Muta'

[Dazzling Eyes]

Mut’a or Temporary Marriage
The word mut’a literally means ‘enjoyment’, ‘use’ and in its legal context it may be rendered, according to Heffening, a marriage for pleasure. It is a marriage for a fixed period for a certain reward paid to the woman. It seems firly certain that it was tolerated by the Holy prophet (PBUH) for some time, but all schools of law, except one, the Ithna Ashari Shiite, are agreed that finally he declared such unions as unlawful.
The old Arabian custom of mut’a was justified as being useful in times of war and on travels, but was really suppressed and ruthlessly condemned by the Caliph Omar. In Persia, this marriage is called Sighe. Muta is forbidden by all schools, Sunnite as well as Shi’ite, including the Zaydi and the Fatimid schools, and that it is permitted only by the Ithna Ashari Shiite authorities.
a. Legal Incidents
According to Ithna Ashiite law, a mut’a (or sighe) is a marriage for a fixed period of time. It may be for a day, or month, a year or a term of years. The essentials of such a union are four: the form, the subject, the period, and the dower.
1. As regards the form, there must be a proper contract: declaration and acceptance are necessary.
2. As regards the subject, a man may contract a mut’a with a Muslim, Christian, Jewish or a fire-worshipping woman (majusiyya), but not with the follower of any other religion. But a Shiite woman may mot contract a mut’a with a non-Muslim. Relations prohibited by affinity are also unlawful in temporary marriage. A man may contract mut’a with any number of women.
3. As regards the term or mut’a this must be specified, else a lifelong mut’a will be presumed if the original cohabitation commenced with a lawful mut’a. In
Shoharat Singh v. Mst. Jafri Bibi their Lordships of the Privy Council held that where cohabitation of a man and a woman commenced with a mut’a and there was no evidence as to the term of the marriage, the proper inference would, in default of evidence to the contrary, be that the mut’a continued during the whole period of cohabitation.
In a Hyderabad case it was held:
i. that there is not difference between a mut’a for an unspecified period and a mut’a for life.
ii. that a permanent nikah marriage for life can be contracted by use of the word mut’a also.
iii. that specification fo the period for which a mut’a marriage is contracted alone makes a permanent marriage for life, a temporary mut’a marriage for the period specified:
iv. that where the specification of period is omitted, whether intentionally or inadvertently, a permanent nikah marriage results, with all the legal incidents of a nikah marriage, including the right of inheritance between the contracting parties, and that where the period is for life, a nikah marriage will result.
b. Termination of Muta
A mut’a terminates by the efflux of time or by death. On the expiry of the term, no divorce is needed. During the period, the husband has no right to divorce the wife, but the husband may make a gift of the term (hiba-I-muddat) and thereby terminate the contact, without the wife’s consent.
The dower (mahr) is a necessary condition of such a union. If it is not specified the agreement is void. Where the marriage is consummated, the wife leaves the husband before the expiry of the term, the husband is entitled to deduct a proportionate part of the dower. On the expiry of the period, where there has been cohabitation, a short idda of tow courses is prescribed, where however, there has been no consummation, no idda is necessary.
The issue of a mut’a union is legitimate and entitled to inherit. In the absence of a specific agreement, the husband or the wife do not inherit from each other, but if there is such a stipulation it will be effectual.
A mut’a wife is not entitled to maintenance, for, according to the Shara-i-ul-Islam, the name of a wife does not in reality apply to a woman contracted in mut’a.
c. Enforcement of Lawful Agreements
A Muslim wife is entitled at the time of marriage, or subsequently, to make a contract with her husband. Such a contract will be enforced by the courts if it is lawful and not opposed to the policy of law. A contract may lay down the terms upon which marital life is to be regulated. It may also provide for the dissolution of the marriage by the wife, without the intervention of the court.
Syed Ameer Ali holds that the following stipulations would be enforceable at law:
i. That the husband shall not contract a second marriage during the existence or continuance of the first.
ii. That the husband shall not remove the wife from the conjugal domicile without her consent.
iii. That the husband shall not absent himself from the conjugal domicile beyond certain specified time.
iv. That the husband and the wife shall live in a specified place.
v. That a certain portion of the dower shall be paid at once or within a stated period, and the remainder on the dissolution of the contract by death or divorce.
vi. That the husband shall pay the wife a fixed maintenance.
vii. That he shall maintain the children of the wife by a former husband.
viii. That he shall not prevent her from receiving the visits fo her relations whenever she likes.
The commonest conditions, relate to the place of residence, the payment of periodical sums of money to the wife, and the restriction of the husband’s right to marry a second wife. The deed of marriage is called the kabin-nama.
1. Residence:
There is ample authority in early traditions for the broad proposition that conditions made at the time of marriage are sacred obligations and should not be disregarded. Thus, reasonable conditions regarding the wife are right of residing where she pleases may be enforced but an agreement that the wife shall have the absolute and unqualified right to reside permanently with her parents has been held to be void.
If the agreement provides that the wife shall have the absolute and unqualified right to reside permanently with her parents the Courts will hesitate to enforce such a stipulation, as it would create moral, social and legal difficulties. Thus a second wife, or a first wife when the husband remarries, may enforce the agreement to reside at her parent’s home, and may even obtain maintenance for such a condition could hardly be considered unreasonably.
Under the Shiite law, a stipulation that the husband shall not take away his wife from her own city is binding. According to the leading Fatimid authority, the Da’a Imu-I-Islam if a man marries a woman on the express condition that she should be permitted to reside amongst her own people or in a specified country, such a condition is lawful.
2. Maintenance, Kjarch-I pandan:
In addition to maintenance, she is also entitled to receive certain sums at regular intervals if this is provided for the marriage contract.
3. Consequences of breach:
The breach of a valid condition in a marriage contract does not necessarily give the wife the right to have the marriage dissolved unless such an option is expressly reserved. The result may be:
i. That restitution may be refused to the husband.
ii. That certain tights as to dower may arise, or
iii. That the wife may have the right to divorce herself, or, in an extreme case,
iv. That the marriage itself may be dissolved ipso facto.
4. Future separation:
An agreement for future separation between a Muslim husband and his wife is void as being against public policy.

5. Breach of promise to marry:
According to Islamic law, unless the contract of marriage is completed no rights and obligations arise, and therefore a suit for damages for breach of promise to marry is strictly impossible. The only relief that can be asked for, if an engagement (Arabic, Khitba:Urdu, mangni) is broken, is the return of ornaments, clothes and money.