The ulama', both Sunni and Shi'i, agree that mut'a was permitted at the beginning of Islam. However, they disagree as to the reasons it was permitted.
In the sura entitled 'Women', after listing those women to whom marriage is forbidden, the Qur'an 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 agreeing together, after the due apportionate. God is All-Knowing, All-Wise' (4:24).
All Shi'i ulama' and some Sunni ulama' hold that this verse-especially the words: 'Such wives as you enjoy (istamta'tum)'-refers to the permissibility of mut'a. The Shi’a present several arguments to prove this point.1
This verse was revealed towards the beginning of the Prophet's stay in Medina, which lasted from AH 1/CE 622 to 10/632. At that time the men of Medina used to 'seek enjoyment' from women for a limited period of time in exchange for a specified sum of money.
By its revelation this verse in effect confirmed an existing situation; and it emphasized that men must fulfill their promises concerning the agreed upon sum. In Medina this custom was looked upon as one kind of temporary marriage and was referred to by the term istimta', the same word employed in the Qur'anic verse-even though the literal meaning of the word is 'to seek benefit' or 'to take enjoyment'.
Hence the meaning of the Qur'anic verse must be understood in terms of the conventional usage of the time, for as is well known in the science of Qur'anic commentary and Islamic jurisprudence, the Qur'an follows the conventional usage of the people in all statutes and legal prescriptions. If someone wants to understand a word in the Qur'an in other than the conventional meaning of the time, he must supply a strong reason for doing so.
The context of the verse also indicates that it is referring to temporary marriage. In the preceding verses the Qur'an forbids acts of injustice toward women.
'Oh believers, it is not lawful for you to inherit from women against their will; neither debar them, that you may go off with part of what you have given them' (4:19).
The most commonly accepted interpretation of this verse is that it forbids the pre-Islamic Arab custom of inheriting stepmothers. When a man died, one of his sons would inherit his wife, as long as she was not his own mother. The stepson would place a cloth upon his dead father's wife and thereby become her owner.
If he wished he could then marry her without paying her a dower. Or he could keep her a virtual prisoner. He could also marry her to someone else and take her dower for himself, or forbid her to marry anyone as long as he was alive. If the woman possessed property, he was entitled to take possession of it for himself.2
The next verse reads in part as follows:
' And if you desire to exchange a wife in place of another, and you have given to one a hundred-weight, take of it nothing' (4:20).
In other words, if a man divorces a wife to marry a different wife, he must not take back any of the dower that he has given the first, even if the dower is a very large one and he desires only a small part of it.
The next subject referred to in this passage is the marriage of one's father's wife:
' And do not marry women that your fathers married. ..' (4:22).
Both this verse and verse 19 were revealed after Abu Qays b. al-Aslat died and his wife was inherited and married by his son Muhsin. The son refused to pay the daily expenses of his stepmother and wife, nor would he give her, her share of the inheritance or allow her to visit her relatives. She came to the Prophet and explained what had happened. He told her to return to her husband and wait, that perhaps God would send down a statute that would clarify her situation. Then these verses were revealed.3
In the following verse the Qur'an 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 your daughters and your sisters and your paternal aunts and your maternal aunts and brothers' daughters and sisters' daughters and your mothers that have suckled you and your foster-sisters and mothers of your wives and your step-daughters who are in your guardianship, (born) of your wives to whom you have gone in, but if you have not gone in to them, there is no blame on you (in marrying them), and the wives of your sons who are of your own loins and that you should have two sisters together, except what has already passed; surely Allah is Forgiving, Merciful. (4:23)
The next verse adds a fifteenth category of women forbidden to men:
And wedded women, save what your right hands own….' (4:24)
And it continues:
'Lawful for you is what is beyond all that.'(4:24)
In other words, any woman not belonging to one of the fifteen categories is permitted, whether by marriage or ownership.
And the same verse states:
'That you may seek, using your wealth, in wedlock and not in license.' (4:24)
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 the conclusion reached by the previous words. This section 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 requires that the man pay the wages of his wife.
The next verse states that if a man is too poor to marry a free Muslim woman, he should marry a Muslim slave girl; and the following verse concerns certain statutes related to such marriages.
Finally this section of the chapter concludes with these words:
'God desires to make clear to you, and to guide you to the customs of those who went before you, and to turn towards you; God is All-knowing, All-wise' (4:26).
Many sayings have been related from the Companions of the Prophet and those who followed them (al-taibi'un) confirming the Shi'i view that verse 24 of this chapter concerns mut 'a. Several of the companions, including Ibn 'Abbas, the ancestor of the 'Abbasid caliphs, Ibn Mas'ud, one of the first to accept Islam, and Ubayy b. Ka'b, one of the scribes of the revelation, hold that three words have been dropped form this passage in the Qur'an and that the original version read: 'So those of them whom you enjoy to a specified term (ila ajal musamma).'
This clearly indicates that the verse refers to mut'a. For example, it has been related that Ibn 'Abbas was asked about mut'a. He answered: 'Have you not read the sura "Women" (4).' His questioner replied: 'Of course I have.' He said: 'Did you not read: "So those of them whom you enjoy to a specified term. .." , He answered: 'I did not read the verse like that.' Ibn 'Abbas then said: 'I swear by God, this is how God revealed it', and he repeated this statement twice.4
In Majma' al-bayan, al Tabarsi, the famous Shi'i commentator of the Qur'an summarizes the Shi'i 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 b. 'Abd al-Rahman al-Suddi (d. 127/744-45) and Sa'id b. Jubayr al-Asadi (95/713-14).
In fact, this clearly must be the case, for although the words istimta' and mut'a have the literal meaning of 'enjoyment', in the language of the shari'a 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, her wages.'5
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 Great Commentary on the Qur'an that mut'a was at first permitted. The Prophet made a 'lesser pilgrimage' ('umra) to Mecca, and the women of Mecca made themselves up especially for the occasion. Some of the Companions complained about their long separation from their wives, and the Prophet replied: 'Then go and enjoy (istimta') these women.'6
Those Sunnis who hold that the Qur'anic 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 Qur'anic verses. They offer three arguments to prove their point: other Qur'anic verses, the sermon of 'Umar banning mut'a, and hadith of the Prophet transmitted by the Companions. The Shi'i in turn reject each of the arguments.
The 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.' (23:1-6)7
According to the Prophet's wife 'A'isha and others: ' Mut'a is forbidden and abrogated in the Qur'an where God says: "who guard their private parts. .."8
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 al-Razi's Great Commentary, do not in fact apply to mut'a as the Shi’a understand it. However this may be, it will be useful to see how the Shi’a answer each of the Sunni claims:
As for the 'abrogation' of the verse concerning mut'a, historical considerations show that this cannot be the case. The verse mentioned as abrogating mut'a was revealed in Mecca, while the verse establishing it was revealed after the Prophet had emigrated to Medina. But a verse which abrogates another verse must be revealed after it, not before it.9
As for the Sunni claim that a wife by mut'a is not a legitimate wife because she does not fulfill the shari requirements for being a 'wife', this also is false. In the question of inheritance, the Qur'anic 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 an unbeliever cannot inherit from a Muslim, nor can a murderer inherit from his victim. 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 mut'a's validity.10
In the question of the child, there is no reason to claim that it is illegitimate. In mut'a the 'bed' is legitimate, so the offspring is also legitimate.11 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',12 i.e., the child is legitimate.
In a similar manner numerous hadith exist to prove that a wife by mut'a must observe the waiting period. Some of these are even related in Sunni sources. For example al-Razi himself quotes a relevant saying from Ibn 'Abbas. He 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.' 'Do the husband and wife inherit from each other?' He answered: 'No.'13
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 zihar. 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, persons who engage in mut'a transgress God's law.
A typical Shi'i answer to this argument runs as follows: First, the Qur'anic verse is a general statement, and there is no reason why its specific applications may not be clarified by other verses and hadith. 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 zihar 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).
If we suppose that some proof is found-in the form of a Qur'anic verse or a hadith- demonstrating 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 Qur'anic verses and the hadith which show that these pertain to legitimate sexual relationships with those hadith which demonstrate that they do not pertain to mut'a.14
In a famous sermon15 the second caliph 'Umar banned mut'a with the following words: 'Two mut'a were practiced during the time of the Prophet [i.e. temporary marriage and mutat al-hajj],16 but I forbid both of them and will punish anyone who practices either.' 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 (1) everyone knew that mut'a was forbidden, so they remained silent; or (2) they all knew that it was permitted, yet they remained silent out of negligence and in order to placate 'Umar; or (3) 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.17
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 Qur'an and the Prophet had permitted mut'a, yet 'Umar went ahead and banned it without the Qur'anic 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 mut'a's legal situation 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 fact absurd, then we know for certain that the Companions remained silent only because they all knew that mut'a had already been abrogated.
The Shi’a answer al-Razi's arguments as follows:18 '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.
Another saying concerning mut’a is also attributed to 'Umar: 'God permitted for His Prophet what He willed, and the Qur'an has been revealed in its entirety. So complete the hajj and the 'umra 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.'19
The Shi'i ulama' 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 man has committed fornication with a married woman. Hence 'Umar had no basis for laying down this statute.20
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. Certainly such intimidation is permissible. The Prophet himself said: 'If anyone from among us fails to pay his alms (zakat), I will take it from him along with part of his property. ' But it is not permissible in Islam to take a part of someone's property in punishment for not paying his alms. The Prophet only said these words to press his point and to frighten his listeners.21
Concerning 'Umar's two sayings banning mut'a, the Shi’a argue as follows:22 If his prohibition was based on 'independent judgment' (ijtihad),23 then it is baseless, since all ulama' agree that independent judgment can never gainsay the Qur'an or the hadith.
As for the Qur'anic basis of mut’a, we have already seen that-as far as the Shi’a and certain individual Sunnis are concerned-the Qur'an permits it in the chapter on Women, verse 23. As for its basis in the prophetic hadith, many traditions have been related in the standard Sunni collections, such as the words of 'Umar himself in his sermon: 'Two mut'as were practiced during the time of the Prophet. ..'.
Concerning 'Umar's 'independent judgment', one of the contemporary Shi'i ulama' 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 death.24
In general the Shi’a 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 him instead of to himself?25
Al-Razi answers these arguments by claiming that none of them disproves his original contention. None of them proves that mut'a had not already been abrogated when 'Umar made his sermon. Moreover, there remains the question of the transmission of the hadith abrogating mut'a : Was 'Umar the only person to have heard the Prophet ban it, or had others heard him as well? Perhaps some of the Companions had heard the prohibition from the Prophet and had then forgotten. But when 'Umar mentioned the prohibition in a large gathering, everyone knew he was speaking the truth, so they remained silent.26
As for the fact that 'Umar attributes the prohibition to himself, al-Razi answers by pointing to his earlier argument: If 'Umar meant: ' Mut'a has been permitted by the shari'a up until now, but now I have banned it', then it becomes necessary for us to consider not only him, but also everyone who heard his pronouncement and did not protest, as an unbeliever.
It becomes necessary to consider even the Imam of the Shi’a , 'Ali, as an unbeliever, since he was present and remained silent. But no one wants to make such a claim. Hence we can only conclude that what 'Umar meant was ... Mut'a was permitted during the time of the Prophet, but I have forbidden it, since I know for certain-as you know-that the Prophet abrogated it.'
The Shi’a reply to al-Razi's arguments as follows: First, 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. Second, 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, no one would have dared to speak against him. If 'Ali had been able to protest against 'Umar, he would not have remained 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 was it not 'Ali who said: 'If 'Umar had not prohibited mut'a, no one would commit fornication except the wretched'?27
Shi'i authors also point out that 'Umar banned the two kinds of mut’a together, whereas everyone-Sunnis and Shi’a -agree that the hajj al-mut'a is permissible. Hence the mut’a pertaining to women should also be permissible.28
Finally, another Sunni view on this subject deserves mention: Other hadith are recorded in reliable sources according to which 'Umar does attribute the banning of mut’a to the Prophet and not to himself. So it is probable that here we do not have an exact quotation of his words, but a paraphrase.
Even if we accept the Shi'i claim that these are truly 'Umar's exact words, then it is clear that by his words: 'I forbid them both', he meant: 'I am clarifying their situation for you; or: 'I am putting into practice the view of the Prophet.'
For it is well known in the science of jurisprudence that prohibition and permissibility are often attributed to him who clarifies the statute. Thus, for example, when it is said that Shafi'i forbids hadith but Abu Hanifa permits it, no one imagines that Shafi'i and Abu Hanifa are establishing these injunctions as their own. What is meant is that they are explaining the injunction on the basis of their own understanding of the Qur'an, the sunna, etc.29
In Sunni sources hadith have been transmitted from 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.'30
In many of these sources, and in Shi'i sources as well, the words: 'on the day of the Battle of Khaybar' are added. The Shi'i report that the great Shi'i ulama' such as al-Shaykh al Tusi considered this saying authentic but maintained that 'Ali was practicing taqiyya or 'dissimulation' when he uttered it-i.e., he was hiding the true situation in order to protect himself.31
Ibn Sabra relates from his father the following: 'I came upon the Prophet of God in the early morning ... leaning against the Ka'ba. He said: "Oh People! I commanded you to 'seek enjoyment' (istimta') 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."32
Another hadith is related from Salma b. al-Akwa'. Through his father he reported that the Prophet of God permitted mut'a in the year of Awtas (8/629) for three days; but then he prohibited it. This particular hadith is related in many sources, with many discrepancies in the text.33
For their part, the Shi’a do not consider these three hadith to have any authority. To illustrate how they reject them, we can summarize al-Khuis arguments:34 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 Khaybar (three years before Mecca's conquest)?
Because of this obvious discrepancy, some of the great Sunni authorities on hadith have maintained that the words 'on the day of Khaybar' 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 Zayd and 'Amr on Friday', or one says: 'I honored Zayd 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 Khaybar .' In short, since everyone agrees that mut'a was permitted when Mecca was taken, the Prophet cannot have banned it three years before that. Hence the hadith is not authentic.
The second reason that the 'Day of Khaybar' cannot refer only to the meat of domesticated asses is that this clearly conflicts with hadith related by al-Bukhari, Muslim, and Ahmad b. Hanbal (three of the most 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 Khaybar, as well as the meat of domesticated asses.
As for the hadith related by Ibn Sabra from his father, alKhu'i 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 Qur'anic verse cannot be abrogated even by the most authentic kind of hadith, much less 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 Sabra's hadith. In some versions the prohibition is said to have occurred in the year of Mecca (8/630), in others in the year of the Farewell Pilgrimage (10/632). This discrepancy makes the hadith even more untrustworthy.
Al-Shahid al Thani alludes to another point concerning Ibn Sabra's hadith not mentioned by al-Khu'i: 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-left Ibn Sabra's hadith out of his collection.35
As for the hadith of Salma b. al-Akwa', al-Khu'i remarks that again it is a saying related from only one Companion (wahid) and cannot abrogate a Qur'anic verse. In addition, if it is an authentic hadith, it is strange that it remained unknown to such important Companions as Ibn 'Abbas, Ibn Mas'ud, and Jabir b. 'Abd Allah. 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?36
There are many sayings of the Shi'i Imams and 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 'Umran b. al-Hasin. As we have already seen, 'Ali said: 'If 'Umar had not prohibited mut'a, no one would commit fornication except the wretched.'37
This is the most famous form of a saying reported in numerous sources and a number of different versions.38 The above version is derived from Sunni works; a Shi'i version is related from the fifth Imam, al-Baqir: 'If it were not for that [i.e., mut'a] with which ['Umar] b. al-Khattab preceded me, no one would commit adultery 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 not 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.'39
The saying of 'Umran b. al-Hasin is as follows: ' Mut'a was permitted by the Book of God, and we practiced it while the Prophet was alive. No verse was revealed abrogating it, and the Prophet did not ban it before he died.' Some sources, including the Sahih of Muslim, then add the sentence: 'Then a man ['Umar] said what he wanted to according to his own opinion.'40
Another saying pointed to by the Shi’a is related from Jabir b. 'Abd Allah in Muslim's Sahih: 'Jabir came [to Mecca] for the 'umra, so we went to see him where he was staying. He was asked about many things, and then mut'a was mentioned. He said: 'Yes, we practiced mut'a at the time of the Messenger of God, Abu Bakr, and 'Umar.'41
For their part, the Sunnis do not accept these traditions as proving the Shi'i points. The Sunnis consider the saying of Ibn 'Abbas the most important and center most of their arguments around it. They quote other sayings from Ibn 'Abbas on the same subject as proof of their own contention. Al-Razi relates that poems were composed celebrating Ibn 'Abbas as the authority for the permissibility of mut'a. Having heard of these verses, Ibn 'Abbas said: 'God slay them! I never said that it was permitted unconditionally, but only to him who has no choice, just as [when a person has no choice] carrion, blood, and pork are permitted.'42
Another saying is related from Ibn 'Abbas declaring that the Qur'anic verse permitting mut'a was abrogated by the verse concerning divorce (65:1). In addition, on his deathbed he is reported to have said: 'Oh God, I repent to Thee of what I have said concerning mut'a. ..'.
In answer to the hadi'th of 'Ali, al-Razi relates the other saying attributed to him referred to above; but he has nothing to say about the other two traditions mentioned by the Shi’a .
The Sunni argument for the prohibition of mut'a based upon the hadith can be summarized as follows:43 The reason that the ulama' have differed concerning mut'a is that it was permitted and then banned a number of times. In the Sahih of Muslim (IV, p.130) the following is related from one of the Companions: 'We were fighting in a battle alongside the Messenger of God, and our wives were not with us. We asked him: 'May we emasculate (istikhsa') ourselves?' He forbade us to do so and gave us permission to marry women for a period of time in exchange for an item of clothing.
Abu Hatim al-Busti, a well-known compiler of hadith, remarks in his Sahih that the question the Companions asked the Prophet shows that at first mut'a was forbidden, and hence the questioners saw no escape from their sexual desires but emasculation. Likewise, the Prophet's answer is meaningless unless mut'a had been forbidden up until that time. Then in the year of the battle of Badr (2/624) he forbade it; again, when Mecca was conquered (8/630) he allowed it, but only for a period of three days. Then he forbade it until the Day of Resurrection.
Ibn al-'Arabi (d. 638/1240), the famous Sufi, wrote voluminously on the meaning of the sharf'a. He calls mut'a one of the most remarkable statutes in Islamic law, since it was permitted at the beginning of Islam, then forbidden at the Battle of Khaybar, then permitted again at the war of Awtas. Finally it was forbidden and remained forbidden. No other statute 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 statute was changed seven times. He refers to Muslim's Sahih as the source for several authentic hadith explaining how the situation of mut'a was changed (most of these have been quoted above). Other hadith are quoted in other sources, such as the Sunan of Abu Dawud.
Al-Qurtubi quotes Abu Ja'far al Tahawi to the effect that none of the hadith which are quoted as referring to the permissibility of mut'a in unconditional terms are in fact unconditional, since they specify that mut'a was permitted only during journeys. The Prophet's last prohibition of mut'a, which took place after the conquest of Mecca, embraced all the previous occasions on which mut'a was permitted. None of the transmitters of hadi'th say that the Prophet permitted mut'a while he and his Companions were together in their homes and not travelling.
As for the hadith of Sabra, which states that the Prophet permitted mut'a at the Farewell Pilgrimage in the year 10/632, al Tahawi acknowledges that this is not in keeping with the other hadi'th. But having investigated all the traditions in this regard, he has found that another hadi'th almost identical to that of Sabra, but related by 'Abd al-'Aziz, places this occasion at the conquest of Mecca, when the men complained of separation from their wives and the Prophet gave them permission to practice mut'a.
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, it is possible that the date of Sabra 's hadi'th is correct; in this case 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 Shi'i answer to the Sunni argument on the basis of hadi'th can be summarized as follows:44 The hadi'th demonstrating that mut'a is forbidden are in conflict with those that show it is permitted. They also conflict with hadi'th 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 hadi'th which establish its permissibility, for a number of reasons:
The hadi'th indicating mut'a's permissibility outnumber those which show that it is banned.
Everyone agrees that the hadi'th indicating that mut'a was permitted at certain times are authentic, 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 chose the right course, we cannot base ourselves upon opinion but must hold fast to that concerning which we have certainty. Hence we must conclude that mut'a is still permitted, as long as we do not have certain knowledge to the contrary.
The hadith which point to the banning of mut'a are themselves questionable. When we realize that one of the incontestable elements of Shi’a m as established by the Imams 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.
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 he changed his opinion towards the end of his life. In answer to this claim, the Shi’a point out that 'consensus' can not be accepted as a valid proof of the banning of mut'a; and in any case, the very fact that the Shi'i 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 Shi’a 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 Shi’a m. 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 Shi’a conclude, there is no real evidence to show that mut'a is not permitted; and when the hadi'th are investigated, the conclusion is likely to be reached that not only is it permitted (mubah ), it is even recommended (mustahabb ).
The general opinion of the four Sunni schools of law45 concerning the reason mut'a was permitted and then afterwards prohibited can be summarized as follows: At the beginning of Islam, the Muslims were in the minority and were often at war. Many of them were not able to marry and raise families, since they were constantly being called upon to travel long distances and to engage in battle with the unbelievers.
Moreover, they had only recently embraced Islam; formerly, they had been accustomed to the concupiscence of the pre-Islamic Arabs, who would often possess harems containing large numbers of wives. They would have sexual relationships with whichever wife they desired, and leave aside those who no longer held any interest for them. The only 'principles' involved in their sexual affairs were lust and desire.
When such men became Muslims, with Islam's strict guidance for sexual relationships, it was difficult for them to spend much of their time at war with no opportunity to satisfy their sexual instincts. Hence it was natural that they be allowed to practice temporary marriage, especially since such marriages do not involve any permanent bond of the type which requires constant care and attention towards a wife and children. Nor at the time of war could the usual means of reducing sexual desires, such as fasting, be employed, since these would also reduce the fighting ability of the soldiers.
Hence we see that the reason mut'a was permitted was the special situation pertaining to the beginning of Islam. The hadi'th of Sabra related by Muslim confirms this view: 'The Messenger of God gave us permission to practice mut'a on the day of conquest when we entered Mecca. Then as soon as he left the city, he banned it once again.' This hadi'th illustrates clearly that mut'a was permitted due to the special circumstances connected with military expeditions.
Ibn Maja relates that the Prophet said: 'Oh people! I would give you permission to practice mut'a, but God has forbidden it until the Day of Resurrection.' When we look at the status and rules of Islam in general we see that mut'a's prohibition is in keeping with Islam. For fornication and adultery are looked upon as a heinous form of sin and necessitate a terrible punishment.
Islam forbids anything which would tend towards obscurity and make it easy to commit detestable acts. The Qur'an states:
' Approach not fornication; surely, it is indecency, and evil as a way' (17:32).
And according to the Prophet: 'No one is a believer in the act of fornication.' Fornication is considered a sin in Islam for many reasons, but certainly these are sufficient: It results in the destruction of human dignity, the mixing of lineage and kinship, and the loss of modesty.
But Islam came to eliminate such things and to a large degree was successful in extirpating all despicable acts. Considering the high level of humanity and outstanding moral qualities the Muslims achieved, it is not reasonable to suppose that temporary marriage should be permitted.
The four Sunni schools of law all 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 should be 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 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.46
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 nullified 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 cannot limit the contract.47
In any case the four schools agree that the punishment for a person who enters into a temporary marriage is not the same as that for 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'zi'r, i.e., less than the full punishment for fornication, depending on circumstances and the opinion of the judge. The penalty for fornication is not exacted because certain doubts remain concerning the status of mut'a as a result of the hadi'th of Ibn 'Abbas.
The Shi’a have always considered mut'a to be of special importance and have tried to keep it alive as an institution of Islamic society. Shi'i law is often referred to as the 'Ja'fari school of law', since in reality the sixth Imam, Ja'far al-Sadiq, is its founder. Hence it is appropriate to quote a few of his many sayings concerning mut'a, such as: ' Mut'a was approved by the text of the Qur'an and became part of the sunna of the Prophet,'48 Imam Ja'far considered the Qur'anic verse referred to above (4:24) the basis for mut'a, He said: 'The verse proves mut'a's permissibility. '49
Once Abu Hanlfa, the founder of one of the four Sunni schools of law and a student of the Imam Ja'far, asked the Imam about mut'a, He replied: 'Which of the two mut'as 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 Qur'an?
"So those of them whom you enjoy, give to them their appointed wages" (4:24).'50
Someone asked the Imam Ja'far: '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.'51
The Imam Ja'far 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 Qur'anic verse:
'Whatsoever mercy God opens to men, none can withhold' (35:2)
the Imam said: ' Mut'a is part of that mercy.'52
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.'53
The Imam Ja'far said: 'It is reprehensible in my eyes that a man should die 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 Qur'anic verse: ' And when the Prophet confided to one of his wives a certain matter' up to the words 'and virgins too.' (66:3-5) 54
The Shi’a call Abu Ja'far Muhammad al Tusi (d. 460/1068) the 'Elder of the Denomination' (Shaykh al-ta'ifa), since he is the founder of Shi'i demonstrative jurisprudence (al-fiqh al-istidlali); in other words, he was the first person to give Shi'i law a systematic basis. We can conclude this chapter with a summary of his views on mut'a. He writes that the Shi'i reasons for considering mut'a permissible are as follows:55
The words of the Qur'an:
'Marry such women as seem 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 Qur'an:
'So those of them whom you enjoy, give to them their appointed wages' (4:24).
The word istimta' (enjoy), unless otherwise qualified, signifies 'temporary marriage.'
Ibn Mas'ud's version of the Qur'an, which adds the words 'to a specified term ' 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 must be proven.
The words of 'Umar concerning the 'two mut'as'. 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.
After referring to these seven reasons, al Tusi answers the arguments of those who claim mut'a is forbidden in much the same way that we have seen above.