The Opinions of the Four Sunni Schools of Law about Mut'a
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Murata"
The Opinions Of The Four Sunny Schools Of Law 1
The general opinion of the four Sunni schools of law concerning the reason mut'a was permitted and then afterwards prohibited can be summarized as follows: At the beginning of Islam, the Muslims were in the minority and were often at war. Many of them were not able to marry and raise families, since they were constantly being called upon to travel long distances and to engage in battle with the unbelievers. Moreover, they had only recently embraced Islam; formerly, they had been accustomed to the concupiscence of the pre-Islamic Arabs, who would often possess harems containing large numbers of wives. They would have sexual relationships with whichever wife they desired, and leave aside those who no longer held any interest for them. The only 'principles' involved in their sexual affairs were lust and desire. When such men became Muslims, with Islam's strict guidance for sexual relationships, it was difficult for them to spend much of their time at war with no opportunity to satisfy their sexual instincts. Hence it was natural that they be allowed to practice temporary marriage, especially since such marriages do not involve any permanent bond of the type which requires constant care and attention towards a wife and children. Nor at the time of war could the usual means of reducing sexual desires, such as fasting, be employed, since these would also reduce the fighting ability of the soldiers.
Hence we see that the reason mut'a was permitted was the special situation pertaining to the beginning of Islam. The hadi'th of Sabra related by Muslim confirms this view: 'The Messenger of God gave us permission to practice mut'a on the day of conquest when we entered Mecca. Then as soon as he left the city, he banned it once again.' This hadi'th illustrates clearly that mut'a was permitted due to the special circumstances connected with military expeditions.
Ibn Maja relates that the Prophet said: 'Oh people! I would give you permission to practice mut'a, but God has forbidden it until the Day of Resurrection.' When we look at the status and rules of Islam in general we see that mut'a's prohibition is in keeping with Islam. For fornication and adultery are looked upon as a heinous form of sin and necessitate a terrible punishment. Islam forbids anything which would tend towards obscurity and make it easy to commit detestable acts. The Qur'an states: ' Approach not fornication; surely, it is indecency, and evil as a way' (17:32). And according to the Prophet: 'No one is a believer in the act of fornication.' Fornication is considered a sin in Islam for many reasons, but certainly these are sufficient: It results in the destruction of human dignity, the mixing of lineage and kinship, and the loss of modesty. But Islam came to eliminate such things and to a large degree was successful in extirpating all despicable acts. Considering the high level of humanity and outstanding moral qualities the Muslims achieved, it is not reasonable to suppose that temporary marriage should be permitted.
The four Sunni schools of law all agree that temporary marriage is invalid. That which invalidates the contract is the stipulation of a time period. If such a marriage takes place, it must be annulled, and if it is consummated before the annulment takes place, the woman must be paid the 'normal dowry'.
The Shafi'i school adds that even if the time period stipulated by the contract should be the life-time of the husband or the wife, the contract is still invalid, since the contract of marriage requires that its effects continue after death. That is why a spouse may give his or her spouse the ritual purification of the dead before burial ( otherwise, the washer of the dead must be of the same sex as the corpse). A marriage contracted with a stipulation that it comes to an end when one of the spouses dies would mean that the effects of the marriage would end at death. So such a stipulation invalidates the contract.2
The Hanafis add that if the time period stipulated is so long that as a rule the spouses could not remain alive until it comes to an end (e.g., if the man were to say: 'I will marry you until the hour of Resurrection '), then we can no longer call the marriage 'temporary'. In effect this stipulation means 'forever'. Hence it is nullified as a stipulation of a 'time period' and the contract is sound. If the husband's intention in contracting the marriage is to enjoy the woman 's company only for a period of time, but he does not make such a stipulation in the contract, the marriage is correct. In the same way, if a person should marry making it a condition of the contract that a divorce will take place after a certain period of time, the contract is correct but the condition is nullified, since such a condition cannot limit the contract.3
In any case the four schools agree that the punishment for a person who enters into a temporary marriage is not the same as that for fornication. In the latter case the punishment (hadd) is 100 lashes for each party in the case of an unmarried woman, and stoning to death in the case of a married woman. But the punishment for mut'a is defined as ta'zi'r, i.e., less than the full punishment for fornication, depending on circumstances and the opinion of the judge. The penalty for fornication is not exacted because certain doubts remain concerning the status of mut'a as a result of the hadi'th of Ibn 'Abbas.
1. Fiqh, IV, 90-92.
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