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THE ORIGIN SHI'ITE AND ISLAM PRINCIPLES

8. (a) The Marriage Agreement

 

Marriage is of two kinds: (1) for life; (2) temporary. As the name implies, temporary marriage (also known as mut'ah) means that it is for a fixed period of time which is agreed upon, before completing the marriage agreement. So far as the first kind of marriage is concerned, all Muslims are unanimous in accepting it. As regards the second kind, only the Shi'ah consider it lawful. The latter base their acceptance on the following verse of the Holy Qur'an: "famastamtatum bihi minhuma fa'tu hunna ujurahunna - and as such of them with whom you had mut'ah, give them their dowries as a fixed reward." (Surah an-Nisa':24) This problem has been a topic of discussion since the time of "sahaba" (companion of the Prophet (s.a.w.)) upto the present time. In view of the importance of this matter it would seem appropriate to clarify some of its points. 

No one who has spent some time in the study of religious laws can deny the validity of mut'ah. The Holy Prophet (s.a.w.) himself made it lawful. During the life of the Prophet (s.a.w.), many distinguished 'sahaba' put it into 

 

practice. Moreover, after the demise of the Holy Prophet (s.a.w.), the noble 'sahaba' continued to take advantage of this law. 'Abdullah ibn 'Abbas, Jabir ibn 'Abdillah al-Ansari, ibn Mas'ud, and Ubay ibn Ka'ab, who were men of exalted rank and eminence, all insisted on the lawfulness of mut'ah and would recite the verse in this way: "Fmastamtatum bihi min hunna ilaajalin musamman" (And as such of them with whom you had mut'ah for specified term). We should not however think that these companions considered that there was any defect in the Qur'an, since there were well-versed in its interpretation, they merely wanted to make a commentary on this verse so that its meaning might be clearer. Since these distinguished persons had remained devoted to the Holy Prophet (s.a.w.) throughout his mission, they had had the opportunity to understand the interpretation of the Qur'an directly from the tongue of the Prophet himself (s.a.w.). They therefore had no hesitation in disclosing the true meaning of this verse according to what they had learnt from the Prophet (s.a.w.). 

We should add however that the tradition which ibn Jabir mentions in his large work of Qur'anic commentary shows that the part "Ila ajalin musamman" (for a specified term) was actually an original portion of the verse, as revealed by God. Ibn Jarir quotes Abu Nasirah as saying: "When I read this verse before ibn 'Abbas he said: "Say 'ila ajalin musamman'. I said that I did not read like that. Upon this ibn 'Abbas said three times 'By God! This verse was revealed in this very way.'" 

It is obvious that such an exalted personality as ibn 'Abbas would never have wilfully changed the text of the Qur'an. If this tradition is correct, the meaning of this eminent Companion must surely have been that God the Almighty had revealed its interpretation in this way. 

According to all the 'ulama' this temporary marriage was allowed and practiced by the closest companions of the Prophet. 

Those who reject the lawfulness of mut'ah insist that God revealed further commands to his Prophet which revoked the former law. The various hadith which are concerned with this revocation have conflicting meanings and cannot be relied upon. For the revocation of an express ordinance an express proof is necessary: some Sunnis claim that revocation took place through the sunnah, that is, the Holy Prophet (s.a.w.), after declaring it lawful, made it lawful. Some of them say however that it was through the Book of God that a change in the law of mut'ah ws imposed upon the people. There is even confilcting views within the latter group: one party considering the "verse of divorce" as the relevant verse concerning the revocation, and the other the "verse of inheritance". 

Furthermore most of the opponents of mut'ah think that the following verse proves its abrogation "Illa 'ala azwajuhum aw ma malakat aymanuhum". The verse gives two causes for the lawfulness of marriage, either the woman is one's wife or she is one's slave-girl (kaniz), and as Sayyid al-Alusi (a Sunni scholar) writes: "The Shi'ahs cannot regard the "Mumtu'ah" (woman taken in mut'ah) as 'kaniz', a slave-girl (who is bound by laws other than those which affect a free woman), and they cannot call her the wife either, because she does not possess the conditions of wifehood, that is 'mirath' (inheritance), 'iddah' (waiting period), the right to sustenance and maintenance on the part of husband, and divorce." 

If we examine al-Alusi claim we find it to be completely without foundation. Contrary to what he says, the wife 

 

in a temporary marriage does have certain of the rights of wifehood. One of those concerns inheritance. The wife of a temporary marriage may receive the inheritance (unconditionally according to some Shi'a 'ulama', and according to others, on condition that the right to inheritance is stipulated at time of of marriage contract). Moreover if al-Alusi is claiming that inheritance is an obligatory feature of non-temporary marriage, then he is not speaking in accordance with the law: according to the Islamic code there are many occasions where the law of inheritance become invalid: a wife, who for example, is an unbeliever or a murderess does not get inheritance. Likewise a woman who is married to a sick man who dies before he has sexual intercourse with her is deprived of the inheritance. On the contrary if somebody divorces his wife during a time of illness, sand subsequently dies, even if her 'iddah is over she is entitled to receive inheritance one year after the death of her husband. 

Again, the Shi'ah believe in the lawfulness of mut'ah and regard 'iddah after such a marriage as compulsory. 

Subsistance for the wife (nafagah) is another subject of dispute. The Shi'a believe that this too cannot be regarded as a primary right of wifehood. One may took for example at the case of the woman who refuses to have sexual intercourse with her husband in spite of her being a wife; no faqih would consider subsistence as one of her rights. 

There is no divorce in temporary marriage: after spending the agreed time together the two parties may separate. We should point out to those who still deny the lawfulness of temporary marriage that the aborgation of mut'ah is impossible because the relevant verse is in the Surah al-Mu'minin and al-Mi'raj, both of which were revealed in Makkah. 

 

Moreover, even some distinguished Sunni 'ulama' say that the Qur'anic verse concerning mut'ah was not revoked. Az-Zamakhshari, in his commentary al-Kashshaf, reports, on the authority of ibn 'Abbas, tha the verse concerning mut'ah is one of the irrevocable ones. Other 'ulama' have reported that Hakam ibn 'Ayniyah, when asked whether the verse of mut'ah had been revoked, said that it had not. 

At first the majority community of the Muslims acknowledged the lawfulness of mut'ah, but later they began claiming its revocation; we have tried to show the weakness of their claims. Sometimes as we have seen they tried to prove abrogation of the verse by another verse, and sometimes, as we shall see, they attempted to prove the abrogation of the verse through a tradition: they rely upon the tradition in the 'sahihs of al-Bukhari and Muslim which relate that the Holy Prophet (s.a.w.) made mut'ah unlawful either during the Conquest of Makkah, or the Conquest of Khaybar, or the Battle of Awtas. These hadith are the subject of considerable dispute. It is even reported on the authority of Qadi Ayad that some 'ulama' say that the mut'ah was made lawful a second time after a first abrogation, then subsequently made unlawful for the second time. Moreover it is recorded in some books that mut'ah was revoked on the occasion of hajjat al-wida' (that is the last hajj) in the 10th year of the hijrah. Other books show that this was not so and that it was revoked during the battle of Tabuk in the 9th year of the hijrah. Some writers claim that mut'ah was abrogated during the battle of Hunayn in the month of Shawwal in the 8th year of the hijrah; it is also claimed by some that the Holy prophet (s.a.w.) made mut'ah lawful on the occasion of the Conquest of Makkah, but declared it to be unlawful only a short time later in the very place he was supposed to have declared it lawful. 

 

Most of the Sunni 'ulama' are of the opinion that the abrogation of mut'ah. 

We must stress that the Qur'anic verse concerning mut'ah is not called into question by anyone who examines thae validity of these so-called hadith. Moreover the hadith reported by the Sunni (ulama) are so full of conflicting reports that their falsehood is self-evident. 

It is reported in the Sahih of al-Bukhari that Abu Raja' quotes 'Imran ibn Iasin as saying that the verse concerning mut'ah is present in the Qur'an and "we acted upon it in the life time of the Holy Prophet (s.a.w.); neither did Allah make it unlawful in the Holy Qur'an, nor did the Prophet (s.a.w.) prohibit it during his life time. The prohibition of mut'ah was an arbitrary act of one man and it is said that this man was the Caliph 'Umar." It is also reported in the Sahih of Muslim on the authority of Atta' that "one day Jabir ibn 'Abdillah al-Ansari came to perform 'umrah and people asked him various questions. We went to visit him at his house. When he was asked about mut'ah, Jabir said: "Yes we practiced mut'ah in the days of the Prophet (s.a.w.) and also in the days of Abu Bakr and 'Umar.'" 

Muslim gives another report and that is from Jabir also. He says: "During the days of the Prophete (s.a.w.) we used to practice mut'ah while giving a handul of dates or a handful of baked flour as a dowry." Muslim also reports in his Sahih that Abu Nudrah said that he was sitting with Jabir ibn 'Abdillah al-Ansari when another man came in and said that there was a difference of opinion about the two mut'ahs (namely the mut'ah of temporary marriage, and the kind of hajj called hajj tamattu'a) between Ibn 'Abbas and Ibn Zubayr. Jabir said: "While the Holy Prophet (s.a.w.) was present we used to act upon both of them, but later 'Umar prohibited both of them, so we could not do them again." Indeed they could 

 

not do it again because Hadhrat 'Umar have a man stoned to death if he was caught practising mut'ah. 

The fact is that if the Chapter relevant to marriage in Muslim's Sahih is carefully studied, we will find such contradictory statements that we can only wonder at their source. There are claims of abrogation in one place, while in another place proofs of non-abrogation are given. As an example of such hadith we may quote Jihni who says: "On the occasion of the conquest of Makkah, the Prophet (s.a.w.) himself ordered that we should be permitted to perform mut'ah, but we had still not left that place when the Prophet (s.a.w.) forbade us to do it." 

Thus abrogation is sometimes attributed to the Holy Prophet (s.a.w.), and sometimes to Hadhrat 'Umar. Moreover they say that mut'ah was current during the time of the Prophet, and during the period of the first Caliphate. They also say that Hadhrat 'Ali (a.s.) forbade Ibn 'Abbas on various occasions to talk about mut'ah, and so the latter subsequently changed his opinion about it. In a refutation of this we may cite the report that says that once Ibn Zubayr stood up in Makkah and said: "There are some people here who have been deprived of foresight just, as God has deprived them of their eye-sight: such persons are those who claim that mut'ah is lawful." (Here the refrence was to Ibn 'Abbas uttered loudly: "Why? I swear that mut'ah was practiced up to the time of 'Ali (a.s.)." This clearly shows that Ibn 'Abbas never changed his opinion, and that even during Ibn Zubayr's caliphate he stood by his belief. 

Rather surprisingly, the prohibitory order has even been attributed to Hadhrat Amir al-mu'minin (a.s.) that they had declared mut'ah wedlock to be lawful. Imam 'Ali's statement that if 'Umar had not forbidden mut'ah there would have been only a few unfortunate men who commited 

 

fornication has become proverbial. At-Tabari has reported this tradition in his "tafsir" also. In this connection Imam Ja'far as-Sadiq is reliably understood to have said: "I do not do taqiyah (to deliberately conceal one's beliefs or opinions under certain conditions) in the matter of three things: mut'ahtu 'l-hajj, mut'ahtu 'n-nisa', and al-mash 'ala 'l-khafayn." (The latter item refers to the Sunni practice of wiping over the shoes in place of washing the feet when performing wudhu'.) According to the principles of jurisprudence the conflicting reports of the Sunni commentators have been analyzed and proved to be full of false hadith. The lawfulness of mut'ah has been proved, and just as it was lawful at the time of the Prophet so it is today. 

It was Hadhrat 'Umar who prohibited mut'ah during his rule; his prohibition was based on personal social considerations of the day, but it had nothing to do with religion. He is reported to have said, "During the days of the Prophet (s.a.w.) two mut'ahs were permissible, but I now make them unlawful, and will punish those who disobey my order." What is worth nothing is this that the second Caliph did not attribute the order of unlawfulness or abrogation of mut'ah to the Holy Prophet (s.a.w.), but made himself responsible for it. He, too, was responsible for the matter of punishment. We can only repeat what we have tried to demonstrate with the above example: that mut'ah, the Qur'anic ordinance concerning its legality, the Sunnah (practice) of the Prophet (s.a.w.), the practice of his Companions, its being practiced during the rule of Abu Bakr and in the early period of 'Umar's own caliphate, are all verfiable realites which are above all argument and discussion. The books of history and traditions bear witness to the fact that during the age of the Prophet (s.a.w.) the high-ranking companions and respected members of the Quraysh all practised mut'ah; indeed many of the noble Muslims of that time were 

 

sons of temporary marriages. 

Raghib al-Isfahani, the celebrated Sunni scholar, has reported that a Sunni scholar Yahya ibn Aktham, asked one of the important nobles of Basrah whom he followed about the justification for mut'ah. The noble said "Umar ibn Khattab." "How is this," asked Yahya, "he was the sworn enemy of mut'ah." The man said: "Yes, it has been proved that once Hadhrat 'Umar announced from the pulpit: "Oh people! God and His Prophet made two mut'ahs lawful, but I now declare them unlawful. Also I will punish those who disobey me.' We accept his statement but we do not accept the validity of his prohibition." A similar hadith has been related by 'Abdullah ibn 'Umar; it is shorter and less harsh than the former: "During the age of the Prophet (s.a.w.) there were two mut'ahs, and I now make them unlawful." Some have argued that 'Umar did not want to alter the command of Allah but only to make a law which was suitable for the society of the time. 

At this stage it would be useful to recall a great work by a renowed scholar of the 6th century A.H., Muhammad ibn Idris al-Hilli, namely the "Sara'ir", in which the author writes: "Temporary marriage within the Islamic code of religion is lawful. Muslims believe that its lawfulness is proved according to the Sunnah. However some people have claimed that it had been revoked, but the veracity of this requires proof. Moreover 'aql (the faculty of reason which allows us to understand the workings of God in his creation) tells us that every useful act about which we have no fear that it will give us any loss in this world or the next is permissilble. This condition applies to mut'ah. We must, through our reason, acknowledge its lawfulness. Now, if somebody asks what is the proof, given the conflicting opinions concerning its legality, that it would not cause us 

 

loss in the next world, the answer is that the onus of proof lies on the person who pleads the possibility of its being harmful. It is beyond doubt that mut'ah was permissible during the days of the Holy Prophet (s.a.w.), and that it was only later that they began talking of its unlawfulness and revocation. Thus until revocation can be proved we have no right to deny its lawfulness. 

"When we examine the hadith which relate that the Prophet did make mut'ah unlawful, we find that these traditions all have weak chains of transmission and do not qualify as sources of certainty, or do they provide a justification for action on the part of the Muslim. 

"Let us examine again the relevant verse in the Qur'an. It occurs after the passage concerning the women who are mahram (one is not allowed to marry them for reasons of consanguinity, etc.) 

"And lawful for you are all (women) besides those mentioned; so that you may seek them by means of your wealth, taking (them) into marriage, and not committing fornication; and those with whom you concealed mut'ah give them their dowries as a fixed reward, and it shall not be a sin on you in whatever you mutually agree (to vary) after the fixed reward" (Surah an-Nisa'). In this holy verse the disputable work is "istamta'tum" which has two meanings - either to take pleasure in and profit from, or to make the agreement for mut'ah according to the Islamic code - the fist is the literal meaning and the second is according to its meaning within the Islamic code. According to the principles of 'fiqh', if a word in the Qur'an has two meaning - one literal and the other used specifically in the language of the "shari'ah" then the latter meaning must be accepted and the literal meaning should not be relied upon. That is why for example the words "salat", "zakat", "sawm" and "hajj" are all to be understood according to the precise meaning of the Islamic shari'ah (code), and not according to the literal 

 

meaning to be found in the dictionary. 

We have already made it clear that a well-known group of the companions believed in the lawfulness of mut'ah and that Amir al-mu'minin himself openly declared its lawfulness; 'Abdullah ibn 'Abbas used to enter into polemical discussion with ibn Zubayr on this topic and these discussions became so widely known that they were not only talked of by the common people but the poets of that time also gave vent to their reactions in their verses. Also 'Abdullah ibn Mas'ud, Mujahid, Ata'i, Jabir ibn 'Abdullah al-Ansari, Salman ibn al-Akwa', Abu Sa'id Khudri, Mughirah ibn Sha'hab, Sa'id ibn Jabir and Ibn Jabir also gave the verdict that mut'ah was lawful. All these men are esteemed and trustworty men of knowledge; they arrived at their decision through careful examination of the matter. 

We have so far thrown light on this topic form only a religious or historical point of view. Now let us assess it from the ethical and social point of view. Islam is a great blessing and mercy for the world. The message of Islam is like a divine song which is diffused from heaven over the world of man, and which gave and still gives the answer to those who seek to understand the reason for man's existence on earth. Our revealed religion suits every age, and guarantees for them prosperity both spiritual and material. Islam was revealed by God not to make man's life harder but on the contrary, to fill it with mercy, meaning and order. That is why Islam is the most perfect religion and the last code of religion before the end of the world; this divine law adorns human culture and civilization with perfection; no other man-made institutions or laws are needed. 

Let us now examine one activity which every individual is obliged to undertake at some time in his life, namely, travel. We find that the Islamic code indicates 

 

precisely the code of conduct to be expected from the Muslim who is travelling, whether for trade, for war or on the hajj or 'umrah, for example. 

It hardly needs to be pointed out that God, the All-Wise, had endowed man with sexual desire for the preservation of the human race. And it also goes without saying that a traveller is unable to fulfill the requirements of a permanent marriage. 

Under these conditions, what should this traveller do who has been away from his home for a long time? How should he behave especially when he happens to be young and subject to strong sexual urges. 

There are only two alternative possible if we do not allow mut'ah; he should either control his passion or must indulge in unlawful relationships. It should be stated that excessive control and suppressing of sexual desires sometimes causes serious physical and mental illness. Sterility is also another possible consequence of such self-control. Such practice is patiently against the dictates of wisdom, and God says in the Qur'an, "God wishes ease for you and does not wish for you discomfort." 

May God save us from sexual mal-practices. Most parts of the world are suffering its consequences today. I swear by God that if the Muslims act in compliance with the religious laws, this universe, according to the divine promise, will become complete mercy for them, and man will live in harmony and prosperty. 

Mut'ah is thus a welcome and necessary law of the Islamic religion. If the Muslims acted in accordance with the condition for lawful mut'ah (the making of an agreement between the two parties stipulating the time limit and dowry, and the 'iddah, for example), and take advantage of this divine blessing, evil-doing would to a great extent be eradicted, the honour of man and woman would be saved, the Muslim community would grow in 

 

number, the world would be rid of illegitimate children and moral values would be strengthened. The pronouncement of the exalted man of the community, 'Abdullah ibn 'Abbas cannot be over-praised. Ibn Athir relates that he says, "Mut'ah was a blessing with which God the Almighty endowed the ummah of Muhammad (peace and the blessings of God be upon him and his descendents) and, had it not been prohibited, no-one, except the truly perverted ones, would have committed adultry (see the "Nahayah" of Ibn Athir and the "Fa'iq" of az-Zamakhshari). The effects of his exalted teacher and guardian, Amir al-mu'minin are reflected in this statement of Ibn Abbas. The fact is that the Islamic world is rejecting this divine mercy and as a result has plunged itself into shameless immorality.