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Debate on the Legitimacy of Mut''a The following piece is adopted from the book Temporary Marriage
in Islamic Law, by Abul Qasim Gourji, and is presented with
some modifications.

Introduction
The word Mut''a was more commonly used than other terms for temporary
marriage both during the lifetime of the Prophet and afterwards.

Both its proponents and opponents preferred this word and its
derivatives.

In books on jurisprudence the terms Mut''a, al-Nikah
al-Munqati'' (discontinued marriage), and al-Nikah al-Muwaqqat
(temporary marriage), Istimta'' (having pleasure), and the related
word of tamattu'' (pleasure) are all employed.

The scholars both Sunni and Shia, agree that Mut''a was permitted
at the beginning of Islam.

However, they disagree as to the reasons
it was permitted.

The Shia View
In the chapter titled Women, after listing those women
to whom marriage is forbidden, the Quran states as follows: Lawful
for you is what is beyond all that, that you may seek, using your
wealth, in wedlock and not in license.

So those of them whom you
enjoy, give them their appointed wages; it is no fault in you
in mutually agreeing after fulfillment (of the wage).

God is All-Knowing,
All-Wise (4:24).

All Shia scholars and many Sunni scholars
hold that this verse - especially the words: Such woman
as you enjoy (Istamta''tum) - refers to the permissibility
of Mut''a.
The Shia present several arguments to prove this point.

(See Sharh al-Lum''a, v5, p248-253; Jawahir, v5, p163).

This verse was revealed towards the beginning of the Prophet''s
stay in Medina.

By the revelation of this verse, the temporary
marriage became a legal custom in Medina and was looked upon as
one kind of marriage and was referred to by the term Istimta''a,
the same word employed in the Quranic verse - even though the
literal meaning of the word is to seek benefit or
to take enjoyment.

Hence the meaning of the Quranic
verse must be understood in terms of the conventional usage of
the time, for as is well-known in the science of Quranic commentary
and Islamic jurisprudence, the Quran follows the conventional
usage of the people in all edicts and legal prescriptions.

If
someone wants to understand a word in the Quran in other than
the conventional meaning of the time, he must supply a strong
reason for doing so.

Moreover if one looks up the traditions of
the chapter of temporary marriage in the authentic Sunni collections
such as Sahih al-Bukhari and Sahih Muslim, one can see that the
messenger of Allah and his companions exactly used the word Istimta''a
when referring to this contract, which is exactly the same word
as what Quran employed.

The context of the verse also indicates that it is referring to
the temporary marriage.
In the previous verse, i.
e.
4:23, the
Quran enumerates the women who are forbidden to men.

These are
divided into seven kinds stemming from blood relationship and
seven more stemming from other causes: Forbidden to you
are your mothers and daughters.

The next verse adds a
fifteenth category of women forbidden to men: And married
women, save what your right hands own.

It continues with
the words quoted above: Lawful for you is what is beyond
all that.

In other words, any woman not belonging to one
of the fifteen categories is permitted, whether by marriage or
ownership.

Next the verse states: that you may seek, using your wealth,
in wedlock and not in license.

Grammatically, this clause
is in apposition to what is beyond all that.

It explains
the legitimate mode of seeking sexual relationships with women,
whether as the result of marriage or the purchase of slaves.

The next part of this same verse states as follows: So those
of them whom you enjoy, give them their appointed wages.

The word so (fa) shows that this part of the verse
is either part of the previous subject matter, or an example of
it; in other words, its relation to the previous section is either
that of the part which is completing the whole, or the particular
example to the universal principle.

And since the previous section
deals with the DIFFERENT KINDS of legitimate sexual relationships,
either by marriage or the purchase of slaves, we can conclude
that this section of the verse is the exposition of a FURTHER
KIND of marriage, not mentioned previously; a kind which also
requires that the man pay the wages of his wife.

Many sayings have been related from the Companions of the Prophet
and those who followed them (al-Tabi''een) confirming the Shia
view that verse 24 of this chapter concerns Mut''a.

Several of
the companions, including Ibn-Abbas, one of the highly respected
companions of the Prophet, Ibn Masud, one of the first to accept
Islam, and Ubayy Ibn Ka''ab, one of the scribes of the revelation,
and many others used to read the verse with three more words resulting
in the sentence of the form: So those of them whom you enjoy
TO AN APPOINTED TIME (Ila Ajal Musamma).

This clearly indicates
that the verse refers to Mut''a.

In Majma'' al-Bayan, Abu Ali al-Fadl Ibn al-Hasan al-Tabarsi (d.

548/1153), one of the Shia commentator of the Quran summarizes
the Shia arguments:

the word ''enjoy'' in this verse refers to the marriage of Mut''a,
i.
e.
, a marriage for a specified dower and a determined time period.

This opinion has been related from Ibn Abbas and many of the ''followers''
of the Companions such as Isma''il Ibn Abdurrahman al-Suddy (d.
127/744-45) and Sa''id Ibn Jubair al-Asadi (95/713-14).

In fact,
this clearly must be the case, for although the words Istimta''a
and Mut''a have the literal meaning of ''enjoyment'', in Shari''ah
(divine law) they refer to the contract of temporary marriage,
especially when they are followed by the word ''women''.

Hence the
meaning of the verse is: ''Whenever you draw up a contract of Mut''a
with a woman, you must pay her wages.

Reference:

Majma'' al-Bayan, by Abu Ali al-Tabarsi, v3, p32 The Sunni View
As was indicated above, the Sunnis agree that at the beginning
of Islam Mut''a was permitted.

For example, Fakhr al-Din al-Razi
(d.
606/1209), the famous Sunni theologian, writes in his Commentary
on the Quran that Mut''a was at first permitted.

The Prophet made
a lesser pilgrimage (Umrah) to Mecca, and the women of Mecca made
themselves up especially for the occasion.

Some of the Companions
complained about the long separation from their wives, and the
Prophet replied: Then go and enjoy (Istamta''a) these women.

(Tafsir al-Kabir, by Fakhr al-Razi, v3, p286)
Those Sunnis who hold that the Quranic verse mentioned above (4:23)
does indeed refer to the permissibility of Mut''a also maintain
that the verse was subsequently abrogated (Naskh) by other Quranic
verses.

They offer three arguments to prove their point: other
Quranic verses, the sermon of Umar banning Mut''a, and the Hadith
transmitted by some Companions.

The Shia, in turn, reject each
of the arguments:
Debate on the Quranic Verse of Mut''a
Some Sunnis argue that sexual intercourse is forbidden except
with one''s wife or a slave by reason of the verse: Prosperous
are the believers .
who guard their private parts save from
their wives and what their right hands own.

(23:14).

According to the Prophet''s wife Aisha and others: ''Mut''a is forbidden
and abrogated in the Quran where God says: who guard their
private parts.

(al-Jami'' li Ahkam al-Quran, by al-Qurtubi, v5, p130).

The Sunni argument continues by pointing out that without question
a woman enjoyed through Mut''a is not a slave.

Nor is she a wife,
for several reasons: if she were a wife, she and her husband would
inherit from each other, since God says: And for you a half
of what your wives leave.

(4:12).

But everyone agrees
that Mut''a does not involve inheritance.
If she were a wife, the
child would belong to the husband, since according to the Prophet:
The child belongs to the bed.
But again this is not
the case.

And finally, if she were a wife, it would be necessary
for her to maintain the waiting period, since this is commanded
by God (2:234); but this also is not the case.

We have already seen that some of these arguments, taken from
Fakhr al-Razi''s Commentary, do not in fact apply to Mut''a as the
Shia understand it.

It is the Ijma'' of the Shia scholars that
the child born of Mut''a belongs to the husband and that the woman
is obliged to observe the waiting period after the expiration
date of the marriage.

However, it will be useful to see how the
Shia answer each of the above Sunni claims:
As for the ''abrogation'' of the verse concerning Mut''a, historical
considerations show that this can not be the case.

The verse mentioned
as abrogating Mut''a was revealed in Mecca before the migration,
while the verse establishing Mut''a was revealed after the Prophet
had emigrated to Medina.

But a verse which abrogates another verse
must have been revealed after it, not before it.

It is also well-known
that the Prophet allowed the companions to practice Mut''a in Medina,
and if Mut''a had already been illegalized in Mecca (before Hijra)
by Quran, then the Prophet would not have allowed his companions
to practice it after the migration.

(Tafsir al-Mizan, by al-Tabatabai,
v3, p132).

As for the Sunni claim that a wife by Mut''a is not a legitimate
wife because she does not fulfill the religious requirements for
being a ''wife'', this also is false.

In the question of inheritance,
the Quranic verse is a general one, and there is no reason to
suppose that it may not have certain exceptions.

In fact, the
specific requirements of Mut''a as established by the Hadith literature
show that Mut''a is an exception.

Nor is it the only exception,
since a non-Muslim cannot inherit from a Muslim, nor can a murderer
inherit from his victim.

Also if a man is sick and marries a woman,
but dies due to that sickness before consummating the marriage,
the woman will not inherit from his husband.

Thus being husband
and wife (even in the permanent marriage) does not always necessitate
the inheritance.

Quran usually provides the general rules and
he was the Messenger of Allah who clarified the exceptions as
well as the conditions for applying the rule.

In short, inheritance
pertains to permanent marriage, but even in permanent marriage
it has certain exceptions, so that the verse establishing it cannot
be interpreted as nullifying the validity of Mut''a.

Also inheritance
is possible in the temporary marriage as long as it is made condition
at the time of contract.

(See Asl al-Shia wa Usuliha, by Kashif
al-Ghita'', p116; al-Bayan Fi Tafsir al-Quran, by al-Khoei, p219) In the question of the child, there is no reason to claim that
it is illegitimate.

In Mut''a the bed is legitimate,
so is the offspring.

(Sharh al-Lum''a, v5, p277) The Imam Ja''far was asked: If the wife becomes pregnant
as a result of Mut''a, to whom does the child belong? He
replied: To the father, i.
e.
, the child
is legitimate.

(Wasa''il al-Shia, v14, p488) In a similar manner numerous traditions exist to prove that a
wife by Mut''a must observe the waiting period of two months.

Some
of such traditions are even documented in the Sunni sources.

For
example Fakhr al-Razi himself quotes a relevant saying from Ibn
Abbas that:

Ibn Abbas was asked: Is Mut''a fornication or marriage?
He answered: ''Neither the one nor the other.

'' The questioner then
asked: Well then, what is it? Ibn Abbas replied: It
is Mut''a'', just as God has said.

The questioner continued:
Is there a waiting period in Mut''a? He replied: Yes,
a menstrual period.

He was also asked: Do the husband
and wife inherit from each other? He answered: No.

Reference: Tafsir al-Kabir, by Fakhr al-Razi, v3, p286
Certain Sunnis also argue that Mut''a cannot be considered a legitimate
form of sexual union because it excludes such things as inheritance,
divorce, sworn allegation, forswearing, and Bihar.

Since these
necessary concomitants of marriage do not apply to Mut''a, it cannot
be considered marriage, so the woman cannot be considered a legitimate
wife.

If she is neither a wife nor property, sexual intercourse
with her is illegitimate: Prosperous are the believers,
who.

guard their private parts, save from their wives and what
their right hands own.

; but whosoever seeks after more than
that, those are the transgressors (23:1-7).

Hence, people
who engage in Mut''a transgress God''s law.

A typical Shia answer to this argument runs as follows: First,
the Quranic verse is a general statement, and there is no reason
why its specific applications may not be clarified by other verses
and the traditions.

Second, it is not true that the above things
are concomitants of marriage: there is no inheritance in the case
of a non-Muslim wife, a murderer, or a slave-girl.

A legitimate
sexual relationship may be dissolved without divorce in the case
of a wife who is the subject of a sworn allegation, a spouse who
leaves Islam, or a slave-girl who is sold.

Sworn allegation, forswearing,
and Bihar are all concomitants of permanent marriage, not of legitimate
sexual relationships in general (i.
e.
, they do not apply to sexual
relationships with a slave).

Even if we suppose that these things
do in fact pertain to legitimate sexual relationships, then it
will be necessary to specify that there are certain exceptions.

This is the only way we will be able to combine the Quranic verses
and the traditions which show that these pertain to legitimate
sexual relationships with those traditions which demonstrate that
they do not pertain to Mut''a.

(Jawahir, v5, p163).

Debate over the Sermon of Umar
In a famous sermons the second caliph Umar banned Mut''a with the
following words: Two Mut''a were practiced during the time
of the Prophet: Mut''a of women and Mut''a of Hajj, but I forbid
both of them and will punish anyone who practices either.

References:

Tafsir al-Kabir, by Fakhr al-Razi, v3, commentary of verse 4:24

Musnad Ahmad Ibn Hanbal, v1, p52
Al-Razi summarizes the Sunni interpretation of Umar''s words by
saying that they were pronounced in a gathering of Companions
and no one protested.

Therefore, the situation must have been
as follows: either


everyone knew that Mut''a was forbidden, so they remained silent;
or

they all knew that it was permitted, yet they remained silent
out of negligence and in order to placate Umar; or

they did not know whether it was forbidden or permitted, so
they remained silent since the matter had just then been clarified
for them, so they had no reason to protest.

Reference: al-Tafsir al-Kabir, by Fakhr al-Razi, v3, p287
Al-Razi continues by saying that the first possibility is what
he is trying to prove.

If we maintain the second possibility,
then we must call Umar and the companions who were with him unbelievers.

For they knew that the Quran and the Prophet had permitted Mut''a,
yet Umar went ahead and banned it without the Quranic verse permitting
it having been abrogated.

This is unbelief (Kufr); and those who
knew Umar was wrong without protesting shared in his unbelief.

But such a supposition requires that we call Islam a religion
of unbelief, which is absurd.

The third possibility that Umar''s listeners had not known whether
Mut''a was permitted or forbidden is also absurd.

For, if we suppose
that Mut''a was permitted, then people would need to have knowledge
of that fact in their everyday lives, just as they need to have
knowledge about the permissibility of marriage.

So the legal situation
of Mut''a must have been known, just as everyone knew about marriage.

Al-Razi concludes that as soon as we see that the second and third
possibilities are in absurd, then we know for certain that the
companions remained silent only because they all knew that Mut''a
had already been abrogated.

The Shia answer Fakhr al-Razi''s arguments as follows: Umar''s sermon
demonstrates that during the lifetime of the Prophet Mut''a was
permitted.

The reason Umar attributed the banning to himself is
that he wanted to show that he was expressing his own view.

If
the Prophet himself had prohibited Mut''a, or if its permissibility
pertained only to a specific period in time, then Umar would have
attributed its prohibition to the Prophet, not to himself.

(Majma''
al-Bayan, v3, p32).

Another saying concerning Mut''a is also attributed to Umar: God
permitted for His Prophet what He willed, and the Quran has been
revealed in its entirety.

So complete the Hajj and the Umrah as
God has commanded you.

But avoid marrying these women, and do
not bring before me any man who has married a woman for a specified
period, or I will stone him.

(Sahih Muslim, Arabic version,
1980 Edition Pub.

in Saudi Arabia, v2, p885, Tradition #145.

For
English version see: v2, chapter CDXLII, Tradition #2801)
As for the fact that no one protested against Umar''s pronouncement
cannot be considered proof that the Prophet himself had forbidden
Mut''a.

For Umar threatened the people with stoning, and considering
his fabled severity and harsh temper, no one would have dared
to speak against him.

If Ali had been able to protest against
Umar, he would not have remained silent.

But because of the circumstances
he had no choice but to have patience and to bide his time.

The
case of Mut''a is similar.

For it was Ali himself who said: If
Umar had not prohibited Mut''a, no one would commit fornication
except the wretched! (Sunni commentaries of Quran by Tabari,
Tha''labi, Qurtubi, Fakhr al-Razi, Suyuti, Ibn Hayyan, Nishaboori,
and Jassas.

As for Shia, see al-Mut''a, by al-Dizfuli, pp 68-69).

The Shia scholars also point out that without question stoning
as a punishment for having performed Mut''a could not be permissible,
even if we were to accept that Mut''a is forbidden.

For stoning
can only be a punishment when a married man has committed fornication
with a woman.

Hence Umar had no right for laying down this edict.

(Jawahir, v5 p161, al-Bayan, p229).

Fakhr al-Razi answers this line of reasoning by saying that perhaps
Umar only mentioned stoning to intimidate his listeners and make
them think more seriously about the consequences of temporary
marriage.

(al-Tafsir al-Kabir, by Fakhr al-Razi, v3, p287).

Concerning Umar''s two sayings banning Mut''a, the Shia argue as
follows: If his prohibition was based on independent judgment
(Ijtihad), then it is baseless, since all scholars agree that
independent judgment can never gain or contradict the saying of
the Quran or the traditions.

(Sharh al-Lum''a, v5, p182-183; Jawahir,
v5, p161; al-Bayan, p229).

As for the Quranic basis of Mut''a, we have already seen that as
far as the Shia and certain individual Sunnis are concerned, the
Quran permits it in the chapter of Women.

As for its basis in
the prophetic Hadith, many traditions have been related in the
standard Sunni collections which proves the permissibility of
Mut''a of women at the time of the Prophet.

Concerning Umar''s independent judgment, one of the
contemporary Shia scholars argues as follows: Umar may have made
his judgment completely on his own initiative and in direct contradiction
to the words of the Prophet; or he may have based his judgment
on a prohibition issued by the Prophet himself.

If the first case
is true, then Umar''s judgment is groundless, as noted above.

And
the second case cannot be true, since a number of the companions
have given witness to the fact that Mut''a was permitted during
the lifetime of the Prophet and up until the time of his demise.

(al-Bayan, p229).

In general the Shia argue that if Umar''s prohibition had been
based upon the words of the Prophet, then other Companions would
have known about it.

How is it possible for the Prophet to have
forbidden Mut''a, yet, during the rest of his life, the period
of Abu Bakr''s caliphate and the beginning of Umar''s caliphate,
for prohibition to have remained unknown to everyone but Umar?
Moreover, if his prohibition were based upon the words of the
Prophet, why did he not attribute it to the Prophet instead of
to himself?
Fakhr al-Razi answers that it might be that beside Umar, some
other Companions had heard the prohibition from the Prophet, but
they forgot it later.

But when Umar mentioned the prohibition
in a large gathering, everyone knew he was speaking the truth,
so they remained silent.

The Shia reply to the argument of Fakhr al-Razi as follows: It
is impossible to imagine that all of the Companions other than
Umar had forgotten that Mut''a had been forbidden, considering
its everyday importance.

People need legitimate sexual relationships
almost as much as they need food and water.

They could not have
forgotten when they continued practicing Mut''a after the demise
of the Prophet till the time of Umar''s rule.

The Shia authors also point out that Umar banned the two kinds
of Mut''a together, whereas everyone, Sunnis and Shia agree that
the Mut''a of al-Hajj is permissible.

Hence the Mut''a pertaining
to women should also be permissible.

(Majma'' al-Bayan, v3, p33).

Debate on the Controversial Reports
In the Sunni sources few traditions have been attributed the Prophet
showing that he banned Mut''a during his lifetime.

In most of the
Sunni sound collections (Sihah), it is related from
Ali that he said: Verily the Prophet of God banned the Mut''a
of temporary marriage and the eating of the meat of domesticated
asses on the day of Khaibar.

Ibn Sabra relates from his father the following: I came upon the
Prophet of God who was leaning against the Ka''ba.

He said: O
People! I commanded you to seek enjoyment (Istimta''a) from these
women, but now God has forbidden that to you until the Day of
Resurrection.

So if you have a temporary wife, let her go her
way; and do not take back anything of what you have given her.

Another Hadith is related from Salama Ibn al-Akwa''.

Through his
father he reported that the Prophet of God permitted Mut''a in
the year of Autas (8/629) for three days; but then he prohibited
it.

Shia do not consider these three traditions of any authority.

To illustrate how they reject them, we can summarize the arguments
of al-Khoei.

The Hadith attributed to Ali cannot be authentic,
since all Muslims agree that Mut''a was permitted in the year Mecca
was conquered.

So how could Ali have claimed that Mut''a was banned
on the Day of Khaibar (close to two years before Mecca''s conquest)?!
Because of this obvious discrepancy, some of the great Sunni authorities
have maintained that the words on the day of Khaibar
probably refer only to the meat of domestic asses.

But this is
absurd, for two reasons: First, it is counter to the rules of
Arabic grammar: if the phrase referred only to asses, the verb
would have to be repeated.

Thus, in Arabic one says: I honored
Zaid and Amr on Friday, or one says: I honored Zaid
and I honored Amr on Friday, thus making it clear that on
Friday refers only to Amr.

If the adverbial phrase referred
only to the meat, the text of the Hadith would have to read: Verily
the Prophet of God banned Mut''a, and he banned the eating of the
meat of domesticated asses on the Day of Khaibar.

In short,
since everyone agrees that Mut''a was permitted when Mecca was
conquered, the Prophet cannot have banned it three years before
that.

Hence the Hadith is not authentic.

(al-Bayan, pp 222-224).

The second reason that the Day of Khaibar cannot refer
only to the meat of domesticated asses is that this clearly conflicts
with Hadith related by al-Bukhari, Muslim, and Ahmad Ibn Hanbal
(three of the authoritative Sunni collections).

For their versions
of Ali''s Hadith is as follows: The Prophet banned the Mut''a
of marriage on the Day of Khaibar, as well as the meat of domesticated
asses.

As for the tradition related by Ibn Sabra from his father, al-Khoei
points out that although his Hadith has been related by many chains
of authority, they ALL go back to Ibn Sabra himself, and thus
the Hadith is of the type known as Wahid, i.
e.
, it derives from
a single companion.

And a Quranic verse cannot be abrogated even
by the most authentic kind of Hadith, and thus by far, it can
not be abrogated by a relatively weak one.

Moreover the very content
of the Hadith shows that it is not correct.

It is hardly conceivable
that the Prophet could have stood before the Ka''ba in front of
a large group of Muslims and ban something until the Day of Resurrection,
and that then only one person Sabra should have heard him or related
his words.

Where were those Companions who recorded even the gestures and
the glances of the Prophet? Certainly they should have joined
Sabra in reporting the prohibition of Mut''a until the Day of Resurrection.

And where was Umar himself? He certainly should have known about
the prohibition so that it would not have been necessary to attribute
the banning of Mut''a to himself.

Finally, there are discrepancies
in the various versions of the Hadith of Sabra.

In some versions
the prohibition is said to have occurred in the year of the victory
of Mecca (8/630), in others in the year of the Farewell Pilgrimage
(10/632).

This discrepancy makes the Hadith even more untrustworthy.

Shahid al-Thani points out another problem concerning the Hadith
of Ibn Sabra.

He mentioned Ibn Sabra himself is the only source
for his father''s words, but no one knows anything about him.

He
is not mentioned in any of the books on Hadith as a transmitter,
nor has any other Hadith been related from him.

For this reason
al-Bukhari the most famous Sunni authority, and generally considered
the most reliable for the Sunnis, left the Hadith of Ibn Sabra
out of his collection.

(Sharh al-Lum''a, v5, pp 264-282).

As for the Hadith of Salama Ibn al-Akwa, al-Khoei remarks that
again it is a saying related from only one Companion (Wahid) and
cannot abrogate a Quranic verse.

In addition, if it is an authentic
Hadith, it is strange that it remained unknown to such important
Companions as Ibn Abbas, Ibn Masud, and Jabir Ibn Abdillah.

How
is it possible for the Hadith to be authentic, while Abu Bakr
did not forbid Mut''a during the whole period of his caliphate
and Umar only banned it towards the end of his own? (al-Bayan,
pp 222-223).

There are many sayings of the Companions which indicate that Mut''a
was permitted up until the time of Umar''s prohibition.

Three of
the most famous are those of Ali, Ibn Abbas, and Imran Ibn al-Husain.

As we have already seen, Ali said: ''If Umar had not prohibited
Mut''a, no one would commit fornication except the wretched.

''
This is the most famous form of a saying reported in numerous
sources and a number of different versions.

The above version is derived from Sunni works; a Shia version
is related from the fifth Imam, al-Baqir: If it were not
for that [i.
e.
, Mut''a] with which [Umar] Ibn al-Khattab preceded
me, no one would commit fornication except the wretched.

The saying related from Ibn Abbas is reported by the tenth/sixteenth
century Sunni scholar al-Suyuti in this form: God have mercy
on Umar! Mut''a was naught but a mercy from God, through which
He showed mercy to Muhammad''s community.

If Umar had not banned
it, no one would need fornication except the wretched.

(al-Durr
al-Manthoor, by al-Suyuti, v2, p141).

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:

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

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.

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 Marriage 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