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statement that if 'Umar had not forbidden mut'ah there
would have been only a few unfortunate men who committed
fornication has become proverbial at-Tabari has reported
this tradition in his "tafsir" also. In this
connection Imam Ja'afar as-Sadiq is reliably understood
to have said: "I do not do taqiyah (to deliberately
conceal one's beliefs or opinions under certain
conditions) in the matter of three things: mut'ahtu
'l-hajj, mut'atu 'n-nisa', and al-mash 'ala
'l-khafayn." (The latter item refers to the Sunni
practice of wiping over the shoes in place of washing the
feet when performing wudu'.) According to the principles
of jurisprudence the conflicting reports of the Sunni
commentators have been analyzed and proved to be full of
false hadith. The lawfulness of mut'ah has been proved,
and just as it was lawful at the time of the Prophet so
it is today
It was Hadrat 'Umar who prohibited mut'ah during his
rule; his prohibition was based on personal social
considerations of the day, but it had nothing to do with
religion. He is reported to have said, "During the
days of the Prophet (s.a.w.) two mut'ahs were
permissible, but I now make them unlawful, and will
punish those who disobey my order." What is worth
noting is this that the second Caliph did not attribute
the order of unlawfulness or abrogation of mut'ah to the
Holy Prophet (s.a.w.), but made himself responsible for
it. He, too, was responsible for the matter of
punishment. We can only repeat what we have tried to
demonstrate with the above example: that mut'ah, the
Qur'anic ordinance concerning its legality, the Sunnah
(practice) of the Prophet (s.a.w.), the practice of his
Companions, its being practised during the rule of Abu
Bakr and in the early period of 'Umar's own Caliphate,
are all verifiable realities which are above all argument
and discussion. The books of history and traditions bear
witness to the fact that during the age of the Prophet
(s.a.w.) the high-ranking companions and respected
members of the Quraysh all practised mut'ah; indeed many
of the noble Muslims of that time were sons of temporary
marriages.
Raghib al-Isfahani, the celebrated Sunni scholar, has
reported that a Sunni scholar Yahya ibn Aktham, asked one
of the important nobles of Basrah whom he followed about
the justification for mut'ah. The noble siad "'Umar
ibn Khattab." "How is this," asked Yahya,
"he was the sworn enemy of mut'ah." The man
said: "Yes, it has been proved that once Hadrat
'Umar announced from the pulpit: "Oh people! God and
His Prophet made two mut'ahs lawful, but I now declare
them unlawful. Also I will punish those who disobey me.'
We accept his statement but we do not accept the validity
of his prohibition." A similar hadith has been
related by 'Abdullah ibn 'Umar; it is shorter and less
harsh than the former: "During the age of the
Prophet (s.a.w.) there were two mut'ahs, and I now make
them unlawful." Some have argued that 'Umar did not
want to alter the command of Allah but only to make a law
which was suitable for the society of the time.
At this stage it would be useful to recall a great
work by a renowned scholar of the 6th century A.H.,
Muhammad ibn Idris al-Hilli, namely the
"sara'ir", in which the author writes:
"Temporary marriage within the Islamic code of
religion is lawful. Muslims believe that its lawfulness
is proved according to the Book of God and also according
to the Sunnah. However some people have claimed that it
had been revoked, but the veracity of this requires
proof. Moreover 'aql (the faculty of reason which allows
us to understand the workings of God in his creation)
tells us that every useful act about which we have no
fear that it will give us any loss in this world or the
next is permissible. This condition applies to mut'ah. We
must, through our reason, acknowledge its lawfulness.
Now, if somebody asks what is the proof, given the
conflicting opinions concerning its legality, that it
would not cause us loss in the next world, the answer is
that the onus of proof lies on the person who pleads the
possibility of its being harmful. It is beyond doubt that
mut'ah was permissible during the days of the Holy
Prophet (s.a.w.), and that it was only later that they
began talking of its unlawfulness and revocation. Thus
until revocation can be proved we have no right to deny
its lawfulness.
"When we examine the hadith which relate that the
Prophet did make mut'ah unlawful, we find that these
traditions all have weak chains of transmission and do
not qualify as sources of certainty, nor do they provide
a justification for action on the part of the Muslim.
"Let us examine again the relevant verse in the
Qur'an. It occurs after the passage concerning the women
who are mahram (one is not allowed to marry them for
reasons of consanguinity, etc.) "
And lawful for you are all (women) besides those
mentioned', so that you may seek them by means of your
wealth, taking (them) into marriage, and not committing
fornication; and those with whom you concluded mut'ah
give them their dowries as a fixed reward, and it shall
not be a sin on you in whatever you mutually agree (to
vary) after the fixed reward" (Surah an-Nisa'). In
this holy verse the disputable work is
"istamta'tum" which has two meanings - either
to take pleasure in and profit from, or to make the
agreement for mut'ah according to the Islamic code - the
first is the literal meaning and the second is according
to its meaning within the Islamic code. According to the
principles of 'fiqh', if a word in the Qur'an has two
meanings - one literal and the other used specifically in
the language of the "shari'ah" then the latter
meaning must be accepted and the literal meaning should
not be relied upon. That is why for example the words
"salat", "zakat", "sawm"
and "hajj" are all to be understood according
to the precise meaning of the Islamic shari'ah (code),
and not according to the literal meaning to be found in
the dictionary.
We have already made it dear that a well-known group
of the companions believed in the lawfulness of mut'ah
and that Amir al-mu'minin himself openly declared its
lawfulness; 'Abdullah ibn 'Abbas used to enter into
polemical discussion with ibn Zubayr on this topic and
these discussions became so widely known that they were
not only talked of by the common people but the poets of
that time also gave vent to their reactions in their
verses. Also 'Abdullah ibn Mas'ud, Mujahid, Ata'i, Jabir
ibn 'Abdullah al-Ansari, Salmah ibn al-Akwa', Abu Sa'id
Khudri, Mughirah ibn Sha'hab, Sa'id ibn Jabir and Ibn
Jarih also gave the verdict that mut'ah was lawful. All
these men are esteemed and trustworthy men of knowledge;
they arrived at their decision through careful
examination of the matter.
We have so far thrown light on this topic from only a
religious or historical point of view. Now let us assess
it from the ethical and social point of view. Islam is a
great blessing and mercy for the world. The message of
Islam is like a divine song which is diffused from heaven
over the world of man, and which gave and still gives the
answer to those who seek to understand the reason for
man's existence on earth. Our revealed religion suits
every age, meets the needs of all men in every age in
this world, and guarantees for them prosperity both
spiritual and material. Islam was revealed by God not to
make man's life harder but on the contrary, to fill it
with mercy, meaning and order. That is why Islam is the
most perfect religion and the last code of religion
before the end of the world; this divine law adorns human
culture and civilization with perfection; no other
man-made institutions or laws are needed.
Let us now examine one activity which every individual
is obliged to undertake at some time in his life, namely,
travel. We find that the Islamic code indicates precisely
the code of conduct to be expected from the Muslim who is
travelling, whether for trade, for war or on the hajj or
'umrah, for example.
It hardly needs to be pointed out that God, the
All-Wise, has endowed man with sexual desire for the
preservation of the human race. And it also goes without
saying that a traveller is unable to fulfill the
requirements of a permanent marriage.
Under these conditions, what should this traveller do
who has been away from his home for a long time?
How should be behave especially when he happens to be
young and subject to strong sexual urges.
There are only two alternatives possible if we do not
allow mut'ah; he should either control his passion or
must indulge in unlawful relationships. It should be
stated that excessive control and suppressing of sexual
desires sometimes causes serious physical and mental
illness. Sterility is also another possible consequence
of such self-control. Such practice is patiently against
the dictates of wisdom, and God says in the Quran,
"God wishes ease for you and does not wish for you
discomfort."
May God save us from sexual mal-practices. Most parts
of the world are suffering its consequences today. I swear to God that if the Muslims act in compliance with
the religious laws, this universe, according to the
divine promise, will become complete mercy for them, and
man will live in harmony and prosperty.
Mut'ah is thus a welcome and necessary law of the
Islamic religion. If the Muslims acted in accordance with
the conditions for lawful mut'ah (the making of an
agreement between the two parties stipulating the time
limit and dowry, and the 'iddah, for example), and take
advantage of this divine blessing, evil-doing would to a
great extent be eradicated, the honour of man and woman
would be saved, the Muslim community would grow in
number, the world would be rid of illegitimate children
and moral values would be strengthened. The pronouncement
of the exalted man of the community, 'Abdullah ibn 'Abbas
cannot be over-praised. Ibn Athir relates that he says,
"Mut'ah was a blessing with which God the Almighty
endowed the ummah of Muhammad (peace and the blessings of
God be upon him and his descendents) and, had it not been
prohibited, no-one, except the truly perverted ones,
would have committed adultry (see the "Nahayah"
of Ibn Athir and the "Fa'iq" of
az-Zamakhshari). The effects of his exalted teacher and
guardian, Amir al-mu'minin are reflected in this
statement of Ibn Abbas. The fact is that the Islamic
world is rejecting this divine mercy and as a result has
plunged itself into shameless immorality.
8 (b) Talaq (Divorce)
It is clear that the essence of marriage is the very
special union which is established between man and woman,
and which makes the two different individuals close
companions and partners to each other. The cooperation
and communion between wife and husband may be compared to
a person's eyes and hands - each hand is different from
the other but each complements and perfects the other.
The very nature of this act, that two personalities,
who are quite unacquainted with each other, are so
strongly joined and united through wedlock that it
precludes any conception of a stronger union, shows the
particular strength of this alliance. There can be no
better words than the following verse of the Holy Quran:
"Hunna libasuln lakum wa antum libasuln
lahunna" (2:187), "They are your garments and
you are their garments." Truly this verse expresses
the subtle intimacy of the relationship of marriage.
The obvious feature of the non-temporary alliance is
that the two make an agreement to remain together for
life.
It may happen however that the marriage is no longer
desired either on the part of one or both parties and
divorce becomes necessary. The code of religion ordains
that certain conditions be fulfilled according to the
kind of divorce in question. There are three kinds of
divorce: firstly, if divorce is desired from the side of
the husband, separation is called "talaq";
secondly, it is desired from the side of the wife, she
can obtain "khul"'. And lastly, if disagreement
is on both sides, they can have recourse to
"mubarat" to obtain separation.
Since Islam is a social religion and it has been
founded on unity and oneness, its greatest objective is
love and concord. The creation of disharmony in whatever
form is to be avoided whenever possible. Accordingly, a
large number of traditons have expressed the
undesirability of "talaq" (divorce) and some of
them say that among the acts made lawful by God, there is
no act more undesirable than divorce. That is why the
messenger of God has made clear to man the conditions and
restrictions of divorce, so that it may occur as
infrequently as possible within the Muslim community.
Among the rules of divorce, the presence of two just
witnesses is a necessary condition. If divorce is
pronounced in the absence of two just witnesses, it will
be considered null and void. This condition is the best
means of doing away with mutual hatred, because two
'just' persons will consider it their duty to bring about
peace and friendship between the couple through
admonition and preaching before carrying out the divorce.
Of course, it will not be successful on every occasion
but the number of divorces can be minimized by the
intervention of these two persons who are respected
within their community for their good sense and justice.
It is regretful to note that our Sunni brothers, do
not accept this argument. They did not consider the
presence of two just witnesses necessary for divorce.
Consequently the number of divorces is growing so great
among them that it causes inconvenience to a great number
of people. Unfortunately, many of us, as well as our
Sunni brothers, are unaware of the hidden wisdom
contained in the religious code. We pray that Muslims may
whole-heartedly comply with the divine laws so that the
bitterness that has been created in their private lives,
and the confusion that has spread in their social
affairs, may at least be reduced.
The important condition of divorce is that the one who
divorces must not be under compulsion, or in a state of
anger, or any other state of mind which diminishes his
ability to think clearly and make decisions in a
reasonable manner. (Moreover, the divorce should have
completed her monthly period of menstruation and not have
had sexual intercourse in the 'new month'. This condition
inevitably helps to delay and eventually lessen the
number of divorces).
In the Ja'fari (Shi'a) 'fiqh', pronouncement of
divorce three times in one sitting is counted as only one
divorce. Thus if a man pronounces divorce three times in
one sitting, his wife does not become forbidden for him
forever. They can be united again without any condition.
If the man then again divorces his wife, returns a
second time to the woman and then divorces her a third
time, the woman shall become forbidden after this third
divorce. After that, she cannot become lawful for him
unless she marries (and subsequently divorces) another
man. If this thing happens, nine times, he will be
unlawful for her former husband forever.
Most of the 'ulama' of the Sunni community stipulate
that if a husband says three times to his wife that he
has divorced her, it will be considered as an irrevocable
talaq; resumption of conjugal relations is only possible
if the wife marries and subsequently divorces another
man, though it is clearly stated in certain of their
accepted hadith that divorce pronounced three times in
one sitting is to be counted as one divorce. It is
narrated in al-Bukhari, on the authority of Ibn 'Abbas,
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