“The believer is only perfect when he has experienced a muta”, thus observed the Shia theologian al-Hurr-al-Amili. It may be difficult to say that when an Ithna Ashari Muslim enters into a muta marriage, he does so with a view to perfecting his belief.
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The fact of the matter is that a muta marriage is a survival of a pre-Islamic Arab custom whereby the Arab women used to entertain men in their own tents. This union gave rise to no mutual rights and obligations. The man entering the tent had, of course, to pay the entrance money.
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The man could get out of the tent whenever he wanted and the woman could throw him out whenever she chose, if any child was born of such a union, it belonged to the woman. It seems that, later on, it developed into a fixed term union on payment of some consideration by the man, and acquired the name of muta. This pre-Islamic institution of muta continued to exist for some time even after the advent of Islam in Arabia, as it was found useful during the times of war on travel.
It appears that on account of its widespread prevalence, the fiat of the Prophet, too, tolerated it for some time, but ultimately, he came out emphatically against such unions and declared them to be unlawful.
But the institution survived in spite of the Prophet. It was Caliph Omar who liquidated it ruthlessly. Since the Ithna Ashari do not accept the first three Caliphs (in which is included Omar.), they continue to recognize the muta.
An Ithna male has capacity to contract any number of muta marriages (he can even cross, the limit of four) with a woman who is Muslim, Christian, Jewish or a fireworshipper, but with none else.
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But an Ithna Ashari female can contract a muta marriage only with a Muslim. If the woman is major, her wali (guardian) cannot object to muta, even when the woman is virgin. But a minor girl can enter into a valid muta marriage only with the consent of her guardian, otherwise it would be unlawful. The Sharaya considers it to be abominable for a man to contract a muta marriage with a fathereless virgin girl.
All the requisite formalities of marriage, such as of offer and acceptance, have to be observed in the muta marriage. According to Ameer Ali the form in which a muta marriage may be solemnized is as follows: “I have united myself to thee”, or, “I have married thee”. Every condition forming part of the contract of muta marriage should be spelled out at the time when the contract is entered into. Conditions stipulated before or after the contract are ineffective.
The following conditions are necessary for a valid muta marriage. First dower must be specified, without which the contract is void, and no union result. Secondly, the terms must be specified. The duration of the muta marriage may be a few hours, a few days, a few weeks or a few months or a few years. But in every case duration of the term must be clearly specified.
However, if the term is inspecified, then the implication is that the parties stipulated a permanent union. In Shohrat Singh v. Mst. Jafri Bibi, the Privy Council held that if cohabitation commenced in a muta marriage, where term was not stipulated, then, in default of the evidence to the contrary, the marriage would be deemed to have continued for the entire period of cohabitation.
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In Shahzadu Qanum v. Fakhar Jahan, the court observed that the main distinction between a permanent marriage and a muta marriage is that in the latter the term of cohabitation is specified, if the parties call their marriage a muta marriage and specify no term, then such a marriage will be treated as a permanent union like any other permanent Muslim marriage, giving rise to all incidents of such union, including the right of mutual inheritance and wife’s right to maintenance.
Fyzee disagrees with this view and opines: “The fixation of a period in the marriage contract destroys the concept of nikah as understood in Islamic law. The mere omission to specify the period may result in a valid muta for life; but to equate a muta for life with a regular nikah is a serious step, which, inter alia, fails to take into consideration the question of intention”.It is submitted that the view expressed in the Hyderabad case is a better view.
The fundamental difference between a muta marriage and a permanent marriage is that in the former, the term is specified, while in the latter, it is not. If the term is not specified, it should be considered as a permanent union, even if the parties call it a muta. In such a case, the inference would be that the parties intended to conclude a permanent marriage.
And if this inference is drawn, then all the consequences of a permanent marriage flow, namely, the right of mutual inheritance arises, the wife is entitled to maintenance, and all the restrictions such as that the husband cannot take more than four wives, come into existence. It is submitted that in cases like these, our judges should play the role of mujtahid.
Incidents of Muta marriage:
The main incidents of the muta marriage are:
(i) In a muta marriage parties have no right to mutual inheritance, even if one the parties die when the muta is subsisting. There is a difference of opinion among the Shia authorities whether a specific stipulation to that effect in a muta is valid.
(ii) A wife in a muta marriage is not entitled to maintenance. But if in the contract of marriage, it is specifically stipulated, the wife will be entitled to maintenance during the whole term, even if the husband chooses not to cohabit with her. In the absence of such a stipulation, the court has power to grant her maintenance, under Section 125 of the Code of Criminal Procedure.
(iii) If the marriage is not consummated, the wife is entitled to only half of the dower. If the marriage has been consummated, then the wife is entitled to full dower, even if the husband does not cohabit with her during the entire term or part of the term. On the other hand, if the wife leaves the husband before the expiry of the term, she is entitled to only proportionate dower.
(iv) When the marriage has been consummated, the wife is required to undergo idda of three courses; if there is no consummation of marriage, no idda is required.
(v) It seems that in the muta marriage, the husband has the right to refuse procreation, that is to say, Izl is allowed, and no permission of the wife is necessary.
(vi) The off spring of muta marriage has the status of legitimate children, and is entitled to inherit the property of both parents in the same manner as the off spring of a permanent marriage.
(vii) The muta marriage comes to an end automatically on the expiry of the term, unless extended, or on the death of either party. The question of husband’s right of talak does not arise.
However, the parties may terminate the union by mutual consent if the husband wants to terminate the union earlier, he can do so by making a “gift of the term” or of any portion of it. This is called hiba-i-muddat for which consent of the wife is not necessary.