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Muta Marriage

I. INTRODUCTION
As per Duhaime's Law Dictionary, Muta Marriage is a temporary marriage for a fixed period of time. 1 A
marriage is perceived as a legal institution because of the number of 'pillars' (arkan) and 'statutes' (ahkam)
it comprising of. Muta Marriage, being a branch of marriage also consists of such components. This paper
endeavor’s to cull out the legitimacy of Muta Marriage by highlighting them. Though Muta Marriage a
very rare form of marriage in India, it is quite common in various regions across the globe. Hence to
further reiterate the legitimacy of the notions of such marriage, its practices in Britain and Iran will be
studied. The Indian perspective pertaining to the same shall also to put forth. The legal impacts of
marriage i.e. the right to divorce, right to inherit, legitimacy of child pertaining to Muta Marriage are also
enumerated with reference to several case laws.

Light has also been thrown on the link of such arrangement with prostitution and how Muta Marriage has
been used across the globe as a shield to get away from the clutches of persecution and a tool to derive
enjoyment and pleasure, especially for the men and added misery and disgrace to the lives of the female
sector of the society.

II. HISTORY
The origin of Muta Marriage can be traced back to the war times when the first Islamic jihadis, led by
their prophet Mohamed, raided caravans and attacked neighboring societies for war booties. The absence
of war slaves with whom they could enter into marriage made them seek permission from their prophet to
visit prostitutes. Mohamed, being the "perfect man of Allah" did not grant them the permission to
undertake such immoral activity and hence decreed that these soldiers shall have to marry the girls that
they wanted. A dowry for their vaginas is mandated and subsequently the concept of "Muta" gave birth. 2

The second caliph, Umar, banned temporary marriage, but Shiites reject his authority because they believe
he usurped Muhammad's rightful heir, his son-in-law Ali. 3 During the Pahlavi regime in Iran, an endeavor
to abolish the institution of temporary marriage was initiated but the fear of religious retaliation held them

1 Mulla D.., PRINCIPLES OF MAHOMEDAN LAW, 239 (14 ED. 1955).

2 John Bastile, History of Muta and the future of an Islamic society (Dec. 29, 2017),
http://www.danielpipes.org/comments/2674. 3 Konina Mandal, Concept Of Marriage Among Muslims: A Study On Muta
Marriage, INTERNATIONAL JOURNAL OF LAW AND LEGAL JURISPRUDENCE STUDIES (2015), http://ijlljs.in/wp-
content/uploads/2016/02/18.pdf.

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back. Later the state was effectively able to move the family reforms through the parliament which led the
public to believe that temporary marriages have been banned. However, the practice was carried out in
secrecy.3

III. QURANIC EVIDENCES FOR LEGITIMACY OF MUTA MARRIAGE

The most important verse of the Holy Qur'an which establishes the legitimacy of Muta is verse 24 of Surat
an-Nisa, known to all hadeeth commentators (Sunni and Shi'a) as "the verse of Muta." The Shari'ah
prohibits fornication, but at the same time allows the practice of Muta. The Holy Qur'an evidently states
that:

"Forbidden to you are married woman, except what your right hand possesses. This Allah has written for
you, and all other women besides these are permitted to you, so that you may seek them out with your
wealth, seeking chastity and not fornication. So when you have contracted temporary marriage
[istimt'atum] with them, then give them their words. There is no sin on you for whatever you agree to after
this. Indeed, Allah is Knowing Wise."4

The episodes wherein the performance of temporary marriage (Muta) can be evidenced are from Sahih
Muslim, the second most authentic Sunni Hadith book which states: “Sabra al-Juhanni reported on the
authority of his father that while he was with Allah’s Messenger (may peace be upon him) he said: 0
people, I had permitted you to contract temporary marriage with women…”5

IV. PILLARS OF MUTA MARRIAGE

The Formula

Marriage under Muslim Law is a contract and as per the essentials of a valid contract, there needs to be a
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declaration and an acceptance. The Shafi'is and Hanbalis hold the words 'I have married
you'(ankahtuka)or 'I have espoused you' (zawwajtu-ka)as valid whereas the Malikis believes that if the
amount of the dower to be paid to the wife has been specified, the woman can say 'I give myself to you'
(wahabtu-ka).8

The declaration by the woman is followed by the man giving his acceptance expressing his satisfaction
with the declaration.

3 Id.
4 Ansar, Chapter Four: Qur’anic evidences for the legitimacy of Mut’ah, SHIA PEN NEWSLETTER, http://answering-ansar.org/
mutah.pdf.
5 Id.

6 Sachiko Murata, Muta', Temporary Marriage in Islamic Law,

https://www.alislam.org/printpdf/book/export/html/11245. 8 Id.

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Further, the marriage can be concluded by the man and woman themselves, or their representatives
(wakil), or their fathers. Thus, it is permissible for the father to say: 'I give my daughter in muta with her
agreement. 'It is 'uncommissioned' (fuduli) and invalid if anyone but the abovementioned persons conclude
the marriage.

The Persons

Muta marriage can only be concluded by a man with a Muslim or one of the 'People of the Book'.
Marriage with an unbeliever or an enemy of the Household of the Prophet (Ahlul Bayt, i.e., the Imams), is
prohibitive.

Certain situational restrictions are also imposed pertaining the persons contracting the marriage such as if
the man is already married or the slave belongs to someone else or she is the daughter of his sister-in-law
or brother-in-law he cannot contract a Muta her in absence of the wife's permission or the permission of
the master of the slave. The contract in such a case is invalid or in abeyance until the permission is given. 7
The Time Period (Mudda)

The time period must be set forth in a manner which leaves no possibility of increase or decrease.
According to the Imam al-Rida, '...(mut'a must) be a stipulated thing for a stipulated period.' The absence
of a stipulated period renders the contract of marriage as invalid. On the contrary, most of the 'ulema' hold
the contract is not invalidated due to this reason and rather, the marriage becomes a permanent one.

In Syed AmanullahHussain and Ors. Vs. Rajammaand OR’s 8, a Shia male Habibulla contracted a Muta
with Rajamma which lasted till the death of the man in 1967. and subsequently the wife inherited his
properties.
This was challenged by the brother of Habibulla contesting that the marriage was simply a Мutа marriage.
It was held that although the word Muta was used but the term was not specified, therefore, the marriage
was treated as permanent marriage and thus Rajamma was entitled to inherit her husband’s properties.

Further, the mentioning of certain number of sexual acts along with the time period does not render the
contract invalid. 'If the role of the time period is to contain a stipulated number of sexual acts, whenever
the number is finished, the woman is free of any further obligation to the man and if the stipulated number
of sexual acts is not performed by the end of the time period, the marriage still comes to an end.

The Dower

Another prerequisite of Muta Marriage is the fact of dower of known property, whether in cash or kind,
whose amount is safe from any fluctuations.
7 Supra 5.
8 Syed Amanullah Hussain and Ors. v. Rajammaand Ors (1977) 152 AIR.
11
Wasa'il, XIV, 467, hadith 5.

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The fact that the two sides have agreed over articles which may properly be exchanged is sufficient. 11If the
woman asks for the whole amount of the dower at the beginning of the marriage, the man is not entitled to
take back any of the dower under any circumstances, provided contract have been invalid from the
beginning.

There can be situations where a contract is concluded, but before the beginning of the time period the man
refuses the marriage but to 'give back' to the woman the contracted time, she is entitled to one-half the
dower which is similar to divorce before consummation in permanent marriage.9

The fact whether the marriage has been consummated or not also plays an important aspect as if it has been
consummated and then the husband returns some or all of the remaining time, the wife is entitled to the
whole dower, since without question the dower becomes necessary as soon as consummation takes place. 10
The failure on the part of the woman to provide the man with conjugal rights because of an excuse
sanctioned by the sharia, such as menstruation or 'fear of an oppressor', then the dower may not be
reduced. The death of the woman during the period of the Muta does not reduce her dower.

Further, in the following mentioned situations if the payment of the whole dower has been made the wife
must return part or all of it as soon as the invalidity becomes apparent:11

1. The woman already has a husband, or because she should be maintaining a waiting period as the
result of a previous marriage, or because she is forbidden to the man by family relationship

2. If the marriage has already been consummated and if the woman was ignorant of the fact that the
contract was invalid at the time of sexual intercourse, then she should be given the 'normal dower'.

3. If the marriage has been consummated and the woman was aware of the contract's invalidity, she
can have no claim to a dower, since she is a fornicatress, and there is no dower for fornication.

V. STATUTES OF MUTA MARRIAGE

Conditions in the Contract

Certain condition mentioned in contract can be like:

1. A particular time for meetings between the husband and wife, such as daytime or night-time.

2. A given number of sexual acts for a given period to be stipulated, as for example, during one day or
over the whole period of the marriage.

9 Sharh al-lum'a, v, 285; Shara'i, II, 24; Matajir, II, 300; Masalik, 1,538.
10 Jawahir, V, 168,
11 Matajir, II, 301; Sharh al-lum'a, v, 287-
88. 15 Supra 4, at 31.

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3. Non consummation of the marriage is legitimate as does not contradict the requirements of the
contract.15

Coitus Interruptus

It is permissible to perform coitus interruptus, irrespective of the fact that it is not mentioned as a condition
in the contract. If the woman becomes pregnant during the Muta, the child belongs to the husband, even if
he performed coitus interruptus.

Divorce

The view held by the ulama prohibits divorce in muta. The expiration of the time period automatically
separates the man and woman, or else by the man's 'returning' the remaining time to the woman.

Sworn Allegation

As per Quran24:6–9 , the husband to swear four times that his accusation is true, followed by a fifth oath
in which he invokes the wrath of God upon himself if he is lying. 12 Sworn allegation does not take place in
Muta. According to the Imam Ja'far: 'A free man does not make a sworn allegation against a slave girl, a
non-Muslim (dhimmi), or a wife by mut'a.'

Zihar

As per Duhaime's Law Dictionary an insult proffered by a husband upon his wife which likens the wife to
some prohibited female relation of his, and exposes the husband to divorce. 13

The majority of the ulama hold the opinion in affirmative stating the Qur'anic pronouncements :'Those of
you who say, regarding their women: 'Be as my mother's back', they are not truly their mothers' (58:2)
which is indicative of the fact that zihar pertains to any woman with whom intercourse has legitimately
taken place. 18

Inheritance

According to the most widely held view, there is no inheritance between husband and wife in Muta unless
it is specifically mentioned as a condition of the contract. The reason that inheritance is permissible
provided that the condition is entered into the contract is first the universal applicability of the prophetic
hadith: 'The believers hold fast to their conditions.'

Second, according to the Imam Ja'far: 'If they should stipulate the condition of inheritance [in the contract
of mut'a], they must hold fast to this condition.'

12 John L. Esposito, OXFORD ISLAMIC STUDIES ONLINE, http://www.oxfordislamicstudies.com/article/opr/t125/e1345 .

13 Supra 1.
18
Supra 8.

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The inheritance by a child born as the result of a temporary marriage is one-half from the father of that of a
child by permanent marriage and the same from the mother as it would be in permanent marriage.

The Waiting Period

Muta Marriage also observed waiting period after the time period of the marriage has expired or the man
has returned the remainder of the period to the woman. 14 It consists of two menstrual periods, provided
she menstruates. This statute finds basis in two hadith: 'To divorce a slave, one must pronounce the
formula of divorce twice; her waiting period is two menstrual periods' (the Imam Musa).

If the woman is of menstruating age but for some reason does not menstruate, her waiting period is 45 days
irrespective of she being free or a slave. The waiting period of a free woman whose husband has died
during the period of Muta is for four months and ten days, so long as she is not pregnant irrespective of the
consummation of marriage. 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).

Renewing The Contract

A contract of Muta cannot be renewed before the time period expires. Hence, if the parties wish to renew
the contract, the man has to return the remainder of the time period to the woman, as a result terminates the
contract and then may enter into a fresh one. The woman need not undergo waiting period if she remarries
the same man. 15

VI. CASE LAWS DEFINING LEGAL INCIDENTS OF MUTA MARRIAGE

No mutual rights of inheritance created between the spouses, however, children are considered legitimate
and capable of inheriting from both parents. A son from the Muta is legitimate and has same proprietary
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rights in his father's property as the offspring of the nikahi marriage. In Syed AmanullahHussain and
Ors.Vs.Rajamma and Ors.16it was held that " such type of marriage does not create mutual rights of
inheritance between husband and wife but children conceived are legitimate and capable of inheriting
from both parents."

14 Supra 8, at 35.
15 Supra 8, at 37.
16 Supra 14.

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