The Third Pillar of Mut'a
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Murata"
III. The Time Period (Mudda)
The time period of a temporary marriage must be delineated in a manner which allows no possibility of increase or decrease. According to the Imam al-Rida, '... (mut'a must) be a stipulated thing for a stipulated period.'1 In addition, the Imam was once asked if it is possible to conclude a contact of mut'a for 'one or two hours'. He replied, 'No time limit is understood from "one or two" hours.'2
According to al-Shaykh al-Ansari, all of the hadith indicate that it is permissible for the agreed upon time period either to be joined to the moment of concluding the contract or to be postponed.3 The situation here is the same as with a contract concluded for purposes of rental, since-as was pointed out above-the woman takes on certain legal characteristics of rented property.
In the case of a temporary marriage which begins after a period of postponement, there arises the question of whether or not the woman may marry a second man in the period between the conclusion of the contract and the beginning of the marriage period. Here there are two possibilities: that it is not permitted, because the woman already has a husband; or that it is permitted, because of the existence of all the 'requisites of a contract' and the absence of an impediment. Apparently the ruling here is that a second temporary marriage would be permissible provided that the woman has enough time before the beginning of the first marriage to conclude a second marriage and then to observe her waiting period.
As for the possibility of postponing the beginning of mut'a, this is conditional upon the stipulation of the day and the month in which it is to begin. For example, if the man should state that the contract will be for one month but fail to stipulate exactly when that month is to begin, the contract is invalid because the time is not stated. In contracts of rental, such instances are always invalid.4 But if the contract should be nonconditional, without any mention of a postponement, then the marriage begins as soon as the contract is concluded, since, according to the accepted standard, when a contract has been concluded, the transaction has taken place.5 The most authoritative view holds that if the stipulated period is not mentioned in the text of the contract, the marriage cannot take place and the contract is invalid.6 The consensus of the community has established that one of the two pillars that differentiate mut'a from permanent marriage is mention of the time period; whenever this pillar is not present, everything that depends on it is invalidated. In addition, a contract follows the intentions of those who conclude it, Thus, if the time period is not mentioned, the marriage cannot be transformed into a permanent one, since that was not the intention. In this connection a hadith has been related from the Imam Ja'far: 'There will be no mut'a without two things: a stipulated period and a stated dowry.'7
In spite of this opinion, the majority of the 'ulama' hold that if the time period is not mentioned, the contract is not invalidated; rather, the marriage becomes a permanent one. These scholars argue that a marriage contract is concluded either for temporary or permanent marriage. If a time period is mentioned, the contract is for mut'a; but if it is not mentioned, the contract is for permanent marriage. Hence, whenever the contract of mut'a is invalidated because the time period has not yet been stipulated, the contract will be one of permanent marriage. Here they cite the principle of 'correctness' in relation to the contract, In order to corroborate their argument, they mention a hadith of the Imam Ja'far: 'If a time period is stated, the marriage is mut'a; if it is not stated, it is permanent,'8
In opposition to those who hold that a temporary marriage is transformed into a permanent marriage if the time period is not mentioned, al-Shaykh al-Ansari writes that temporary marriage and permanent marriage are two different realities. Although the word 'marriage' is employed for both, this does not make them share in the same nature. The difference between the two does not lie in saying that one is an unconditional marriage and the other conditional. No, the relationship between them is like that between purchasing something and receiving a gift. In both cases, 'ownership' is the result. But the fact that purchasing an object and receiving a gift have a common measure does not mean that they have the same nature. We cannot say that the only difference between the two is that receiving a gift entails 'unconditional ownership' and purchasing entails 'ownership conditional on payment'. No one would ever claim that when someone says: 'I have transferred ownership' and forgets to mention a price, the purchase is immediately transformed into a gift. The relationship between temporary and permanent marriage is similar.9
In Sharh al-Ium'a al-Shahid al Thani adds that the hadith which is quoted from the Imam Ja'far in support of the position of the majority of the 'ulama' does not state explicitly that the desire of the two parties to the contract is to conclude a marriage of mut'a, but then they fail to mention the time period. On the contrary, the purport of the hadith is that marriage with a stated period is muta, while marriage without a stated period is permanent marriage.10
There is no upper or lower limit to the duration of the time period. It makes no difference if the period is extremely long, so that one doubts whether the parties will survive its duration; or if it is extremely short, so that there is no possibility of consummation. In other words, any time period is permissible, so long as both sides are aware of the situation and are satisfied.11
Once the contract is concluded the wife receives the whole dowry, whether or not the husband consummates the marriage before the time period expires. The wife is entitled to the dowry as long as she places herself at her husband's disposal and does not present him with any obstacles to consummating the marriage. The situation is exactly the same as renting a house, but then choosing not to take up residence before the rental period has expired. When the time period is over, the wife is freed from the obligations of the contract.12
It is not permissible for the parties to stipulate in the contract 'one act of intercourse' or the like without mentioning a time period, since such an expression cannot take the place of a stipulated period of time. In the view of most of the 'u!ama', if such a contract were to be concluded, it would not be transformed into that of a permanent marriage, since the time period has been mentioned incorrectly. The fact that the contract has been concluded in an improper manner and is thus invalid as a contract carries more weight than the failure to mention the stipulated period.
However, if the time period is mentioned along with the condition that the marriage will entail only a certain number of sexual acts, the contract is correct, Here the juridical principle that comes into play is enunciated in the Prophet's saying: 'The believers hold fast to their conditions [when they stipulate them in agreements].'13 In such a situation, as soon as the man has performed the agreed number of sexual acts, further sexual intercourse with the woman is forbidden, even if the time period has not elapsed. There is no contradiction between the continuation of the marriage and the interdiction of sexual relations.
A complication would arise in the above situation if, after the woman has been forbidden to the man, she gives him permission to engage in further acts of sexual intercourse. Is the man allowed to have intercourse or not? Here there are two opinions. According to the first, there is a definite obstacle to sexual relations. For the contract does not allow any further sexual acts, so the permission of the woman is immaterial, since it is not sufficient to override the stipulations of the contract and legitimize relations. According to the second opinion, intercourse is permitted. Since in mut'a-in contrast to permanent marriage-a woman does not have the right to initiate a sexual act, the obstacle to sexual relations in the present situation is the woman's unwillingness to permit anything more than what was agreed upon in the contract, But the contract itself establishes the permissibility of intercourse. So if the obstacle is removed, the result will be that the contract as such will come into play.14
If the role of the time period is to contain a stipulated number of sexual acts, whenever the number is finished, the woman is free of any further obligation to the man. It goes without saying that if the stipulated number of sexual acts is not performed by the end of the time period, the marriage still comes to an end.15
1. Ibid., 479, hadith I.
2. Ibid., hadith 2.
3. Ibid., 446, hadith 2 and 4.
4. Matajir, II, 300.
6. Matajir, II, 299; Sharh al-lum'a, V, 287; Jawahir, V, 169.
7. Wasa'ill, XIV, hadith 1.
8. Ibid., 469, hadith 1.
9. Matajir, II, 299.
10. Sharh al-lum'a, V, 287.
12. Matajir, II, 300; Jawahir, V, 170.
13. Sahih al-Bukhari, n.p., 1378/1958, III, 120.
14. Matajir, II, 300.
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