CHAPTER FIVE: MUT'AH: TEMPORARY MARRIAGE
It is a woman marrying a man according to an agreed upon dower and for a pre-determined period of time stated in a marriage contract which incorporates all the conditions of a marriage regarded by the Shari' ah as sound. Its format is that a woman says the following to the man after they both agree and accept the dower and the period of time: "I married you to myself on such-and-such a dower and for the known period of time" where this period is named exactly. The man's answer will be: "I accepted".
Representation in this contract is accepted just as it is in any other contract. According to the terms of the contract, the woman becomes the wife of the man, and the man becomes her husband until the end of the period specified in the contract. They may renew it to a different period of time or even forever if they wish. The wife has to observe the 'iddah (waiting period) after the period terminates. The duration of the 'iddah will be two months if she still goes through the menstrual period; otherwise, it is forty-five days. The child, male or female, born out of a mut'ah marriage belongs to his/her father. 1
This type of marriage is used to scandalize the Shi'ah because the latter believe in its legality, but the questions here are:
• Where did the Shi'ahs come up with this sort of marriage?
• Is this sort of legality subject to what a mujtahid deems as permissible or prohibitive?
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1 Imam Sharaf ad-Din, Al-Fusul al-Muhimmah.
• And what are the proofs for its legality from the Glorious Book and the Purified Sunnah?
In order to answer all these questions, we say that all Muslims, in their various sects, are unanimous in their view that this sort of marriage was legislated in the dawn of Islam. Al-Bukhari, quoting ['Abdullah] Ibn 'Abbas, cites the latter saying, "We used to participate in military campaigns with the Prophet (a.s), and we did not have our women with us, so we said to him, 'Could we have eunuchs [for sex]?' But he prohibited us from doing that and later permitted any of us to marry a woman by giving her as simple [a dower] as a garment. Then he recited the following verse: '0 you who believe! Do not make unlawful the good things which Allah has made lawful for you...' (Qur'an, 5:90)." 1 The verse saying "... seeing that you derive benefit [mut'ah, enjoyment] from them, give them their prescribed dowers" (Qur'an, 4:24) had already been revealed about this type of marriage. Most Sunni scholars of exegesis have explained "enjoyment" in this verse as the mut'ah marriage. But Ibn 'Abbas, Ubayy ibn Ka'b and Said ibn Jubayr read this verse as though it says: "From whoever among them you derive a pleasure for a predetermined period, you must give them their dowers." 2
Explaining this verse in his Tafsir, Ibn Kathir said the following: "It is far-fetched that these should believe in the distortion of the Qur'an; therefore, it must be intended for interpretation rather than recitation ..." 3 But Islamic sects differed about the continuity of permitting this sort of marriage, and the problem became: Was the mut'ah marriage prohibited or did it remain as is? The following hadith proves beyond any doubt that the Messenger of Allah (a.s) passed away without having prohibited the mut'ah marriage:
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1 A1-Bukhari, Sahih, Vol. 6, p. 110 in the book of exegesis in a chapter about the verse saying, "O you who believe! Do not make unlawful the good things which Allah has made lawful for you" (Qur'an, 5:90).
2 Ibn Kathir, Tafsir; Muslim, Sahih (as explained by al-Nawawi), Vol. 3, p. 552 (Dar al-Sha'b edition).
3 Ibn Kathir, Tafsir.
'Imran is quoted as having said, "The verse of mut'ah was revealed in the Book of Allah (a.s), so we acted upon it in the company of the Messenger of Allah (a.s), and no verse was ever revealed prohibiting it, nor did he (a.s) ban it until his death. A man [apparently referring to 'Umar ibn al-Khattab] said according to his own personal view whatever he wanted to say." 1
It is stated in Shari! al-Bari'ala Sahih al-Bukhari that the man referred to in the hadith cited above is caliph 'Umar ibn al-Khattab. 2 This supports what Muslim narrates in his Sahih relying on the authority of Abu Nadrah who has said, "I was with Jabir ibn 'Abdullah [al-Ansari] when someone came to him and said, '['Abdullah] Ibn 'Abbas and [' Abdullah] ibn al-Zubayr differed with each other about both types of mut'ah.' Jabir said, 'We did them both in the company of the Messenger of Allah (a.s), then 'Umar prohibited us from doing them; so, we did not return to doing them." 3 Also in Muslim's Sahih, with isnad traced back to 'Ata' who has said, "Jabir ibn 'Abdullah came to perform the 'umrah. We, therefore, went to his house. People asked him about things, then they mentioned mut'ah. He said, 'Yes, we did perform the mut'ah during the time of the Messenger of Allah (a.s) and during that of Abu Bakr and of 'Umar.'" 4 Muslim, relying on the isnad of Jabir ibn 'Abdullah, also narrated in his Sahih that the latter had said, "We used to contract mut'ah for a handful of dates and flour for a few days during the time of the Messenger of Allah (a.s) and that of Abu Bakr until 'Umar banned it with regard to 'Amr ibn Huraith ..." 5
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1 Al-Bukhäri,Sahih, Vol. 2, p. 375 in the book of Hajj.
2 Sharh al-Bari 'ala Sahih Al-Bukhari, vol. 4, p. 177; Shari: al-Nawawi 'ala Sahih Al-Bukhari, Vol. 3, p. 364 (Dar al-Sha'b edition).
3 Muslim, Sahih, Vol. 3, p. 556 in the book of uikdh in a chapter about mut'ah (Dar al-Sha'b edition) as explained by al-Nawawi.
4 Ibid., Vol. 3, p. 555 in the book of 'likenh in a chapter about mut'ah (Dar alSha'b edition) as explained by al-Nawawi.
5 Ibid., Vol. 3, p. 556 in the book of nikalt in a chapter about mut'ah (Dar alSha'b edition) as explained by al-Nawawi.
The story of 'Amr ibn Huraith is that a poor woman knocked at the man's door once pleading to him to give her something to satisfy her hunger, but the man refused to give her anything unless she let him have her way with her, claiming that it was the mut'ah marriage. The woman accepted this condition against her will. Caliph 'Umar came to know about it, so he was very angry. This prompted him to ban it. Moreover, he decreed to stone anyone who practiced this type of marriage as is clear from a narrative recorded by Muslim in his Sahib the isnad of which is traced to Abu Nadrah. The latter said, "Ibn 'Abbas used to enjoin the mut'ah, and Ibn alZubayr used to prohibit it, so I mentioned this to Jabir who said, 'We used to practice mut'ah when we were in the company of the Messenger of Allah (a.s). When 'Umar came [to power], he said, 'Allah makes lawful for His Messenger whatever He wills; so, complete the hajj and the 'umrah and stay away from marrying these women. If a man is brought to me who had married a woman off to a man, I will stone him.'" 1
And in al-Tirmidhi's Sahih, while quoting 'Abdullah ibn 'Umar who was asked by a Syrian about the mut'ah. He said, 'It is lawful.' The man said, 'Your father ['Umar ibn al-Khattab] banned it.' ['Abdullah] Ibn 'Umar said, 'Do you see that my father banned it although the Messenger of Allah (a.s) had permitted it, should you abandon the Sunnah [of the Messenger of Allah (a.s)] and follow what my father says?!" 2
The nation's scholar (habr al-ummah), 'Abdullah Ibn 'Abbas, was famous with regard to his view that the verse relevant to mut'ah was never abrogated. Al-Zamakhshari says the same in his tafsir titled Al-Kashif where he cites Ibn 'Abbas saying that the verse of the mut'ah is among the fixed ones. In al-Bukhari's Sahih, too, there is a testimony to this fact. Abu Jamrah says, "I heard Ibn 'Abbas being asked about the mut'ah of women; he permitted it. Mawla said to
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1 Al-Bukhari, Sahih, Vol. 3, p. 331 in the book of Hajj in a chapter about the scholars' views regarding the legitimacy of one who performs the mut'ah while performing the 'umrah (Dar al-Sha'b edition).
2 Al-Tirmidhi, Sahih.
him, 'Such is done during a harsh circumstance and when there is a shortage of women,' or something like that, whereupon Ibn 'Abbas said, 'Yes.'" 1
Both al-Tabarani and al-Tha'labi, each in his own tafsir book, rely on the authority of 'Ali (a.s) saying, "Had 'Umar not banned the mut'ah, nobody would have committed adultery except a wretch," 2 that is, only few would have committed it.
Despite the clarity of all these proofs that are as clear as the midday sun regarding the continuity of the mut'ah marriage being halal, most Sunnis nowadays see the opposite, claiming that the verse relevant to this type of marriage was abrogated. They also differed regarding what [or who] abrogated it. Some of them say it was abrogated by a Qui'anic verse, while others say that the revocation came from narratives in the Sunnah. We rebut both views with the above-cited traditions the authenticity of which is already fixed and which prove that the Messenger of Allah (a.s) died without prohibiting the mut'ah.
As regarding those who say that it was abrogated by this verse: "... who guard their private parts, except with those joined to them in the marriage bond" (Qur'an, 23:5-6), this verse is Makkiyyah (revealed in Mecca) while the mut'ah verse is Madaniyyah (revealed in Medinah) [i.e. revealed after the Hijra]. The ruling for the legislation of the mut'ah marriage is Madaniyyah, and what precedes cannot abrogate what follows. As regarding those who say the abrogation came from the Sunnah which is narrated about the Messenger of Allah (a.s), the "traditions" which they claim to be abrogating contradict each other. Some of them say it was abrogated in Khayber, another in Awtas, a third when Mecca was conquered, a forth in the Tabak campaign, a fifth in the 'umrah of qadei' and a sixth in Hijjatul-Wade' (farewell pilgrimage)...! The inconsistency of these narratives and their contradiction is a clear proof of their inaccuracy. Add to this fact that such narratives are no more than
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1 Al-Bukhari, Sahih, Vol. 7, p. 36 in the book of nikah.
2 Al-Tabarani, Tafsir. AI-Tha'labi, Tafsir.
transmissions each one of which was related by one single person and do not qualify to abrogate a ruling fixed in a Qur'anic verse and the legality of which is proven according to the consensus of the Muslims because abrogation cannot take place through one single person's narrative, and a Qur'anic verse cannot be abrogated except by another verse of the Qur'an by virtue of the verse saying "We neither abrogate any of Our revelations nor cause them to be forgotten without substituting [them with] something better or similar" (Qur'an, 2:106).
Besides the existence of all these clear texts which prove the legality of the mut'ah marriage and that the Prophet (a.s) never banned it but stayed until caliph 'Umar banned it during his reign, we cannot find a solution for this complex except that caliph 'Umar followed his own ijtihad in order to achieve a [social] benefit which he, according to his own insight, saw the Muslims of his time and days required him to prohibit the mut'ah a civil prohibition, in order to serve a temporal interest, not a religious prohibition, since caliph 'Umar is greater and is Islamically above prohibiting what Allah has permitted or incorporating in the religion what has nothing to do with the religion. He knew that what Muhammed (a.s) deemed as halal remains permissible until the Day of Judgment, and what Muhammed (a.s) deemed as haram remains prohibitive until the Day of Judgment. It has, therefore, to be a civil prohibition, not a religious one. His strict stand vis-à-vis the mut'ah marriage is not the first of its kind, for he is known to be tough and harsh in all his affairs and applies his personal ijtihad seeking the higher benefit, in his view, for Islam and the upholding of the Shari'ah. 1
One example of 'Umar applying his own ijtihad in some ruling and his strictness in their regard is when he ordered the Muslims to perform the nafl (supererogatory) prayers during the month of Ramadan (what is known as "salat al-tarawir) in a congregational manner after it had been performed during the time of the
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1 Excerpted and edited from the book titled Asl al-Shi'a wa Usuluha [the origin and principles of Shi'ah] by 'allamah Muhammed Al Kashif
Messenger of Allah (a.s) and that of Abu Bakr individually. Relying on the authority of Aba Hurayrah, al-Bukhari states the following: "The Messenger of Allah (a.s) said, 'One who stands in prayers during the month of Ramadan out of a firm belief and a sincere desire for rewards, his past sins shall be forgiven.' Ibn Shihab said, 'The Messenger of Allah (a.s) passed away and people were thus doing [praying during the month of Ramadan the nail prayers singly], and it remained so during the caliphate of Abu Bakr and the dawn of the caliphate of 'Umar. I went out with 'Umar ibn alKhattab in a night during the month of Ramadan to the Mosque and saw the people scattered, each praying on his own, each man praying by himself. A man would pray on his own, while others see a man pray so they pray like him. 'Umar said, 'I am of the view that if I gather these to pray behind one qari, it would be better.' He gathered them all to pray behind Ubayy ibn Ka'b. I went out with him in another night and I saw the people following the prayer of their qari. 'Umar said, 'How good this bid'ah (invention in the creed) is! And the one after which they sleep is better than the one after which they stand,' meaning the one performed at the end of the night is better, and people used to stand for the prayers at the beginning of the night." 1
Even with regard to this same nail prayer ritual, he ['Umar] followed his personal ijtihad, increasing the number of its prostrations to twenty. 'A'ishah has said, "The Messenger of Allah (a.s) never increased the number of prostrations over eleven neither during the month of Ramadan nor in any other month." 2 But some of those who were contemporary to caliph 'Umar, in addition to some naive traditionists after him, when the latter were unmindful of the reason why the caliph banned the mut'ah marriage, found it quite serious that he should ban what Allah had permitted, so they were forced to find a justification for it. They could not find anything other than the claim that the Prophet (a.s) abrogated it
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1 Al-Bukhari, Sahih, Vol. 3, p. 126 in the book of the tarawih prayer in a chapter about the merit of one who stands for prayers during the month of Ramadan.
2 Ibid., Vol. 2, p. 137 in the book of tahajjud.
after permitting it, thus falling into confusion, and their statements contradicted each other so much.
Look into the following narrative so you may see the extent of such confusion and contradiction about which we are talking. More calamitous is that those who fabricated the following narrative attributed their fabrication to 'Ali (a.s):
Al-Bukhari, in his Sahih, has stated the following: "Someone said the following to 'Ali, may Allah be pleased with him, 'Ibn 'Abbas finds no fault with the mut'ah of women.' 'Ali (a.s) said, 'The Messenger of Allah (a.s) banned it in the Battle of Khayber and banned eating the meat of domiciled donkeys.' Some people said, 'If one applies trickery until he has mut'ah, his marriage is invalid.' Some other people said, 'The marriage is permissible, but the condition is nil.'" 1
Had these folks understood the reason why the caliph ['Umar] had banned it, they would not have had to resort to such an effort and such confusion. Mut'ah has been looked into above from both its theological and historical aspect. As regarding looking into it from the ethical and social standpoint, its legislation came as a mercy to people and to provide an ease to many, especially to those who travel seeking knowledge, or trade, or jihad, or guard a border..., situations in which a permanent marriage is not possible because of its consequences and requirements which do not agree with the conditions of travelers especially while they are young and the desire in them is fiery. They face one of two options: They may either remain patient and declare a jihad against their own self, something which brings about a great deal of hardship which may lead to malignant ailments and lethal psychological ills and other harms with which people are familiar, or they may fall into adultery which has filled the world with corruption and harm.
These reasons are the same that prompted one of the Gulf preachers
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1 Al-Bukhari, Vol. 9, p. 76 in the book of ikra (doing something forced by extreme necessity) in a chapter Abut the legality of a marriage.
named Sheikh Ahmed al-Qattan to issue a fatwa to Arab students in the Philippines to practice temporary marriage under a different name which he called "marriage with the intention to divorce." The condition in this marriage is that the husband intends to divorce his wife without anyone knowing about this intention, that is, that his marriage is in his mind temporary, while according to the knowledge and intention of the wife, it is permanent. The husband divorces his wife at the end of the period which he had in mind.
Although those who invented this sort of marriage admit that it contains lying to the wife and cheating her, and although there is no evidence for it in the Qur'an or in the Prophetic Sunnah, they justify it in their own legislation by saying that its harm, at any rate, remains much less than the harms of adultery! Our Sheikh named above issued such a fatwa when he was asked about the mut'ah marriage and about Ibn 'Abbas legalizing it. He answered by saying that this kind of marriage is prohibitive and that Ibn 'Abbas was wrong in his verdict. He added commenting thus: "Had we followed the scholars' slips, we would have turned apostates!"
Thus became the bid'ah of a "marriage with the intention to divorce", according to the view of al-Qattan, a substitute for the mut'ah marriage which was brought in the Book of Allah and in the Sunnah: "Will you exchange what is better for what is worse?!" (Qur'an, 2:61); so, there is no power nor might except in Allah.
Mut'ah Of The Hajj
As for the mut'ah of the hajj, it was practiced by the Messenger of Allah (a.s) who enjoined it in accordance with the verse saying: "If anyone wishes to continue the 'Umrah on to the hajj, he must make an offering, such as he can afford; he should fast three days during the hajj and seven clays on his return, making ten days in all. This is for those whose home is not in (the precincts of) the Sacred Mosque" (Qur'an, 2:196). It is described as "enjoyment during the time of hajj" due to the pleasure of permitting what the ihram prohibits during the period from both ihram (the ihram for the 'Umrah and the ihram for the Hajj) 1, and this, too, was detested by
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1 Imam Sharafud-Din,
caliph 'Umar and which he banned despite the fact that the Messenger of Allah (a.s) died without having banned it. Al-Bukhari, relying on the authority of Said ibn al-Musayyab, has stated the following: "'Ali (a.s) and 'Uthman differed with regard to their views about the mut'ah. 'Ali (a.s) said, 'You only want to prohibit something which the Prophet (a.s) had personally done.' When 'Ali (a.s) saw that, he permitted both." 1
And look into the following hadith which al-Bukhari records in his Sahih) and which clearly shows that there were those who followed their own ijtihad with regard to clear statements made by the Prophet (a.s):
Al-Hakam has said, "I saw both 'Uthman and 'Ali. 'Uthman used to ban the mut'ah and ban one from combining both. 'Ali (a.s) permitted both saying, 'Labbayk for an 'umrah and hajj!' He said, 'I shall never abandon the Sunnah of the Prophet (a.s) simply because someone said something.'" 2
The "someone" to whom 'Ali (a.s) referred in his statement above is 'Umar ibn al-Khattab as we clarified in previous places. As for the excuse of 'Uthman with regard to his view, when allegiance was secured for him as the caliph, 'Abd al-Rahman ibn 'Awf, as ordered by caliph 'Umar before the latter's death, preconditioned on him to act upon the Book of Allah (a.s) and the Sunnah of His Prophet (a.s) and the way of both sheikhs [Abu Bakr and 'Umar]. Banning both types of mut'ah was considered as part of the way of both sheikhs and to which 'Uthman could not apply his own ijtihad; otherwise, he would not have become caliph if he refused to accept that condition. It is consecutively reported about caliph 'Umar that he has said, "Two types of mut'ah used to be in effect during the time of the Messenger of Allah (a.s) and I now ban," 3 meaning the mut'ah of women and of hajj. This statement by caliph 'Umar shows that dealing with their own rulings came only from him, not from anyone else. He admits that both types of mut'ah were in existence during the time of the Prophet (a.s), and he does not indicate at all that the Prophet (a.s) had banned them; rather, he here
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1 Al-Bukhari, Sahih, Vol. 2, p. 374 in the book of Hajj
2 Ibid., Vol. 2, p. 371 in the book of Hail.
3 A1-Razi,A!-Tafsir al-Kabir, Vol. 5, p. 153 (Dar Ihya' al-Turath al-'Arabi). Al-Tabarani.
is admitting banning them himself saying, "... and I now ban."
May Allah have mercy on one who said the following about the previous statement by 'Umar: "We accepted his testimony [that the Prophet (a.s) never banned these mut'ahs] and did not accept his prohibition thereof."
The fact is that anyone who reviews our Islamic history subjectively and away from fanaticism will find many other rulings (besides those relevant to both mut'ahs and to the tarawih) which came to exist out of the ijtihad of caliph 'Umar and despite the existence of fixed statements by the Prophet (a.s) which oppose them. But the Sunnis accepted these OW rulings across the centuries thinking they came from the Prophet (a.s)...!!!
