The particulars of the law of fixed-term marriage, the necessity of such law, and the insufficiency of permanent marriage in meeting human needs, especially in the present age, have formed the subject matter of our study. Now, want to present, as it were, the other side of the coin. We shall see what damage it may possibly do away with. By way of introduction I shall give a short history of the writer’s beliefs.
Among all the subjects, problems, topics and matters of discourse, that have existed and do exist now for man no subject or field of discourse in anywhere near as complex and garbled as the history of human sciences, beliefs, customs, traditions and manners. And this is the reason, why man has talked more nonsense on these subjects, than on any other, that he has an inordinate desire to express his views.
For example, Any one who is in touch with Islamic philosophy, gnosis, Sufism and theology, and is acquainted with some modern writings, which are mostly extracts or the origin writings of foreigners will follow what I mean. It is something like this. To express their point of view or, this kind of topic, the orientalists, their admirers and camp followers, consider every thing, necessary except that they themselves should have a thorough grasp and comprehension of the problem.
For example, around the subject that is known in Islamic gnosis as wahdatu’l-wujud (the unity of existence), is there any thing that has not been said! Only one thing is missing and that is what exactly wahdatu’l-wujud is and what conception the giants of gnosis like Muhyi’ud din ibn al-‘Arabi and Mulla Sadra had of wahdatu’l-wujud.
As I read a few of the articles with some of the ideas pertaining to fixed-term marriage in certain issues of Zan-e ruz, I could not help remembering wahdatu’l-wujud. I saw that all sorts of things had been discussed except that thing which is the spirit and the purpose of this law and the intent of the legislator.
Of course, since this law is part of the “heritage of the East’’, it is being received rather coldly. If it were a souvenir of the West, it would have been otherwise.
Certainly, if this law were imported from the Western part of the globe, there would have been conferences and seminars on how the restriction of marriage to permanent marriage does not suit the second half of the twentieth century, how the present generation wants to be free and live freely, and will accept anything but free marriage in which they individually choose all the restrictions and limitations.
For this reason, now that this call is raised from the west and someone like Bertrand Russell proposes the subject of Companionate marriage, it can be safely predicted that, to a greater extent than Islam, wants, this idea will be welcomed and permanent marriage will be forsaken altogether, and we will be compelled in future to defend, and propagate in favor of permanent marriage.
Objections and difficulties
The defects and harm that have been mentioned in connection with fixed-term marriage are as follows:-
1. Marriage should rest on a stable foundation. A couple, when they are first joined by the pact of marriage, should consider them attached to each other for ever, and the idea of separation should not enter their minds. So a fixed-term marriage cannot be a stable pact for the couple.
That the foundation of marriage should be stable is quite right, but this objection arises when we replace permanent marriage by fixed-term marriage and wish to annul permanent marriage.
No doubt, when both parties have the means for permanent marriage, and have full and satisfactory information regarding each other and have full trust in each other, they may very well find themselves in the pact of marriage for ever.
Fixed-term marriage has been allowed in the shari’ah only because permanent marriage by itself, could not cope with human needs in all conditions and ,circumstances, and dependence entirely upon permanent marriage would unavoidably create a situation in which people would either be advised temporary asceticism or would be left to be drowned in the depths of sexual communism. It is quite clear that any young man and woman who had found all the desired prerequisites for a permanent marriage would not be greatly enthusiastic about a temporary alliance.
2. The women and girls of Iran, who subscribe to the Shi’ite faith have not welcomed fixed-term marriage and have considered it rather as an insult to them. Thus, the general opinion of the Shi’ahs has rejected it.
Our reply is firstly that the dislike of mut’ah (fixed-term marriage) is due to the misuse made of it by sensual persons. The law should apprehend such persons, and we shall discuss shortly this point of misuse. Secondly, the wish that fixed-term marriage should be welcomed like permanent marriage is misplaced and wrong, because the philosophy of fixed-term marriage is based upon the non-availability of means, and the inability of both the parties, and one of them, to become permanently married.
3. Temporary marriage is detrimental to the position and honour of a woman because it is, so to say, the hiring of a human being. It is a religious license for the sake of human nature. It is against the dignity of a woman to give herself to a man in return for the remuneration she gets from him.
This is the most amazing objection of all. Firstly, in view of the distinctive features that we have already related in the previous section, what does it have to do with hire and a fee? Is the time limit in this marriage the cause of its being excluded from the definition of marriage and acquiring for itself a form in which ‘fee’ and ‘hire’ are appropriate terms? And is it only because it is explicitly ordained that the mahr (dower) must be ‘fixed’ and ‘definite’, that this mehr is being depicted as the rental charge? We ask whether, if there were no dower and the man did not place anything before the woman, the would then regain her human dignity? We shall discuss separately the subject of mahr (dower).
Incidentally, Islamic jurists have made clear, and the Civil Law has the same basis, been so arranged and brought together into sections, that temporary and permanent marriages, from the point of view of the substance of their stipulations, have absolutely no difference between them, and should not have. Each one of them is a marriage, and each one takes place with the recital of a specific formula. If the fixed-term marriage is set up with the recital of those terms that are specially intended for remuneration or fee, the marriage is void.
So we ask, how long and from which date has the renting of man been abolished? All tailors, barbers, doctors, artesian, all civil servants, from the Prime Minister to the lowest worker in a factory, are hired men.
The woman who has entered into the alliance of a fixed-term Marriage with, a particular man, out of her free will and of her own choice, is not a rented person and she has not acted against the honour and status of a human being. If you want to see a rented woman and wish to witness the slavery of woman, you should travel to Europe and America and call in on the film companies so that you may understand what a rented woman is. See how these companies put up the actions of women for sale, their poses, manners and sexual charms. The tickets that you purchase for cinemas and theatres are, as a matter of fact, a payment towards the rental value of the rented woman. You may see there to what the unfortunate woman presents her body for the sake of money. For a long time under the directions of ‘honorable’ experienced specialists, she has learnt the secrets of sex-appeal. She puts her body, soul and personality at the mercy of a financial organization to get more sales for that organization.
Visit the cabarets and hotels and see what honors woman has attained. For a paltry sum as her wage she puts all her honour and prestige in the hands of the guests, so that she can contribute to filling the already full pockets of certain rich men.
Women on hire are those models who are wage-earners and hired workers for the big sales-stores and who give up their honour and prestige to satisfy their employers’ avarice and greed.
Women on hire are those women who appear on the television screen with all sorts of beautification, most of which are un-natural, to attract buyers for some commercial firm to popularize some commercial commodity. But her basic aim is her wage.
Who does not realize that in western countries today the gracefulness of a woman, her sex-appeal, her voice, the art and originality of a woman, the soul and body of a woman and in the end, the whole personality of a woman is at the beck and call of American and European capitalists. It is so sad that you, knowingly, or unknowingly, drag the gentle and honorable women of Iran to such a servile position. I am unable to understand why if a woman marries a particular man on liberal terms temporarily, she is to be considered a rented woman, but if a woman at some wedding party or at a cabaret, before the greedy gaze of thousands of men, ruins her larynx for the satisfaction of their sexual inclinations, and turns a thousand and one manners of somersault so that she may get the promised money, is not to he counted a hired woman.
Has Islam, which has restrained men from exploiting women like this, and has forbidden woman, from such servility and submission and earning her livelihood in this way degraded women, or has the Europe of the later half of the twentieth century?
If, some day, woman fully understands this and is enlightened and notices the traps that twentieth century man has set in her path and concealed from her, she will rise in revolt against this fraud. That will be the time when she finds out that her only protector in all sincerity is the Qur’an. Of course, that day is not far off.
The magazine Zan-e ruz, in its issue No.87 on page 8, has published a report of a woman named Mardiyyah and a man named Rida under the heading “A Hired Woman”, and has given an account of the misfortune of the unfortunate woman.
The story, according to the statements of Rida, begins with the approach of the woman with the proposal of marriage. It means that the formula of the forty proposals was acted upon for the first time and a woman went forthwith a request for marriage. It is quite evident that a story which starts with the proposal of a woman for marriage could not end any better than it did.
On the other hand, according to the statements of Mardiyyah, the man, sensual and cruel as he was, portending that he would take her as his permanently married wife and would take care of her and her children, deceived her. Furthermore, without the consent and approval of the woman, with the excuse of having entered into a fixed-term marriage with, her, after gratifying his passion he abandoned her.
If these statements are true, the marriage was void. The man was cruel and the woman was ignorant of the religious and statute law. They violated the law and should be punished.
Before people like Rida are punished, they should be instructed and Mardiyyah should be warned.
How can the laws, as it is, he assailed for an offence the root cause of which is the cruelty of men and the ignorance and forgetfulness of women. The Zan-e ruz magazine supports the cause of Rida, and thus lashes out with its sword against the law. If there were no law of fixed-term marriage, would the cruel man, Rida, and the neglectful and ignorant woman, Mardiyyah have lived peacefully and comfortability?
Why do you shirk the responsibility of instructing and warning men and women, and why do you keep the rights and duties of man and woman secret from them? Why should you take advantage of a poor woman’s ignorance and misrepresent the law which is her only protector and guardian as her enemy, and wish that she should destroy her only refuge with her own hands.
4. Fixed-term marriage is some sort of license for polygamy, and polygamy is prohibited by law. So temporary marriage it also prohibited by law. As regards the question of the category of persons for whom fixed-term marriage is allowed by the shari’ah, and the question of polygyny, we shall discuss these fully at a later stage.
5. Fixed-term, marriage, because it has no permanence, is an unsuitable arrangement for children born of this alliance. The inevitable result of a fixed-term marriage is that the children born will be without a guardian and will remain deprived of kind paternal and loving maternal protection and will remain deprived of a home.
This is the objection on which Zan-e ruz magazine lays much stress, but after the explanation that we have made, we do not think there can be any occasion left for argument or dispute. In the preceding section we mentioned that one of the differences between fixed-term marriages and permanent marriages is to do with having children. In permanent marriage neither one of the couple is permitted, without the consent of the other, to avoid the responsibility of the birth of child, whereas in fixed-term marriage both sides are free. In fixed-term marriage the woman cannot refuse sexual intercourse with the man, but she has the option that, with out causing interruption during coition, which is harmful for the man, she may avoid pregnancy. The problems of contraception have already been fully solved.
If, on the other hand, in temporary marriage couple wishes to have a child, and accept the responsibility of bringing up and looking after the child, they may have children. As far natural affection is concerned there is no difference between the children of a permanently married wife and a temporarily marriage wife. Suppose the father or the mother refuses to perform his or her duties, the law will then declare it their obligation and will oblige them; just as in the case of divorce, the law should take action and should safeguard the rights of the children. If they do not wish to have children, and their only aim is to satisfy their sexual instincts they should take steps to refrain from having children.
As far as we know, the church forbids birth control, but according to Islam, if the husband and wife prevent the birth of a child at its point of conception it is permissible. When the pregnancy ha already begun, Islam in no case allows abortion. When the Shi’ite jurists say that the aim of permanent marriage is to have children, and the aim of temporary marriage is gratification and satisfaction of the sexual instincts, they mean the same thing.
The writer of the forty proposals has, in issue No.87 of Zan-e ruz contributed an article criticizing fixed-term marriage.
He firstly says that “the subject of temporary marriage is so distasteful that even the writers of the law of marriage (in the civil code) could not manage to comment and give details of this law, as if they loathed their own, work, and only as an outward compliance, according to Articles 1075, 1076 and 1077, stuck some words and phrases together and then passed on.
“The composers of the law relating to temporary marriage (mut’ah) disliked their business so much, that they did not even define the above mentioned marriage formally and did not explain its terms and conditions….”
Afterwards the learned writer himself makes amends for this defect in the Civil Law and says: “The above mentioned marriage means that an unmarried woman, in proportion to a certain settled fee and remuneration, for a limited and specified period, a few hours or a few minutes, gives herself into the hand of a man for the satisfaction, of his passions, and for the gratification if his lust and the performance of sexual acts.”
He further says, “For the proposal and acceptance of the said marriage, special words are quoted from the Shi’ite books of jurisprudence in Arabic, to which the Civil Law does not refer and does not care to mention, as if in the eyes of the legislator it can be realized by the use of any words, Arabic or not, ‘which need only signify the said purpose (that is the sense of acceptance of remuneration and a fee).”
According to the learned writer:
a) The Civil Law does not define and does not explain its terms.
b) The essence of temporary marriage is that a woman in return for a fixed renumeration gives herself to a man
c) In view of the Civil Law, any word that signifies the sense of the woman being rented is sufficient to connote proposal and acceptance of temporary marriage.
I invite the learned writer to study the Civil Law once again, and to study it carefully, and I likewise request the readers of Zan-e ruz somehow to get a copy of the Civil Law and carefully study the following parts.
In the Civil Law, the sixth chapter of the volume on marriage is given over to fixed-term
marriage, and it consists of not more than three simple sentences. The first is that temporary marriage is of fixed duration, as it is to be concluded for a specified period. The second is that the period of temporary marriage should be specifically agreed upon. Thirdly, that the law in respect of mahr and succession is the same as mentioned in the chapters pertaining to dower and succession.
The respected writer of the forty proposals is under the impression that whatever is mentioned in the five chapters of the volume on marriage is all in respect of permanent marriage, and that only these three sections deal with fixed-term marriage. He is unaware of the fact that all the sections of the five chapters, excepting where it is otherwise specified, as in section 1069 or the section about divorce, are all common to permanent and temporary marriage. For example, section 1062, which mentions that “marriage takes place with an offer and acceptance in words which unequivocally denote the intention of marriage”, is not only meant for permanent marriage. It applies to both kinds of marriage the conditions that the Civil Law lays down concerning the person who concludes the marriage, or the conclusion of the marriage, or the husband and wife, all apply to both kinds of marriage. The Civil Law did not define temporary marriage because there is no need to define it, just as it does not define permanent marriage and considers it too well-known to require a definition. The Civil Law has considered every word that clearly denotes marriage or the taking place of marriage sufficient for the conclusion of marriage, whether it is a permanent or a fixed-term marriage. If, on the other hand, any word conveys a meaning inconsistent with the meaning of marriage, such as remuneration’, ‘gratification’, ‘lease’ and rent’, it is not effective for the proper conclusion of a marriage, either permanent or temporary.
On the strength of what has been written, I pledge my word that if a number of learned judges and those who fully understand the law, who are most numerous in the Ministry of justice, decide that the objection against the Civil Law that has been discussed above is justified, I shall refrain from criticism of any of the articles in Zan-e ruz.