Monday, 20 June 2022

Muta Marriages


By: Robin Pandey                                                           Date: 02/03/2022

 The word Muta literally means 'enjoyment' and in its legal context it may be rendered, according to Heffening, as 'Marriage for pleasure'. Muta may be defined as a temporary union of male and female for specified duration, on payment of some consideration. It is a temporary marriage for a fixed period for a certain reward paid to the woman. The specified period may be a day, a month, or a year or a term of years. 

Origin of Muta Marriages: In the earlier days of Islam, when the Arabs had to live away from their homes for a considerably long period either on account of wars or on trade-journeys, they used to satisfy their sex-desires through prostitutes. In order to avoid the development of prostitution in the society and to confer legitimacy upon children of such unions, temporary marriage was recognized and permitted by the Prophet for some time. The institution of Muta was fairly common in Arabia both before and at the time of the Prophet. But later on, when he felt that this concession was being exploited, he prohibited it absolutely.

No School except Ithna Asharia Shia School tolerates this Practice 

It is fairly certain that this institution was tolerated by the prophet for some time but all schools of law except one, the Ithna Asharia Shia School, are agreed that finally he declared such unions as unlawful. This practice was really suppressed and ruthlessly condemned by the Caliph Omar. Since the Ithna Ashari do not accept the first three Caliphs, they continue to recognize the Muta. It is not recognized in Sunni law because according to that sch0ol the marriage contract should not be restricted in its duration and the words used at the time of proposal and acceptance must denote an immediate and permanent union. Thus under Sunni law, a marriage specifically declared for a limited period is void. Hence Muta marriage is void under the Sunni law but valid under Shia law. The practice of Muta is not very common in India, and in Lucknow and other places where there is a Shia population, women of the classes do not contract Muta marriages. In Iran and Iraq, Muta generally descends to the level of legalized prostitution.

Essentials of Muta Marriages the Muta Marriages must be contracted according to the rules prescribed by Ithna Asharia law. The essentials of such a union are four: the form, the subject, the period and the dower. A Muta marriage contracted against any of the following legal conditions is an unlawful union:

(1) The Form: As regards the form, there must be a proper contract declaration and acceptance are necessary. The parties must have attained the age of puberty and must be of sound mind. The consent of both the parties must be free. There must not exist any prohibited degree of relationship between the parties.

(2) The Subject: As regards the 'subject', a Shia male may contract Muta marriage with a Muslim, Christian, Jewish or a fire-worshipping woman but not with the follower of any other religion. Muta marriage with a Hindu woman is void. The rule of limiting the number of wives to four as regards regular marriages, does not apply to Muta marriage (Baillie). A Shia male may contact Muta marriage with any number of women. A female Shia is not free to contact Muta with a non- Muslim.

(3) The Term: The period for which the Muta is being contracted, must be clearly specified. As a matter of fact, the fundamental difference between a Muta and a Nikah is that, in a marriage if its  period has been specified the marriage becomes a Muta whereas a marriage without any specific period is always a Nikah. The use of the word “Mutta” in itself does not render a marriage temporary. If a Muta form of marriage has been contracted but its duration has not been specified it is regarded as a permanent marriage (Nikah). Where two persons having marriage under the Muta form for a fixed period continue to live as husband and wife beyond the expiry of that period or till the death of the husband, the presumption in the absence of evidence to the contrary will be that marriage has been extended.

 (4) The Dower (Maher): The dower (consideration) must be specified at the time of the contract. When the term and the dower have been fixed, the contract is valid. If the term is fixed, but the dower is not specified, the contract is void. But if the dower is specified and the term is not fixed, the contract, though void as Muta, may operate as a "Permanent Marriage". It must be noted that specification of the dower is necessary for the validity of a Muta form of marriage but it is not essential for a permanent marriage (Nikah).

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