MUT’AH MARRIAGE IN ISLAM: A CAMOUFLAGED PROSTITUTION – MONALISA MUKHERJEE

Mut’ah Marriage in Islam: A Camouflaged Prostitution

Author: Monalisa Mukherjee

New Law College, Bharatiya Vidyapeeth University

ISSN: 2581-8465

ABSTRACT

Nikah Mut’ah or Mut’ah Marriage, is basically a form of temporary marriage, widely popular among the Twelver Shia School of Islam. Mut’ah means ‘Joy’, a marriage which is constituted for pleasure and is temporarily held and is a private, verbal, marriage contract which has its duration of the marriage and the Mahr (dower) pre-specified in the terms of such a contract.

A contract formed solely to conduct a sexual act between a man and an unmarried woman, both who have attained majority (15 years or above), where the man offers a certain amount of money to the woman or the girl and the duration of the marriage upon which the woman has been asserting to, constitutes to the private and a temporary marriage, and after the completion of the term, such a marriage automatically becomes null and void without the need to file for a divorce. It sounds like a familiar concept, isn’t it? In Pre Islamic Arabs, this was a practice of prostitution which further have been evolved with the passage of time into a compulsory concept and renamed as mut’ah.

This article hence focuses on the spurious concept of Mut’ah marriage and draws an inference of how it is actually prostitution in disguise and how marriage acts a shield to the adultery having been committed by the men. This article further criticizes its prevalence in the institution of marriage as it goes down to disintegrate the sanctity of marriage and should be declared illegal in India. Furthermore, this article continues with a view to condemn the practice of the archaic laws of Mut’ah to which all Muslim women are victims of.

INTRODUCTION – WHAT IS MUT’AH MARRIAGE?

In Pre Islamic Arabia, there was a practice among the Arabic women who used to entertain men in their respective tents to carry out the act of fornication. Men who would desire to enter the tent had to pay some monetary consideration as the entrance fees. There were no mutual rights and obligations between the parties. Either of them could terminate the union at any time. The children born out of this union belonged to the woman.[1]

It was prostitution and nothing else. The practice was found to be a usual thing in the Pre- Islamic Arabs especially amidst the long journeys[2]. Eventually, this union evolved and the fixation of the term of union for some amount to be given to the woman was made compulsory which was renamed as Mut’ah also known as Tamtaa Tum.

Nikah mut’ah (nikāḥ al-mut’ah) literally meaning “pleasure marriage”- a private, verbal, temporary marriage contract that is solely practiced in Twelver Shia Islam. Sunni Muslims, and within Shia Islam, Zaidi Shias, Ismaili Shias, and Dawoodi Bohras do not recognize the practice of Nikah mut’ah. The duration of the marriage and the mahr (amount of dower or consideration) is pre-specified and is agreed upon by both the parties to the contract.

There is no specified minimum or maximum duration for the marriage to be held, it can be for an hour, for a day, for a month, as decided by the parties and also no restriction as to the number a mut’ah wives a man can have.

Mut’ah marriage per se is a temporary marriage contract agreed upon the terms to enjoy sexual fornication which is verbally decided upon and the duration and monetary consideration to be given to the woman is predetermined. After the act of sexual conduct is carried out, the consideration is thereupon given by the man to the woman who shall be unmarried and also not be following her iddat period and the marriage comes to an end upon the act been completed. No complex procedure of filing a divorce and getting one has to be followed, as the marriage automatically comes to an end. A Shia man can have as many mut’ah wives as he is willing, even after having the maximum number of four (permanent) wives. The period of Mut’ah marriage does not give a path to adultery and where the Islamic Laws are so rigid regarding fornicating with a prostitute and getting engaged in prostitution or visiting brothels, the concept of Mut’ah has seemed to have relaxed such laws and given us a contradiction and spurious concept of marriage and how mut’ah has safely shielded prostitution in the name of marriage.

MUT’AH MARRIAGE- A CONTRACT OF PLEASURE

As mentioned earlier, Mut’ah Marriage is a verbal, temporary marriage contract agreed upon the terms to enjoy sexual fornication and where the duration of the marriage and the mahr has been pre-decided upon. A declaration of the intent to marry temporarily and an acceptance of the terms are required, as is the case of other forms of marriage in Islam. This type of marriage is supposed to be kept private, as one does not intend to announce the commencement of such marriage so as to keep away from public attention and criticism and also a major reason being, there is no maximum number as to have mut’ah wives, hence one desires to have more than one mut’ah wife. As per the Twelver Shia, the preconditions for mut’ah are:

• The bride must not be married
• She must be Muslim or belong to Ahl al-Kitab (People of the book)
• She should not be addicted to fornication
• She should not be a young virgin (if her father is absent and can not give consent).

The consent given by both parties must be free. The condition of offer and acceptance must be observed in Muta. Both parties must be of sound mind. The parties should not fall within the prohibited degrees of relationship. The rule of limiting the number of wives to four as regards regular (normal permanent) marriage, does not apply to Muta marriage.

Conditions of Muta:

1. The period for which, the Mut’ah is being contracted, must be clearly specified. It could be for a few hours, a few days, a few weeks, a few months or a few years. It is not necessary that the period of Muta should start immediately on the completion of the contract. It may commence after some time gap also.
2. In the contract of Mut’ah, the term or duration denotes a period of cohabitation. If the period has been specified (how so long that period may be), it then becomes a marriage of Mut’ah.
3. Mahr or dower must be specified at the time of contacting the Mut’ah.
4. If the period of cohabitation is not fixed, but dower is, then it shall be regarded as a normal permanent marriage.
5. The Muta marriage will be void if the time of cohabitation is fixed but the Mahr or dower is not fixed.

In the Pre Islamic Arabia, when the Arabs had to live away from their houses or were on long trade journeys, they used to satisfy their sexual desires by fornicating with prostitutes. To avoid the growth of prostitution in society and to have assurance about the legitimacy of the children from such unions, the Prophet had recognized and permitted temporary marriage for some time. But later on, when he felt that this practice was being exploited, so eventually he prohibited such a practice. Though the Prophet had declared such a marriage as unlawful, it was still very much in practice and was later on strongly condemned and criticized by the second Caliph, Omar. Since the Ithna Ashari group of Shias do not accept the first three Caliphs, they had continued to practice the institution of Mut’ah marriage[3]. Since then, the Mut’ah marriage has not been in practice under any School of Muslim law except the Ithna Ashari group of the Shias.[4]

At the end of the contract, the marriage ends and the wife must undergo iddat, a period of abstinence from marriage (and thus, sexual intercourse). The iddat is intended to give paternal certainty to any children if the wife becomes pregnant during the temporary marriage contract. Any child born from such a marriage shall be legitimate and also a rightful heir of the father’s property.  Mut’ah Marriage can be conducted with a Muslim unmarried woman, or any woman outside the Islam religion provided she is not an idle worshipper. Mut’ah marriage can be conducted only by Twelver Shia Muslim men and not married Shia Muslim woman, for whom it is a taboo to even think of, which is again a violation of the fundamental right of a woman i.e. Article 15 (Right against Discrimination)[5]Generally, the Nikah mut’ah has no proscribed minimum or maximum duration. Also, there is no restriction as to the number of mut’ah wives a man can have.

This is a spurious concept, where the constitution of marriage is not shaken by the conduct of temporary marriage and does not lead to adultery but if with the completion of the term, a man who per se in engaged in the act of fornication, exceeds the term of the marriage even by a second, shall be guilty of adultery. Prostitution a concept, where the woman does not enter into any kind of marriage contract but has similar circumstances, where for the act of fornication, she is paid a certain amount of pecuniary consideration for a specified duration. Now, it is not wrongful to draw an inference saying that Mut’ah Marriage has taken the help of the institution of marriage which is acting as its shield and barring people from calling it a form of prostitution.

In the first part of Ayat 24, rules concerning normal permanent marriages are mentioned and there was no need to repeat same rules in the same Ayat, as in the present case, which affirms that the quoted portion is related to Mut’ah (temporary) marriages. Two words- ‘fornicating’ and ‘hire’ has been emphasized and purposely used to provide for temporary marriages in place of fornicating (zina) among Muslims, where such urgent circumstances demanded, such as during travel and times or war, because the urge to fulfill sexual desires is inherent and uncontrollable in human beings.[6]

DISCRIMINATION AGAINST MUSLIM WOMEN DUE TO SUCH ARCHAIC LAWS

In a book written by Noor Zaeer, ‘Denied by Allah’, she has beautifully put forward her opinions regarding a few Islamic laws like Nikah Halala, Triple Talaq and Mut’ah, where even the holy book of Quran has failed to show mercy to Muslim women.

Ina country like India, which is so rich in culture, a practice like Prostitution is looked down upon and is highly criticized. Earlier, in countries like Arab, when men used to be away from their houses for long journeys or wars, in order to satisfy their sexual desires, they used to pay a certain amount of money to women and fornicate with them in their tents. To control the growth of such a practice, Prophet had come up with the concept of Mut’ah Nikah, which is nothing but prostitution in disguise. Men, for a specified duration of time and consideration, would cohabit with an unknown woman but before that, they would have a verbal agreement to marry on a temporary basis.

There is no maximum number as to which one should have Mut’ah wives, it can be infinite, as long as one has the means to pay such a woman, apart from the four married wives which he already has out of the normal permanent marriages. These Mut’ah marriages can be performed only by a Muslim married man and no Muslim woman, and these men could marry any woman who belongs to Islam, Christianity, and Jew or is a fire worshipper. But a Shia Muslim unmarried woman could enter into a Mut’ah contract only with a Muslim Shia man.

Those men who are already married and have four wives are not guilty of adultery, and the sole purpose of performing a contract of Mut’ah is to be free from the guilt of fornicating with another woman besides his wives. This is a clear violation of the Fundamental right of those Muslim women who are been subjected to the brutality of such archaic laws and are bound to keep their mouths shut as they have no legal remedy available against it in the courts of Indian law.

The practice of Mut’ah shall not only be held illegal but also shall be enforced in the courts of law so as to equally protect the rights of those Muslim women who have been subjected to these instances and are helpless as they have nowhere to go and face such cruelty on the part of their husbands.

“MUT’AH- A CAMOUFLAGED PROSTITUTION”

In the Pre Islamic Arabia, Arab women used to entertain men in their tents and such men had to pay a certain amount of entrance fee to enter those tents. This was basically prostitution. Children born out of such unions were to be a liability to those women only. Usually, during long journeys, or times of war, men used to stay far away from their houses and in order to fulfill their sexual desires, they used to fornicate with such women who were prostitutes.

In order to stop the growth of prostitution in the society and to maintain the sanctity of the marriage of those men who were married, Prophet had evolved this concept and later on renamed as Mut’ah or Tamtaa Tum and permitted the practice of such, which was basically a private, temporary marriage contract, where:

• The Mahr (consideration) was to be mentioned beforehand in the contract, and
• The duration of the marriage is to be fixed at the time of entering the Mut’ah.

The permission to enter into a contract of Mut’ah protects the Muslims from feeling guilty of fornication with a woman apart from his wife if, under certain circumstances, a man has indulged himself in such an act.[7]

An Ithna Ashari Shia male may contract any number of Muta marriages with a female who either belongs to Islam, Christianity, Jewish religion and fire worshipper but with no one else. An Ithna Ashari female on the other side has the capacity to contract a valid Muta marriage only with a Muslim man and nobody else of other religion. An Ithna Ashari female who attained the age of puberty has the capacity to contract a valid Muta marriage without the consent of her guardian, but if she is a minor, she can contract a mut’ah only with the consent of her guardian, otherwise the marriage would be unlawful and would be inappropriate for the Muslim man to conduct any kind of union with such a woman.

With the evolution of the practice of fornicating with a woman by hiring her for a certain duration of time and paying her a certain fixed amount of monetary consideration, simply from calling it prostitution to Mut’ah just by covering it with a temporary purdah and calling it a marriage, is nothing but prostitution which has been camouflaged by the institution of marriage and to which innocent married Muslim women (whose husbands have been indulged in such practice) have become victims of such archaic laws.[8]

LEGALITY OF MUT’AH MARRIAGE

“Muta for an unspecified term” cannot be distinguished from “Muta for Life”. In both the circumstances, a permanent marriage will be deemed to exist which shall result in all the rights and obligations of a permanent marriage. Thus for a Muta marriage to come into force, specification of the period of cohabitation along with the dower is a necessity.

Legal effects of Muta marriage

The following are the legal effects of Muta marriage:

1) The cohabitation between the parties contacting to constitute Mut’ah is lawful.

2) The period for which a Mut’ah is contracted, does not necessarily have to commence immediately from the time when the contract for marriage is concluded.[9] The commencement of such a marriage can start with a certain gap of time also.

3) The parties to a Mut’ah marriage are called the Mut’ah husband and the Mut’ah wife.[10]

4) The children born from the union of such marriage are legitimate and have right to inherit the properties of both the parents in the same manner as the offspring of a normal permanent marriage. When there is no evidence of a pre-defined duration of the period of cohabitation, but the parties have cohabited anyway, then such cohabitation will be deemed as if a normal permanent marriage has been contracted.[11]

5) The parties have no mutual rights of inheritance unless there is some expressed agreement to such an effect.

6) The wife in a Muta marriage is not entitled to any maintenance under Shia Law because according to Shariat Principles of Islam, the name of the wife does not, in reality, apply to a woman contracted in Mut’ah marriage[12], but if there is an agreement between the parties by which, there is some special proviso to give effect to such a condition, then the agreement is valid and the wife is entitled to maintenance during the whole term even if the Muta husband does not cohabit with her.[13]

7) The husband’s right to divorce is not acknowledged but he can dismiss the contract by “making a gift of the term” (Hiba-i-Muddat) to the wife before the completion of the fixed period.

8) The husband may also dismiss the contract by making Zihar.[14]

9) The parties may also dismiss the contract by mutual consent.

10) The wife is entitled to get full dower even if the husband does not cohabit with her for the full term and leaves the wife before the expiry of the term. But if the wife leaves the husband, then the husband has a right to deduct the amount of dower proportionate to the unexpired period of duration.[15] That is, the wife may get half the amount of consideration if the wife leaves the husband before cohabiting with him.

11) At the time of contracting the Mut’ah marriage, only those agreements which have been expressly mentioned in the contract shall be binding and agreements which have been made ensuing to the contract of marriage may not have any binding force.[16]

12) The wife is entitled to get full consideration only when there has been full cohabitation and consummation in the marriage; if the marriage has not been consummated, the wife shall be entitled only to half the amount of consideration[17].

13) In a Muta marriage, the wife has to observe the period of iddat in case of the death of her husband, for a period of four months and ten days. In the case of pregnancy, this period is extended till delivery, such as observed in order to avoid any confusion regarding the legality of the child/ren. In case of termination of the Mut’ah marriage, otherwise by the death of the husband, the period of Iddat observed is two menstrual courses if she was menstruating and forty-five days if she was not menstruating. If there has been no cohabitation, observance of iddat is not necessary.[18]

14) In Muta marriage, the husband has the right to refuse procreation of child/ren. That is to say, he may or may not want to be the father of a child born out of their cohabitation, and no permission of the wife is necessary for the same[19].

15) The Muta marriage comes to an end automatically on the expiry of the term, unless it has been extended, or on the death of either party contracting to the marriage. The question of the husband’s right to talaq(divorce) does not arise as it is not necessary.

INFERENCE DRAWN

Some Sunni and Shia scholars have held a view that this kind of temporary marriage in the present age amounts to prostitution. Subsequent to the 2014 release of an eighty-two page detailed document describing Iran’s widespread prostitution, Mut’ah marriage has been suggested by Iranian parliamentarians as a solution to the problem, where couples would be allowed to publicly register their cohabitation through the institution of Mut’ah marriage. The institution of chastity homes had conjointly been anticipated within the past wherever prostitutes are provided in state-sanctioned homes, however, the purchasers would need to perform the contract of Nikah (marriage) Mut’ah first this anticipation as of now has not been ratified yet by the Iranian authorities. According to Shahla Haeri, the Iranian middle class itself considers the contract of Mut’ah marriage to be prostitution which has been covered by the cloth of religion by the fundamentalist authorities. Some of the Western writers have argued that Mut’ah marriage comes close to prostitution. Julie Parshall, one of the Western writers has written that Mut’ah is nothing but legalized prostitution that is a form of prostitution which has been given a legal sanction due to its support from the institution of marriage, which has been sanctioned only by the Twelver Shia Muslims (Ithna Ashris), as they do not follow the first three Caliphs of the Shia school of Islam. She further went down to quote from the Oxford Encyclopedia of the modern Islamic world the distinction between Nikah (marriage) and Mut’ah, and has stated that while Nikah is for procreation of children, Mut’ah is just for the fulfillment of sexual desires.[20]

Summarizing all these texts and evidence, collected from several novels and researches, without a suspicion, we can draw down an inference saying Mut’ah Marriage is no true form of marriage and that it is nothing but prostitution which has been camouflaged with the institution of marriage. Marriage, which on one hand is a chaste institution of the society, whereas per the Islamic Laws, the sole purpose of marriage is nothing but procreation of children; on the other hand, the sole objective of Mut’ah as understood is the fulfillment of the sexual desires between two contracting parties to this temporary marriage. As soon as the consummation of marriage takes place, the consideration is given (same as is the case of prostitution) and the marriage is declared to be inconsistent without the need of any filing of the divorce. There is also no need to observe the period of Iddat if there has been no consummation. All these are sufficient to draw a conclusion saying, Mut’ah Nikah is no true form of marriage and that it shall be held illegal and not consistent with the modern laws as it goes down to limit the Fundamental rights of the Muslim women and makes them innocent victims of such archaic laws.

CONCLUSION

The practice of Mut’ah marriage though not very common in India yet has its prevalence in many southern and eastern parts of India; In Lucknow and other places where there is a more Shiite population, women belonging to the better classes of the Islam community do not contract Mut’ah marriages. In countries like Persia, Iran, and Iraq, Mut’ah generally go downhill to the level of legalized prostitution.

Marriage, which on one hand is a chaste institution of the society, whereas per the Islamic Laws, the sole purpose of marriage is nothing but procreation of children; on the other hand, the sole objective of Mut’ah as understood is the fulfillment of the sexual desires between two contracting parties to this temporary marriage. As soon as the consummation of marriage takes place, the consideration is given (same as is the case of prostitution) and the marriage is declared to be inconsistent without the need of any filing of the divorce. There is also no need to observe the period of Iddat if there has been no consummation. All these are sufficient to draw a conclusion saying, Mut’ah Nikah is no true form of marriage and that it shall be held illegal and not consistent with the modern laws as it goes down to limit the Fundamental rights of the Muslim women and makes them innocent victims of such archaic laws.

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[1] THE CHANGES IN THE LAW OF MARRIAGE UNDER MUSLIM LAW, ch. IV.

[2]AQIL AHMAD Mohammedan Law, 21st edn. 2004, p.138, Central Law Agency, Allahabad.

[3]DR. NISHI PUROHIT The Principles of Mohammedan law, ed. 2 1998, p.12, Orient Publishing

Company, Allahabad.

[4]Dr. R.K. SINHA Muslim Law, ed. 5lb 2003, p.62, Central Law Agency, Allahabad.

[5] INDIA CONST. art. 15, cl. 1.

[6]THE CHANGES IN THE LAW OF MARRIAGE UNDER MUSLIM LAW, ch. IV.

[7] THE CHANGES IN THE LAW OF MARRIAGE UNDER MUSLIM LAW, ch. IV.

[8]NOOR ZAHEER, Denied By Allah.

[9]DR. NISHI PUROHIT, The Principles of Mohammedan law, ed. 2 (1998), p. 10, Orient Publishing Company, Allahabad.

[10]Baillie II, 40, 44, 97.

 DR. NISHI PUROHIT, The Principles of Mohammedan law, ed. 2 (1998), p. 10, Orient Publishing Company, Allahabad.

[11]DR. NISHI PUROHIT, The Principles of Mohammedan law, ed. 2 (1998), p. 14, Orient Publishing Company, Allahabad.

[12] Baillie, II, 344(c.f: in AQIL AHMAD, Mohammedan Law), ed. 21 (2004), p.140, Central Law Agency, Allahabad.

[13] DR.NISHI PUROHIT, The Principles of Mohammedan law, 2nd edn. 1998, p. 14, Orient Publishing Company, Allahabad.

[14]Ibid, p. 11.

[15] Dr. R.K. SINHA, Muslim Law, ed. 5(2003), p.63, Central Law Agency, Allahabad.

[16]DR. NISHI PUROHIT, The Principles of Mohammedan law, ed. 2 (1998), p. 14, Orient Publishing Company, Allahabad.

[17]Baillie II, 41(cf: DR. NISHI PUROHIT, The Principles of Mohammedan law), ed. 2 (1998), p. 15, Orient Publishing Company, Allahabad.

[18] AQIL AHMAD, Mohammedan Law, ed. 21(2004), p.140, Central Law Agency, Allahabad.

[19]AMEER ALI, vol.11 ed.5 (401) c.f. DR. PARAS DFWAN, Muslim Law in Modem India, ed. 9 (2005), p.50, Allahabad Law Agency, Faridabad (Haryana).

[20]Wikipedia, Mut’ah Marriage (Mut’ah as Prostitution).