Date :Friday, March 31st, 2017 | Time : 22:43 |ID: 44356 | Print

Shia Islam: temporary marriage / 17


Shīʿa Islam: History and Doctrines / Ayatullāh Jaʿfar Subḥānī

Temporary marriage

Our discussions here are mainly focused on Shīʿa doctrines and beliefs rather than legal and practical issues. However, some Shi’a practices are occasionally subjected to criticism and therefore it is important to clarify them and remove ambiguities. One such issue is that of temporary marriage.

What is ‘temporary marriage’?

Temporary marriage is defined as a man marrying a consenting woman who is without impediments to marriage for a specific duration in return for a specific marriage gift. After this duration expires, the man and woman are separated without any need to file divorce. If any sexual intercourse happens and the woman has not yet reached menopause, she must observe a waiting period before marrying anyone else. In case any offspring result from this union, they will be legitimate and he will enjoy inheritance rights.

Temporary and permanent marriages are like two branches of a same principle. Their differences are minor and some of them are as follows:

In permanent marriage, separation requires filing divorce, but in temporary marriage, after the end of the period it expires automatically.

In permanent marriage, woman enjoys a share in inheritance, but in temporary marriage, the woman does not enjoy this.

In permanent marriage, the husband is tasked with providing for the wife, while this is not the case in temporary marriage.

In permanent marriage, the woman is entitled (should she wish) to have sex with her husband once every four nights, but in temporary marriage, such a right does not exist.

Regarding the period for woman to remain single after separation, it equals two menstruations in temporary marriages and three menstruations in permanent marriage.

These differences are minor and they do not entail contradiction. The fact is that both are matrimonial bonds permitted by Islam.

Like in permanent marriage, a woman in temporary marriage is not allowed to marry anyone else. If she falls pregnant she is not allowed to marry anyone else before she has borne the child. Both are marriage, but one is temporary and the other one is permanent. Married either temporarily or permanently, they are husband and wife and have to meet certain obligations with regards to one another.

Temporary marriage is by no means similar to prostitution. Those who draw a parallel between temporary marriage and prostitution are distorting the facts, as prostitutes do not observe any boundaries for themselves and or respect any ethical obligations. That is exactly the contrary for women in temporary marriage.

Temporary marriage in the Qur’an

Temporary marriage is said to have been customary in Medina and other cities before Islam was revealed, especially for those that remained in Medina for only a brief time before returning to their home cities. However the exact nature of this was not clear, so Islam – like everything else – clarified the legal nature of this relationship:

‘…and [prohibited to you are] married women excepting your slave-women. This is Allah’s ordinance for you. As to others than these, it is lawful for you to seek [union with them] with your wealth, in wedlock, not in license. For the enjoyment you have had from them thereby, give them their dowries, by way of settlement, and there is no sin upon you in what you may agree upon after the settlement. Indeed Allah is all-knowing, all-wise.’ (Q4:24)

We will now elucidate the following points about this verse:

  1. This verse specifies ‘married women’ as those who a man cannot consider for marriage.
  2. It also exempts slave women, indicating that it is possible to marry slave women who were married before being taken as slaves, as their capture is considered to have automatically enacted a divorce from their husbands. So long as they are not with child it is possible to marry them, as also indicated in the verse: ‘…except from their spouses or their slave women, for then they are not blameworthy.’ (Q23:6)
  3. ‘As to others than these, it is lawful for you…’ This indicates that it is licit to seek marriage with all other women except those forbidden in the previous line, on the condition that the husband is able to support them financially. This is indicated by the phrase: ‘you to seek [union with them] with your wealth, in wedlock, not in license.’
  4. ‘For the enjoyment you have had from them thereby, give them their dowries, by way of settlement’ – this sentence indicates that whoever has enjoyment with them must pay them their dowries, which in turn shows that this verse cannot be referring to permanent marriage as previous verses have already discussed the permanent contract and the rules pertaining to its dowry. For instance, on permanent marriage, the Qur’an says: ‘…then marry [other] women that you like, two, three, or four …’ (Q4:3) and with regards to dowry, it says: ‘Give women their dowries as an obligation’ (Q4:4). The verse under discussion is also not connected to marrying slave girls, as this is discussed in the verse that follows: ‘As for those of you who cannot afford to marry faithful free women, then [let them marry] from what you own, from among your faithful slave-women.’ (Q4:25) And marriage to slave women has also been mentioned at the beginning of the same verse.

With this analysis in mind, there is no need to repeat what has already been said about permanent marriage and its dowry. This verse is not be speaking about permanent marriage otherwise it would be a case of unnecessary repetition as the preceding verses have already explained the rules relating to permanent marriage. Another point we notice in interpreting this verse is that the man is required to give his wife – whether permanent or temporary – the promised dowry before any enjoyment takes place. This is because the phrase ‘what you have enjoyed’, using the Arabic word ‘istimtāʿ’, does not refer to mere sexual enjoyment but to the contract of temporary marriage, as we can see from how this term was used at that time of the Prophet.

Jābir narrates that in the time of the Prophet they used to practice ‘istimtāʿ’ in return for a measure of dates or flour (Ṣaḥīḥ Muslim, 4/131). This must mean temporary marriage, rather than sexual enjoyment in return for payment as that would be fornication..

Mālik quotes ʿUrwa b. Zubayr as saying: ‘Khawla bt. Hakīm went to ʿUmar b. al-Khaṭṭāb and said: ‘Rabīʿa b. Ummaya has practiced ‘istimtāʿ’ with a mature woman who became pregnant by him.’ This woman was a former slave released after she gave birth to Mālik’s son. Now she has a child from another marriage. At that time ʿUmar arrived home. He was so angry and threatened to order stoning for temporary marriage.’ (Muwaṭṭaʾ, 30; Sunan Bayhaqī, 7/206)

Based on the above accounts from Sunni sources, we can clearly see that istimtāʿ refers to temporary marriage, not merely sexual intercourse.

Objection: The purpose of marriage is starting a family

Some might object to the institution of temporary marriage by saying that the purpose of marriage in general is to start a family and raise the next generation. This goal is met in permanent marriage but not in temporary marriage, in which only sexual intercourse takes place.

Here we must distinguish between the wisdom behind a ruling (ḥikma) and the reason (ʿilla) for it. Wherever there is a wisdom for a ruling, the scope of the ruling will be broader than its wisdom, whereas the reason for a ruling is the axis around which its very existence turns – if the reason for the ruling is present, the ruling is in effect, if it is absent, then the ruling is null. For example, wine is banned because it is an intoxicant. So when grapes are made into wine, the result is prohibited but when they are made into vinegar, the result is permitted. With regards to the wisdom of the ruling, there is no such relationship. For example, when a married couple divorce the woman must observe a waiting period (ʿidda) before remarrying. A wisdom for this is to ensure that she is not pregnant from her former husband. However, even if she is certain that she is not pregnant, she still has to observe this waiting period.

As for the purpose of marriage being to start a family and raise children, this is not the reason for the ruling of marriage but a wisdom behind it, as marriage is still permitted in the absence of such a cause. For example, it is permitted to marry a woman who is sterile, past menopause or otherwise unable to conceive a child.

When a young man and woman marry they do so in response to the force of their sexual desires, not for the purpose of reproduction. Moreover, it is still perfectly possible to form a family and raise children within the framework of temporary marriage. There are still other reasons why marriage takes place where the focus is neither starting a family or fulfilling one’s sexual desires.

Now we ask those who oppose temporary marriage: ‘If a young man and woman who are studying abroad get married but decide to divorce one another once their studies are finished, is this marriage valid?’ They will definitely say yes because the couple have married on a permanent basis, even though they know they will divorce in future. In that case, they must explain what the difference is between this and temporary marriage!

The Sunni scholar, Rashīd Riḍā says: ‘Theologians who insist on the illegality of temporary marriage must also ban a permanent marriage with intention of divorce. In this case, the only difference is that no period of time is specified while the intensions are the same.’ (al-Manār, 5/17)

Objection: There is no evidence in the Qur’an for temporary marriage

Some might argue that the Qur’an has prohibited men to have sexual intercourse with any woman, except in two cases: with their wives and with their slave girls. Where does temporary marriage fit in with this?

We would respond that neither case excludes temporary marriage. Those who cast doubt on the legality of temporary marriage are in fact providing reasons to disclaim themselves. How do they claim that temporary marriage is not included in the Qur’anic verse saying ‘except for their wives’? Temporary marriage also involves choosing a wife.

They might say: Yes, but a wife and husband have the right to expect intercourse from one another once every four nights and a husband must provide for his wife, while this is not the case in temporary marriage.

However, even in permanent marriage there are cases where a wife is exempted from satisfying her husband sexually or where a husband is exempted from giving financial support to his wife. Therefore just because temporary marriage does not include these stipulations, this is not enough to deny its validity as a form of marriage.

Objection: temporary marriage is there for the sake of fulfilling lusts

Marriage is aimed at protecting human dignity and chastity. To that effect, the Qur’an calls on people to seek dignity and stay away from illicit sex. In temporary marriage, this objective is not pursued because it is basically a way of satisfying one’s lusts. If it is said that a couple in temporary marriage are not engaging in prostitution, the question will remain: how do such women protect their chastity while they give their bodies to different men from time to time? (al-Manār, 5/13)

Those who call into question temporary marriage in this way are actually drawing a parallel between lust and marriage. Under temporary marriage, there are conjugal obligations. The wife is not allowed to get married to anyone else and even after the end of union she must observe a waiting period. So how do they claim that such a woman offers her body to men from time to time for pleasure?

There are three options for men and women to deal with their sexual desire: permanent marriage, temporary marriage, suppression of sexual desire.

The first option is not possible for everyone, like a young student living in another city for a specific period of time. The last option is reserved for the awliyāʾ who can suppress their desires out of fear of God. The only remaining option in this context will be temporary marriage which may even last for years.

The irony is that the author of al-Manār, who holds specific view vis-à-vis the Shīʿa, constantly repeats the famous poem composed to slander Ibn ʿAbbās. The poem’s translation is as follows: ‘A woman is like a ball in a polo game and players pass it to one another.’

According to this logic, the author does not make any distinction between chaste women and unchaste ones.

Objection: the verse of temporary marriage has been abrogated

There are theologians who accept the basic legitimacy of temporary marriage but say that the verse has been abrogated. However, they differ as to when this occurred:

It was permissible, but banned during the Battle of Khaybr.

It was permissible, but only during the ʿUmrat al-Qaḍāʾ.

It was tolerated, but prohibited in the eighth year after Hijra.

It was permitted during the Campaign of Awṭās but was later abrogated (Masāʾil Fiqhiyya, 63–63)

In response to them, we mention the following:

First, the Qur’an is a certain evidence (dalīl qaṭʿī) and, as such, could not be abrogated by a solitary narration, which is a probable form of evidence (dalīl ẓannī).

Second, a large number of Companions of the Prophet permitted temporary marriage even after the Prophet passed away. They said: ‘God sent down temporary marriage in the Qur’an and did not abrogate it with another verse, and God’s Messenger enjoined it upon us and did not prohibit us from engaging in it, but then [after the Prophet] a man spoke his own opinions.’ (Ṣaḥīḥ Muslim, 4/130)

Third, if the Qur’anic verse was abrogated while the Prophet was still alive, why did the second Caliph have to speak about it so overtly? He had threatened to punish those resorting to temporary marriage. (Mafātīḥ al-Ghayb, 10/52)

The Ashʿarī theologian, al-Qūshjī says that ʿUmar prohibited three things, the last of which was saying ‘Rush to the Good Deed’ in the call for prayers. (Sharḥ Tajrīd, 474)

Now we refer to those who had permitted temporary marriage even after the Prophet:

Imam ʿAlī, the first infallible heir to the Prophet, regularly said: ‘Had ʿUmar not banned temporary marriage, nobody but the wretched would have fornicated.’

ʿAbd Allāh b. ʿUmar had said that he preferred to follow the Prophet of God rather his own father regarding the legitimacy of temporary marriage.

From ʿAbd Allāh b. Masʿūd Bukhārī (Ṣaḥīḥ, 7/4) narrates: ‘Along with the Messenger of God, we were at war while our wives were not with us. I said if we had better castrate ourselves. The prophet did not let us do so and allowed us to get married on a temporary basis and then recited this Qur’anic verse: ‘O you who have believed, do not prohibit the good things which Allāh has made lawful to you and do not transgress. Indeed, Allāh does not like transgressors.’ (Q5:87)

And from ʿImrān b. Ḥaṣīn, Bukhārī narrates that the Qur’anic verse on temporary marriage was revealed and that everyone obeyed. He also notes that no other verse was revealed to abrogate it. (Ṣaḥīḥ Bukhārī, 6/27)

Muslim says in his Ṣaḥīḥ that Ibn ʿAbbās had issued a fatwa in favour of temporary marriage, but ʿAbd Allāh b. Zubayr opposed it. Jābir b.ʿAbd Allāh Anṣārī learned of their differences and said temporary marriage was customary during the lifetime of the Prophet until the day ʿUmar said God may authorize something only for His own messenger. ʿUmar called on Muslims to conclude their Ḥajj pilgrimage and get married permanently. He had threatened to order stoning against any man who practiced temporary marriage. (Ṣaḥīḥ Muslim, 4/130)

These aḥādīth show that temporary marriage was a legitimate act and it was never abrogated by God.

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