Reply: Marriage [nikāḥ] is an agreement between a man and a woman. Sometimes this bond has a permanent effect and the contract [‘aqd] does not have time limit, and sometimes its effect is temporary and its time limit is fixed. Both kinds are recognized as legal and the only difference between them is that one is “permanent” and the other is “temporary”. In other aspects they are the same. The conditions below render valid both mut‘ah “temporary” marriage and “permanent” marriage:
1. There should be no such religious prohibitions like consanguineous and affinitive relationships or the like which render the contract null and void.
2. The dowry [mahr] agreed upon by both sides has to be stipulated in the contract.
3. The duration of marriage has to be fixed.
4. The contract must be performed.
5. The child that they will beget is considered their legitimate child. Just as a birth certificate that is granted to a child born out of permanent marriage, a child that is born due to a temporary marriage has to be granted a birth certificate. So, there is no difference between permanent and temporary contracts in this regard.
6. The expenditure on the child or children is one of the duties of the father, and the child or children are to inherit from the father and from the mother.
7. When the marriage contract expires, the woman who has not reached menopause has to observe a waiting period [‘iddah]. If during the waiting period she is found pregnant, she has to refrain from any type of marriage during pregnancy.
Also, the other laws of permanent marriage have to be observed in mut‘ah. The only difference between the two is that since mut‘ah has been ordained to fulfill man’s needs, the expenses of the woman is not incumbent on man. If, during signing of the contract, the woman did not make it a condition that she can have a share from the inheritance, she shall not inherit from her husband. It is clear that these two differences have no effect on the nature of marriage.
We all know that the Islamic creed is the eternal and final law, which can satisfy all needs. Nowadays, we see the situation of the youth, who have to spend many years of study in a foreign country or city. On account of the limited resources, they cannot afford permanent marriage, and have one of these three alternatives to choose:
- to endure the mentioned condition;
- to fall in the quagmire of corruption and perdition;
- to marry a woman with whom it is permissible for a man to make a temporary marriage contract for a certain period.
Regarding the first alternative, in most cases, it ends in failure. Although a few individuals can abstain from any type of sex and exercise patience and fortitude, this method is not applicable to all.
The second option also ends in corruption and desperation, and according to Islam it is forbidden [ḥarām] and to prescribe it under the pretext of necessity is but a kind of mental deviation and perversion.
Therefore, the third alternative is the only practical way recommended by Islam and it was practiced in the lifetime of the Prophet (ṣ) and the dispute over this issue started after that.
At this juncture, we have to point to something and that is, those who have a sense of anxiety about mut‘ah and regard it as illegitimate should know that all Muslim jurists [fuqahā] and scholars have accepted something which is similar to that of a permanent (marriage) contract. They agree on the idea that the two sides can conclude a permanent contract with the intention that they separate through divorce after one year, or more or less.
It is clear that such an agreement is apparently “permanent” but in reality it is temporary. The difference between this type of “permanent” marriage and that of mut‘ah is that the latter is, exoterically and esoterically, limited and temporary while the former is exoterically “permanent” but esoterically temporary.
Why do those who declare as permissible this type of permanent marriage, on which all Muslim jurists agree, entertain fear and anxiety when it comes to prescribing and recommending mut‘ah?
Now that we have understood what mut‘ah is, let us see why mut‘ah is regarded as religiously lawful and why it has been decreed. It is appropriate that the discussion will be at two levels:
1. The legitimacy of mut‘ah during the early period of Islam, and
2. The non-abrogation of this religious law in the lifetime of the Messenger of Allah (ṣ).
The following verse is an explicit proof of the legitimacy of mut‘ah: ﴾ فَرِيضَةً أُجُورَهُنَّ فَئَاتُوهُنَّ مِنْهُنَّ بِهِ اسْتَمْتَعْتُم فَمَا ﴿ “For the enjoyment you have had from them thereby, give them their dowries, by way of settlement.”[1]
The wording [alfāẓ] of this verse testifies that something has been revealed about mut‘ah because:
First: The word “istimtā‘”apparently refers to “temporary marriage”. If it meant permanent marriage, there would be a need for analogy [qarīnah].
Second: The word “ujūrahunna” which means “their dowries” is a clear proof that it is about mut‘ah because in the case of permanent marriage, such words as “mahr” or “ṣadāq” is used.
Third: The Shī‘ah and Sunnī exegetes [mufassirūn] are of the opinion that the said verse is about mut‘ah.
Jalāl ad-Dīn as-Suyūṭī, in his exegesis [tafsīr], Ad-Durr al-Manthūr, narrates on the authority of Ibn Jarīr and Saddī that the abovementioned verse is pertaining to mut‘ah.[2]
Also, Abū Ja‘far Muḥammad ibn Jarīr aṭ-Ṭabarī, in his exegesis, narrates on the authority of Saddī, Mujāhid and Ibn al-‘Abbās, that this verse is related to temporary marriage.[3]
Fourth: The compilers of Ṣaḥīḥ, Musnad and Jāmi‘ books of ḥadīth have also accepted this fact. For example, Muslim ibn al-Ḥajjāj in his Ṣaḥīḥ narrates on the authority of Jābir ibn ‘Abd Allāh and Salmah ibn Akū‘ that they have said:
أذن قد الله فقال أنًّ رسول الله رسول منادي علينا خرج”
“.النّساء متعة يعني تستمعوا؛ أن لكم
“The harbinger of the Messenger of Allah came to us and said: The Messenger of Allah has granted you permission to have “istimtā‘”; that is, temporary marriage.”[4]
