The Second Pillar of Mut'a
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Murata"
II. The Persons
A man can conclude a contract of mut'a only with a Muslim or one of the 'People of the Book'. It is not permissible to engage in temporary marriage with an unbeliever or an enemy of the Household of the Prophet (ah! a!-hayt, i.e., the Imams), such as a follower of the Khawarij. A Muslim woman cannot marry a non-Muslim.
If the man has a free, permanent wife, he cannot contract a mut'a with a slave without his wife's permission. Should he do so, the contract is invalid or in abeyance pending her permission. If the slave should belong to someone else, a mut'a cannot be contracted without her master's permission. Several hadith have been recorded on this point, For example, the Imam Ja'far says: 'There is nothing wrong with marrying a slave [temporarily] with the permission of her master.'1
A man is not permitted to marry the daughter of his sister-in-Iaw or brother-in-law without his wife's permission. Should a contract be concluded without her permission it is invalid or in abeyance until she gives her permission.2 With these two exceptions, the relatives to whom marriage is not permitted are the same as in permanent marriage.
It is recommended that a Muslim man conclude a temporary marriage only with a chaste Muslim woman. Here by 'chaste' (afifa) the classical authors have in mind someone who has never committed fornication and who follows the shari'a in her activities. More specifically, the adjective denotes a woman who has observed the shar'i laws concerning marriage and in general is honest and upright. The two attributes 'Muslim' and 'chaste' are derived from sayings by two of the Imams: the Imam al-Rida was asked: 'Is it possible for a man to conclude a temporary marriage with a Jew or a Christian?' He answered: 'I would prefer that he engage in mut'a with a free Muslim woman.'3 To a question about performing mut'a, the Imam Ja'far replied: 'It is permissible. So marry none but a chaste woman, for God says, " And those who guard their private parts" (23:5). Hence you should not put your private parts where you do not feel safe with your dirhams.'4
If someone makes an accusation against a woman, it is recommended that before concluding the contract of mut'a with her the man inquire from her about her situation, i.e., as to whether or not she has a husband and whether or not she is chaste. But asking is not a condition of the contract.5 According to the 'Principles of Jurisprudence',6 the principle of 'correctness' as applied to the acts of a Muslim7 demands that one consider the act of a woman who has declared herself ready to enter into mut'a as correct. According to this principle, whenever we are in doubt concerning the correctness of the act of a Muslim, we preserve the social and legal order by judging that his act was correct. For example, if we are in doubt concerning the legality of a couple's marriage, we judge that it was legal. Otherwise we would also have to doubt the legitimacy of their children, the application of the laws of inheritance, etc. In a different area of the law, the canonical prayer provides a good example: If, after finishing his prayer, a person doubts as to whether or not he said the correct number of cycles, he assumes the number was correct, Otherwise he would spend a good deal of his time repeating acts of worship he has already performed. The slightest doubt would be sufficient to cause him to repeat the same act.
On the basis of this principle, one must dismiss the possibility that a potential wife might be unchaste, so it is unnecessary to ask her. Several hadith are related which demonstrate the reprehensibility of asking about the woman's situation after the contract has been concluded. For example, a man once said to the Imam Ja'far: 'I married a woman temporarily, and then it came to my mind that she might already have a husband. I investigated the matter and found out that it was so.' The Imam said: 'And why did you investigate?'8
It is reprehensible for a man to conclude a marriage of mut'a with a fornicatress, by reason of the Qur'anic verse: 'The fornicator shall marry not but a fornicatress or an idolatress, and the fornicatress-none shall marry her but a fornicator or an idolator; that is forbidden to the believers' (24:3). If a man should contract a temporary marriage with a fornicatress, it is his duty to command her not to perform adultery. But this is not a necessary condition of the marriage, by reason of the 'principle of correctness' as applied to the Muslim's act.9
It is also reprehensible, without any exceptions, to contract a temporary marriage with a virgin, by reason of the words of the Imam Ja'far: 'It is reprehensible, because it is a stain upon her family.'10 If a contract should nevertheless be concluded, it is not permissible for the man to consummate the marriage, unless the marriage took place with the permission of her father-a condition almost impossible to imagine in Muslim society. 'A virgin may not be married temporarily without her father's permission' (the Imam al-Rida).11
2. Shaykh Muhammad Hasan (d. 1266/1850), Jawahir al-kalam (a commentary on Shara'i'), Tehran, 1325/1907, V, 165.
3. Wasa'il, XIV, 452.
5. Jawahir, v, 165.
6. Usul al-fiqh, the science that discusses the arts and techniques for making juridical judgments.
7. Asl al-sihha.
8. Wasail, XIV, 458, hadith 3.
9. Jawahir, V, 166
10. Wasail, XIV, 459, hadith 10.
11. Ibid., 458, hadith 5.
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