Definition of Mut`ah marriage


In his book entitled “Mirqat Al-Mafatih Sharh Mishkat Al-Masabih” vol. 3 p. 422, Shaykh `Aly Al-Qar`y, Bombay edition, wrote:

“Mut`ah marriage is when a man marries a woman for a specific length of time in return for a particular amount of money.”

In his book entitled Al-Muntaqa”, Al-Bajy explained the Hadith which was narrated on the authority of Ibn Abu Talib: The Messenger of Allah (peace be upon him) forbade Mut`ah marriage on the Day of the Battle of Khaybar and he forbade the eating of donkey’s meat.” The Mut`ah marriage (temporary marriage for a stipulated period) which is meant in this Hadith is temporary marriage, when a man marries a woman for a certain period of time whether it is a day, a month or a certain period of time after which the marriage becomes invalid. This is the opinion of Ibn Al-Mawwaz and Ibn Habib. Ibn Habib added: Or when a man marries a woman for a fixed time depending on his length of stay in the town.

Al-Bajy said: “Mut`ah marriage is when a man intends to marry a woman for a fixed period of time.” It was reported by Muhammad from Malik that this type of marriage is permissible, however, it is against the people’s ethics. Ibn Habib said: “marriage meets the principle pillars without a condition, but Mut`ah marriage (temporary marriage for a stipulated period) is when a period is stipulated to end the marriage.”

Malik said: “a man may marry a woman for a fixed period, but he may be pleased with her so he keeps her. Likewise, a man may divorce his wife after the contract of a permanent marriage, if he does not like her. This does not invalidate the marriage, however, stipulating a period is what invalidates the marriage.”

In his book entitled “Al-Kafy”, vol. 2, p. 533, Ibn `Abdul-Bar said: “Mut`ah marriage is an invalid marriage in which a man marries a woman in return for a specified compensation and for a fixed time whether it is a day, a month or a certain period of time provided that the contract of marriage ends upon expiration of this fixed period.”

Imam Abu `Abdullah Muhammad ibn Ahmad Al-Ansary Al-Qurtuby explained the following Noble Ayah (Qur’anic verse): …so with those of whom you have enjoyed sexual relations, give them their Mahr as prescribed In his book entitled Al-Jami` li Ahkam Al-Qur’an,

“Abu `Umar said: “Scholars of the Salaf (Righteous Predecessors) and later generations have no disagreement that Mut`ah (temporary marriage for a stipulated period) is a type of marriage for a set period of time, neither of the spouses has the right to inherit from each other and man and woman separate when the time expires.”

Ibn `Atiyyah said: “Mut`ah marriage (temporary marriage for a stipulated period) is when a man marries a woman in the presence of two witnesses and the consent of the woman’s Waliy (a legally accountable person representing a woman seeking marriage) for a fixed term. The two spouses do not inherit from each other and he must give her the amount of money they agreed upon. After the pre-set time, they are no longer a husband and wife. The child born out of this marriage is no doubt attributed to its father. If the woman is not pregnant, it is permissible for her to marry another person. In his book entitled Al-Nahhas said that the child born out of this marriage is not attributed to its father. Al-Nahhas said that Mut`ah is when a man marries a woman for a day or a certain period, but `Iddah (woman’s prescribed waiting period after divorce or widowhood), inheritance, divorce, and two witnesses to the marriage contract are not included, this is Zina (adultery) and it was never permitted in Islam. For this, `Umar says: “If a man brought me the report that he contracted Mut`ah marriage, I would stone him to death.”

In his book entitled Al-Um, vol. 5 p. 71, under the title of: (Nikah Al-Muhallil and Al-Mut`ah, i.e. marriage contracted for the sole purpose of legalizing remarriage between an irrevocably divorced couple and temporary marriage), Al-Shafi`y said: “The meaning of the prohibited form of Mut`ah marriage is: every marriage that was contracted for a certain duration whether short or long, such as a man saying to a woman: I will marry you for a day, ten days or a month. Or he may say: I will marry you until I leave this country, or until I have sexual intercourse with you so that you become lawful for your husband who divorced you thrice. This is not the case with true marriage which is based upon permanency and ends naturally. As for Tahlil marriage (a marriage contracted for the sole purpose of legalizing remarriage between an irrevocably divorced couple) which is reported that the Prophet (peace be upon him) cursed, it is a form of Mut`ah marriage because there is no intent to take her as a wife forever; but they agree to end the marriage after having sexual intercourse whether this takes place at once, or later.” The general rule is: A husband stipulates to end the marriage after having sexual intercourse and when he does, the marriage ends. He says: I will have sex with you ten times and after which the marriage will be terminated. Likewise when he says: I will have sex with you so that you will become lawful to your husband, after that the marriage becomes nullified. It is the same as saying: I will rent this house from you for ten (days, months, years) or I will rent this bondmaid for one month. When the period of one month is over, the contract will be terminated as to say: I will rent this house from you as long as I stay in this country; once he leaves the country, the contract becomes void. If a person contracts one of these forms of marriage, it will be Mut`ah marriage. The same is also applied to every marriage that was contracted for a certain duration or unlimited duration. Marriage becomes null and void and there are no rulings applicable to this marriage such as inheritance, divorce, Zhihar (a man likening his wife to an unmarriageable relative), Ila’ (husband’s oath not to have intercourse with his wife for four months or more) or Li`an (allegation of adultery against a wife, accompanied by mutual invoking of Allah’s Curse/Wrath if lying) except if they beget a child. If he does not have sex with her, no Mahr (mandatory gift to a bride from her groom) is due. If he has sex with her, a suitable Mahr is due in the case where they did not agree on a specific Mahr. She will observe `Iddah (woman’s prescribed waiting period after divorce or widowhood) with no alimony even if she is pregnant.

If he marries her properly afterwards, he may divorce her three times and the previous divorce is not counted.

Al-Shafi`y said: “If a man visits a country and wants to marry a woman and the intention of one or both of them and her Waliy is that the duration of their marriage is two days or more, and didn’t set this as a condition, their marriage contract is valid. Their intention doesn’t invalidate marriage because people do not articulate their intentions. A man may intend to do something but he may do it or not so that action is different from the intention. Likewise, if two intend to get married for a fixed period or this was the intention of one of them to make her lawful for her ex-husband to remarry, their marriage contract is valid. The intention of the Waliy or other than the Waliy (if he marries the woman) does not affect the marriage contract as long as he does not stipulate a condition to make the marriage null and void.

Al-Shafi`y also said: “If they mutually agree that he keeps her only for a limited number of days, during his stay in the country, or until he has intercourse with her. I disapprove of such an agreement. When considering the marriage contract, if no conditions were stipulated, it is valid and both enjoy the rights of spouses. If these conditions were stipulated, the contract is null and void, for it is like Mut`ah marriage. Any valid marriage that was consummated makes both the man and woman (if she was a free woman) Muhsan (someone in a state of fortification against illegal sexual intercourse outside marriage by virtue of valid current or previous marriage), the woman lawful to her irrevocably divorced ex-husband, and he must give her full Mahr (mandatory gift to a bride from her groom). These rules come into effect if consummation took place by merely penetrating the vulva. Al-Shafi`y also said: “Any invalid marriage neither makes a man or a woman Muhsan nor makes a woman lawful to her irrevocably divorced ex-husband. If they consummated their marriage, he must pay her the Mahr by virtue of the sexual intercourse that became lawful for him.”

Al-Muwaffaq ibn Qudamah said in his book entitled Al-Mughny, vol. 6, p. 644: “Mut`ah marriage is when a man marries a woman for a determined period. For instance, when a man says: I will give you my daughter in marriage for a month, a year, end of the season, the arrival of the pilgrims, etc.; whether the period expires or not.”

Ibn Hazm defined Mut`ah marriage in his book entitled “Al-Muhalla”, vol. 9, p. 519 as: “It is a marriage for a fixed term.”

In his book entitled “Al-Rawd Al-Nadir Sharh Majmou` Al-Fiqh Al-Kabir”, Al-Hasan ibn Ahmad Al-Sayyaghy said in vol. 4, p. 214: “Mut`ah marriage is a fixed term marriage whose duration may be defined or not and usually lasts up to forty-five days. It automatically ends upon completion of its term for the woman who has reached menopause, two menstrual cycles for a menstruating woman, and four months and ten days on the death of the husband. Mahr, Nafaqah (obligatory financial support), inheritance, or `Iddah (woman’s prescribed waiting period after divorce or widowhood) to make sure that she is not pregnant are not included in this form of marriage. A child born out of this marriage is not attributed to the father unless it was stipulated and the Mahram (spouse or unmarriageable relative) relationship is established upon this marriage. Al-Sayyaghy said that this was mentioned in some books of Al-Imamiyyah.”

Al-Qady Abu Al-Walid Al-Bajy said in “Al-Muntaqa Sharh Al-Muwatta'” vol. 3, p. 355: “It was narrated by Ibn Muzayyn from `Isa ibn Dinar from Yahya ibn Yahya on the authority of Ibn Nafi` that anyone who engages in Mut`ah marriage should be stoned if he is Muhsan (someone in a state of fortification against illegal sexual intercourse outside marriage by virtue of valid current or previous marriage), otherwise he should be lashed. Ibn Habib reported from Mutarrif, Ibn Al-Majishun and Asbagh that Ibn Al-Qasim said: He should not be stoned, if he concluded marriage knowing that it is reprehensible, rather he should be severely punished; but not to the extent of inflicting Had (ordained punishment for violating Allah’s Law). It was narrated that Malik said that he did not hold the view of inflicting Had (ordained punishment for violating Allah’s Law) on anyone who engaged in Mut`ah marriage but he should be punished if he knows that it is reprehensible. `Isa ibn Dinar said: It was reported that `Umar ibn Al-Khattab (may Allah be pleased with him) said that to the people, and moreover, his Khutbah is circulated and his positions are transmitted and nobody argued with him for that or even disagreed with him. Asbagh used the following report of Ibn Muzayyn as evidence: Any marriage that is not prohibited by the Sunnah or the Qur’an, should not require that Had (ordained punishment for violating Allah’s Law) be inflicted upon one who deliberately engages in it but he should be punished. Any marriage prohibited by the Qur’an, should have Had (ordained punishment for violating Allah’s Law) inflicted upon him if done deliberately. This is the opinion of Ibn Al-Qasim. Al-Qady Abu Al-Walid (may Allah be pleased with him) said: “I believe that any marriage prohibited by the Sunnah and Ijma` (consensus of scholars), (ordained punishment for violating Allah’s Law) should be inflicted upon any one who engages in such marriage as in the marriages prohibited by the Qur’an.

If a scholar who held a different opinion passed away and there was Ijma` (consensus of Muslim scholars) on one of his opinions after his death and before he withdraws his opinion, scholars such as Al-Qady Abu Bakr said that Ijma` should be concluded by the death of the scholar who held the opposing opinion. Therefore, the difference of opinion remains and the person who conducts such marriage should not be punished. Another group of scholars said that Ijma` is concluded by the death of both parties. Thus, there is Ijma` on the prohibition of Mut`ah marriage for none of those who hold the view of its permissibility is alive and the person who conducts such marriage should be punished. I support this opinion: `Abdullah ibn `Abbas did not take back his opinion. The fact that the child born from this marriage is acknowledged as a legal progeny indicates that Ijma` was not concluded on its prohibition for if there was Ijma`, the child would not have been attributed to the father. And Allah knows best! This is the opinion of Al-Bajy in his explanation to the report of Malik from Ibn Shihab on the authority of `Urwah ibn Al-Zubayr: “It is narrated that Khawlah bint Hakim said to `Umar ibn Al-Khattab (may Allah be pleased with him): “Rabi`ah ibn Umayyah practiced Mut`ah with a woman and the woman has become pregnant from him.” `Umar ibn Al-Khattab became angry and said: “This is Mut`ah. Had I ruled, I would have stoned him.”
Al-Bajy said: if Mut`ah marriage takes place, it should be annulled. Shaykh Abu Al-Qasim added: Before and after consummation of the marriage because the Prophet (peace be upon him) forbade contracting Mut`ah marriage. Forbiddance denotes invalidity. Thus, such a marriage contract is null and void and it should be annulled before or after consummating the marriage, as in the case of contracting marriage without the presence of a Waliy.”

Ibn `Abdul-Bar said in his book “Al-Kafy”, vol. 2, p. 533: “Mut`ah marriage is Batil (null and void) and should be annulled. It is when a man marries a woman in return for a particular amount of money for a specific length of time whether a day, month, etc. The spouses separate when the fixed term is over without divorce; whether before or after the consummation of marriage. Once the marriage is consummated, the fixed Mahr is due, according to Malik. If the man does not fix a Mahr, or he fixes that whose value is not regarded as an appropriate Mahr (according to Malik), the amount of Mahr is to be determined on the basis of that given to her peers, no punishment of establishing illicit sexual relation is to be exacted (as the marriage contract is valid), children born from this marriage are acknowledged as legal progeny, and the woman must observe a full term of` Iddah (in case of divorce of death or her husband). According to Malik, Nahariyyah carries the same ruling as Mut`ah marriage in terms of legal progeny of children born from this marriage and the observation of `Iddah (in case of divorce of death or her husband). “Nahariyyah” is the woman whose husband stipulates that he only wants to see her during the daytime, but not at night.”

Al-Qurtuby said in “Al-Jami` li Ahkam Al-Qur’an”, vol. 5, pp. 132-133: “Scholars held different views with regard to one who conducts Mut`ah marriage, should a penalty be inflicted upon him and the child born from this marriage should not be acknowledged as legal progeny or should he be punished and acknowledge the child as a legal progeny? There are two different views, however, he should be punished and the child should be attributed to the father according to the opinion of some scholars in spite of its being prohibited. This indicates that the Mut`ah marriage used to have the same ruling as the valid marriage except for its fixed period and inheritance. Al-Mahdawy reported that Ibn `Abbas said: Mut`ah marriage used to be conducted in absence of a Waliy or witnesses. This narration is considered weak.

Ibn Al-`Araby reported: Ibn `Abbas said that Mut`ah marriage was permissible but it was proved that he withdrew his opinion. Thus, there is a consensus on forbidding Mut`ah marriage. If a person conducts it, he should be stoned according to the Maliky Madh-hab (School of Jurisprudence). In another report from Malik: “A person who conducts Mut`ah marriage should not be stoned because of its unlawfulness but because the Maliky scholars hold another opinion: Is what is forbidden by the Sunnah similar to that which is forbidden by the Qur’an, or not? According to the narration of some scholars of Madinah that Malik said: They are not alike. This narration is considered weak.”

Ibn Qudamah said in “Al-Mughny”, vol. 8, pp. 183-184: “If sexual intercourse occurs in a doubtful marriage, such as Mut`ah marriage, a penalty should not be imposed.” This is the opinion of most scholars for the permissibility of having intercourse in such marriage is a doubtful matter. Ordained punishments are not imposed on such doubtful matters. Ibn Al-Mundhir said: Every scholar from whom we received knowledge agreed that no prescribed punishments are imposed on doubtful matters.”

Allah is the Grantor of success! Allah Alone is Sufficient for us, and He is the Best Disposer of Affairs!

Source: Fatwas of Ibn Baz

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