Edited and summarized by Rami Koujah
This post is part of a series of posts on the latest publication in our Harvard Series in Islamic Law, Hossein Modarressi’s Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law. This series of posts take a deeper dive into the book, which examines the main characteristics of the legal thought of Imām Jaʿfar al-Ṣādiq, a preeminent religious scholar jurist of Medina in the first half of the second century of the Muslim calendar (mid-eighth century CE).
The dispute over mutʿa began as a theological controversy on caliphal legislative authority. Theological commitments adopted during the late Umayyad and early ʿAbbāsid period created an incentive to represent the early controversy as a legal issue that could be argued through the medium of ḥadīth reports. This coheres with what we know regarding the contested nature of the religious authority of the Umayyad and ʿAbbāsid caliphs and the development of Islamic legal authority. When the conflict between the legal authority of the caliphate versus the jurists was resolved in favor of the latter, early Sunnī jurists interpreted the executive decisions of the Rāshidūn caliphs—who also enjoyed the eminent status of being Companions of the Prophet—as authoritative interpretations of the Qur’ān and Sunna. The original theological point of contention was obscured by the discrepant thicket of ḥadīths. As a result, as Professor Modarressi suggests, we may never know concretely how mutʿa looked like or was practiced in the early decades of Islam, but we can at least consider it in its broad outlines.
“Mutʿa marriage, a time-limited union, has been a hotly debated topic in sectarian disputes between the two main divisions of Islam [Sunnī and Shīʿī] for the past many centuries.” That’s about as concise a summary of the institution as can be given. Generally speaking, Sunnī jurists considered this to be an unlawful union, while Shīʿī jurists deemed it valid. The following is an abridgment of Professor Hossein Modarressi’s discussion of mutʿa in Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law.
Mutʿa marriage means that a woman is married for a [limited] period. For example, a man may say, ‘I wed you to my daughter for one month, or one year, or until the end of the [ḥajj] season, or until the arrival of the ḥajj pilgrims,’ or the like, whether the duration is known or unknown. This is an invalid marriage [according to the Sunnīs].
Ibn Qudāma then quotes several reports suggesting that the legality of mutʿa was already abrogated by the Prophet himself later in his life. The main problem with these reports is that they contradict one another when it comes to the timing and occasion of the abrogation; their settings vary from the Battle of Khaybar in the year 7 to the Prophet’s Farewell Pilgrimage in the year 10, with other times and events in between also proposed as the context of the abrogation.
[T]he disparities among the reports were too great to be removed by titular suggestions or comments such as those of Muslim and Ibn al-ʿArabī. As phrased, the reports require a person to believe that mutʿa was legalized and prohibited seven different times by the Prophet. The Andalusian Mālikī jurist Abū al-ʿAbbās al-Qurṭubī, also known as Ibn al-Muzayyin, comments on this phenomenon: ‘The reports concerning when it [that is, mutʿa] was permitted and then declared unlawful are conflicting and very confused, such that they are impossible to reconcile and none can be verified…’
Another major problem was that a good number of the early authorities of Islam did not believe that the prohibition came from the Prophet. In Ibn Ḥazm’s words:
‘Mutʿa marriage is impermissible, being a marriage with a time limit. It was permissible during the time of the Messenger of God (may God’s prayer and peace be upon him), and then God, the Exalted, abrogated it firmly through the words of His Messenger, until the Day of Resurrection. A group of early Muslims (may God be pleased with them) affirmed its permissibility after the time of the Messenger of God (may God’s prayer and peace be upon him). Jābir b. ʿAbd Allāh reported [a belief in] its permissibility from all the Companions during the time of the Messenger of God (may God’s prayer and peace be upon him), and in the time of Abū Bakr and ʿUmar until late in ʿUmar’s caliphate. There is disagreement as to whether Ibn al-Zubayr considered it permissible, and ʿAlī is quoted as having suspended judgment with respect to mutʿa. It is said that [even] ʿUmar b. al-Khaṭṭāb censured it only if it was done without two upright witnesses, and he permitted it with the condition of two upright witnesses. Among the Successors, Ṭāwūs, ʿAṭāʾ, Saʿīd b. Jubayr, and the rest of the jurists of Mecca (may God honor it) [allowed mutʿa]. We collected all the mentioned reports in our book entitled al-Īṣāl. It has been verified as prohibited in the view of Ibn ʿUmar and Ibn Abī ʿAmra al-Anṣārī, but there is disagreement regarding the views of ʿAlī, ʿUmar, Ibn ʿAbbās, and Ibn al-Zubayr.’
It was as if the jurists of Mecca and other students of Ibn ʿAbbās had never heard of the event that the reports claim happened in the lifetime of the Prophet, namely, the abrogation of the legality of mutʿa. The nature of the subject, however, required that a large portion of society, not only a few individuals, would have heard about the ban if one had been issued.
At the same time, one can clearly observe an attempt by various ḥadīth transmitters who were active in the late first and early second centuries and unaware of similar efforts by others, to suggest that mutʿa had indeed been abrogated already by the Prophet and not, as seems to have been commonly believed at the time, by a decree from ʿUmar. For ʿUmar to have canceled an endorsement of the Prophet would have posed a major doctrinal problem, and that, in turn, would have offered an enormous boost to the anti-orthodox trend in Islam to attack their rivals, a potential that has been used since the early centuries down to our own time. The case of mutʿa in fact offers a spectacular example of how ḥadīth developed as an effective tool in early sectarian debates of the late Umayyad and early Abbasid period to defend orthodoxy.
It is common in sectarian disputes like this to come across unpolished, contradictory reports that look as if they were put together in haste to abort an imminent or ongoing dispute. The simple fact that a good number of these reports put the same message, though with discrepancies in timing and wording, in the mouths of those Companions—ʿAlī and Ibn ʿAbbās in particular—who were commonly believed to have objected to the caliph’s decision in this case, seems to be a clear attempt to rebuff the caliph’s opponents in this matter, and makes one extremely suspicious about the provenance of these reports.
The theory of abrogation used in this case by various transmitters and then authors to support their point of view also deserves special attention. The concept was used so liberally in various contexts that it raised the objection of scholars such as Ibn al-Qayyim (d. 751), who said, ‘Whenever the later jurists deemed something unusual, they said it was abrogated and not applied in practice.’
The sources tell us that temporary marriage was a pre-Islamic institution commonly practiced in Mecca. Arabs from various parts of Arabia came to Mecca for a few months every year to worship their idols and engage in trade. They never took their women with them in order not to expose them to the hardships and dangers of traveling in the desert. But the Arab pilgrims and traders nonetheless needed someone to take care of them and look after their merchandise or possessions while in Mecca during their long stay. So each man would make a contract of temporary marriage with a local woman for the duration of his stay in return for a gift or the advance payment of a full year’s or part of a year’s maintenance for the woman. The Prophet endorsed this institution as an accepted form of marriage in the society of his time.
So mutʿa was not a type of prostitution or ‘sex-for-money,’ so to speak. Otherwise, a Messenger of God would not have instructed his followers to practice it, even for the smallest length of time, in the ethical community of believers that he established.
If it was ever allowed by the Prophet, mutʿa must have been, in the non-Muslim Arab society of his time and earlier, an acceptable form of legal union between a man and a woman in a personal relationship. If it was allowed, for it to be consistent with the requirements of an Islamic union by definition, it must have entailed a minimum sense of mutual responsibility and protection, together with comfort and affection, as mentioned in the Qurʾān [30:21] as the ultimate wisdom behind the union of a man and a woman as partners in a personal relationship, even if for a specified span of time. It must have been a contract that embodied the major legal requirements of a marriage as understood at the time, as well as its attendant consequences, such as assignment of paternity for any children born into the marriage and possibly a waiting period for the woman after its termination.
According to one family of reports, the institution remained in effect during the lifetime of the Prophet and Abū Bakr, until sometime in the caliphate of ʿUmar, variously specified as the beginning, the middle, or the late years of his time, it was banned by ʿUmar, creating a doctrinal dispute over whether a caliph had such authority to ban what the Prophet allowed. Some thought that the endorsement of the Prophet made mutʿa valid forever, while others contended that the practice was prohibited, with a majority subsequently being convinced that it was the Prophet himself who had prohibited it.
[The permissibility of mutʿa] was supported in the first century and the first half of the second century by the school of Ibn ʿAbbās, also known as the school of Mecca, whereas the second opinion was held by a large majority of the schools of Medina and Iraq. Jaʿfar al-Ṣādiq and his father represented the first tendency…
Over time, some of those in favor of the legality of mutʿa began to interpret the concept too liberally, concluding that a mutʿa contract could be for any length of time, even for an hour or two, and solely for a monetary payment. Such conditions would naturally compromise the marital nature of the institution, potentially reducing it in some instances to a mere exchange of sex for money, the legal definition for prostitution. This is an erroneous understanding that is regarded as corrupt and strongly condemned in reports from Jaʿfar al-Ṣādiq as in the following examples:
A man asked Jaʿfar b. Muḥammad about mutʿa marriage. He said, ‘Describe it to me.’ He said, ‘A man meets a woman and says, “I wed you with this dirham or two dirhams, for one encounter, a day, or two.”’ He said, ‘This is fornication.’
Professor Modarressi then goes on to discuss the theological background of the disagreement over mutʿa.
A well-known principle in Jaʿfarī law holds that the prescriptions that the Prophet left his community with regarding what was lawful and what was unlawful continue as valid in perpetuity… Later decisions by the Companions or by subsequent generations could not challenge the permanent validity of the Sunna of the Prophet. Leaders of the Muslim community had discretionary authority to modify the application of the law, but any such modifications were temporary, valid only as long as the specific conditions requiring the modification existed. Only what the Qurʾān and the Sunna of the Prophet ordered people to do or not to do constituted permanent laws.
[Faḍl b. ʿAbd al-Malik:] I heard Abū ʿAbd Allāh say, ‘ʿUmar was informed that the people of Iraq [that is, the Muslim immigrants who had just settled in the region] said that ʿUmar had declared mutʿa unlawful, so he sent someone—whose name he mentioned—and said, “Inform them that I did not declare it to be unlawful [lam uḥarimhā], and ʿUmar does not have the authority to declare unlawful [yuḥarrim] what God has deemed lawful. Rather, ʿUmar forbade it [nahā ʿanhā].’
This was what the Prophet, too, reportedly did in certain cases, issuing an order that was bound to specific circumstances:
[ʿUbayd Allāh al-Ḥalabī:] I asked Abū ʿAbd Allāh about a scenario in which an epidemic occurs in part of a town and a man relocates to another part, or he leaves the city he is in for another one. He said, ‘There is nothing wrong with that.’ I said, ‘We were informed that the Prophet censured some people for doing that.’ He said, ‘The Prophet forbade [nahā] that in the case of [soldiers at] an observation post that was facing the enemy. Some of them succumbed to an epidemic, so they fled from there. The Prophet said, ‘The one who flees from it is like the one who flees from the enemy,’ not liking for posts to be abandoned.
So there is a difference between taḥrīm, declaring something unlawful, which falls within God’s exclusive jurisdiction, and nahy, banning something for a limited period. The latter can be done by the leaders of the Muslim community, who have discretionary authority to issue executive orders on a temporary basis.
Umar’s objection [to mutʿa] related to the absence of a walī [male guardian] and witnesses, through which he feared a further denial of paternity, rather than the temporariness of the marriage.
[Jābir b. ʿAbd Allāh:] I entered into mutʿa marriages with women during the time of the Messenger of God (may God’s prayer and peace be upon him), the time of Abū Bakr, and then the time of ʿUmar, until the affair of ʿAmr b. Ḥurayth occurred [—who denied paternity for a child conceived through a mutʿa union]. Then ʿUmar said, ‘We used to enter mutʿa marriages and stood by our responsibilities, but I see that you enter mutʿa marriages but do not stand by your responsibilities, so marry but do not enter mutʿa marriages.’
So ʿUmar’s decision in this case, regardless of the differences in the specific language used by the transmitters, was based on a valid administrative consideration that fell under what Muslim scholars in later periods termed siyāsa sharʿiyya, decisions properly within the discretionary authority of the ruler of the Muslim community. Leading jurists in the late second century maintained that this kind of an executive order remains valid as long as the specified reason behind it continues to apply. Once it lapses, the original law of the Qurʾān or the Sunna of the Prophet again enters into effect.
More precisely, putting a ban on a widespread pattern of abuse of the law is a duty of the leader of the Muslim community, but choosing a specific method is within his discretionary authority. As almost always, there is more than one solution for any problem, and there is no guarantee that the solution adopted by the ruler will work best.
The situation with regard to mutʿa has changed dramatically with the passage of time and place. ʿUmar’s concerns were valid and legitimate in their context, with regard to the possibility of a denial of paternity if mutʿa was performed with an unchaperoned party and in the absence of witnesses. But the actual situation could vary from time to time and culture to culture. Today, those who have been raised in a Shīʿī community, including the present author, know that the most common reason for an already married man to undertake a valid mutʿa marriage is, and has long been, the infertility of the first, permanent wife or, occasionally, the absence of a male child in the family. A man’s marrying a second permanent wife is not always an option, whether because of his financial situation, because of particular cultural tastes, because of a desire to avoid jeopardizing love, peace, and happiness in his family, or because of respect and a feeling of indebtedness toward his primary life partner.
I wish to make three additional points…. First, Qurʾān 30:21 explains the purpose of marriage in unambiguous terms:
And among His signs is that He created mates for you from among yourselves, so that you may find peace and comfort with them, and He created love and affection between you.
Judging the matter solely on the basis of the Qurʾānic wisdom for marriage in a situation in which the religious reports are so contradictory and unreliable, and in which the early Muslim authorities disagreed so sharply, a nonpartisan jurist may legitimately argue that when permanent marriage is out of the question for one reason or another such as, according to some opinions, a difference in religious affiliation between the partners, time-limited arrangements to secure mutual peace and comfort as well as love and affection fall under the original legality of mutʿa, provided that all other essential conditions of an Islamic marriage are met and that the evils warned against in Qurʾān 4:25 and 5:5 are avoided.
Second, mutʿa as a category of marriage has the same essential conditions as permanent marriage, most importantly the required waiting period after the termination of the union. However, the way in which it was practiced in the first half of the second century, when supporters of its legality were still present among the majority, did not at times fully accord with the terms and conditions of an Islamic marriage. It was a misinformed, misunderstood, and corrupt practice that Jaʿfar al-Ṣādiq constantly complained about, as demonstrated by some of the statements quoted above.
The reports from Jaʿfar al-Ṣādiq and his father emphasized that the Prophet never abrogated the legality of the category of marriage called mutʿa and that ʿUmar, as the leader of the Muslim community, had no authority to abrograte [sic] it, and in fact never intended nor tried to do this. What he did was to ban a practice that had given rise to a pattern of widespread abuse of the law in his time. Mutʿa as a legal category was, therefore, still lawful in principle. The focus of the debate was thus on the theoretical and theological aspects of the question of mutʿa.
The third and final point is that when it came to marital relations, many ethnic, tribal, and regional cultures among the Muslims frowned upon the concept of temporary marriage, in the same way that many contemporary Muslims frown upon bigamy…. Many families would never sanction anything short of a permanent relationship for either their sons or their daughters. It was never a choice for men and women from noble, upper-class families, either. To a great extent, this was because of the mentality created by the misconceptions of the ignorant and the misconduct of unethical, licentious people as condemned by Jaʿfar al-Ṣādiq, but also because of a class and family culture that had nothing to do with lawfulness and unlawfulness, as explained above.
 Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022), 247.
 Ibid., 248 (quoting Ibn Qudāma, Mughnī).
 Ibid., 250.
 Ibid., 251-52 (quoting Ibn al-Muzayyin, Mufhim).
 Ibid., 252-54 (quoting Ibn Ḥazm, Muḥallā).
 Ibid., 255-56.
 Ibid., 256.
 Ibid., 258 (quoting Ibn al-Qayyim, al-Ṭuruq al-ḥukmiyya).
 Ibid., 258-59.
 Ibid., 259.
 Ibid., 260.
 Ibid., 260-61.
 Ibid., 261.
 Ibid., 263.
 Ibid., 264.
 Ibid., 268 (quoting Aṃad b. Muḥammad b. ʿĪsā, Nawādir).
 Ibid., 268-69.
 Ibid., 270.
 Ibid., 271 n. 105.
 Ibid., 272 (quoting Ibn Shabba, Ta’rīkh al-Madīna al-munawwara).
 Ibid., 272-73.
 Ibid., 272 n. 108.
 Ibid., 273.
 Ibid., 274-75.
 Ibid., 276.
 Ibid., 278.
(Suggested Bluebook citation: Hossein Modarressi, An Excerpt from Text and Interpretation on Mutʿa Marriage, Islamic Law Blog (Aug. 17, 2022), https://islamiclaw.blog/2022/08/17/an-abridged-excerpt-from-text-and-interpretation-on-mut%ca%bfa-marriage/)
(Suggested Chicago citation: Hossein Modarressi, “An Excerpt from Text and Interpretation on Mutʿa Marriage,” Islamic Law Blog, August 17, 2022, https://islamiclaw.blog/2022/08/17/an-abridged-excerpt-from-text-and-interpretation-on-mut%ca%bfa-marriage/)