Those who claim the apogation and their proofs and a discussion on Mut'a
The people of the four schools of thought and other jurists of the masses have claimed that this type of marriage has been apogated and forbidden. They claim that there are traditions reported by the two Shaykhs in their Sahih books, so we examined them impartially and free from prejudices. In them we found [so many] contradictions concerning the time of the issuance of the apogation that we cannot have confidence in it (the apogation). Indeed some of them are clear that the apogation was on the day of Khaybar, some claim that the apogation was on the day of the conquest (of Mecca); some of them maintain that it occurred at the battle of Tabuk, while some claim that it happened at the time of the final pilgrimage. Some of them maintain it happened at the time of the 'umra al-Qaza whilst some of them say it happened in the year of Awtas (battle of Hunayn). Moreover, these are opposed by what you will read from the Sihahs of al-Bukhari and Muslim which prove that there was no apogation and that the prohibition and interdiction were issued by the second Caliph due to an unforeseen act of 'Amr b. Harith which occurred in his time.
Before it, the companions were performing the mut'a at the time of the two Caliphs, just as they were performing the mut'a at the time of the Prophet of God (S.A.W.). You will read the speech of 'Imran b. Husayn, 'Abd Allah b. Mas'ud, 'Abd Allah b. 'Umar, and 'Abd Allah b. 'Abbas and the Commander of the Faithful. You will see it clearly that the prohibition was not from the Almighty Allah, nor from His Prophet, peace be upon him, rather, it was from 'Umar. It is impossible that there would be an apogation which [all] these people would be ignorant of. The status of their knowledge and position in front of Prophet of God, and their close attachment to him (P) are known. If there was an apogation, those who were aware of it would have informed them of it (the apogation). However, since no one opposed them in their attributing the prohibition to 'Umar himself, we realize that they all acknowledged it and they accepted that there was no apogation from God, the Almighty, nor from His Prophet (P).
Moreover, the second Caliph himself did not claim apogation [of the verse on mut'a], as you will read from his clear speech in his attributing the prohibition and interdiction to himself. If there was an apogating verse from the Almighty Lord, or from His Prophet (P), he would have attributed the prohibition to the Almighty Lord, or to the Prophet, that is the most effective [way] of preventing [accusations] and most appropriate [thing] to mention.
I believe that those who came after the time of the companions forged the traditions on apogation to justify the opinion of the Caliph, for he interpreted the proofs and he prohibited and forbade [mut'a] promising punishment, saying: "I am prohibiting the two mut'as which were at the time of the Prophet of God (P) and will punish those who undertake them, the mut'a of hajj and mut'a of women."
Amongst the strange claims of some later scholars is that the marriage of mut'a has been apogated by the saying of the Almighty: "As for those who guard their private parts except from their spouses or what their right hand possess (23:5)." They claim that the woman with whom you do the mut'a is not your spouse nor one whom your right hand possesses. They said: "As for their not being amongst whom your right hand possess, that [point] is certain; as for their not being your wives it is because there is no expenditure for them, nor do they inherit; moreover, one does not have to spend a night with them."
The answer: She is a legal wife contracted by a shar'i marriage as you have read; the fact that there is no maintenance nor inheritance nor night to be spent is due to the special proofs which have been mentioned in the rulings of wives as we have explained before. Furthermore, this is a Meccan verse which was revealed before the emigration as agreed by all, so it is not possible for it to apogate the verse which allows and legislates the mut'a [revealed in] Medina after the emigration as agreed by all.
A surprising thing from these [people] who burden themselves is that they claim that the verse of believers (23:5) apogates the mut'a of women since they are not [considered to be] wives nor those whom the right hand possesses. We say to them: "Why does it [also] not apogate the marriage of the slave girls to one who doesn't own them since they [also] are not considered wives of the one marrying them nor are they owned by them? They say at this point that the chapter of believers (chapter 23) is Meccan and the marriage to the slave girls mentioned has been legislated by the saying of the Almighty in the chapter of women which is Medinan: "And if it is not possible for any of you to marry the pure believing women, then marry amongst the believing girls whom your right hand possesses," so the Meccan sura cannot apogate the Medinan as the apogated verse must come before the apogating. They say this and they forget that the mut'a was [also] legislated in Medina, and that its verse is in the chapter of women also. We have been afflicted with a community which does not contemplate; from God we come and to him we shall return.
Muslim has reported in the chapter of mut'a of hajj and 'umra in his Sahih with a chain of authority to Abu Nazra who said: "Ibn 'Abbas used to order the mut'a and Ibn al-Zubayr used to forbid it." This was mentioned to Jabir, he said: "In my hands the tradition revolved, we used to perform the mut'a with the Prophet of God (S.A.W) and when 'Umar became the Caliph he said: 'Indeed, Allah used to make halal for his Prophet what he wished as he wished. Complete the hajj and 'umra, and sever the marriage with these women; no man will come to me with a marriage to a woman for a specific period except that I will stone him.'"
This is what Ahmad b. Hanbal has reported about the tradition of 'Umar in his Musnad. Reporting also from Abu Nazra - the words he uses are as follows: "Abu Nazra said: 'I said to Jabir that Ibn al-Zubayr forbade the mut'a while Ibn 'Abbas used to command it.' He said to me: 'The tradition has come from me, we used to perform the mut'a at the time of the Prophet of God (S.A.W.) and Abu Bakr. When 'Umar became the Caliph he delivered a sermon to the people saying: 'The Qur'an is the Qur'an, and the Prophet of God is the Prophet, there were two mut'as at the time of the Prophet of God (P), one of them was the mut'a of hajj and the other was the mut'a of women.'"
It is clear and evident that the prohibition came from him after his becoming Caliph. Similar to this is the tradition of 'Ata' reported by Muslim in the chapter of the mut'a marriage in his Sahih, he said: "Jabir b. 'Abd Allah went for pilgrimage of mut'a so we came to him at his house. A group of people asked him a few things, then they mentioned the mut'a to him. He said: 'Yes, we performed the mut'a at the time of the Prophet of God (P) and Abu Bakr and 'Umar.'" According to the hadith of Abu al-Zubayr, as in the afore-mentioned chapter in the Sahih of Muslim, he said: "I heard Jabir b. 'Abd Allah saying: 'We used to perform the mut'a with a handful of dates and flour (as dowries) at the time of the Prophet of God (P) and Abu Bakr until 'Umar prohibited it because of the matter of 'Amr b. Harith.'" Also, in the aforementioned chapter of the Sahih of Muslim, he reported from Abu Nazra who said: "I was with Jabir and somebody came to him and he said: 'Ibn 'Abbas and Ibn al-Zubayr have differed regarding the two mut'as.' Jabir said: 'We used to perform them at the time of the Prophet of God, and then 'Umar forbade them.'"
The statement of 'Umar whilst he was on the minbar spread (to the masses). "I am prohibiting the two mut'as which were at the time of the Prophet of God and I will punish anyone who performs them, the mut'a of hajj and the mut'a of women." Al-Razi has transmitted this saying from him ('Umar) arguing by it on the prohibition of the mut'a of women, so refer to this verse in his Tafsir al-Kabir.
The Ash'ari theologian and their Imam in what is rationally and traditionally reported "al-Qushji" says in the later parts of the discussion on the Imamate in his great book called "Sharh al-Tajrid" that 'Umar said whilst he was on the minbar: "O people, there were three things at the time of the Prophet of God (P), and I forbid them and make them haram. I will punish anyone who commits them, the mut'a of women, the mut'a of hajj and [the saying of] "hayya 'ala khayril al-''amal" (hasten to the best of acts)." He justified it claiming that this was his personal reasoning and interpretation. The traditions on this and others like it are many and could fill the pages.
Rabi'a b. Ummaya b. Khalf al-Thaqafi, the pother of Safwan, performed the mut'a at the time of 'Omar, according to what Malik has reported in the chapter of the marriage of mut'a in his Muwatta' from 'Urwa al-Zubayr who said: "Indeed Khawla, the daughter of Hakim al-Silmiyya, entered to see 'Omar and she said to him: 'Rabi'a b. Ummaya has performed the mut'a with a lady who has become pregnant,' so 'Umar went out pulling his robe, saying: 'this mut'a, had I preceded it, I would have stoned for it,'" i.e., had I forbidden it and warned one who undertakes it with stoning before this time, I would have stoned Rabi'a and the lady who performed the mut'a. This was his stand before prohibiting it, this has been documented by Ibn 'Abd al-Barr according to what al-Ruzqani reports from him in his commentary on the Muwatta'. There is no doubt that this speech shows that the disposal of the ruling on mut'a came from him, not from anybody else
Adapted from the book: "Questions on Jurisprudence" by: "Abdul Hussein Shareefaldin Al-Musawi"
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