A Shi'ite Encyclopedia (chapter 6)

More Arguments On the Hadith

The Sunni argument for the prohibition of Mut'a based upon the Hadith can be summarized as follows: The reason that the scholars have differed concerning Mut'a is that it was permitted and then banned a number of times.

Ibn al-Arabi (d. 638/1240), the famous Sufi who wrote on the meaning of the Shari'ah, calls Mut'a one of the most remarkable edicts in Islamic law, since it was permitted at the beginning of Islam, then forbidden at the Battle of Khaibar, then permitted again at the war of Autas.

Finally it was forbidden and remained forbidden. No other edict 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 edict was changed seven times. He refers to the traditions in six Sunni collections explaining how the situation of Mut'a was changed.

As for the Hadith of Sabra, which states that the Prophet permitted Mut'a at the Farewell Pilgrimage in the year 10/632, Abu Ja'far al-Tahawi acknowledges that this is not in keeping with the other Hadith. He explains that the Prophet permitted Mut'a at the conquest of Mecca, when the men complained of separation from their wives.

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, 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 Shia answer to the Sunni argument on the basis of Hadith can be summarized as follows: As has been mentioned already, if Mut'a was made forbidden in the last pilgrimage where according to al-Tahawi's argument most of the Muslims were with the Prophet, then how can only Sabra have heard of the saying of the Prophet?! Moreover, the Hadith demonstrating that Mut'a is forbidden are in conflict with those that show it is permitted.

They also conflict with Hadith 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 Hadith which establish its permissibility, for a number of reasons:

(a) The Hadith indicating the permissibility of Mut'a outnumber those which show that it is banned.

(b) Everyone agrees that the, traditions indicating that Mut'a was permitted at certain times are authentic and have been transmitted in parallel, 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 choose the right course, we can not base ourselves upon opinion but must hold fast to that which we have certainty. Hence we must conclude that Mut'a is still permitted, as long as we do not have firm knowledge to the contrary.

(c) The traditions which point to the banning of Mut'a are themselves questionable. When we realize that one of the incontestable elements of Shia as established by the Imams of Ahlul-Bayt 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.

Reference: Jawahir, v5, pp 162-163.

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 perhaps he might have changed his opinion towards the end of his life.

In answer to this claim, the Shia point out that 'consensus' was never established for the banning of Mut'a; and in any case, the very fact that the Shia 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 Shia 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 Shia. 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 Shia conclude, there is no real evidence to show that Mut'a is not permitted; and when the Hadith are investigated, the conclusion is likely to be reached that not only is it permitted (Mubaah), it is even recommended (Mustahabb).

The Opinion of the Four Sunni Schools of Law

The four Sunni schools of law 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 is 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.

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 not considered 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 can not limit the contract.

Reference: Fiqh Ala al-Madhahib al-Arba'a, v4, pp 90-94

In any case the four Sunni sects agree that the punishment for a person who enters into a temporary marriage is not the same as that of the 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'zeer, i.e., less than the full punishment for fornication, depending on circumstances and the opinion of the judge. The penalty for fornication is not specified by the Sunnis because certain doubts remain concerning the status of Mut'a as a result of the traditions of Ibn Abbas.

The Opinion of the Shia School of Law

The Shia have always considered Mut'a to be of special importance and have tried to keep it alive as an institution of Islamic society. The Shia law of Jurisprudence is often referred to as the "Ja'fari school of law", since in reality the sixth Imam, Ja'far al-Sadiq (AS), had a golden opportunity of teaching during the clashes between the Umayad and the Abbasid.

During that short period when the tyrants of both sides were busy with each other, the Imam was teaching Jurisprudence and theology in classes with as much as 5000 students. Hence it is appropriate to quote a few of his many sayings concerning the Mut'a.

Imam Ja'far Sadiq (AS) said: "Mut'a was approved by the text of the Quran and became part of the Sunnah of the Prophet." (Wasa'il al-Shia, v14, p437).

Imam Ja'far considered the Quranic verse referred to above (4:24) the basis for Mut'a. He said: "The verse proves the permissibility of Mut'a." (Wasa'il al-Shia, v14, p439).

Once Abu Hanifa, the founder of one of the four Sunni sects (who was a student of the Imam Ja'far before he starts his business), asked the Imam about Mut'a. He replied: "Which of the two Mut'a 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 Quran? 'So those of them whom you enjoy, give to them their appointed wages' (4:24)." (Wasa'il al-Shia, v14, p437).

Someone asked Imam Ja'far (AS): "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." (Wasa'il al-Shia, v14, p439).

The Imam Ja'far (AS) 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 Quranic verse: "Whatsoever mercy God opens to men, none can withhold (35:2)," the Imam said: "Mut'a is part of that mercy." (Wasa'il al-Shia, v14, p439).

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." (Wasa'il al- Shia, v14, p444).

The Imam Ja'far said: "It is reprehensible in my eyes that a man dies 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 Quranic verse: "And when the Prophet confided to one of his wives a certain matter...(66:3-5)" (Wasa'il al-Shia, v14, p442).

Note how beautiful the Imam explains the reason why one should uphold the practice of Mut'a. The encouragement, promotion, and rewards for the Mut'a are not for the physical/sexual action, but are rather due to REVIVING the Sunnah of the Prophet (PBUH&HF) which has been forsaken by the majority of Muslims. If Umar would not have abolished this Sunnah of the Prophet, such reward would not have been attached to the Mut'a.

The Shia call Abu Ja'far Muhammad al-Tusi (d. 460/1068) the "Elder of the Denomination" (Shaikh al-Ta'ifa), since he was the first who organized a systematic methodology for demonstrative jurisprudence (al-Fiqh al- Istidlali). We can conclude this discussion with a summary of his views on Mut'a. He writes that the Shia reasons for considering Mut'a permissible are as follows:

• The Consensus of the Twelver Shi'ites.

• The words of the Quran : "Marry such women as seen 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 Quran: "So those of them whom you enjoy, give to them their appointed wages (4:24)." The word Istimta'a (enjoy), unless otherwise qualified, signifies temporary marriage.

• Ibn Masud's version of the Quran, which adds the words "to an appointed time" 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 should be proven.

• The words of Umar concerning the two types of Mut'a. 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.

Reference: al-Khilaf, v2, pp 179-180

After referring to the above reasons, al-Tusi answers the arguments of those who claim Mut'a is forbidden in much the same way that we have seen above.

References

(1) al-Tafsir al-Kabir, by Fakhr al-Razi, Istanbul, 1307/1889-90 (2) al-Durr al-Manthoor, by Jalaluddin Suyuti, 1377/1957 (3) al-Jami' li Ahkam al-Quran, by Muhammad Ibn Ahmad Ibn Abi Bakr al- Ansari al-Qurtubi (d. 671/1273), Cairo, 1967 (4) al-Musnad, by Ahmad Ibn Hanbal, Published in Beirut (5) Sahih Muslim, Arabic version, Saudi Arabia, 1980 (6) Sahih al-Bukhari, Arabic-English version, Saudi Arabia (7) al-Fiqh Ala al-Madhahib al-Arba'a,by Abd al Rahman al-Jaziri, Cairo 1969 (8) Wasa'il al-Shia, by Muhammad Ibn al-Hasan al-Hurr al-Amili, Tehran, 1385/1965-66 (9) Sharh al-Lum'a (al-Rawdat al-Bahiyya fi Sharh al-Lum'at al- Dimashqiyya), by al-Shahid al-Thani (Zayn al-Din Muhammad Ibn Ali al- Jab-i al-Amili d. 965/1558), Beirut 1967. (10) Jawahir al-Kalam, by Shaykh Muhammad Hasan (d. 1266/1850), Tehran, 1325/1907. (11) al-Khilaf, by Abu jafar Ibn al-Hasan al-Tusi, Tehran 1372/1952-53 (12) Tafsir al-Mizan, by Muhammad Husain Tabatabai (d. 1982), Beirut 1974. (13) Majma' al-Bayan, cited as al-Bayan, by Abu Ali al-Fadl Ibn al-Hasan al- Tabarsi (d. 548/1153) Tehran, 1339/1960 (14) al-Bayan fi Tafsir al-Quran, by Abul Qasim al-Musawi al-Khoei, Najaf, 1375/1955-56 (15) al-Mut'a, by Murtada Ibn Muhammad Amin al-Dizfuli (1214-81/1800-64) Tehran, 1352/1973 (16) Temporary Marriahe in Islam, by Abdullatif Berry, Arabic-English, Al- Zahra International Co. (17) Fixed Term Marriage, by Mohammad Sharif, English, Islamic Seminary Publications. (18) Temporary Marriage in Islamic Law, by Abul Qasim Gourji, rendered to English by Sachiko Murata.

End of Chapter 6.a of the Shi'ite Encyclopedia v2.0