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A STUDY ON TEMPORARY MARRIAGE AMONG MUSLIMS:

‘MUTAMARRIAGE’

-SANSKRITI DAVE1

CHAPTER-1 INTRODUCTION ON MUSLIM MARRIAGE

India is a democratic and secular State it allows its citizens to follow the religions of their choice
and un-codified personal laws and also allow to marry according to their religious specification.

Marriage is the main important social need as it establishes family, and family is the fundamental
component of society. Also marriage is the only legal way to accept the indulging of man and
women. The concept of Hindu marriage, Muslim marriage, Christian marriage, Parsi marriage
systems have their different rules and regulations defined accordingly in their specified acts.
Furthermore the act named “The Special Marriage Act” defines the rules and regulations for
validity of inter-caste marriage.

According to Muslim norms:-

Before the birth of Islam there were several traditions in Arab. These traditions were unethical in
nature and needed to be abolished in the society, Islam did it and brought a huge change in the
concept of this tradition of marriage. Some of these traditions were:-

1. buying a girl from giving a fixed amount to her parents,

2. temporary marriage i.e. Muta marriage,
3. marriage with two real sisters together,
4. openness of leaving wife and again accepting her2

Now if we go further and study the Islam, we will find that it mentions complete guidance for all
the aspects of living to its followers and this is the beautiful fact about this religion. Prophet
Mohammed was born on 29th August, 570 A.D at Mecca. At the age of forty he received his first
1
Student, B.A.LLB UNIVERSITY OF PETROLEUM & ENERGY SOURCE, Dehradun, Uttarakhand.
2
Lawyersclubindia Article: An Overview of concept of marriage in Muslim law, dt.10.1.2010.

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revelation from God and he had laid down the foundation of a new faith and the messages
delivered by the Prophet have been contained in the Holy Book of Allah, called “The Quran”.
The religion propounded by the Prophet is “Islam” and the persons who follow Islam are
“Muslims”. Before this the position of women was very bad. There was no procedure established
for marriage. But later it was improved by the policies of Prophet Mohammad. He was the one
who prohibited the custom like Muta mariiage or temporary marriage. Yet he was no completely
successful in his work.

The instructions for marriage are specifically explained in both „The Holy Quran‟ (the revelation
of God to Muhammad, infallible but containing compressed information)and „The Hadith‟3. So
the Prophet order its followers to marry for its benefits morally, socially, psychologically.

“Nikah” is an Arabic term used for marriage. It means “contract”. The original means of the
word Nikah is the physical relationship between man and woman. Nikah means union of sexes.
There is also some object behind this union, which confers the status of husband and wife on a
man and woman to marriage and the status of legitimacy on the children born out of such union4

“A contract that result in the man and woman living with each other and supporting each other
within the limits of what has been laid down for them in terms of rights and obligations” 5. It‟s a
mutual consent between man and woman, to have life together and give birth to children. In
„Radd-ul-Mukhtar‟ it has been mentioned as “there is no act of devotion that has
remainedprescribed for us, since the time of Adam, upon him be peace, up to his moment, and
which is to be continued in paradise except Nikah (marriage) and Imaan (faith)”6

If we legally talk about this concept of marriage, the concept of marriage by Prophet Mohammad
came because to provide the legal entity to husband and wife and children born of them. So the
children born by them are called legitimate children and if the proper process is not followed
then the children are called illegitimate, and illegitimate children are not given all the rights on
their parents‟ property.Further, the Muslim marriage fulfills all the elements of a civil contract,

3
https://en.m.wikipedia.org>wiki
4
The Principles of Mohammedan law, 2nd edn. 1998, P.105, Orient Publishing Co.
5
Chapter - II CONCEPT OF HINDU, MUSLIM AND CHRISTIAN MARRIAGE, shodhganga.in.
6
Radd-ul-Mukhtar, Vol.2 at page 280 (Hizri).

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so it can be considered as a contract. The same elements of a civil contract and Muslim marriage
are as follows:-

1. The parties to the marriage must be competent.

2. The contract is not complete without offer, acceptance and free consent of the parties or
guardians in the same way marriage takes place.
3. There are also provisions for respective rights and duties of husband and wife on divorce
or dissolution of marriage.
4. There is limited polygamy under Muslim law and a person is not allowed to marry more
than four wives at a time. In civil contracts, one may enter into many contracts at a time
as he likes7.

Hence it can be established that Muslim marriage is more of contractual nature and husband and
wife enters into contract to live together and form a new family by giving birth to legitimate
child and regulate social life legally by creating rights and regulations to the family and socially
by being a part of society.

The Shia Law recognizes two kinds of marriage, that are:-

(1) Permanent marriage, and

(2) Muta (literally means enjoyment or use) or temporary marriage.

The fundamental difference between the two is that in former the term is not specified while in
the later it is. Sunnis do not recognize such marriage.

The paper will further deal with Muta marriage i.e. temporary marriage

7
Muslim Law, 5th edn 2003, P.41, Central Law Agency, Allahbad.

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CHAPTER-2 CONCEPT OF MUTA MARRIAGE

This chapter will deal with the main concept of Muta marriage i.e its meaning, elements, rules,
divorce, termination, legal effect, difference between temporary marriage and permanent
marriage etc.

2.1 Muta Marriage is a marriage for a fixed period of time. Thus Muta Marriage is a marriage
only for sexual enjoyment for a fixed period of time.In the authorities of Sunni, they agreed that
this marriage system was permitted by Prophet throughout his lifetime, later on they maintained
that in the end it was completely prohibited by him. In comparison to it the Shias maintain that it
was not banned by Prophet, and they tried to prove it by various sources of their religion.
Having established its legality, they then devote tremendous care and attention to defining its
legal status and all the rules and regulations connected with it.8

In Arabic dictionaries “Muta” is defined as „enjoyment, pleasure, delight‟9.It may also be called
marriage for pleasure. It has already established that Muta marriage is recognized only by
Asharia Shias. Muta marriage is also known as Nikah al-Mutah, it is a marriage for a temporary
but fixed period with a Muslim female by a male Muslim, with specifying dowar10. Muta may be
defined as a temporary union of male and female for specified duration, on payment of some
consideration. As against the permanent or a regular marriage (Nikah), the Muta may be
regarded as a temporary marriage. This type of marriage is a private contract which can be done
through oral or written process and in that the intention of marriage is done by performing the
marriage accordingly and then the acceptance of the contract is done in the same process as
performed in the permanent marriages. Both the parties decide the fix time for functioning of
their marriage and after that specified time period, the marriage comes to an end and there is no
fixed process of talaq or divorce. Here the marriage ends without the process of divorce. This
clearly shows that the purpose of such marriage is for pleasure and this marriage is the way of
fulfilling the sexual desires. This type of marriage is not valid according to Sunni law.

8
Sachiko Murata, Temporary marriage in Islamic law, https://shiapdfresources.files.wordpress.com
9
"The four pillars of Mut'a: the time period (mudda)."Al-Islam.org website. At http://www.al-
islam.org/mutatemporary-marriage-in-islamic-law-sachiko-murata/four-pillars-muta.
10
Manzar Saeed, Muslim Law in India, Orient Publishing Company, 2008, p-125.

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This marriage was also in practice at pre-Islamic Arab. In Iran, this practice which is referred to
as Sigheh is often viewed as a cover for promiscuity or prostitution. Such type of marriage
which can last from a few hours to decades though legal is highly criticized11 .In the earliest
period, it is said that males when the Arabs had to live away from their homesfor a continuously
long period either for wars or for trade and business journey, 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.But later on, when he felt that this concession was being
exploited, he prohibited it absolutely. It is said that Caliph Omar had made an attempt to
suppress and condemn the practice of Muta and tried his best to abolish it from the
society.Allowing people to publicly register their union through Sigheh is a method of
controlling unsanctioned sex.

After that period, the Muta form of marriage is not practiced under any school of Muslim law
except the Ithna Asharia Shia law.

The man who belongs to Shia is allowed to perform or to do contract of muta marriage with the
women who qualify for marriage with Muslim men as belonging to acceptable religion for this
i.e. Kitabia Women or with the women who profess fire worshipping. These males are not
allowed to do contract with woman who is follower of other religion. But, the woman who
belongs to Shia may not perform the muta marriage with male who is not Muslim.
A male (Shia) can do contract of muta marriage many times.

In Muta marriage, all the formalities of muslim marriage such as offer-acceptance etc, have to be
there in this.

 2.2 The ESSENTIALS for the validity of Muta marriageare explained as:-
There are Four Pillars of Muta marriages are explained with compared to permanent
marriage12 which are:-

11
http://www.economist.com/news/middle-east-and-africa/21611117-official-report-blows-lid-secret-world-
sexthrowing.
12
Sachiko Murata, Temporary marriage in Islamic law, https://shiapdfresources.files.wordpress.com

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1. The Formula:- As the marriage is of contractual nature so there is need of offer and
acceptance. In permanent form of marriage, there is requirement of declaration from
the woman. This should be any of three Arabic formulas that should be as same as
employed by the Shia in the permanent form of marriage. After that the acceptance is
made by the man and his words or actions must show that the male is satisfied with the
declaration. Further it has also established that the persons who perform contract and
make the declarations and acceptance must be „worth of the contact‟ (ahl al 'aqd). In
Muta Marriage this means that those who conclude the contract must be the man and
woman themselves, or their representatives (wakil), or their fathers13.

2. The Persons:- In the Muta Marriage a man can conclude with Muslim woman. And
even women cannot marry a male who is not Muslim.
If the man is married and have wife, he cannot contract a muta marriage without his
wife's permission. Then also the man does so the contract performed is not valid.The
parties must have attained the age of puberty according to Muslim law i.e. fifteen
years and must also possess a sound mind. Parents or Guardians cannot contract Muta
marriage of any minor. It will declared as void if it has been contracted by guardian or
parents.

3. The Time Period (Mudda):- In Muta marriage the period of cohabitation should be
fixed ( a day, a month, year , years). The time period should be fixed before the
marriage and after the marriage is done there are no chances left of its increase or
decrease. If the period is not specified , though dower is specified, it should be
considered as a permanent union, even if the parties call it a Muta.
In addition, the contract follows the intention of those male and female who perform
it. Thus, if the time period is not mentioned, the marriage cannot be transformed into a
permanent one, since that was not the intention. It will make the marriage permanent if
the time period is not mentioned. So to make it temporary the time period should be
pre decided. Hence, whenever the contract of mut'a is invalidated because the time
period has not yet been stipulated, the contract will be one of permanent marriage.

13
Ibid

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There is no upper or lower limit to the duration of the time period. It makes no
difference if the period is extremely long, so that one doubts whether the parties will
survive its duration; or if it is extremely short, so that there is no possibility of
consummation. In other words, any time period is permissible, so long as both sides
are aware of the situation and are satisfied14.

4. The Dower:- In temporary form of marriage, some dower should be specified

otherwise marriage will be void. The contract must mention a dower of known
property, whether in cash or kind. The contract of mutadoes not simply mean that it is
exchange of goods rather it is a contract for marriage. If the woman asks for the whole
of the dower at the beginning of the marriage, it is valid she can do so. In a situation
where a contract is concluded, but before the beginning of the time period the man
decides not to go through with the marriage but to 'give back' to the woman the
contracted time, she is entitled to one-half the dower.
If the woman or the wife who has performed muta marriage about to dies because of
the circumstances before the ending of the fixed time period, then her dower will not
get decreased but she will get full dower.

Hence, all above mentioned points explain the essentials of Muta marriage in the form of
four pillars. From these four pillars for Muta marriage we understand that the main
elements for Muta marriage are:- the time period of marriage (for cohabitation) should be
decided before the marriage and both husband and wife should agree to it, and dower
should be specified or decided at the time of marriage or before the marriage but not after
the marriage, otherwise the marriage will be declared as void. It was observed that there is
no difference between a Muta in which the period has not been specified and a Muta
contracted „for life‟. It was held by the court that a Muta „for life‟ is like a Muta for
unspecified period, and it must be treated as a permanent marriage (Nikah)15.

14
Sharh al-lum'a, v, 245; al-Matajir, Tehran 1352/1973, the book on mut‟a
15
Shahzada Qanum v. Fakhr Jahan, Hyderabad.

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There are further rules specified for Muta marriage. After completion of elements one
should also follow the rules for Muta marriage. These rules are more relatable to a contract
as the marriage is in the contractual form.

 2.3The RULES are specified as below:-

1. The persons entering into contract should have attained the specified age i.e the age of
puberty, above 15 years.

2. The contact or marriage should be free from consent of both the sides.

3. The children born after this marriage should be considered as legitimate child and they
have all the rights to inherit the property of either of their parents.

4. The time period and dower must be mentioned on nikah nama. And both should be
decided either before the marriage or at the time of marriage, if not then marriage will
considered as void.

5. In the Muta marriage the males are not restricted to polygamy or to have only wife but
they are allowed to have many wives. There is no restriction on number of wives in
Muta marriage.

6. The cohabitation between the husband and wife married according to Muta marriage is
not unlawful, rather lawful.

7. The parties in Muta marriage i.e husband and wife do not have any right of inheritance
mutually.

8. In Muta marriage divorce is not recognized.

9. If wife claim maintenance in Muta marriage, she is not entitled to claim in this
personal law. But she can claim it under CrPC. i.e under section125 of it.

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10. When the husband does not cohabits in full time period that was decided before the
marriage, then the wife is not entitled to full dower, she will get half dower. But if the
husband cohabits then she is entitled to full maintenance.

11. Husband should not avoid sexual intercourse for more than four months with his wife
in this type of marriage.

12. If a man contract a temporary marriage with a woman, and the time period has not
ended yet, he is allowed to do or contract permanent marriage with her.

 2.4 TERMINATION of Muta marriage is explained as follow:-

1. The Muta marriage comes to end when the time period decided before the marriage or
at the marriage expire or get completed. Then the contract of marriage comes to an
end.

2. When either of the party to contract dies or either husband or wife dies then the Muta
marriage comes to an end.

3. When husband refuse to cohabit with the wife, then wife has the right to declare to
marriage void.

4. When husband gifts the Hiba I Muddat 16 i.e husband gifts the unexpired term of
marriage then Muta marriage comes to an end.

 2.5 The process of DIVORCE in Muta marriage is explained as follows:-

According to Ulama there is no divorce take place in Muta marriage17. The husband and
wife married in Muta marriage gets separated from each other after the expiration of
decided time period, otherwise the husband returns the remaining time or remaining dower
to wife.

16
Muta Marriage Meaning, WRITINGLAW, www.writinglaw.com
17
Matajir. II. 301; Masalik, I, 542; Jawahir, v, 173; Riyad. II. 117; Shara'i, II, 125

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But the marriage in this form dissolves by-

a. Death of either party;

b. On the expiry of the fixed time period;

c. When the husband leaves the wife before the expiry of fixed time period.

 2.6 The LEGAL EFFECTS related to Muta marriage is discussed as:-

1. In Muta marriage, the cohabitation between husband and wife is lawful.

2. The husband and wife don‟t have mutual right of inheritance.

3. The children born in Muta marriage are legitimate and have right to inherit the property
of both the mother and father.

4. Wife in Muta marriage does not have any right to get maintenance. But under CrPC.
Section 125 she can get it.

5. If the husband does not cohabit for the full terms and leaves the wife before the expiry of
the terms, then also the wife is entitled to full dower.

6. If the wife leaves the husband, then husband has the right to deduct the dower of the
unexpired time period.

7. There is no form of divorce explained in this form of marriage.

 2.7 The DIFFERENCE between Temporary form of marriage and Permanent

marriage is :-

1. The temporary form of marriage is called Muta marriage, but permanent form of
marriage is called Nikah.

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2. The main object of Muta marriage is to have pleasure, but permanent marriage is socio-
religious union.

3. In Muta marriage the time period is fixed either before the marriage or at the time of
marriage, but in permanent marriage the name already specifies that it is for the full life
time.

4. Muta marriage is followed by Shias, while the permanent form of marriage i.e. Nikah is
followed by both Shias ans Sunnis.

5. In Muta marriage the dower is pre decided otherwise it is a void marriage. In Nikah the
dower may not be specified, the marriage does not become void.

6. Divorce is not recognized in Muta marriage but in permanent marriage divorce is

recognized for the dissolution of marriage.

CHAPTER-3 STATUS OF MUTA MARRIAGE IN INDIA

This chapter will deal with the present scenario of Muta marriage in India. It will also mention
important leading cases that has done further changes in laws regarding Muta marriage and
interpreted it and main incidents of Muta marriage.

Temporary “Muta” marriage is practiced today and often arranged by Imams and other Islamic
leaders in Europe (the city centre‟s where Shia Muslims cluster), America (Shia parts of
Dearborn, Michigan), and of course in the Mideast. In Muta marriage the most commonly
affected people or the victims are widows and girls who are orphaned, these are sold to old men
or to those who don‟t respect them and are not proportionate to them for the purpose of marriage.
These females are driven to extreme means to pay rent and feed themselves and their children.
These types of females are being abused by the men who purchase them and also the Islamic
leaders18.

18
Does Muta marriage amount to legalization of prostitution? LEGALCRYSTAL-BLOG, www.legalcrystal.com

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It is legal in the UK, US and most European countries, since it is just an extra-marital
relationship with an associated civil contract. It has no other status in those countries.

As per the data collected from news the status of Muta marriage in India is negative. Majority of
Indian Muslim women are against it. The Supreme Court referred to a constitution bench for
adjudication for- Mut‟a, or temporary marriage, is one of three forms of Muslim marriage –
nikah halala and nikah misyar are the others.

Though Sunni Muslims shun mut‟a, mistakenly seeing it as prostitution, it is considered

legitimate by the Twelver Shia sect, which is predominant in Iran and constitutes 90% of India‟s
Shia population.With the Supreme Court recognising, at least partially, the rights of partners in
live-in relationships, it is debatable whether mut‟a can be held constitutionally invalid19.

The Central government is likely to support a PIL challenging the constitutional validity of the
practice of polygamy, nikah halala (a requirement for a divorced couple to remarry), nikah mutah
and nikah misyar or the short term marriage, in the Muslims. The Supreme Court on March 26
sought the Central government's response on the plea. When the triple talaq was declared as
invalid and void or unconstitutional, after seven months of this incident, the former court of India
decided to examine or verify the valid nature of these practices of polygamy and certain forms of
marriages in the Muslim community and referred the case to a Constitution bench to adjudicate.

The government, has already taken a step against the practice of triple talaq, nikah halala and
polygamy on the touchstone of their constitutionality in the Shayara Bano case, is likely to take
steps for it, sais the sources.Noting the importance of the issue, the top court had said the matter
would be heard by a Constitution bench.It is a matter of common understanding that when the
government opposed instant triple talaq on the grounds of gender equality and justice, it will
oppose nikah halala, nikah misyar,nikah mutah and on the same grounds, said a source in the
Union Law Ministry.

When the government filed the affidavit, the challenge was to triple talaq, nikah halala and
polygamy but when the matter was taken up for hearing by the Constitution bench, headed by

19
What is mut‟a marriage – and why it may be difficult for India‟s Supreme Court to invalidate it, scroll.in

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then Chief Justice Jagdish Singh Khehar, the issue was narrowed down to the constitutional
validity of instant triple talaq only20.

Senior advocates V Mohan Parasaran, V Shekhar, Sajan Poovayy V Shekhar, Sajan Poovayya
and lawyer Gopal Sankaranarayanan told the bench that the Constitution bench, which declared
triple talaq invalid, had not looked into the other practices whose legality have also been
questioned.
They contended that the prevalent practices of polygamy, Nikah Halala, Nikah Mutah and Nikah
Misyar were unconstitutional and should be declared illegal.The court passed the order on a
batch of petitions challenging Section 2 of the Muslim Personal Law (Shariat) Application Act,
1937, for recognising and validating the practice of Nikah Halala, Nikah Mutah and Nikah
Misyar as well as polygamy21.

A few judgement delivered by the Indian courts have reflected the above mentionedconditions
for a temporary marriage. Furtherobservations are made in several cases by certain courts.

In case Mahomed Abid Ali Kumar Kadar vs Ludden Sahiba22, wife is entitled to full dower only
if the marriage is consummated, whether they continue to cohabit or not. If the cohabitation
ceases through any fault of the womanthen she is entitled to only half of the dower but the
husband, having paid the dower is notbound to cohabit with the woman. After the dissolution of
a Muta marriage, the woman divorced has no right to maintenance. The court held that although
at the time of contracting Muta marriage, a doweris fixed; the husband may deduct a portion of
the woman‟s dower if the marriage is notconsummated.

In Muta marriage, mainly the cases are on the legitimacy of children. Although there are
specified rules for legitimacy of child, yet there are many confusion in it. In case Hasanali Mirja

20
Centre likely to oppose polygamy, nikah halala, nikah mutah, New Delhi, June 29, 2018, www.business-
standard.com
21
After triple talaq, SC turns lens on polygamy, nikah, March 28, 2018, THE TIMES OF INDIA.

22
(1887) ILR 14 Cal 276.

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And Ors. vs Nushratali Mirja And Anr23 the court declared plaintiff one the declaration that he
was the legitimate son and heir.

Similarly in Sadik Husain Khan vs Hashim AliKhan And Ors 24. Court gave the same judgement
and the facts were also same.

In Shoharat Singh vs Musammat JafriBibi25 case, the issue raised before the court of law is that
whether Muhammad Kazim ever married to Achchhi Bibi,and if so, when, and were there any
children of the marriage.

Above mentioned cases explain the status of Muta marriage and also mention the changes
brought by court of law in detail.

CHAPTER-4 CONCLUSION

Muta marriage has its own positive and negative sides both. It is another similar practice of
Muslims which takes the side more of males then of females. The positive aspects for males are
already explained above. We cannot totally say that it is a form of prostitution in Islamic, rather
it is a form of marriage in Muslims. And it is not fully confirmed that ban on Muta marriage can
bring gender discrimination level zero and promote equality between men and women but the
chances of rape can be increased also. It has both sides as already said that it has pros and cons.
We can see it in this paper and easily understand the concept. However, this paper gives every
freedom to every reader make their personal opinion, either to take it positive or negative.
Thepaper also includes certain important cases which may help one to understand this concept
through legal aspect.

23
AIR 1935 Cal 572, 157 Ind Cas 1091
24
(1916) ILR 38 All 627
25
(1915) 17 BOMLR 13

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