The Waiting Period

As in permanent marriage, so in muta there is a waiting period which must be observed after the time period of the marriage has expired or the man has returned the remainder of the period to the woman. It consists of two menstrual periods, provided she menstruates. This statute is based upon the following two hadith: 'To divorce a slave, one must pronounce the formula of divorce twice; her waiting period is two menstrual periods' (the Imam Musa), [^27] The Imam al-Baqir was asked about the waiting period of a wife by mut'a if her husband should die. He answered: 'For every marriage, if the husband should die, the wife must observe a waiting period of four months and ten days, It makes no difference whether she is free or a slave, and whether the marriage was permanent or temporary. The waiting period of a divorced [free] woman is three months, and that of a divorced slave one-half of what is required of a free woman. What is required of a wife by mut'a is the same as what is required of a slave.' [^28]

It has been related that al-Shaykh al-Mufid, [^29] al-'Allama al-Hilli, Ibn Idris, [^30] and a number of the other ulama' hold that the waiting period of a wife by mut'a is two fuhrs i.e., two major ablutions following menstrual periods. They base this opinion on the hadith related from the Imam al-Baqir: '. ..If he is a free man married to a slave girl, he divorces her by pronouncing the formula of divorce twice; her waiting period is two fuhrs.' [^31] And in the hadith quoted above, it is seen that the waiting period of a wife by mut'a is the same as that of a slave girl.

Al-Shahid al Thani, al-Shaykh al-Ansari, al Tabataba'i, and al-Shaykh Muhammad al-Hasan all state that caution demands that we prefer the first of these opinions-that the waiting period of a wife by mut'a is two menstrual periods, since the time period is longer. Besides the fact that a number of hadith indicate that the first opinion is stronger, the principle of jurisprudence which must be observed here is that of 'continuing prohibition': if something was definitely forbidden, but we now doubt as to whether or not it is still forbidden, we must assume that it continues to be forbidden until we have indisputable proof to the contrary . [^32]

If the woman is of menstruating age but for some reason does not menstruate, her waiting period is 45 days, whether she is free or a slave. AI Tabataba'i claims a consensus of the ulama' on this point. [^33]

If the husband by mut'a of a free woman should die, her waiting period is four months and ten days, so long as she is not pregnant and whether or not the marriage was consummated. [^34] According to the Qur'an: 'Those of you who die, leaving wives, they shall wait by themselves for four months and ten days' (2:234). If the wife should be a slave, her waiting period is two months and five days, a point established by a large number of hadith.

It has been related that al-Shaykh al-Mufid, al-Sayyid al-Murtada, and certain other authorities held the opinion that the waiting period of a temporary wife whose husband dies is two months and five days, [^35] for two reasons: first, two months and five days is the waiting period of a slave and-as has already been shown-when the time period of mut'a expires or the remaining time is returned to the wife, the wife's waiting period is the same as that of a slave. Here also her waiting period must be the same as that of a slave. Second, the Imam Ja'far was asked about the waiting period of a temporary wife whose husband dies. He answered: 'Sixty-five days.' [^36]

Al-Shaykh Muhammad al-Hasan rejects this opinion as follows: the first reason is based on analogy (qiyas),[^37] which cannot be a valid basis for a juridical opinion in Shi'ism. The second reason is based upon a hadith of the mursal type, i.e., its chain of transmission is incomplete. Such a hadith can only be authoritative if it is strengthened by some other factor (such as 'shuhra': being accepted by most of the ulama). Hence, in face of the stronger hadith which exist on the matter, one must reject this particular hadith and say that the waiting period of a temporary wife whose husband dies, whether she is free or a slave, is four months and ten days. [^38] The reason given for this is the hadith of the Imam al-Baqir quoted above: 'For every marriage, if the husband should die, the wife must observe a waiting period of four months and ten days. ..' A hadith is also related from the Imam Ja'far to this effect. But al-Shahid al Thani rejects this opinion on the following grounds: To conclude from these two hadith that the waiting period of a temporary wife is definitely four months and ten days is problematic. In fact, one has no choice but to take these hadith as referring only to free women, so that they will be in accord with a number of other hadith which state that the waiting period of a slave woman whose husband has died is two months and five days.

Moreover, no reputable jurisprudent has held that the waiting period of a slave is four months and ten days. Finally, since in permanent marriage there is no question but that the waiting period of a slave is two months and five days, with greater reason the waiting period must be the same in mut'a. For the waiting period of mut'a is 'weaker' than other waiting periods, just as a marriage of mut'a is 'weaker' than permanent marriage. It is unreasonable to suppose that the waiting period of mut'a be 'stronger' and more stringent than the waiting period of permanent marriage. Nevertheless, because of the authority of the above hadith, caution may dictate that the longer waiting period be observed. [^39]

If the wife should be pregnant, her waiting period will be either the usual one of four months and ten days (two months and five days for a slave) or the time it takes to give birth-whichever of the two is longer. AI Tabataba'i claims consensus on this point. [^40]

Renewing The Contract

A contract of mut'a cannot be renewed before the time period expires. Hence, if the parties wish to renew the contract, it is only necessary for the man to return the remainder of the time period to the woman, thus in effect ending the marriage. Then they may conclude a new contract. When she remarries the same man, she has no waiting period. [^41]

This method of renewing the contract is established by a hadith related from the Imam Ja'far. He was asked about a man who married a woman for a period of one month, but then found that a love for her was developing in his heart. Before the period expires, could he renew the contract and increase the time period and dowry? The Imam answered that such a course of action was not permissible so long as the first contract remained in effect. Therefore: 'He must return to her the remainder of the days [of the contract] and then conclude a new contract.' [^42]

Footnotes:

[^1]. Riyad,II,116;Matajir,II,301.

[^2]. Wasa'ill, XIV, 468-69, hadith, 2.

[^3]. Ibid.,468.

[^4]. Sharh al-lum'a, v, 288; Matajir, II, 301.

[^5]. Matajir ,lI,301;Jawahir,v, 173;Riyad,II, 116.

[^6]. Wasa'il, XIV, 491, hadith I.

[^7]. Riyad, II,116.

[^8]. Sahrh al-lum'a, V, 288; Riyad, II, 116.

[^9]. Wasa'il, XIV, 489-90, hadith I.

[^10]. Sharh al-lum'a, v, 288; Riyad, II, I 16.

[^11]. Sharh al-lum'a, v, 288; Matajir, II, 300.

[^12]. Jawahir,v,173.

[^13]. Ibid., 173; Masalik, 1,542; Matajir, II,301.

[^14]. Wasa'il, XIV, 488-89, hadith 4 and 5.

[^15]. Masalik, 1,542.

[^16]. Matajir. II. 301; Masalik, I, 542; Jawahir, v, 173; Riyad. II. 117; Shara'i, II, 125

[^17]. Wasa'il, XIV, 478-79, hadith 1.

[^18]. Sharh al-lum'a, v, 289; Jawahir,v, 173.

[^19]. Wasa'il, xv, 596, hadith 5.

[^20]. Masalik, I, 542; Sharh al-lum'a, v, 300; Riyad, II, I 17; Shara'i', II, 25; Mukhtasar-i nafi', 232.

[^21]. Matajir, II, 301; Jawahir, v, 173-74.

[^22]. Wasa'il, XIV, 486, hadith 8.

[^23]. Ibid., hadith 5.

[^24]. Ibid., 485, hadith 1.

[^25]. Luma, text, and Sharh al-lum'a, v, 297-98; Masalik, I, 543; Matajir, II, 301; Shara'i', II, 25; Mukhtasar-i nafi', 232; Jawahir, v, 274; Riyad, II, 117.

[^26]. Wasa'il, XIV, 486, hadith 2.

[^27]. Ibid., XV, 470, hadith 5.

[^28]. Ibid., 484, hadith 2.

[^29]. Muhammad b. Muhammad b. al-Nu'man al-'Ukbari al-Baghdadi (d. 413/1022), author of numerous works on theology and jurisprudence.

[^30]. Muhammad b. Idris al-Hilli (d. 598/1202).

[^31]. Wasa'il, xv, 469, hadith 1.

[^32]. Sharh al-lum'a, v, 301-2; Masalik, I, 544; Matajir, II, 301; Riyad, II, 118;

Jawahir, v, 176.

[^33]. Riyad, II,118.

[^34]. Sharh al-lum'a, v, 302; Masalik, I, 544; Matajir, II, 301; Jawahir, v, 176; Riyad, II, 118.

[^35]. Riyad, II, 118; Jawahir,v, 176.

[^36]. Wasa'il, XV, 485, hadith 4.

[^37]. Qiyas is the fourth source of fiqh in Sunnism but not accepted by the Shi'is; instead the latter employ 'aql' or 'reason'. This is one of the main differences in usul al-fiqh between Sunnis and Shi'is.

[^38]. Jawahir, V, 176.

[^39]. Sharh al-lum'a, V, 304-7.

[^40]. Riyad, II, 119.

[^41]. Mukhtasar-i nafi', p.232; Riyad, 11, 119.

[^42]. Wasa'il, XIV, 478, hadith I.