Conditions in the Contract of Mut'a
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Murata"
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,
As for conditions not mentioned in the text of the contract itself, but stated before or after the contract, their fulfillment is not obligatory. Concerning this point both al-Shaykh al-Ansari and al Tabataba'i claim a consensus of the ulama.1 A number of hadith are mentioned in this connection, among them these words of the Imam Ja'far: ' Any condition before the marriage is destroyed by the marriage, but what is after the marriage is permissible.'2 Here by 'after the marriage' is meant immediately after the words of the woman: 'I have married myself to thee.' Hence, the condition enters into the declaration and becomes a necessary condition of the marriage. ' After the marriage' does not signify after the acceptance by the man. The Imam's words 'permissible' here are usually interpreted to mean 'incumbent'.3
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. As already mentioned, 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. As the Prophet said: 'The believers hold fast to their conditions [which they stipulate].' However, if only a given number of sexual acts is stipulated without mention of a time period, the contract is invalid, since the time period must be stated.4
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.5 In addition, the Imam Ja'far was asked explicitly if such a condition was permissible. He replied: 'The man has to fulfill the stated conditions.'6 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. 7
2. Wasa'ill, XIV, 468-69, hadith, 2.
4. Sharh al-lum'a, v, 288; Matajir, II, 301.
5. Matajir ,lI,301;Jawahir,v, 173;Riyad,II, 116.
6. Wasa'il, XIV, 491, hadith I.
7. Riyad, II,116
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