The Fourth Pillar of Mut'a
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Murata"
IV. 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.1
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.2 On this point there are specified hadith as well as the general hadith which state that a woman who enters into mut'a is 'rented'.3 If the dower is not mentioned, the contract is unanimously held to be invalid, On this point also there are a number of hadith.4
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 (see below). Several hadith are recorded which establish this point without question.5
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.6
But if the man should give only part of the time period back to the woman before consummation, there is a difference of opinion as to the dower. According to al-Shaykh al-Ansari and al-Shahid al Thani, the situation cannot be the same as in the first case--where the whole time period was given back-since in this second case the essential point is that mut'a demands a full dower.7
The difference between the first and second cases is explained in more detail by al-Shahid al Thani. He poses the question: 'What is it that requires one-half of the dower to be held back from the woman? Is it two things together, i.e., not consummating the marriage and giving back the whole of the time period? Or does the problem revolve around whether or not the marriage was consummated?' He states that there are two possibilities: On the one hand, the hadith are explicit concerning the matter of consummation. The situation is exactly the same as in divorce after permanent marriage: one-half of the dower must be paid if the marriage has not been consummated, but the whole dower must be paid if it has been consummated. So in this respect, the reason that one-half the dower is held back is that the marriage was not consummated. On the other hand, there is the question of what exactly necessitates that the dower be paid. In permanent marriage the key element is consummation. But temporary marriage is different from permanent marriage because of the time period. Therefore the time period also must be taken into account.8
Al-Shahid al Thani remarks that the difference between these two possible interpretations becomes obvious in a situation where the husband should return more than one-half of the time period to the wife, not having consummated the marriage. According to the first interpretation, the wife must receive the whole dower; but according to the second, she is only entitled to one-half of it, He concludes that the second interpretation would seem to be the correct one, so long as we accept the authenticity of the hadith attributed to the Imam al-Hasan: When asked about a man who gave the remaining time period back to his temporary wife before the consummation of the marriage, he replied in a general sense, 'The woman must return one-half the dower to the man.'9
Al-Shaykh Muhammad al-Hasan holds that whether the full dower or only one-half is to be paid depends totally upon the question of consummation. 'Giving back the time period' is equivalent to using it up completely. In other words, when the man returns the remaining time period to the woman, he has already taken possession of conjugal rights with her for the elapsed time. But this does not require that the woman relinquish one-half of the dower. In this respect the situation resembles the woman's 'giving back the dower' in permanent marriage. If the woman thus relinquishes her claim to it, this does not mean that her husband is no longer her husband in the full sense. Therefore, giving back the time period has no relationship with the dower being reduced to one-half. The only question to consider is whether or not the marriage has been consummated. If it has been consummated and then the husband returns some or all of the remaining time, the wife is entitled to the whole dower, since without question the dower becomes necessary as soon as consummation takes place.10
Whether the time period is given back with or without consummation, the wife's consent is unnecessary, since giving back the period is equivalent to the erasing of a debt owed by the woman.11
If of her own free will a woman who has concluded a contract of mut'a should separate from her husband before the end of the time period, whether before or after consummation, the man reduces the dower in proportion to the amount of time by which the time period of the mut'a has been reduced-provided, that is, that he has not already paid her the full dower.12 Thus, for example, if the woman's dower is 3000 rials and the time period 30 days; and if the woman should separate from her husband after 20 days, her husband would reduce the dower by one-third. Hence, if the woman should fail to fulfill any of the conditions of the marriage for the whole time period, she forfeits the whole dower. The reason she forfeits part or all of it is that first, the contract of mut'a by definition entails an exchange, such that the woman is in the position of a 'rented' object, Second, numerous hadith have been recorded concerning this particular point, For example, the Imam Ja'far was asked if it is permissible to hold back part of the dower if the woman fails to put herself at her husband's disposal. He replied: 'It is permissible for you to hold back what you can [i.e., what you have not already given her]. So if she goes back on her word, take from her [in proportion to] the amount she has broken the contract.'13
However, if the woman should fail to provide the man with conjugal rights because of an excuse sanctioned by the sharia, such as menstruation or 'fear of an oppressor', then the dower may not be reduced. A man came to the Imam Ja'far and said:14 'I concluded a contract of mut'a with a woman for one month for a given amount, But the woman only came to me for part of the month, and part she stayed away.' The Imam replied: 'An amount should be held back from her dower equivalent to the amount she stayed from you, except for the days of her menstruation, for those belong to her.'
If it should become apparent that the contract is invalid because the woman already has a husband, or because she should be maintaining a waiting period as the result of a previous marriage, or because she is forbidden to the man by family relationship, or because of some other reason, then one of the following courses of action should be taken:
If the marriage has already been consummated and if the woman was ignorant of the fact that the contract was invalid at the time of sexual intercourse, then she should be given the 'normal dower'. Here the reasoning is that the fact of intercourse has to be honored and compensation given. Since the contract is invalid, the 'specified dower' is nullified; hence the normal dower must be paid.15
As for whether the normal dower is the same as that for permanent marriage or is to be adjusted according to the time period of the mut'a, the most authoritative opinion is voiced by al-Shaykh al-Ansari and al-Shaykh Muhammad al-Hasan. They hold that the normal dower is the same as for permanent marriage. AI Tabataba'i argues that here the normal dower is compensation for 'mistaken intercourse'. Since the contract was invalid without the knowledge of the husband and wife, their intercourse is 'mistaken'. Therefore the man must pay the normal dowry of permanent marriage, which is demanded in any instance of 'mistaken intercourse'.16 The time period for which the woman was at the man's disposal is irrelevant, just as there is no difference between one act of sexual intercourse and several acts as long as the mistake remains in force.17
If it should become apparent that the contract is invalid before the marriage is consummated, the woman receives no dower. Only a valid contract or the fact of intercourse warrants the dower's payment. Al-Shahid al Thani claims that on this point there is consensus among the ulama.18
If the marriage has been consummated and the woman was aware of the contract's invalidity, she can have no claim to a dower, since she is a fornicatress, and there is no dower for fornication.
In all three of the above cases, if the man has already given the woman the whole dower, she must return part or all of it as soon as the invalidity of the contract becomes apparent. If she no longer possesses the amount which must be returned, she is liable for it, no matter how it may have left her hands-whether, for example, she has spent it or it was stolen.19
If the woman should die during the period of the mut'a, even if it be before consummation, her dower may in no way be lessened, exactly as in permanent marriage.20
1. Matajir, II, 300; Sharh al-lum'a, V, 284.
2. Wasa'il, XIV, 467, hadith 5.
3. Matajir, II. 300; Masalik, l, 538.
4. Wasa'il, XIV, 465-66, hadith 1-3.
5. Ibid., 482, hadith 1-2; 483, hadith I.
6. Sharh al-lum'a, v, 285; Shara'i, II, 24; Matajir, II, 300; Masalik, 1,538.
7. Matajir, II, 301; Sharh al-lum'a, V, 285; Masalik, 1,538.
8. Masalik, I, 538.
9. Wasa'il, XIV, 483, hadith I.
10. Jawahir, V, 168.
11. Sharh al-lum'a, v, 285; Masalik, I,538.
12. Sharh al-lum'a,v,285.
13. Wasail, XIV, 481, hadith I.
14. Ibid., hadith 4.
15. Masalik, l,539; Matajir, lI,301; Riyad,II,114.
16. Riyad, II ,115.
17. Matajir, II, 301.
18. Masalik, I, 538.
19. Matajir, II, 301; Sharh al-lum'a, v, 287-88.
20. Sharh al-lum'a, v, 286.
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