Muta'; Temporary Marriage in Islamic Law

Muta'; Temporary Marriage in Islamic Law0%

Muta'; Temporary Marriage in Islamic Law Author:
Publisher: Ansariyan Publications – Qum
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Muta'; Temporary Marriage in Islamic Law

Muta'; Temporary Marriage in Islamic Law

Author:
Publisher: Ansariyan Publications – Qum
English

This book is corrected and edited by Al-Hassanain (p) Institue for Islamic Heritage and Thought

Alhassanain (p) Network for Islamic Heritage and Thought

Muta', Temporary Marriage in Islamic Law

A description of the legal situation of mut'a / mutah in Shi'ism and the origin of this divergence between Sunni and Shi'i law on temporary marriage

Author(s): Sachiko Murata

Publisher(s): Ansariyan Publications – Qum

www.alhassanain.org/english

IN THE NAME OF ALLAH

Tabel of Contents

Introduction 5

Acknowledgement 7

Permanent Marriage 8

I. The Pillars of the Marriage Contract 8

A. The Formula (sigha) 8

B. The Persons (mahall) 9

C. Guardianship (wilaya) 11

D. Witnesses (Shahid) 12

II. The Statutes Of Marriage 12

A. The Dower (mahr) 12

B. Support (nafaqa) 14

C. Annulment (faskh) 14

III. Divorce (Talaq) 15

IV. The Waiting Period ('Idda) 18

V. Forswearing (Ila') 18

VI. Zihar 19

VII. Sworn Allegation (Li'an) 19

VIII. Inheritance (Mirath) 20

Notes 20

The Four Pillars Of Mut'a 23

I. The Formula 23

II. The Persons 24

III. The Time Period (Mudda) 26

IV. The Dower 29

Notes 32

The Statutes of Mut'a 34

Conditions in the Contract 34

Coitus Interruptus 34

Divorce 35

Forswearing 35

Sworn Allegation 35

Zihar 35

Inheritance 36

The Waiting Period 37

Renewing The Contract 38

Notes 39

The Legitimacy of Mut'a 41

The Shi'i View 41

The Sunni View 43

1. The Qur'anic Argument 44

2. The Sermon of 'Umar 45

3. The Hadith Transmitted by the Companions 48

Arguments Derived From the Hadith 51

The Opinions of The Four Sunny Schools of Law 53

The Shi'i Juridical Argument 55

The consensus of the Shi'i community 56

Notes 56

Introduction

Though there are important differences between Twelve-Imam Shi’a m and Sunnism on the level of the principles of the religion (usul al-din), on the level of the sharia and fiqh or jurisprudence there are surprisingly few places where Shi'i or 'Ja'fari' law differs from all four Sunni schools, the Hanaf'i, Hanbali, Maliki, and Shafi'i.

Perhaps the most important difference occurs in relation to the institution of mut'a, or 'temporary marriage'. The Sunni authorities agree that mut'a was permitted by the Prophet at certain points during his lifetime, but they maintain that in the end he prohibited it completely.

In contrast the Shi’a maintain that the Prophet did not ban it, and they cite numerous hadith from Sunni as well as Shi'i sources to prove this. Having established its legality, they then devote tremendous care and attention to defining its legal status and all the rules and regulations connected with it.

One major purpose of the present study is to trace the origin of this divergence between Sunni and Shi'i law by going back to the sources and arguments on both sides. A second purpose is to describe the legal situation of mut'a in Shi’a m. In order to do this, it is first necessary to understand the rules and regulations that define marriage itself, since all the discussions of mut'a take place within this context.

Hence Chapter One describes the 'pillars' and 'conditions' of marriage according to the five schools of law, though in a manner which is by necessity truncated and which makes no attempt to give a thorough presentation of all the different opinions. Chapter Two discusses the 'four pillars' of mut'a and Chapter Three its 'statutes'. Once the nature of mut'a and its structural relationship to permanent marriage is understood, the debates concerning the legitimacy of mut'a-summarized in Chapter Four--can be better understood.

The present work is based on an MA dissertation completed in 1974 under the direction of Professor Abu 'l-Qasim Gurji of the Faculty of Theology at Tehran University (most of the Persian text was published under the title Izdiwaj-i muwaqqat: (mut'a-sigha) [Tehran: Hamdami, 1358/1979]).

The original work included a brief investigation of the contemporary relevance of mut'a, and nowadays I am often asked my opinion on this topic.

Let me only remark that the modern West has not come near to solving all the legal problems that have grown up because of relatively free sexual relationships in contemporary society. If any real solution to these problems is possible, perhaps a certain inspiration may be drawn from a legal system such as mut'a which, with its realistic appraisal of human nature, has been able to provide for the rights and responsibilities of all parties.

As for the abuses of mut'a that have occurred in certain times and places, in large measure these can be traced to the refusal of people to observe the letter of the law; perhaps those who established mut'a had too high an opinion of human dignity, self respect, and fear of God.

They no doubt thought that the Prophet's saying: 'Every religion has its special character trait, and the special character trait of my community is shame (haya') would continue in effect until the end of time. At least mut'a can be said to provide a legal structure which, when observed, prevents most of the well known problems and abuses connected with unregulated sexual relationships.

Sachiko Murata

Port Jefferson, NY 14 December 1986

Acknowledgement

The Muhammadi Trust wishes to express its gratitude to its patron for their willing and kind support in making this publication possible.