The Mut'ah Marriage or Union

They argue that in principle, everything is lawful unless it is specifically and authoritatively classified as forbidden. Since everyone agrees that the mut'ah marriage was originally lawful, any claim to its subsequent prohibition must be supported by sufficient evidence. But since there is no such evidence, the mut'ah remains lawful on the precedential basis.

To reinforce their argument, they invoke the consensus of the “upright” group, that is, their own group leaders, and interpret certain verses of the Qur’an (4:3, 23) in a way that would seem to permit the mut'ah marriage.

They also claim that it was not the Prophet, but ‘Umar, the second Caliph after Muhammad, who prohibited it, and that all reports tracing this prohibition to the Prophet are of questionable authenticity.²

All Muslims other than this Shia group consider the mut'ah marriage unequivocally forbidden. They support this view by the Qur’anic verses which explicitly prohibit any form of sexual relationship except through marriage or marriage-like cohabitation with one’s slavegirl (e.g., 23:5-6; 70:29-31).

They cite Traditions from the Prophet and affirmations thereof by his Companions and their successors to the effect that the mut'ah union is “the sister of harlotry.” They report that even some of the early Shia Imams, such as ‘AH himself (d. 40 A.H.), al-Baqir (d. 1 14), Ja'far (d. 148) were of the same opinion as the rest of the Muslims.

In fact, they consider it inconceivable to view the mut'ah as having any claim to validity and insist that marriage, according to the Qur’an, is as strong a social bond as blood relationship. To serve its purposes, they argue, marriage is valid only if it is contracted on a permanent basis with the earnest desire of both parties to lead, together, a normal, permanent life. Since illicit sexuality is forbidden in Islam, and since the mut'ah is a disguised form of fornication, Islam cannot condone it.

If it did, the argument continues, it would be self-inconsistent and would defeat the purpose of marriage.³

It is agreed, howover, that it was during the Caliphate of ‘Umar (13-23 A.H.) that the Mut'ah practice was ruthlessly condemned and absolutely forbidden. What preceded that period is rather obscure. Some scholars claim that the practice persisted during the Caliphate of Abu Bakr (11-13 A.H.).

The Shia seem to interpret this as lending further support to their doctrine that the Prophet did not prohibit the mut'ah and it must, therefore, have been accepted as lawful.⁴

Some contemporary writers are inclined to attribute the persistence of the practice, however illicit, till ‘Umar’s Caliphate to the fact that it was fairly common in Arabia before Islam, was overlooked for some time after the rise of Islam, and was justified as being useful in times of war and on travels.⁵

There is another theory that the practice was forbidden by the Prophet himself, but certain jurist Companions did not take the prohibition in the absolute sense.

Rather, they likened it to the prohibition of the flesh of dead animals which may be lawful in case of necessity or compelling needs. Thus they ruled that it was permissible to practice the mut'ah in similar circumstances of necessity.

When they found that this concession was being abused and people were becoming increasingly undiscriminating in taking advantage of it, they revoked the ruling and suspended the concession. This took place in the Caliphate of ‘Umar. Henceforth, the opinion of non-Shn Muslims became unanimous that the mut'ah was absolutely forbidden.⁶

Examination of the conflicting arguments and of the rather apologetic attitude of some contemporary Shias seems to indicate that the religious, textual basis of the doctrine of the Shia mut'ah marriage is equivocal. It is difficult for a nonpartisan student of Islamic law to find clear religious or jurisprudential evidence in support of that doctrine.

Even if one is to be extremely skeptical, the most that can be said is that the conflicting arguments at best stand on a par as far as the jurisprudential evidence goes. It is not helpful, therefore, to seek an explanation of the Shia doctrine in terms of the religious or jurisprudential evidence exclusively; such evidence is highly debatable and can by itself hardly explain the Shia position.

Nor was it entirely a question of political partisanship. It is sometimes suggested that they did not agree with the majority of Muslims because they believed that it was ‘Umar, not the Prophet, who prohibited the mut'ah marriage and voiced the strongest condemnation of its practice.

Since they were opposed to ‘Umar’s assumption of the Caliphate, they rejected his ruling on the matter.⁷ it seems doubtful that their political attitude to ‘Umar had any fundamental effect in this regard. If it had, they would most probably have been equally opposed to the changes, rulings, and innovations that were introduced by ‘Umar or by other non-Shia Caliphs and jurists.

But they did not adopt such an attitude of outright opposition.⁸ A satisfactory explanation of the Shl‘i position would seem to make it necessary to go beyond the jurisprudential evidence and the political attitude toward a certain Caliph.

Such an attitude and evidence can at best give only a partial, inadequate

explanation. These Shias were from the start, a minority group, whose political opponents prevailed over them and from time to time subjected them to persecution, imprisonment, exile, or forced separation from their families.

They lived in a state of revolt against the religio-political authorities. One of their cardinal doctrines was the belief in the Hidden Imam, the counterpart of the Messiah, who absented himself in a cave and whose time of return is known only to God.

This belief apparently became firmly entrenched after they had given up hopes of political victory through open revolt. They began as a protest group, who soon internalized the idea of revolt and later adopted a policy of resignation, awaiting the return of their Hidden Imam.⁹

A group in these circumstances of revolt and suspense, unable apparently to disregard sexual needs altogether or practice methodical celibacy, and probably at the same time, apprehensive of family responsibilities or attachments in fear of becoming subject to exile, imprisonment, or separation from their families, would very likely seek for some supplementary means of gratification involving minimal risks.

Since normal, permanent marriages and marriagelike cohabitation with slaves were neither always available to every man nor particularly encouraging under those circumstances, and since all other forms of sexual relationship were unequivocally forbidden, the mut'ah must have appealed to them as the most natural solution to the problem.

It entailed a minimal responsibility and risk. To them, it could be defended on some jurisprudential grounds, however shaky these might appear to the adversaries. Had the Shias adopted a different political platform and their original attitude been less “revolting,” had their social position been less precarious and their opponents more tolerant, and had the Qur’an been more specific in its usages of the derivatives of the word mut'ah, they would probably have seen the mut'ah marriage in a different light, as the rest of the Muslims have.

The Shia position is a sectarian one which was adopted by a minority sect in diametrical opposition to the vast majority of Muslims. Once endorsed by the religious leaders of the classical formative period, it became easily accepted by the succeeding generations and was apparently transmitted without questioning as an integral part of the authoritative traditions.

A change in the circumstances under which a given doctrine, such as the mut'ah, was originally adopted does not necessarily always lead to a corresponding change in the doctrine itself; the latter may continue to exist as a “survival,” which can hardly be explained in terms of the new contemporary conditions.

And if a satisfactory explanation of the Shia doctrine of mut'ah is to be sought, it is most likely to be found in the earlier historical context. The explanation submitted here appears preferable, notwithstanding the fact that the Shia life became in time routinized and settled, that they ceased to be the persecuted “rebels” or the scattered resigned fatalists, or that they now have their own viable political and religious institutions.

Neither can the mut'ah doctrine be easily explained in terms of Islamic precepts or by the principle of the presumed continuity of the pre-Islamic custom, for not only is this debatable, as we have seen, but also because the same precepts and principles, are shared by other Muslims who, nonetheless, prohibited the mut'ah.

Nor can the doctrine be readily explained in terms of universal drives, intense regional sexuality, or pre-existing local customs. Jhese, too, were common to the Shias and their adversaries, to Muslims and non-Muslims alike.

These factors seem to narrow down the range of explanation to a considerable extent, almost to a predetermined course. Since the doctrine is sectarian and upheld by a minority group, a most probable explanation appears to lie in the very circumstances surrounding the rise as well as the early developments of that sect.

This is the kind of explanation we have submitted in the present context. Although the Shris endorsed the mut‘ah marriage, they differentiated their conception of it from that of pre-Islamic times. They endeavored to make it appear as close to permanent marriage as possible.

It is designated as a “disjoint” or temporary union; but it is like permanent unions in that it requires a valid agreement based on an earnest desire to enter into a marital, though temporary, relationship.

It is concluded through the usual procedures of proposal and acceptance. The woman involved may act in her own behalf or choose a third party to represent her. She must be marriageable at the time, that is, she must not be in a “waiting period” that follows a divorce or widowhood. Similarly, she must be free from the usual impediments to a normal permanent marriage whether they be due to blood, affinal, or foster relationships or to religious differences.

The mut'ah contract is valid only if the proposal is expressed in one of three specific verbal forms. The remuneration payable to the woman must be specified in the contract and the period for which the union is to last must be defined.

If the parties failed to specify the period, the contract takes the form of a permanent union. Likewise, if they agree to change the character of the contract into a permanent marriage, so it becomes. When the term of the contract expires and no children are involved, the parties become free from any commitment to one another, and the woman enters a “waiting period” which is usually half the waiting period of a divorcee.

If the man dies before the end of the term, the woman’s waiting period is the same as that of any widow. Should the woman conceive or give birth during the mut'ah union, the child belongs to the natural father and all the usual father-child mutual rights and obligations apply, just as in normal permanent unions.

But unlike the latter, there is no limit to the number of women with whom one man may conclude mut'ah contracts. In such contracts, no witnesses are required, and none of the principal rights and duties of provision, inheritance, etc. (which are entailed in permanent marriages) apply unless the mut'ah contract so stipulates.

Furthermore, the contract may be terminated prematurely either unilaterally or by

mutual agreement.¹⁰

Compared with the pre-Islamic practice, the mut'ah seems to have undergone some considerable modification at the hands of the Shias. They introduced to it several features of the normal permanent mariiage.

They assured the children involved of a legitimate social placement, narrowed the “field of eligibles” for the mut'ah union, and facilitated its transformation into a permanent marriage.

These features may clearly imply that they took the problem much more seriously than the pre-Islamic Arabs had. In certain fundamental respects the mut'ah contract became indistinguishable from permanent marriage; in others it remained “the sister of harlotry.”¹¹

References

1. Smith (1 ), pp. 68 ff.

2. See, for example, al TQsI, vol. 2, pp. 394-5; Maghniyyah (1 ), pp. 128 ff; S h o r te r E n c y . o f Is lam , pp. 418 ff.

3. Cf. a l Q u r 'a n . 22:5-7; 70:29-31; ‘Abd al B*ql (4), vol. 2, p. 542; al Sh&fi4! (3), vol. 5, pp. 79-80; al SarakhsI, vol. 5, pp. 152-3; Ibn al Qayyim (2 ), vol. 3, pp. 153-68; vol. 4, pp. 11-12; Ibn Qudamah, vol. 7, p. 16.

4. Cf. al TusI, vol. 2, pp. 394-5; Maghniyyah (1 ), p. 130. Both authors are Shfls.

5. Cf. Fayzee, p. 112.

6. Ibn al Qayyim (3 ), vol. 4, pp. 11-2.

7. Cf. Fayzee, p. 112; Coulson (1), pp. 115 ff.

8. On the many innovations introduced by ‘Umar I in the various sectors of public and official life, see S h o r te r E n c y . o f I s ld m , pp. 139, 600 f. One of such innovations was the adoption of the event of the flight (Hijrah) of Muslims to al Madlnah in the year 622 to mark the beginning of the Muslim era. However, there is no evidence that the Shias opposed this. Nor did they reject other innovations just because they questioned ‘Umar’s political credentials. Coulson (1 ), has pointed out that the political factor was not the reason for the Shia’s position on the mut'a h marriage. They derived their doctrine from a particular interpretation of some Qur’anic verses through certain juristic methods (cf. pp. 110, 115 ff). But this leaves much to be desired and raises more questions than it answers. It may be asked: why did they choose that particular interpretation or apply those certain juristic methods? What led them to disagree with the majority of Muslims? It must have been something other than juristic methodology or textual interpretation. We shall look into that in the main text.

9. Cf. al Shlbl, esp. ch. 1; al Salih, pp. 95-125; Vesey-Fitzgerald, p. 19.

10. Cf. Maghniyyah (1 ), pp. 128 ff; FarrOkh, pp. 95-7; Coulson (1 ) , p. 110; Smith (1 ), pp. 68 ff.

11. See supra, pp. 9 ff.