Temporary Marriage in Islamic Laws
Introduction
Though there are important differences between Twelve-Imam Shi'ism and Sunnism on the level of the principles of the religion (usul al-din), on the level of the sharia and fiqh or jurisprudence there are surprisingly few places where Shi'i or 'Ja'fari' law differs from all four Sunni schools, the Hanaf'i, Hanbali, Maliki, and Shafi'i. Perhaps the most important difference occurs in relation to the institution of mut'a, or 'temporary marriage'. The Sunni authorities agree that mut'a was permitted by the Prophet at certain points during his lifetime, but they maintain that in the end he prohibited it completely. In contrast the Shi'is maintain that the Prophet did not ban it, and they cite numerous hadith from Sunni as well as Shi'i sources to prove this. Having established its legality, they then devote tremendous care and attention to defining its legal status and all the rules and regulations connected with it.
One major purpose of the present study is to trace the origin of this divergence between Sunni and Shi'i law by going back to the sources and arguments on both sides. A second purpose is to describe the legal situation of mut'a in Shi'ism. In order to do this, it is first necessary to understand the rules and regulations that define marriage itself, since all the discussions of mut'a take place within this context. Hence Chapter One describes the 'pillars' and 'conditions' of marriage according to the five schools of law, though in a manner which is by necessity truncated and which makes no attempt to give a thorough presentation of all the different opinions. Chapter Two discusses the 'four pillars' of mut'a and Chapter Three its 'statutes'. Once the nature of mut'a and its structural relationship to permanent marriage is understood, the debates concerning the legitimacy of mut'a-summarized in Chapter Four--can be better understood.
The present work is based on an MA dissertation completed in 1974 under the direction of Professor Abu 'l-Qasim Gurji of the Faculty of Theology at Tehran University (most of the Persian text was published under the title Izdiwaj-i muwaqqat: (mut'a-sigha) [Tehran: Hamdami, 1358/1979]). The original work included a brief investigation of the contemporary relevance of mut'a, and nowadays I am often asked my opinion on this topic. Let me only remark that the modern West has not come near to solving all the legal problems that have grown up because of relatively free sexual relationships in contemporary society. If any real solution to these problems is possible, perhaps a certain inspiration may be drawn from a legal system such as mut'a which, with its realistic appraisal of human nature, has been able to provide for the rights and responsibilities of all parties.
As for the abuses of mut'a that have occurred in certain times and places, in large measure these can be traced to the refusal of people to observe the letter of the law; perhaps those who established mut'a had too high an opinion of human dignity, self respect, and fear of God. They no doubt thought that the Prophet's saying: 'Every religion has its special character trait, and the special character trait of my community is shame (haya') would continue in effect until the end of time. At least mut'a can be said to provide a legal structure which, when observed, prevents most of the well known problems and abuses connected with unregulated sexual relationships.
Acknowledgement The Muhammadi Trust wishes to express its gratitude to its patron for their willing and kind support in making this publication possible.
Chapter 1
Permanent Marriage
IN ISLAM the word most commonly employed for marriage is nikah, which means literally 'sexual intercourse'. As a legal term it denotes the situation resulting from a particular contract, entered into by a man and a woman, by which sexual intercourse between them becomes legitimate in the eyes of God and society. The only other mode of legitimizing this sexual relationship is by a man's purchasing a female slave, but this is a complicated discussion that cannot concern us here.
Marriage as a legal institution is defined and described in terms of a number of 'pillars' (arkan) and 'statutes' (ahkam), which are discussed in what follows. The pillars are those elements of the marriage contract whose absence nullifies the contract. The statutes are the rules and regulations that govern the contract. A brief account will also be given of certain other legal points relating to marriage, namely divorce, the waiting period, forswearing, sworn allegation, zihar, and inheritance.
I. The Pillars Of The Marriage Contract
Marriage has a set number of pillars, two according to the Shi'is, three according to the Malikis and Hanafis, and four according to the Hanbalis and Shafi'is. All schools agree on the first two pillars, 'formula' and 'persons'.
A. The Formula (sigha)
Marriage is legalized by a contract ('aqd), which, like all other contracts in Islam, consists of a declaration (ijab) and an acceptance (qabul). The woman declares that she is entering into a relationship of marriage with the man, and he accepts her as his wife.
The schools differ as to the exact words that may be employed in the woman's declaration. The Shafi'is and Hanbalis hold that a formula derived from the words 'I have married you' (ankahtu-ka) or 'I have espoused you' (zawwajtu-ka) are valid. The Malikis maintain that if the amount of the dower to be paid to the wife (see IlA below) has
been specified, the woman may also say 'I give myself to you' (wahabtu-ka).1 The Shi'is do not include the verb 'to give', but they add the formula, 'I surrender myself to your pleasure' (matta'tu-ka).2 The Hanafi school is the freest in respect of the formula, allowing any number of expressions to be employed, even certain indirect formulas.
All schools agree that the man may show his acceptance by employing any word which denotes his satisfaction with the contract.
The Hanbali, Maliki, and Shi'i schools hold that the verbs for both declaration and acceptance must be in the perfect tense. According to the Hanafis, the present tense may be employed as long as what is meant is directed toward the future, i.e., does not denote the seeking of a promise of marriage;3 according to the Shafi'is, the present tense may be used if it excludes the possibility of being interpreted as a promise of marriage, e.g., by adding the word 'right now' (al-an).4 All agree that both declaration and acceptance must be uttered at a single session. It is not necessary for the declaration to precede the acceptance, except according to the Hanbalis.5 A person who knows Arabic must pronounce the formula in that language, but those who do not know Arabic may employ equivalent terms in their own language. A mute may employ sign language.
B. The Persons (mahall)
The man and woman must be free of all shar'i hindrances to their marriage, as explained below. The identity of the spouses must be clearly specified. Thus, for example, if the guardian (below, C) should say: 'I give one of my two daughters to you in marriage', and the man should accept, the contract is invalid.
A woman may not marry a husband who is not 'equal' (kafa) to her. According to the Shi'is, this means only that the woman's husband must be a Muslim.6 The Sunni schools add equality in terms of various social considerations. Not only must the man be a Muslim, he must also have a social standing at least equal to the woman's. In other words, she may not marry anyone below her rank in society, though a man may do
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1. 'Abd al-Rahman al-Jaziri, al-Fiqh 'ala al-madhahib al-arba'a (hereafter cited as Fiqh), Cairo, 1969, IV, 24.
2. Al-Shahid al Thani (Zayn al-Din Muhammad ibn 'Ali al-Jab'i al-'Amili [d. 965/1558]), al-Rawdat al-bahiyya fi sharh al-lum'at al-Dimashqiyya (hereafter cited as Sharh al-luma), Beirut, 1967, v, 108.
3. Fiqh, IV, 13.
4. Ibid., 18.
5. Ibid., 25.
6. Sharh al-lum'a. v. 234.
so. 'Equality' here is defined in terms of a number of factors which differ slightly among the four schools. The Hanafis mention Islam, lineage, profession, liberty (as opposed to slavery), piety, and property. The Shafi'is list lineage, religion, and profession, differing only slightly in the words employed from the Hanbalis. The Malikis mention piety and freedom from physical defects detrimental to marriage.1
A man and woman may be forbidden from marrying for several reasons:
1. Blood relationship (qaraba). A man may not marry the following women: (a) His mother or any of his grandmothers; (b) His daughter or granddaughters, no matter how far removed; (c) His sister; (d) His nieces, his aunts, or his great aunts.
2. Relationship by marriage (musahara). A man may not marry: (a) The mother or grandmothers of his wife; (b) The daughter, granddaughter, etc., of a wife with whom his marriage has been consummated; (c) The ex-wife of his son, grandson, etc.; (d) The ex-wife ofhis father, grandfather, etc.
3. There are certain women whom a man may marry singly, but not at the same time. These are (a) two sisters, and (b) a woman and the sister of her mother or father. In the second case, the Shi'is take exception to the four Sunni schools by saying that if the aunt agrees to share her husband with her niece, the contract is valid.2
Except for the daughter of his wife, in the three other instances of relationship by marriage, the women become forbidden to the man as soon as the marriage contract is concluded; consummation of the marriage is not necessary. But if a man wants to marry the daughter of a wife with whom he has not consummated his marriage, he can do so if he first divorces the wife. Once the marriage has been consummated, the wife's daughter is forbidden to him forever, whether or not the marriage contract is valid. If a man should marry both a woman and her daughter or two sisters in a single contract, both marriages are invalid. In both cases, should he first marry one and then the other, the first contract is valid and the second void.
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1. Fiqh, IV, 54-60.
2. Sharh al-lum'a, V, 181; Muhammad 'Ali al-Tabataba'i (d. 1231/1816), Riyad al-masail (also known as al-Sharh al-Kabir), Tabriz, 1308/1890-9 1,II, 94.
The schools of law differ as to what exactly establishes the unmarriageability of a woman as the result of a relationship by marriage. For the Hanafis, unmarriageability is established by a valid marriage contract, sexual intercourse in whatever context (i.e. whether as the result of a valid contract, an invalid one, or fornication), love play, or looking at the private parts of a person of the opposite sex.1 The Shafi'is hold that unmarriageability is established only by a valid marriage contract or by the consummation of an invalid marriage contract. They do not consider any other factors, such as fornication or love play, as sufficient to establish unmarriageability.2 The Maliki position is the same as the Hanafi, except in the case of fornication; like the Shafi'is, the Malikis hold that no honour or respect can be paid to fornication.3 In the Hanbali view an invalid contract, like a valid one, results in unmarriageability, as does sexual intercourse.4 The Shi'is hold the same position as the Shafi'is except that the opinion of the 'ulama's split on fornication; one group says that it results in unmarriageability, another group says it does not.5
4. Foster relationships because of suckling (rida'). In establishing unmarriageability, a foster mother who suckles an infant is considered exactly as the infant's real mother, provided that all the shar'i conditions for this relationship are fulfilled, as detailed below. In other words, the children of the foster mother are considered as the child's siblings, and all of her other relatives are considered exactly as if they were truly the child's relatives by blood or marriage.
The Shi'is and Hanbalis hold that the mother's milk must have been the result of pregnancy from marriage.6 The Shafi'is hold that the mere physical possibility of pregnancy is sufficient. Thus, for example, if a married nine year old girl should have begun menstruation and her breasts produce milk, and if she should provide milk for a foster child, the shar'i foster relationship is established.7 The Malikis and the Hanafis maintain that it is only necessary for the woman to have given milk for the relationship
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1. Fiqh, IV, 63.
2. Ibid.,65.
3. Ibid.,66.
4. Ibid.,67-68.
5. Sharh al-lum'a, v, 176-82; Riyad, II,96-97.
6. Fiqh, IV, 268; Riyad, II, 86.
7. Fiqh, IV, 256.
to be established; it makes no difference if she should also be an unmarried virgin, or if she is too young to marry or too old to bear children.1 According to the Hanbali and Shafi'i schools, if the foster mother should have become pregnant through fornication, the relationship of unmarriageability is established only with the mother's blood relatives, not with the father's, since he has no legitimate relationship with the mother. The Hanafi and Maliki schools say that unmarriageability is established also with the father's relatives.2 The Shi'is hold that in the case of fornication no relationship of unmarriageability is established whatsoever, since fornication deserves no respect.3 According to four of the schools, the foster child must have been suckled before it reaches two years of age for unmarriageability to be established. The Malikis set the age at two years and two months.4 According to all the schools, the milk must have entered the infant's stomach. The Shi'is hold that the infant must have suckled at the breast of the foster mother. Hence, if the milk is placed in a container and fed to the child, the foster relationship is not established.5 The Sunni schools hold that the means of drinking the milk is irrelevant. The schools differ as to how many times milk must be drunk. The Shafi'i and Hanbali schools hold that the infant must suckle at least five times.6 The Shi'is hold that it must suckle over a period of twenty-four hours or at least fifteen times, and each time it must drink a quantity of milk that would customarily be called a 'feeding'.7 According to the Hanafis and Malikis, a single act of suckling, even if the infant drinks only one drop of milk, is sufficient to establish the relationship.8
The Shafi'is and the Shi'is add that the foster mother must be alive when the milk is drunk.9 The other schools hold that even if for some reason an infant should suckle at the breast of a corpse, the foster relationship will be established.10
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1. Ibid.,253-55.
2. Ibid.,268-69.
3. Riyad, II, 86.
4. Fiqh, IV, 253.
5. Riyad, II, 86.
6. Fiqh,lv,257.
7. Riyad, II, 87.
8. Fiqh,IV, 257.
9. Ibid., 256; Sharh al-lum'a, II, 63.
10. Fiqh, IV, 254,255, and 261.
5. Religious difference. A woman may not marry a non-Muslim. In Sunnism, a man may marry a woman who is one of the 'People of the Book' (ahl al-kitab, i.e., Christians, Jews, and other religions with revealed scriptures). But in Shi'ism a man may not contract a permanent marriage with a non-Muslim, though he may marry one of the People of the Book temporarily.1 If either of the spouses should become an apostate, the marriage is automatically annulled.
6. Maximum number of wives. A man may not have more than four wives at one time. If a man should divorce one of his wives, he cannot remarry until her waiting period (below, IV) is completed, unless the divorce should be of the irrevocable type (ba'in, see below under III).
7. Divorce. If a man should have divorced his wife irrevocably, she is forbidden to him forever, unless she should marry another man and obtain a divorce from him. Once the woman's waiting period has expired, she may remarry her first husband. The woman's husband is known as the muhallill, 'he who makes [marriage to her first husband] lawful'. The marriage with the muJ:tallil must be consummated.2
8. Sworn allegation. Having annulled his marriage through 'sworn allegation' (li'an, below, VII), a man may never remarry the woman.
C. Guardianship (wilaya)
The legal guardian in the marriage contract may be the father, the father's father (Hanafi, Shafi'i, Shi'i), the executor of the father's will concerning the marriage (wasi), the governor of the town (hakim) in case of the nonexistence of the others (Hanbali), and the owner of a slave (Maliki). The mother has no guardianship except in the Hanafi school, which holds that if there is no close male relative, close female relatives may assume the guardianship and conclude the marriage contract.3
In the Maliki and Shafi'I schools, the participation of the legal guardian is one of the pillars of the marriage; in the Hanbali school it is a condition (shart) of the contract, which means that if the contract is concluded
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1. Sharh al-lum'a, v, 156; Riyad, II, 105-06.
2. Fiqh, IV, 77-84; Riyad, II, 181; Sharh al-lum'a, VI, 46.
3. Fiqh,IV, 27.
without the guardian, it will be valid only on condition that the guardian gives permission afterwards.1 Hence in these three schools the woman does not have the right to conclude a marriage contract without the participation of her guardian.2 In the Shi'i and Hanafi schools the presence of the guardian is required only at the marriage contract of a girl not of age, that is, one who has not yet reached puberty (saghira), or of an incompetent or insane girl or woman of age. In both these schools a girl who is physically mature may marry whomsoever she wishes, and the validity of the contract is not conditional upon the presence of the guardian.3 However, the Hanafis add that since social equality (kafa') is a condition for a valid contract, a guardian may annul a contract concluded by a woman on her own behalf with an unequal man.4
In the Maliki, Hanbali, and Shafi'i schools, the guardian may give a virgin in marriage without her consent, whether or not she is of age. But a woman or girl who has been married before may not be given in marriage without her permission.5 The Hanafis and Shi'is hold that only a girl not of age may be given in marriage without her consent.6 The Shafi'is add here that if an underage girl has already been married, she may not be given in marriage again until she comes of age.7
The regulations of guardianship also apply to boys not of age (saghir) and mentally incompetent men.8
D. Witnesses (Shahid)
The Shafi'i, Hanbali, and Hanafi schools hold that the presence of two witnesses is a pillar of marriage and that without their presence, the contract is invalid.9 The Malikis hold that the presence of two witnesses is necessary at the time of the marriage's consummation (dukhul), but not during the contract, when their presence is merely recommended.10 The Shi'is maintain that the presence of one or more witnesses is not a pillar of the contract, so a man and woman may conclude a contract secretly if they so wish.11
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1. Ibid., 46--47.
2. The major sources for this ruling are two hadith: 'If any of your women marry without the permission ofher guardian, the marriage is invalid (batil)' (Abu Dawud, Nikah 19; al-Darimi, Nikah 11). 'A woman may not be given in marriage by a woman, nor may a woman give herself in marriage' (Ibn Maja, Nikah 15 Malik, Nikah 5).
3. Fiqh, IV, 46--47; Sharh al-lum'a, V, 112; Muhammad b. al-Hasan al-Hurr al-'Amili (d. 1104-1693), Wasa'il al-shi'a, Tehran, 1385/1965-66, XIV, 220-221, hadith 1-3.
4. Fiqh, IV, 46.
5. Ibid.,51-52.
6. Ibid., Sharh al-lum'a, v, 116.
7. Fiqh, IV, 51-52.
8. Ibid.,51.
9. Ibid.,25.
10. Ibid.
11. Sharh al-lum'a, V, 112; Riyad, II, 70.
II. The Statutes Of Marriage
A. The Dower (mahr)
Whenever a man marries a woman, he must give her a dower in return for the sexual gratification he is to receive. The dower must consist of a specified amount of property, cash, or profit. It must be ritually pure and owned by the husband. All schools agree that the dower does not have to be mentioned in the contract. If it is mentioned and does not fulfill the conditions required for dowers, the contract is valid but the dower must be corrected.
There are two kinds of dower. The 'specified dower' (al-mahr al-musamma) is one upon which the man and the woman agree. The 'normal dower' (a!-mahr a!-mathal) is what the woman receives if she cannot come to an agreement with her husband over the specified dower, or if for some reason the specified dower should be invalid. The normal dower is the amount of property, in cash or kind, which other women of the same social status, age, beauty, etc., are receiving in the society of the time.
According to four of the schools, as soon as the marriage contract is concluded, the woman becomes the owner of the whole dower; the Malikis maintain that only one-half of the dower belongs to her at this point.1 Should the wife demand the dower from her husband immediately, he must pay it to her; but if he should divorce her before consummation and she has not yet taken the dower, he only has to pay her one-half.
In all schools, consummation of the marriage or the death of one of the spouses necessitates payment of the full dower. The Malikis add that if the wife should live with her husband at least one year, there being no hindrance to consummation of the marriage, he must pay the full dower.2 The Hanafis maintain that it is sufficient for the man to be alone with his wife on one occasion when there is no hindrance to consummation.3 According to the Hanbalis, being alone with the wife, love play, and seeing her private parts are all sufficient cause for the payment of the whole dower.4
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1. Fiqh, IV, 108.
2. Ibid.,109.
3. Ibid., III.
4. Ibid.,115.
Before consummation of the marriage, payment of all or part of the dower may be nullified for the following reasons: I. One-half is nullified through divorce. 2. If the woman should become an apostate, she loses the whole dower. 3. If the man should become an apostate, the marriage is void, but he still must pay one-half the dower. 4. If the man or woman should annul the marriage because of physical disability or deception by the partner, she forfeits the whole dower; however, the Shi'is hold that if the woman should annul the marriage by reason of the man's impotence, she will be entitled to one-half the dower.1 5. If a man and woman should suddenly become forbidden to each other through the establishment of some relationship, e.g. a foster relationship, where the woman is not at fault, she receives one-half the dower; if she is at fault she loses all of it.
According to the Maliki, Hanbali, and Shi'i schools, if the marriage contract should be invalid but copulation takes place, the woman is entitled to the specified dower.2 The Shafi'is hold that in such a case, she receives the normal dower.3 The Hanafis rule that she will receive whichever of the two dowers is less.4 In a case of 'mistaken intercourse' (waty a!-shubha), where copulation takes place because the man and woman mistakenly believe themselves to be husband and wife, the woman is entitled to the normal dower.
The woman may refrain from sexual intercourse as long as she has not received the dower. In such a case the man may not claim conjugal rights unless it was explicitly stated in the marriage contract that the dower would be paid at some later date. But if the woman should accept intercourse before receiving the dower, from then on she may not refuse her husband, unless it is proven that he has no ability to pay the dower; here the Shi'is take exception, holding that once the marriage is consummated, the wife may not refuse intercourse because of the husband's inability to pay the dower.5 The Hanbalis, Shafi'is, and Malikis say that if the husband's inability to pay is proven before consummation, the woman may annul the marriage; with the exception of the Hanbalis, they hold that she may not do so after consummation, since her willingness to engage in sexual intercourse proves
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1. Sharh al-lum'a, II, 101; Riyad, II, 135.
2. Fiqh, IV, 120-21; Sharh al-lum'a, II,101; Riyad, II, 135.
3. Fiqh,lv,118.
4. Ibid.,116.
5. Sharh al-lum'a, v, 371-72; Riyad, II, 149.
that she accepted the marriage's validity; the Hanbalis say the woman may annul the marriage even after consummation.1 The Hanafis and Shi'is hold that the woman may not annul the marriage, but she may refuse to engage in intercourse.2
If the woman should decide to return part or all of her dower to her husband, he is then free from the obligation to pay it to her.
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1. Fiqh, IV, 165.
2. Ibid., 163; Riyad, II, 109-10.
