse 23. As for its basis in the prophetic hadith, many traditions have been related in the standard Sunni collections, such as the words of 'Umar himself in his sermon: 'Two mut'as were practiced during the time of the Prophet ... .'
Concerning 'Umar's 'independent judgment', one of the contemporary Shi'i ulama' argues as follows: ' Umar may have made his judgment completely on his own initiative and in direct contradiction to the words of the Prophet; or he may have based his judgment on a prohibition issued by the Prophet himself. If the first case is true, then 'Umar's judgment is groundless, as noted above. And the second case cannot be true, since a number of the Companions have given witness to the fact that mut'a was permitted during the lifetime of the Prophet and up until the time of his death.6
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1. Muslim, al-Sahih, Cairo, 1334/1916, IV, 38 (chapter: al-mut'a bi 'l-hajj wa 'l- 'umra).
2. Jawahir, V, 161; al-Bayan, 229.
3. Al-Tafsir al-kabir,III, 287.
4. Sharh al-lum'a, V, 182-83; Jawahir, v, 161; al-Bayan,229.
5. Those who have attained the capacity and necessary knowledge of jurisprudence to make independent judgments (ijtihad) on cases concerning which they are consulted are called mujtahids. In contrast to Shi'i law, in Sunnism the 'door of ijtihad' has been closed.
6. Al-Bayan,229.
In general the Shi'is argue that if 'Umar's prohibition had been based upon the words of the Prophet, then other Companions would have known about it. How is it possible for the Prophet to have forbidden mut'a, yet, during the rest of his life, the period of Abu Bakr's caliphate and the beginning of 'Umar's caliphate, for prohibition to have remained unknown to everyone but 'Umar? Moreover, if his prohibition were based upon the words of the Prophet, why did he not attribute it to him instead of to himself?1
Al-Razi answers these arguments by claiming that none of them disproves his original contention. None of them proves that mut'a had not already been abrogated when 'Umar made his sermon. Moreover, there remains the question of the transmission of the hadith abrogating mut'a : Was 'Umar the only person to have heard the Prophet ban it, or had others heard him as well? Perhaps some of the Companions had heard the prohibition from the Prophet and had then forgotten. But when 'Umar mentioned the prohibition in a large gathering, everyone knew he was speaking the truth, so they remained silent.2
As for the fact that 'Umar attributes the prohibition to himself, al-Razi answers by pointing to his earlier argument: If 'Umar meant: ' Mut'a has been permitted by the shari'a up until now, but now I have banned it', then it becomes necessary for us to consider not only him, but also everyone who heard his pronouncement and did not protest, as an unbeliever. It becomes necessary to consider even the Imam of the Shi'is, 'Ali, as an unbeliever, since he was present and remained silent. But no one wants to make such a claim. Hence we can only conclude that what 'Umar meant was ... Mut'a was permitted during the time of the Prophet, but I have forbidden it, since I know for certain-as you know-that the Prophet abrogated it.'
The Shi'is reply to al-Razi's arguments as follows: First, it is impossible to imagine that all of the Companions other than' Umar had forgotten that muta had been forbidden, considering its everyday importance. People need legitimate sexual relationships almost as much as they need food and water. Second, the fact that no one protested against 'Umar's pronouncement cannot be considered proof that the Prophet himself had forbidden mut'a. For 'Umar threatened the
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1. Sharh al-lum'a, v, 283; al-Bayan, p.229; al-Mut'a, 68.
2. Al Tafsir al-kabir, III, 290.
people with stoning, and considering his fabled severity, no one would have dared to speak against him. If 'Ali had been able to protest against 'Umar, he would not have remained because of the circumstances he had no choice but to have patience and to bide his time. The case of mut'a is similar. For was it not 'Ali who said: 'If 'Umar had not prohibited mut'a, no one would commit fornication except the wretched'?1
Shi'i authors also point out that 'Umar banned the two kinds of muta together, whereas everyone-Sunnis and Shi'is-agree that the hajj al-mut'a is permissible. Hence the muta pertaining to women should also be permissible.2
Finally, another Sunni view on this subject deserves mention: Other hadith are recorded in reliable sources according to which 'Umar does attribute the banning of muta to the Prophet and not to himself. So it is probable that here we do not have an exact quotation of his words, but a paraphrase. Even if we accept the Shi'i claim that these are truly 'Umar's exact words, then it is clear that by his words: 'I forbid them both', he meant: 'I am clarifying their situation for you; or: 'I am putting into practice the view of the Prophet.' For it is well known in the science of jurisprudence that prohibition and permissibility are often attributed to him who clarifies the statute. Thus, for example, when it is said that Shafi'i forbids hadith but Abu Hanifa permits it, no one imagines that Shafi'i and Abu Hanifa are establishing these injunctions as their own. What is meant is that they are explaining the injunction on the basis of their own understanding of the Qur'an, the sunna, etc.3
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1. Al-Mut'a, pp.68-69.
2. Majma' al-bayan, III, 33.
3. Muhammad Shaykh al-Islam Kurdistani, Rahnama-yi madhhab-i Shafi'i, Tehran, 1337/1958, I,429-30.
