FIXED-TIME MARRIAGE I
One of the glorious laws of Islam, from the point of view of the Ja'fari (Shi'ite) law, is that there are two kinds of marriage, a permanent and a fixed-time marriage.
Some of the effects, which flow from these two kinds of marriage, are the same and some others are different. There are two distinctive features between them. One is that in a fixed -time marriage, a man and a woman enter into a contract to marry each other for a fixed period, on the expiry of which, if they wish, they can extend it, otherwise they separate.
The other distinguishing feature is that there is a greater freedom of choice in fixed-time marriage. The contracting parties may stipulate any conditions they like. For example, in a permanent marriage the husband is bound to maintain his wife and meet her daily expenses. Besides, he has to provide for her clothing, housing and other necessities of life like medicines and medical treatment etc. But in a fixed-time marriage everything depends on the terms of the contract. It is possible that the husband may not be able or may not be willing to bear the expenses of his wife, or the wife may not like to utilise her husband's money.
In the permanent marriage the wife has to accept her husband as the head of the family and obey him within the limits of family interest, but in a fixed-time marriage this also depends on the terms of the contract. In the case of a permanent marriage wife and husband inherit from each other, but this is not so in a fixed-time marriage.
However, in the fixed-time marriage after the formula has been pronounced the couple is recognised as lawful wife and husband and they can then have intimacy but before that they are strangers and it is prohibited for them to have any kind of sexual relation.
The main difference between a fixed-time and a permanent marriage is that a fixed-time marriage places less restrictions upon the spouses. Its terms depend upon their will and choice and the agreement concluded between them. Its very nature gives a sort of freedom to both the parties, for it puts the fixation of its duration into their own hands.
In a permanent marriage neither the husband nor the wife can use any contraceptive methods without the consent of the other, but in the fixed-time marriage such a consent is not necessary. This is, in fact, another kind of freedom given to both the husband and the wife.
The child born from a fixed-time wedlock is in no way legally different from the child born as a result of a permanent marriage.
Dower (mahr): The marriage portion given by the husband to his wife. The dower must be specified and fixed at the time of marriage, but its actual payment may be deferred with the mutual consent of the parties concerned.
'Dower' is necessary, both in the case of a permanent and a fixed-time marriage, with the only difference that the non-specification of dower at the time of marriage makes the fixed-time marriage void (batil), but does not affect the validity of permanent marriage. If no dower is specified at the time of permanent marriage, then the wife is entitled to the dower, customarily fixed for the females.
In a permanent marriage, the husband is debarred from ever marrying the mother or daughter of the wife and the wife is permanently debarred from marrying the father or son of the husband. Similar is the case with regard to fixed time marriage As it is forbidden to propose to a permanently married woman, similarly, it is not allowed to give an offer of marriage to a woman who is married under fixed-time marriage rules. As adultery with the permanent wife of someone else permanently debars a person from marrying her, the same restriction is imposed in the case of adultery with the fixed-time wife of someone else.
After getting a divorce, just as the permanent wife has to pass through a period of probation (iddah), during which she cannot marry again, the fixed-time wife also, after the expiry of the marriage term or the termination of marriage earlier with mutual agreement, has to pass a period of probation. The only difference is that in the case of a permanent wife the iddah is three monthly periods, whereas in the case of a fixed-time wife it is two periods or 45 days. To have two sisters as wives at the same time is prohibited both in the case of a permanent as well a fixed-time marriage. This is what is meant by a fixed-time marriage, according to the Shi'ite law.
Obviously we support this law with the prescribed conditions and specifications. If some people misused it in the past or are still misusing it, that has nothing to do with the legal system as such. The abolition of this law, as suggested by some modernists, can serve no useful purpose, as, with its abolition, malpractices will not stop, but will only take a different shape. Moreover, the abolition of this law will give rise to many other evils. What is required is that, instead of finding fault with the law, people should be reformed and correctly educated.
Now let us see why it is necessary to have the institution of a fixed-time marriage side by side with that of a permanent marriage. If a fixed-time marriage is necessary, is it compatible with the present day conditions and modern-ideas of human values? We propose to discuss this question under two headings:
(a) Present day life and a fixed-time marriage
(b) Faults and evils of a fixed-time marriage
PRESENT DAY LIFE AND THE FIXED-TIME MARRIAGE
As we learnt previously, a permanent marriage imposes heavy responsibilities and obligations both on husband and wife.
However, no boy or girl at the time of puberty, when he or she comes under the heavy pressure of the instinctive urge, is prepared for a permanent marriage. The requirements of the modern age have lengthened the interval between natural puberty and social maturity, when one is capable of building a family. In ancient times, when life was simple, a boy could, from his age of early puberty, undertake a job which he continued to practise till the last days of his life. But nowadays that is no longer possible. A boy completes various stages of his education at the age of 25, provided he does not fail at any stage. Only then he can expect to have some independent income. He takes another three or four years before he can gather the wherewithal to settle in life and get married. The same is the case with a girl who is desirous of receiving a better education in life.
TEENAGERS AND SEXUAL CRISIS
Nowadays, if you ask a 17-year-old boy, whose sexual urge is at its height, to marry, the people will laugh at you. The same is true of a 16 years old girl student. At this age, both the boys and the girls are unable to shoulder the burden of a permanent marriage and to accept the heavy responsibilities which ensue from it, not only in the capacity of husband and wife but also in respect of the future children.
WHICH ONE; TEMPORARY MONASTICISM SEXUAL COMMUNISM OR A FIXED-TIME MARRIAGE?
We know what nature is, but the conditions of life in the present world do not allow us to marry at the age of 16 or 17. Nature is not prepared to delay puberty or the sexual urge till we complete our education. Are our young men prepared to pass a period of temporary monasticism and live a life of renunciation and extreme austerity, till they become eligible for a permanent marriage? Even if a young man is willing to accept the life of temporary hermitage, is nature prepared to excuse him from the tensions and nervous disorders which usually result from abstaining from normal sexual activity, as has been disclosed by modern psycho-analysis?
Now only two alternatives are left. The first is to let a young boy enjoy hundreds of girls, and a young girl to have illicit relations with many boys, and then undergo several abortions. That means that we practically accept sexual communism. Certainly, if we show permissiveness to boys and girls on an equal footing, we do satisfy the Declaration of Human Rights, because in the opinion of many short-sighted people, the spirit of the Declaration requires that, if men and women have to go to Hell, they should go together, arm in arm.
But the question is whether it will ever be possible for these boys and girls, who have had unlimited affairs during the period of their studies, to lead a normal domestic life.
The second alternative is a free fixed-time marriage. In the first instance a fixed-time marriage restricts woman to have only one husband at one time. It is obvious that a limitation of woman means a limitation of man also, whether he likes it or not. If every woman is limited to a single man, naturally every man will be limited to a single woman, except, in case the number of either sex is far greater than the other. Thus boys and girls can pass through their period of studies without facing the ill effects of temporary hermitage, or of falling into the abyss of sexual communism.
In principle it is possible for man and woman, who intend to marry on permanent basis but could not achieve full confidence in each other, to get married on trial for a temporary period. If they have developed sufficient trust they continue their marital position, otherwise they separate from each other. (Hence the difference between the Western style of relationship with the fair sex and Islam is that with the Westerners there is no conception of marriage code between the couples while in Islam in fixed-time marriage the couple is considered to be husband and wife even for a temporary period).
RUSSELL'S THEORY OF TEMPORARY MARRAIGE
In his book, Matrimony and Morals, the well-known English philosopher, Bertrand Russell, says that prostitutes protect the chastity of our wives and daughters. When this view was expressed by Luckey in the middle of the Victorian age, the moralists were greatly offended, though they themselves did not know why. Anyhow, they were unable to refute Luckey's arguments. The logic of the moralists was that, if the people had followed their teachings, the prostitutes would no longer have existed. But they knew well that nobody paid attention to what they said.
This is the European formula to deal with the danger posed by men and women who are unable to contract a permanent marriage and the one mentioned above was the formula put forward by Islam. If the European formula is adhered to and this social duty is allocated to a section of unfortunate women, will that be in conformity with the human dignity and self- respect of women and the spirit of the Universal Declaration of Human Rights?
Bertrand Russell, in his book, has included a chapter on trial marriage also. He says that Lindsay, who was for many years a judge in Denver, and in this capacity had an ample opportunity to observe the facts of life, proposed that there should be arrangements, for a "companionship marriage." Unfortunately this judge had to lose his post, because he was interested in the welfare of the youth rather than in creating a sense of sin in them. To secure his dismissal, no stone was left unturned by the Catholics and the anti-Negro, Ku Klux Klan.
A companionship marriage had been proposed by a conservative intellectual, with a view to introducing a factor of stability in sexual relations. Lindsay noticed that the main problem of marriage was lack of money. Money is not only required for possible future children, but it is also required because it does not behove a woman to be responsible for the maintenance of the family. He reaches the conclusion that the young men should embark on a companionship marriage, which is different from an ordinary marriage in three ways. Firstly, the aim of this marriage is not to beget children. Secondly, as long as the young woman has not given birth to a child, divorce with the mutual consent of the parties concerned is a simple matter. Thirdly, in the case of divorce, the woman will be entitled to alimony. There is no doubt that Lindsay's proposals are practical and effective and, if they had been accepted by law, they could be expected to have a good impact on morals.
What Lindsay and Russell call a companionship marriage is a little different from the Islamic fixed-time marriage, but this suggestion indicates that thinkers of their calibre have realised that a normal permanent marriage does not meet all the needs of the society.
(II) FIXED-TIME MARRIAGE
We have already described the characteristics of a fixed -time marriage, the necessity of its existence and the inadequacy of a permanent marriage to meet all human requirements. Now we propose to study the so-called other side of the picture and see what the disadvantages and drawbacks of a fixed-time marriage are. Before discussing that let us point out one thing.
HISTORY OF BELIEFS
Out of all the subjects on which views have been expressed, none is so complex and ambiguous as the history of human ideas, beliefs, customs and usages. That is why, though the subject has been most popular, most of the views expressed in connection with it have been absurd. Anybody who has some knowledge of such subjects as philosophy, gnostics, mysticism and Islamic scholasticism and reads some of the present day writings in our country on the questions connected with these subjects which are borrowed from the foreigners or are exact reproduction of their words, can very well understand what I mean. Our present day writers mostly reproduce or, at least, take their cue from the orientalists, while it appears that the latter and their henchmen do anything but go deep into such questions.
For example, the question known in Islamic mysticism as 'wahadat al- Wujud'(Unity of Being) has been discussed from every conceivable angle, still little attention has been paid to explain what it really is and what conception of it the great exponents of Islamic mysticism, such as Muhyuddin ibn Arabi and Sadrul Muta'llihin Shirazi have had. Recently, certain comments on fixed-time marriage in the Iranian magazine 'Zan-e-Imruz' or "Woman of Today", have reminded me of the question of "Wahdat al-Wujud'
In the course of these comments everything has been said about a fixed-time marriage, but what really constitutes the spirit of this law and was intended by the lawgiver has been left out.
Indifference is shown to this law, because it is a part of the Eastern heritage. Had it been a Western gift the position would have been quite different.
Had this law come from the West, certainly many conferences and seminars would have been held today to advocate that the confinement of marriage to a permanent one does not conform to the conditions of the second half of the 20th century and the present generation is not willing to shoulder all the responsibilities of a permanent marriage. The present generation wants to be free. It wants to lead a free life. It wants a free marriage whose conditions may be chosen personally by the parties concerned.
Now that voices have been raised in Europe in favour of a temporary marriage and such prominent people as Bertrand Russell are preaching it under the name of a 'companionship marriage,' it is visualised that before long a fixed-time marriage will become so popular that in future we shall be forced to launch a campaign to defend a permanent marriage.
The following are said to be the defects and drawbacks of a fixed-time marriage:
(1) The basis of marriage must be permanent. From the beginning of conjugal relations, husband and wife should know that they permanently belong to each other. The idea of a separation must not enter into their minds. The fixed-time marriage does not constitute a permanent contract between husband and wife.
It is true that the basis of marriage should be permanent. However, this objection can be valid only if we oppose a permanent marriage and wish to replace it by a fixed-time marriage.
If the two parties can afford a permanent marriage, have full confidence in each other and decide permanently to belong to each other, no doubt they should contract a permanent marriage.
The law of fixed-time marriage has been laid down only because a permanent marriage alone cannot meet all the human requirements in all circumstances. The restriction of marriage to a permanent type only has led either to temporary monkery or to sexual communism: Obviously, no boy or girl, to whom facilities for a permanent marriage are available, would like to indulge in a temporary affair.
(2) Iranian women and girls, in spite of being Shiah, have not welcomed the idea of fixed-time marriage. They regard it as a sort of insult to them. Hence, the general opinion among the Shiah has also rejected it.
It may be said in reply that the general aversion to the her womanly expressions and her skilful sexy postures are put on sale. The tickets to the cinema and theatre, which you buy, are in the final analysis, wages of the hired women. Do you realise to what an extent a woman has to stoop to earn money? She has to learn for many years the art of provoking sex under the supervision of experienced specialists. She has to place her body, her soul and her personality at the disposal of moneymaking organisations to attract more and more customers. If you visit cabarets and hotels, you can see what respect woman has gained, how she has to sell her honour and self-respect for paltry sums of money in order to fill the coffers of some capitalists and how she has to put herself at the disposal of the guests.
Hired women are those sales girls of big stores who sacrifice their honour and self-respect to satisfy the greed of their employers.
Hired women are those model girls who appear on T.V. to publicise commercial goods and employ all means to attract the customers to them.
Who does not know that in the West today, woman's beauty, her sexual attraction, her voice, her art, her body, her soul, and above all her personality are used as a humble means to serve the interests of the European and American capitalism?
I wonder why a woman who, of her own accord, marries a man for a fixed period, is regarded as a hired woman, while a woman who, at a wedding or an evening party, in front of thousands of greedy eyes of men, sings till her throat pains and stages a thousand and one antics, is not regarded as a hired woman.
By allowing a fixed-time marriage, Islam has protected woman from being exploited by man. It has also forbidden her to employ base means to earn her livelihood. Is it Islam which has degraded woman, or the Europe of the second half of the 20th century?
If one day woman becomes fully conscious of the hidden fixed-time marriage among the Shiah women and girls is due to its misuse by the licentious men. It is the duty of the government to prevent its misuse. Secondly, it is unreasonable to expect a fixed-time marriage to be as popular as a permanent marriage, because the former is meant only to satisfy the needs of the parties concerned, if both are or at least one of them is unable or unwilling to contract a permanent marriage.
(3) A fixed-time marriage is below the human dignity of woman. It amounts to the hiring of a human body, and even to the legalised sale of human beings. It is against the self-respect of a woman to put herself at the disposal of any man in exchange for money.
This is the most surprising objection. Firstly a fixed-time marriage, as described above by us, has not the remotest connection with sale or hire. Can it become sale or hire simply because the duration of wedlock is limited? Does it become hire because a dower has to be fixed? We propose to take up the question of dower separately.
Jurists are unanimous that, with regard to the nature of a contract, there is no difference between a permanent and a fixed-time marriage. They are two forms of marriage and their contracts can be constituted only by using a specific formula (Sighah relating to marriage). If a contract of a fixed-time marriage is expressed in the form of sale or hire, it is invalid.
Secondly, since when has the practice of hiring human beings been abolished? All the tailors, barbers, cooks, even specialists, all government employees from the Prime Minister to the lowest official and all the factory workers are hired men.
A woman, who, by her own free will, contracts a fixed-time marriage with a particular man is not a hired woman and does not do anything derogatory to her self-respect or human dignity. If you want to see hired and enslaved women and want to know what a hired woman really means, you should go to Europe and America and visit the film companies there. There you will see how the movements of woman's limbs, her gestures, traps which the 20th century men have laid in her way, she will certainly rise in revolt against all this deception and fraud. She will, then, realise that her only sincere protector and real refuge is the Qur'an. Of course, that day is not far off!
(4) After all, a fixed-time marriage legalises polygamy, which is an abominable practice. Hence a fixed-time marriage is condemnable.
At the end of this very chapter we shall explain for whom the law of temporary marriage has been enacted. As far as polygamy is concerned, we shall discuss it in a subsequent chapter.
(5) As a fixed-time marriage has no permanency, it leaves the future children shelterless. They become nobody's responsibility. They are deprived of a father's protection and a mother's affection.
This is an objection which is much stressed, but, with the explanation we have given, it totally loses its force. We have previously said that one of the differences between a temporary and a permanent marriage is related to procreation.
In a permanent marriage neither of the spouses can evade the responsibility of begetting children, but, in a fixed-time marriage, both the parties are free. The wife, of course, is not allowed to obstruct her husband from enjoying sex, but she can take measures to prevent her own pregnancy. This problem has been fully solved with the development of the modern contraceptives.
Thus, in the case of a fixed-time marriage, if both the husband and wife are inclined, they can beget children, provided they accept the responsibility of rearing them. It is obvious that, from the standpoint of natural affection, there is no difference between the child of a permanent wife and that of a fixed-time one. Should a father or a mother abstain from performing his or her duty, it is the responsibility of the law to compel them in the same way as it intervenes in the case of divorce. If a husband and wife are not inclined to beget children and their aim is only to get sexual satisfaction, they should abstain from producing children.
As we know, the Church regards contraception as unlawful. But, from the Islamic point of view, a husband and wife are at liberty to adopt contraceptive measures. Anyhow, once an embryo is formed, it is not allowed to be removed or destroyed.
This is what the Shi'ah jurists mean when they say that the aim of a permanent marriage is child-bearing and that of a fixed-time marriage is enjoyment and the gratification of a natural urge.
A FIXED-TIME MARRIAGE AND HAREM
One of the subjects, which the West uses as a weapon to vilify the East and about which West has also prepared films and dramas, is the question of the formation of harems. Unfortunately, many instances of it are to be found in history.
The life of certain caliphs and sultans provides a complete model of 'harem' formation, which is described as an outstanding symbol of the licentiousness of the man of the East.
It is alleged that the legality of a fixed - time marriage is equivalent to the legality of a 'harem' formation, which is a weak point of the East and has brought disgrace to it. Not only that, it is equivalent to the legalisation of licentiousness, every form of which is contrary to morality and causes decline and ruin.
The same thing has been said about polygamy and the legality of polygamy has been interpreted as the legality of a 'harem' formation. We will discuss the question of polygamy separately. At present, we confine our attention to a fixed-time marriage.
This question should be studied from two angles:
(1) What were the social factors which led to a 'harem' formation in the past and whether the law of fixed-time marriage influenced this phenomenon?
(2) Does the law of a fixed-time marriage aim at providing an opportunity of 'harem' formation to the licentious men?
SOCIAL CAUSES OF 'HAREM' FORMATION
There were two factors which brought 'harems' into existence. The first was the piety and chastity of woman. A 'harem' can be formed only in an atmosphere where social and moral conditions are such that a woman is not allowed to have sexual relations with more than one man. In such circumstances a licentious man has no alternative but to gather together a number of women and form a 'harem'.
Obviously, in an atmosphere where importance is not attached to chastity and women are available easily and freely, nobody will take the trouble of forming a big 'harem' at a huge cost and with a large paraphernalia.
The second factor was the non-existence of social justice. The atmosphere conducive to 'harem' formation is that in which a few are steeped in all sorts of luxuries and affluence, whereas others are unable to make both ends meet, and in which there are many who are unable to have a wife and form a family. In such an atmosphere the number of unmarried women grows and a suitable ground for a 'harem' formation is furnished.
On the other hand, if social justice is established and the means of forming a family and choosing a spouse are available to all, automatically every eligible woman becomes attached to one particular man and no opportunity is left for debauchery, licentiousness and 'harem' formation.
If every adult is in a position to have a spouse, naturally not enough women are left for rich men to form harems, for the number of women is usually more or less equal to the number of men.
It is customary that history narrates the stories of the 'harems' of the caliphs and the sultans and describes the pomp and show of their courts, but ignores to explain the privation, misery and sufferings of those who died at the foot of their palaces and of those whom the social conditions did not allow to have spouses. Hundreds of women, who passed their lives in the 'harems', were the natural right of a number of deprived men, who were forced to remain unmarried till the end of their lives.
Undoubtedly, in a society where chastity prevails and sexual success is impossible except within the frame-work of marriage, including both, permanent and fixed-time, 'harem' formation is impossible, provided social and economic inequalities are removed and the natural right of matrimony is made available to every adult.
A cursory glance over history shows that the law of fixed-time marriage has not exercised even the slightest influence over 'harem' formation.
None of the Abbasid Caliphs and the Ottoman Sultans, who were famous for keeping large 'harems', was a follower of the Shi'ah theology, and so none of them could be expected to have taken advantage of the law of fixed-time marriage.
The Shi'ah Sultans, though they could use this law as an excuse, never vied in this respect with the Abbasid Caliphs or the Ottoman Sultans. This clearly shows that the harems were the outcome of some other special social factors.
HAS FIXED-TIME MARRIAGE BEEN MADE LAWFUL TO SATISFY LUST?
There are no two opinions about the fact that heavenly religions, on the whole, censure licentiousness and immorality, so much so that the followers of most of them have preferred a life of renunciation and asceticism.
One of the clear and accepted principles of Islam is to combat lewdness, which has been compared to idolatry by the Qur'an. Islam has described a 'taster', i.e. a man who wants to enjoy various types of women, as condemned and hated by Allah. While discussing the question of divorce, we shall quote authoritative Islamic references in this respect.
One of the distinctive features of Islam is that it rejects monkery and renunciation, but does not allow lewdness. According to Islam, all natural desires, including sexual desire, should be satisfied within natural limits and only to the extent of natural requirements. Islam does not permit fanning the fire of desires and converting them into unquenchable thirst. Islam is against everything that takes the form of licentiousness and injustice.
There is no denying the fact that it has never been the intention of the legislator of the fixed-time marriage law to provide a means of gratification of their excessive carnal desires to sensual people and to bring disaster to a woman and her innocent children. The great encouragement given to the idea of fixed-time marriage by the Holy Imams has a special philosophy, which we shall explain shortly.
HAREMS AND THE MODERN WORLD
Now let us see how the modern world has dealt with the question of 'harems'. The modern world looks at 'harems' with disgust and consequently this custom has been discarded. One of the two factors which brought it into existence has been removed. But which factor? Not that of the social inequality, but it is that of the piety and chastity of woman which has been removed. The lewd man of this century is no longer in need of taking the trouble of forming a 'harem' and of bearing the huge expenses of maintaining it. Thanks to the western culture, that for the man of this century a 'harem' is available everywhere. In order to enjoy women of different races and colours, the modern man finds no necessity of having as much power and money as Harun al-Rashid or Fazl ibn Yahya Barmaki had. For him it is enough to have a car and a monthly income of a few thousands to be able to indulge in so much sex pleasure that Harun al-Rashid could never have dreamt of. The modern hotels, restaurants and cafes are always ready to serve as 'harems' for men. Some time ago a young Iranian, Adil Kutwali, frankly admitted that he had 22 mistresses of various shapes and
features at one and the same time. Thanks to Western culture, that the modern man enjoys all the pleasures of a 'harem' without undergoing the worries and huge expenses of maintaining it.
Should the hero of 'a thousand and one nights' raise his head from the dust and see the vast possibilities of indulgence in sex and the cheapness and abundance of women, he would never think again of forming a 'harem', with all the trouble and expenditure which it involves. He would thank the people of the West for saving him all the trouble of forming a 'harem' and would immediately announce the abolition of polygamy and a fixed-time marriage, because they create obligations for men with regard to women.
If you ask who the loser is in this game, the winner being already known, we would say that unfortunately woman has always been the loser. Being credulous and simple, she was the loser yesterday and she is the loser today.
CALIPH BANS FIXED-TIME MARRIAGE
Fixed-time marriage is an exclusive feature of the Ja'fari law. Other Muslim schools of theology do not allow it. I do not intend to enter into any Shiah-Sunni controversy here. I wish only to refer briefly to the historical background of the question.
All the Muslims are unanimous that during the early period of Islam fixed-time marriage was permissible and the Holy Prophet, during some of the journeys when the Muslims were away from their spouses and were feeling hardships, allowed them to contract fixed-time marriage. It is also agreed by all the Muslims that the second caliph, during the period of his caliphate, banned fixed-time marriage. According to the well-known reports he said: "Today I ban two things, which were allowed during the period of the Prophet. They are fixed-time marriage and performance of 'Hajj' and 'Urn rah' with separate 'ihrams',
Some Sunnis believe that the Holy Prophet himself had banned fixed-time marriage during the last days of his life and the second caliph simply repeated this ban already placed by the Holy Prophet. But the words of the caliph which have come down to us indicate something contrary to this. The correct explanation of this point is that which has been given by Allamah Kashif al-Ghita. The caliph banned temporary marriage, because he thought that the matter was within his constitutional power as Head of the State, who could use his special powers according to the needs of the time. In other words, the caliph's order was political and not legal. The caliph never concealed his deep concern over the dispersal of the companions of the Prophet in the newly acquired territories and their mixing with the newly converted Muslims. As long as he lived, he vehemently opposed their migration from Medina.
Especially, he did not like their blood to be mixed with that of the newly converted Muslims, whose Islamic training was not deep-rooted yet. Obviously, this was a temporary consideration. The Muslims of those days accepted the caliph's order without showing resentment, only because they knew that it was a political necessity and not a permanent law. Otherwise, it is inconceivable that the people would not have been resentful, when the caliph said that the Prophet had ordered one way and he was ordering the other way. But later, when, as the result of certain developments, the life of the early caliphs, especially the lives of the first two caliphs, came to be regarded as a model, their orders assumed the form of a permanent law. In this case our Sunni brethren are to be blamed more than the caliph who imposed temporary ban on fixed-time marriage for political considerations (just like the prohibition of tobacco in Iran at the beginning of this century). Others should not have given a permanent form to this ban.
It is evident that Allamah Kashif al-Ghita did not express any opinion as to whether the caliph's action was justified or not. He had simply described the nature of the plea on which action was taken in the first instance and the reason why it did not face any adverse reactions of the Muslims.
Anyhow, it was because of the influence and personality of the caliph and the people's bias towards following his actions and policies that the law of fixed-time marriage fell into oblivion, and an Islamic tradition, which was complementary to permanent marriage, and whose suspension was likely to cause much inconvenience, became obsolete.
It was in these circumstances that, with a view to ensuring that this Islamic tradition might not be completely forgotten, the Imams, who are the defenders of the faith, encouraged it and vehemently pleaded for it. Imam Ja'far Sadiq (P) used to say that fixed-time marriage was a point in respect of which he would never dissimulate.
Besides the intrinsic advantages of fixed-time marriage, an effort to revive a dead tradition was another reason why the Imams preached it. In our opinion, when the Imams forbade men having a wife to contract a fixed-time marriage, they wanted to make it clear that it was not meant for those who were not in need of it.
Imam Kazim (P) said to Ali ibn Yaqtin: "What have you to do with a fixed-time marriage? Allah has spared you the trouble of being in need of it". He said to another man "A fixed-time marriage is allowed to those who do not have a wife. As for those who have a wife, it is allowed only when they do not have access to her."
Guidance and encouragement for general public to take somebody in fixed-time marriage is an important step towards "revival of abandoned custom" or tradition, but encouragement alone to those who stood in need was not adequate enough to enliven this forsaken Prophetic instruction, as is clearly indicated in some Shi'ah scriptures and narrative sources.
Anyway it is a definite fact that the meaning and intention of the first legislator on promotion and explanation of this law and the purpose of the infallible Imams to encourage it on those lines was never to have such provision exist as a means towards sexual adventures, evil desires and build-up of harems for beastly human beings nor to victimise helpless and oppressed women and orphaned children at any time.
The Egyptian writer, Shaykh Muhammad Abu Zuhrah, in his book, 'Al-Ahwa/ aI-Shakhsiyya' has quoted the Commander of the Faithful Ali (P) as having said: "If it comes to my notice that somebody having a wife has contracted a fixed-time marriage, I will stone him to death".
This tradition has no known chain of authority. Anyhow, if its authenticity is accepted, it supports the view that a fixed-time marriage is permissible only in the case of a man who either has no wife or his wife is away and is not staying with him.
In short why should we stick to that single tradition reported by one of the Sunni ulema (scholars) (while its source remains unknown) and leave aside the numerous traditions of the Commander of the Faithful Ali (P) reported in all Sunni and Shi'ah books in chapters on Mut'ah.
In many of his precious statements Imam Ali (P) the Commander of Faithful says: "If Umar had not taken the initiative to declare fixed-time marriage unlawful no one among the people, excepting a few sex maniacs, would have indulged in adultery". That is, if fixed-time marriage had not been made unlawful, none would have developed freedom to commit adultery. Only those people, who are always inclined to commit unlawful acts, would have indulged in it.