INTRODUCTION
Marriage is a legal contract between a man and women under Islam. However, there is a type of marriage that is different from usual permanent and monogamous one. That is “Muta marriage”. In literal sense “Muta” means “enjoyment” or “delight” in Arabic[1]. Muta marriage is a temporary union between a man and an unwed woman who agrees to have sexual intercourse for a set span of time after exchanging a valued gift. The institution of Muta marriage is recognised by Prophet, is now shunned by all schools of Muslim law in India except for the Ithna Ashari Shiite or Shia school. Therefore, Muta marriage is for a purpose of pleasure, this marriage is also known as Sigheh, meaning “contract” or “forms” because it has clear terms and conditions. Muta, a fleeting bond of bliss that once thrived in India, is now a fading relic of the past.
HISTORY OF MUTA MARRIAGE:
Muta marriage is a controversial issue that arises among different sects and schools of Islamic law. Muta marriage is a practice that allows men to marry any women of their choice for a fixed duration. As a sources, Muta marriage was practiced by the Prophet Mohammed and his companions for satisfying their sexual needs during their wars and travels as a way of preventing prosecution. However, as per the other sources it was abolished by the Prophet himself, his second successor, Caliph Umar, calming it as a source of fornication and exploits women[2].
The Shia law who forms the majority of the Muslim sects maintain that muta marriage is still valid and lawful in Islam, and that the Prophet Muhammad never revoked it. They rely on the verses of the Quran that imply the permissibility of muta marriage, and the hadiths that confirm it. They also argue that muta marriage is a legitimate and beneficial form of marriage, as it provides a lawful and ethical alternative to the lawful and immoral practices of fornication, adultery, and homosexuality.
ESSENTIALS OF MUTA MARRIAGE:
There are four essentials of Muta marriage: –
- Form– there must be proper offer and acceptance between the parties. Parties must be competent to contract, should have attained the age of majority. Parties should be of sound mind and should able to give free consent.
- Term– the time period of Muta marriage must be for a fixed. It should range from one hour to 99 years. It should not be conditional. The period must be clearly specified in the contract. If no period is mentioned, the contract would be treated as permanent marriage[3].
- Dower– the amount of dower paid by the man to woman must be clearly specified in the contract. It must be deferred. It should not be based on terms and conditions. If amount of dower is not fixed then the marriage is termed as void.
- Subject– parties must not stand in a prohibited relationship. A man can contract a Muta marriage with a woman who is Muslim, Jewish, or Christian, but cannot marry a woman with any other religious. A Shia woman cannot contract Muta marriage with a non-Muslim man[4].
RIGHTS AND DUTIES OF SPOUSE IN A MUTA MARRIAGE
- The right to sexual enjoyment and companionship. The man and the woman have the right to enjoy each other’s company and intimacy during the term of the marriage.
- The right to inheritance and custody. The woman has no right to inherit from the man, unless she is pregnant at the time of his death.
- The right to maintenance and support. The woman has the right to receive maintenance and support from the man during the term of the marriage. However, he is not entitled to give maintenance after the dissolution of the marriage[5].
LEGAL INCIDENTS OF MUTA MARRIAGE:
- The children born from Muta marriage is legitimate and has write to inherit property from both the parents.
- A Muta woman is not entitled to maintenance under Shia law after the dissolution of the marriage or after the expiry of the term. However, she can claim maintenance under Section 125 of Code of Criminal Procedure, 1973.
- A man can enter in a temporary marriage with multiple women.
- Dower is a necessary essential condition for Muta marriage. A wife right to dower depends on the consummation of the marriage, if marriage has been consummated then wife is entitled to the full amount of dower irrespective of the premature termination of marriage by the husband and if marriage has not been consummated then she is entitled to half amount of the dower. If she terminates the marriage before the maturity of the terms of the contract then husband is entitled to proportionate deduction of the dower.
- There is no minimum time for duration of muta marriage. Muta marriage dissolves automatically after the expiry of the terms of the contract.
- There is no concept of divorce in Muta marriage. Either of the parties does not have the right of divorce but husband at his will can terminate the marriage irrespective of the expiry of the term of the contract, as a “gift of the term” to his wife. The consent or approval of the wife is not necessary for such termination.
- It does not create the mutual rights of inheritance between the man and the woman.
- After the end of the marriage woman is required to observe the period of chastity (Iddat) for either two menstruation cycle or for 45 days, during such period she is prohibited from marrying another man.
- If couple remains together after the expiry of the terms of the contract, then it is presumed that the term is prolonged and offspring conceived during such extension then such children is legitimate or lawful[6].
ADVANTAGES AND DISADVANTAGES OF MUTA MARRIAGE:
Some of the advantages are:
- Muta marriage helps in fulfilling ones needs of sexual desire in lawful manner.
- Man can enter in a sexual intercourse with multiple women without committing polygamy, or infidelity.
- It safeguards one from committing adultery, fornication, and homosexuality.
- It provides financial security to women who are widow, divorce, or unmarried.
Some of the disadvantages are:
- Muta marriage exposes the risk of transmitting diseases from one spouse to another spouse during sexual intercourse.
- It creates confusion and conflicts among the children and family members of the spouse family.
- In Muta marriage women are deprived of their rights which they get from permanent marriage such as maintenance, custody, guardianship, etc.
- Couples does not get same recognition as they get from permanent marriage.
- It exploits woman as object of pleasure and not as partners of love and companionship.
CASE LAWS
Luddun Sahiba v. Mirza Kamar[7], the Calcutta High Court ruled that a muta wife, who is not eligible for maintenance under Shia law, could claim maintenance as a wife under Section 125 of the Code of Criminal Procedure, 1973.
Sadiq Hussain v. Hashim Ali[8], the offspring of a temporary marriage in Islam are lawful and claim a share in the property of their parents, according to the Allahabad High Court.
CONCLUSION
Muta marriage is a complex and intricate issue that divides the Muslim community for centuries. It is a marriage that has both proponents and opponents who have varying understanding of both Quran and Sunnah. It is a practice that has both advantages and disadvantages depending on one’s perspective and circumstances. However, this practice has destroyed the concept of Nikah and undermines the women who are family oriented.
Author(s) Name: Chinkey Agarwal (Indian Institute of Legal Sudies)
References:
[1] Jagan.s, “muta marriage in muslim law” (9 October 2023), <https://vakilsearch.com/blog/muta-marriage-in-muslim-law-the-complete-details/,> accessed 04 January 2024
[2] Jagan.s, “History of muta marriage in muslim law” (9 October 2023), <https://vakilsearch.com/blog/muta-marriage-in-muslim-law-the-complete-details/, > accessed 04 January 2024
[3] S.A. Hussain v. Rajamma, AIR 1977 AP 152.
[4] Muta marriage (14 Nov. 2023), <https://www.drishtijudiciary.com/to-the-point/ttp-muslim-law/muta-marriage>, accessed 04 January 2024.
[5] Rights and obligations of the spouse in a Muta marriage (14 Nov. 2023), <https://www.drishtijudiciary.com/to-the-point/ttp-muslim-law/muta-marriage,> accessed 04 January 2024.
[6] Aqil Ahmad, Mohameddan Law, (27th edition, 2021) ,40
[7] ILR 8 Cal. 736
[8] (1916) ILR 38 AII 627
