Arguments Derived From the Hadith
The Sunni argument for the prohibition of mut'a based upon the hadith can be summarized as follows: [^43] The reason that the ulama' have differed concerning mut'a is that it was permitted and then banned a number of times. In the Sahih of Muslim (IV, p.130) the following is related from one of the Companions: 'We were fighting in a battle alongside the Messenger of God, and our wives were not with us. We asked him: 'May we emasculate (istikhsa') ourselves?' He forbade us to do so and gave us permission to marry women for a period of time in exchange for an item of clothing.
Abu Hatim al-Busti, a well-known compiler of hadith, remarks in his Sahih that the question the Companions asked the Prophet shows that at first mut'a was forbidden, and hence the questioners saw no escape from their sexual desires but emasculation. Likewise, the Prophet's answer is meaningless unless mut'a had been forbidden up until that time. Then in the year of the battle of Badr (2/624) he forbade it; again, when Mecca was conquered (8/630) he allowed it, but only for a period of three days. Then he forbade it until the Day of Resurrection.
Ibn al-'Arabi (d. 638/1240), the famous Sufi, wrote voluminously on the meaning of the sharf'a. He calls mut'a one of the most remarkable statutes in Islamic law, since it was permitted at the beginning of Islam, then forbidden at the Battle of Khaybar, then permitted again at the war of Awtas. Finally it was forbidden and remained forbidden. No other statute in Islam was changed a number of times with the exception of the qibla (the direction of prayer), for that was abrogated twice before being finalized.
Al-Qurtubi reports that other authorities who have studied the traditions concerning mut'a say that its statute was changed seven times. He refers to Muslim's Sahih as the source for several authentic hadith explaining how the situation of mut'a was changed (most of these have been quoted above). Other hadith are quoted in other sources, such as the Sunan of Abu Dawud.
Al-Qurtubi quotes Abu Ja'far al Tahawi to the effect that none of the hadith which are quoted as referring to the permissibility of mut'a in unconditional terms are in fact unconditional, since they specify that mut'a was permitted only during journeys. The Prophet's last prohibition of mut'a, which took place after the conquest of Mecca, embraced all the previous occasions on which mut'a was permitted. None of the transmitters of hadi'th say that the Prophet permitted mut'a while he and his Companions were together in their homes and not travelling.
As for the hadith of Sabra, which states that the Prophet permitted mut'a at the Farewell Pilgrimage in the year 10/632, al Tahawi acknowledges that this is not in keeping with the other hadi'th. But having investigated all the traditions in this regard, he has found that another hadi'th almost identical to that of Sabra, but related by 'Abd al-'Aziz, places this occasion at the conquest of Mecca, when the men complained of separation from their wives and the Prophet gave them permission to practice mut'a. They could not have complained of such separation during the Farewell Pilgrimage, since all of the wives were present, and the single men could have taken permanent wives in Mecca. So the special situation that existed during the other journeys and battles was lacking. However, it is possible that the date of Sabra 's hadi'th is correct; in this case we can explain the situation as follows: Since the Prophet usually permitted mut'a during journeys away from Medina, in this case also he permitted it; but then he banned it for the final time wanting all the Muslims to know about it, for all of them were present for the Farewell Pilgrimage. There is also the fact that the Meccans were in the habit of practicing mut'a widely. Thus the Prophet banned mut'a in Mecca so that they would understand that they could not continue in their former custom,
The Shi'i answer to the Sunni argument on the basis of hadi'th can be summarized as follows: [^44] The hadi'th demonstrating that mut'a is forbidden are in conflict with those that show it is permitted. They also conflict with hadi'th that show that mut'a continued to be permitted during the times of the Prophet, Abu Bakr, and 'Umar, up until the time that 'Umar banned it. The correct course of action is to prefer those hadi'th which establish its permissibility, for a number of reasons:
The hadi'th indicating mut'a's permissibility outnumber those which show that it is banned.
Everyone agrees that the hadi'th indicating that mut'a was permitted at certain times are authentic, but this is not the case concerning those which indicate that it was banned. Hence one can speak of a consensus (ijma') in the sense that all Muslims at one time agreed that mut'a was permitted, even though afterwards a disagreement arose. In order to chose the right course, we cannot base ourselves upon opinion but must hold fast to that concerning which we have certainty. Hence we must conclude that mut'a is still permitted, as long as we do not have certain knowledge to the contrary.
The hadith which point to the banning of mut'a are themselves questionable. When we realize that one of the incontestable elements of Shi'ism as established by the Imams is the permissibility of mut'a, then no hadith related from 'Ali stating that mut'a is forbidden can be authentic. Someone who held without question that mut'a is permissible would not relate a hadith from the Prophet that it is forbidden. On many occasions 'Ali censured 'Umar's banning of mut'a. His saying: 'If 'Umar had not banned mut'a, no one but the wretched would practice fornication' is well-known, and no one has questioned its authenticity.
Those who hold that mut'a is forbidden have also claimed the consensus of the Community as one of their proofs. They say that after 'Umar banned mut'a, all of the Prophet's Companions went along with him with the exception of Ibn 'Abbas, and he changed his opinion towards the end of his life. In answer to this claim, the Shi'is point out that 'consensus' can not be accepted as a valid proof of the banning of mut'a; and in any case, the very fact that the Shi'i Imams-the Household of the Prophet-who are the very pillars of Islam, have all agreed that mut'a is permitted shows that there was in fact no consensus. Moreover, from the first the Shi'is have agreed on the permissibility of mut'a, to such an extent that this view has always been singled out as one of the specific features of Shi'ism. Given this fact, to claim consensus is meaningless. In addition, as we have seen above, many of the Prophet's outstanding Companions and their followers held that mut'a was permitted. Finally, the claim that Ibn 'Abbas changed his view on mut'a toward the end of his life has never been substantiated. Even if it were to be proven, one could only claim consensus if we were certain that no one was opposed to the view that mut'a is forbidden; whereas we know that in fact the number of opponents was quite large. In short, the Shi'is conclude, there is no real evidence to show that mut'a is not permitted; and when the hadi'th are investigated, the conclusion is likely to be reached that not only is it permitted (mubah ), it is even recommended (mustahabb ).
The Opinions Of The Four Sunny Schools Of Law [^45]
The general opinion of the four Sunni schools of law concerning the reason mut'a was permitted and then afterwards prohibited can be summarized as follows: At the beginning of Islam, the Muslims were in the minority and were often at war. Many of them were not able to marry and raise families, since they were constantly being called upon to travel long distances and to engage in battle with the unbelievers. Moreover, they had only recently embraced Islam; formerly, they had been accustomed to the concupiscence of the pre-Islamic Arabs, who would often possess harems containing large numbers of wives. They would have sexual relationships with whichever wife they desired, and leave aside those who no longer held any interest for them. The only 'principles' involved in their sexual affairs were lust and desire. When such men became Muslims, with Islam's strict guidance for sexual relationships, it was difficult for them to spend much of their time at war with no opportunity to satisfy their sexual instincts. Hence it was natural that they be allowed to practice temporary marriage, especially since such marriages do not involve any permanent bond of the type which requires constant care and attention towards a wife and children. Nor at the time of war could the usual means of reducing sexual desires, such as fasting, be employed, since these would also reduce the fighting ability of the soldiers.
Hence we see that the reason mut'a was permitted was the special situation pertaining to the beginning of Islam. The hadi'th of Sabra related by Muslim confirms this view: 'The Messenger of God gave us permission to practice mut'a on the day of conquest when we entered Mecca. Then as soon as he left the city, he banned it once again.' This hadi'th illustrates clearly that mut'a was permitted due to the special circumstances connected with military expeditions.
Ibn Maja relates that the Prophet said: 'Oh people! I would give you permission to practice mut'a, but God has forbidden it until the Day of Resurrection.' When we look at the status and rules of Islam in general we see that mut'a's prohibition is in keeping with Islam. For fornication and adultery are looked upon as a heinous form of sin and necessitate a terrible punishment. Islam forbids anything which would tend towards obscurity and make it easy to commit detestable acts. The Qur'an states: ' Approach not fornication; surely, it is indecency, and evil as a way' (17:32). And according to the Prophet: 'No one is a believer in the act of fornication.' Fornication is considered a sin in Islam for many reasons, but certainly these are sufficient: It results in the destruction of human dignity, the mixing of lineage and kinship, and the loss of modesty. But Islam came to eliminate such things and to a large degree was successful in extirpating all despicable acts. Considering the high level of humanity and outstanding moral qualities the Muslims achieved, it is not reasonable to suppose that temporary marriage should be permitted.
The four Sunni schools of law all agree that temporary marriage is invalid. That which invalidates the contract is the stipulation of a time period. If such a marriage takes place, it must be annulled, and if it is consummated before the annulment takes place, the woman must be paid the 'normal dowry'.
The Shafi'i school adds that even if the time period stipulated by the contract should be the life-time of the husband or the wife, the contract is still invalid, since the contract of marriage requires that its effects continue after death. That is why a spouse may give his or her spouse the ritual purification of the dead before burial ( otherwise, the washer of the dead must be of the same sex as the corpse). A marriage contracted with a stipulation that it comes to an end when one of the spouses dies would mean that the effects of the marriage would end at death. So such a stipulation invalidates the contract. [^46]
The Hanafis add that if the time period stipulated is so long that as a rule the spouses could not remain alive until it comes to an end (e.g., if the man were to say: 'I will marry you until the hour of Resurrection '), then we can no longer call the marriage 'temporary'. In effect this stipulation means 'forever'. Hence it is nullified as a stipulation of a 'time period' and the contract is sound. If the husband's intention in contracting the marriage is to enjoy the woman 's company only for a period of time, but he does not make such a stipulation in the contract, the marriage is correct. In the same way, if a person should marry making it a condition of the contract that a divorce will take place after a certain period of time, the contract is correct but the condition is nullified, since such a condition cannot limit the contract. [^47]
In any case the four schools agree that the punishment for a person who enters into a temporary marriage is not the same as that for fornication. In the latter case the punishment (hadd) is 100 lashes for each party in the case of an unmarried woman, and stoning to death in the case of a married woman. But the punishment for mut'a is defined as ta'zi'r, i.e., less than the full punishment for fornication, depending on circumstances and the opinion of the judge. The penalty for fornication is not exacted because certain doubts remain concerning the status of mut'a as a result of the hadi'th of Ibn 'Abbas.
The Shi'i Juridical Argument
The Shi'is have always considered mut'a to be of special importance and have tried to keep it alive as an institution of Islamic society. Shi'i law is often referred to as the 'Ja'fari school of law', since in reality the sixth Imam, Ja'far al-Sadiq, is its founder. Hence it is appropriate to quote a few of his many sayings concerning mut'a, such as: ' Mut'a was approved by the text of the Qur'an and became part of the sunna of the Prophet,' [^48] Imam Ja'far considered the Qur'anic verse referred to above (4:24) the basis for mut'a, He said: 'The verse proves mut'a's permissibility. ' [^49]
Once Abu Hanlfa, the founder of one of the four Sunni schools of law and a student of the Imam Ja'far, asked the Imam about mut'a, He replied: 'Which of the two mut'as do you mean?' Abu Hanifa answered: 'I have already asked you about the mut'a of the hajj, So tell me about the mut'a of marriage.' The Imam said, 'Glory be to God! Have you not read the Qur'an? "So those of them whom you enjoy, give to them their appointed wages" (4:24).' [^50]
Someone asked the Imam Ja'far: 'Why is it that four witnesses are necessary [for proof to be established] in cases of adultery, but two are sufficient in the case of murder?' He replied: 'God made mut'a permissible for you, but He knew that you would not approve of it. So He made the witnesses to number four as a protection for you. If it were not for that, it would be brought against you [that you are committing fornication, whereas you are in fact practicing mut'a]. But seldom do four witnesses come together on a single matter.' [^51]
The Imam Ja'far considered mut'a a divine mercy by means of which people were saved from the sin of fornication and delivered from God's retribution. Concerning the Qur'anic verse: 'Whatsoever mercy God opens to men, none can withhold' (35:2) the Imam said: ' Mut'a is part of that mercy.' [^52]
The Imam Ja'far said: 'I do not like a man to leave this world without having married temporarily, even if only on one occasion.' [^53]
The Imam Ja'far said: 'It is reprehensible in my eyes that a man should die while there yet remains a practice of the Messenger of God that he has not adopted.' He was asked: 'And did the Messenger of God practice mut'a?' He replied: 'Yes.' Then he recited the Qur'anic verse: ' And when the Prophet confided to one of his wives a certain matter' up to the words 'and virgins too.' (66:3-5) [^54]
The Shi'is call Abu Ja'far Muhammad al Tusi (d. 460/1068) the 'Elder of the Denomination' (Shaykh al-ta'ifa), since he is the founder of Shi'i demonstrative jurisprudence (al-fiqh al-istidlali); in other words, he was the first person to give Shi'i law a systematic basis. We can conclude this chapter with a summary of his views on mut'a. He writes that the Shi'i reasons for considering mut'a permissible are as follows: [^55]
- The consensus of the Shi'i community.
- The words of the Qur'an: 'Marry such women as seem good to you!' (4:3), since mut'a is a kind of marriage, but one which men desire to perform by expending their property.
- The words of the Qur'an: 'So those of them whom you enjoy, give to them their appointed wages' (4:24). The word istimta' (enjoy), unless otherwise qualified, signifies 'temporary marriage.'
- Ibn Mas'ud's version of the Qur'an, which adds the words 'to a specified term ' to the above verse.
- There is no disagreement over the fact that mut'a was allowed at the beginning of Islam. So those who claim that the verse was abrogated must prove their assertion.
- The principle from which discussion must begin is that mut'a is permitted. That it should be forbidden must be proven.
- The words of 'Umar concerning the 'two mut'as'. Here 'Umar tells us that at the time of the Prophet, mut'a was permitted, i.e., that it was a part of the religion of Islam. Proof must be provided that it is no longer so. After referring to these seven reasons, al Tusi answers the arguments of those who claim mut'a is forbidden in much the same way that we have seen above.
[^1]. Sharh al-lum'a, v, 248-53, Note; Jawahir, v, 163.
[^2]. Muhammad Husayn Tabataba'i (d. 1982), Tafsir al-mizan, Beirut, 1974; Persian translation by Muhammad Khatima, VIII, Qum, 1344/1965, 76.
[^3]. Ibid., 84.
[^4]. Abu 'Ali al-Fadl b. al-Hasan al Tabarsi (d. 548/1153), Majma' al-bayan, Tehran, 1339/1960, III, 32.
[^6]. AI Tafsir al-kabir, Istanbul, 1307 / 1889-90, III, 286.
[^8]. Muhammad b. Ahmad b. Abi Bakr al-Ansari al-Qurtubi (d. 671/1273), al-Jami' li ahkam al-Qur'an, Cairo, 1967 , v, 130.
[^9]. Tafsir al-mizan, Persian version, VIII, 132; Husayn Yusuf Makki, al-Mut'a fi'l-Islam, Persian translation, Tehran, 1342/1963, p.59.
[^10]. Abu'I-Qasim al-Musawi al-Khu'i, al-Bayan fi tafsir al-Qur'an, Najaf, 1375/1955-56, 219.
[^11]. Sharh al-lum'a, v, 277, Note.
[^12]. Wasa'il, XIV, 488, hadith I.
[^13]. Al-Tafsir al-kabir,III, 286.
[^14]. Jawahir, v, 163.
[^15]. Ahmad b.Hanbal, al-Musnad, Beirut, n.d., 1,52.
[^16]. Pilgrims who come to Mecca for the hajj from a long distance and want to perform the 'umra before the hajj are allowed to enter into a state of consecration (ihram) for the 'umra and then to leave it until they re-enter it for the hajj. During the intervening period they can 'enjoy themselves' (tamattu') with the activities of everyday life that are forbidden in the state of ihram. This tamattu' before the hajj is known as mut'at al-hajj.
[^17]. Al Tafsir al-kabir, III, 287.
[^18]. Majma' al-bayan, III, 32.
[^19]. Muslim, al-Sahih, Cairo, 1334/1916, IV, 38 (chapter: al-mut'a bi 'l-hajj wa 'l- 'umra).
[^20]. Jawahir, V, 161; al-Bayan, 229.
[^21]. Al-Tafsir al-kabir,III, 287.
[^22]. Sharh al-lum'a, V, 182-83; Jawahir, v, 161; al-Bayan,229.
[^23]. Those who have attained the capacity and necessary knowledge of jurisprudence to make independent judgments (ijtihad) on cases concerning which they are consulted are called mujtahids. In contrast to Shi'i law, in Sunnism the 'door of ijtihad' has been closed.
[^25]. Sharh al-lum'a, v, 283; al-Bayan, p.229; al-Mut'a, 68.
[^26]. Al Tafsir al-kabir, III, 290.
[^27]. Al-Mut'a, pp.68-69.
[^28]. Majma' al-bayan, III, 33.
[^29]. Muhammad Shaykh al-Islam Kurdistani, Rahnama-yi madhhab-i Shafi'i, Tehran, 1337/1958, I,429-30.
[^30]. Al Tafsir al-kabir, III, 287-88.
[^31]. Wasa'il, IV, 441, hadith 32.
[^32]. Al Tafsir al-kabir, III, 288.
[^33]. Ibid.; al-Jami', V, 131; al-Bayan, p.244; al-Mut'a, pp.19-20.
[^34]. Al-Bayan, pp.222-24.
[^35]. Sharh al-lum'a, v, 264-82, Note; 282, Text.
[^36]. Al-Bayan, pp.222-23.
[^37]. Al Tafsir al-kabir, III, 287.
[^38]. Wasa'il, XIV, 436, hadith 2; 440, hadith 20 and 25.
[^39]. Al-Durr al-manlhur,Tehran, 1377/1957, II, 141.
[^40]. Al-Bayan, p.221; al-Tafsir al-kabir, Ill, 286; Ahmad b. Hanbal, al-Musnad, VI, 436; Muslim, IV, 48.
[^41]. Muslim, IV, 131.
[^42]. Al Tafsir al-kabir, III, 286.
[^43]. Al-Jami', V, 130-32.
[^44]. Jawahir, v, 162-63.
[^45]. Fiqh, IV, 90-92.
[^48]. Wasa'il, XIV, 437, hadith 5.
[^49]. Ibid., 439, had'ith 19.
[^50]. Ibid., 437, hadith 6.
[^51]. Ibid., 439, hadith 14.
[^52]. Ibid., hadith 18.
[^53]. Ibid., 444, hadith 13.
[^54]. Ibid., 442, hadith 1.
[^55]. Abu Ja'far Muhammad b. al-Hasan al Tusi, Shaykh al Ta'ifa, (d. 460/1068), al-Khilaf, Tehran, 1372/1952-53, 11, 179-80.