The Statutes Of Mut'a
In The Contract
permissible for one or more conditions to be mentioned in the contract of
mut'a, so long as they are legitimate. A condition must be
accompanied by a declaration and an acceptance. Fulfilling the condition
then becomes necessary, since it is part of the contract,
conditions not mentioned in the text of the contract itself, but stated
before or after the contract, their fulfillment is not obligatory.
Concerning this point both al-Shaykh al-Ansari and al Tabataba'i claim a
consensus of the ulama.
A number of hadith are mentioned in this connection, among them
these words of the Imam Ja'far: ' Any condition before the marriage is
destroyed by the marriage, but what is after the marriage is permissible.'
Here by 'after the marriage' is meant immediately after the words of the
woman: 'I have married myself to thee.' Hence, the condition enters into
the declaration and becomes a necessary condition of the marriage. ' After
the marriage' does not signify after the acceptance by the man. The Imam's
words 'permissible' here are usually interpreted to mean 'incumbent'.
permissible for the contract to stipulate as a condition a particular time
for meetings between the husband and wife, such as daytime or night-time.
As already mentioned, it is also permissible for a given number of sexual
acts for a given period to be stipulated, as for example, during one day
or over the whole period of the marriage. These are legitimate conditions
and in no way contradict the requirements of the contract. As the Prophet
said: 'The believers hold fast to their conditions [which they
stipulate].' However, if only a given number of sexual acts is stipulated
without mention of a time period, the contract is invalid, since the time
period must be stated.
permissible for a condition to be stipulated that the marriage not be
consummated, since again the condition is legitimate and does not
contradict the requirements of the contract.  In
addition, the Imam Ja'far was asked explicitly if such a condition was
permissible. He replied: 'The man has to fulfill the stated conditions.'
However, according to the most widely held opinion, in such a case if the
woman should give permission for intercourse during the time period,
intercourse is then permissible. For the contract warrants intercourse,
but if the condition of non-intercourse is laid down, that is the woman's
right over the man. In other words, she has been 'rented' for the purpose
of sexual intercourse, and the condition has become the barrier to this
end. So if she chooses to waive the condition, she is then at the man's
permissible to perform coitus interruptus, even if it is not mentioned as
a condition in the contract. Al-Shahid al-Awwal and al Tabataba'i claim a
consensus of the ulama' on this point. 
They say the consensus derives from a hadith reported from the Imam
Ja'far: 'That [semen] belongs to the man: he may expend it as he wishes.'
addition, in contrast to permanent marriage, the basic aim of mut'a
is enjoyment, not the production of offspring.
If the woman
becomes pregnant such that the pregnancy derives from the period of
mut'a, the child belongs to the husband, even if he performed coitus
interruptus. This statute applies to every legitimate act of sexual
intercourse, not specifically to mut'a, since the principle
enunciated in the saying: 'The child belongs to the bed' is of general
Al-Shaykh Muhammad al-Hasan claims consensus on this point.
the man should deny the child, then it does not belong to him; the 'sworn
allegation' required in permanent marriage is not necessary. Al-Shahid al
Thani, al-Shaykh al-Ansari and al-Shaykh Muhammad al-Hasan claim consensus
on this question. They point out that the 'bed of mut'a', like the
'bed of a slave-girl', does not hold the same high position as the bed of
a permanent wife, since a wife by mut'a is a 'rented woman'.
On this point two hadith have been recorded.
Thani adds that although sworn allegation is unnecessary in mut'a,
this is the outward and exoteric statute, and there is another 'statute'
established between man and God. In this second respect it is not
permissible for the man to deny the child just because he performed coitus
interruptus or suspects his wife of adultery. He must have definite
knowledge that the child does not belong to him. Hence it is encumbent
upon him to observe what exists between him and God, even though his word
alone will be accepted and there is no need for him to make a sworn
By a consensus
of the ulama there is no divorce in mut'a.
The man and woman become separated from each other through the
expiration of the time period, or else by the man's 'returning' the
remaining time to the woman. In this connection a saying of the Imam
Ja'far is as explicit as possible. He was asked if the husband and wife
married by mut'a become separated without divorce. He replied:
there is no forswearing, since forswearing's very definition has to do
with divorce, which does not exist in mut'a. Moreover, the woman
cannot demand a right to sexual intercourse in temporary marriage, a
demand which is essential in the establishment of forswearing in permanent
marriage. The only thing the woman may demand is the dower, to which she
is entitled as a 'rented' woman.
allegation does not take place in muta. According to the Imam
Ja'far: 'A free man does not make a sworn allegation against a slave girl,
a non-Muslim (dhimmi), or a wife by mut'a.'
Moreover, in the case of denying parentage, by a consensus of the
ulama' it is unnecessary for the man to make the sworn allegation, as
we have already seen.
There is a
difference of opinion as to whether or not zihar may take place in
temporary marriage. The majority of the ulama' hold that it
can take place, since the Qur'anic pronouncements concerning it are
general and not delimited. For example, the verse: 'Those of you who say,
regarding their women: 'Be as my mother's back', they are not truly their
mothers' (58:2) indicates that zihar pertains to any woman with
whom intercourse may legitimately take place, a category within which a
wife by muta is included. Al-Shahid al Thani, al Tabataba'i, and
al-Muhaqqiq al-HiIIi all hold this opinion.
al-Ansari and al-Shaykh Muhammad al-Hasan seem to prefer the opposite
opinion, that zihar does not take place in muta. For the
result of zihar is either returning to the wife, or finally
divorcing her. As for the second possibility, there is no divorce in
mut'a. And 'returning to the wife' is unnecessary in mut'a,
whereas it is necessary in permanent marriage. When a man
pronounces the formula of zihar in permanent marriage, the woman
remains his wife. According to permanent marriage's statutes, she has a
right to sexual intercourse. Once the man pronounces the formula of
zihar, she may demand her right at any time. At that time the man must
either pay the expiation or divorce her. But since the woman has no right
to sexual intercourse in mut'a, the problem of 'return' to her does
not present itself. At any rate, when the time period expires, separation
takes place. Thus if zihar exists in mut'a it comes down to
this: the man returns the remainder of the time period to the woman. There
is no reason to claim that this returning is equivalent to divorce.
the most widely held view, there is no inheritance between husband and
wife in mut'a unless it should be specifically mentioned as a
condition of the contract. One of the spouses may be named heir to the
other, in which case the inheritance is one-sided; or it may be stipulated
that if either spouse should die, the other will inherit.
If no such
conditions are mentioned, there is no inheritance. According to the Imam
Ja'far: ' Among mut'a's statutes is that you do not inherit from
the woman, nor does she inherit from you.
that inheritance is permissible provided that the condition is entered
into the contract is first the universal applicability of the prophetic
hadith: 'The believers hold fast to their conditions.' Second,
according to the Imam Ja'far: 'If they should stipulate the condition of
inheritance [in the contract of mut'a], they must hold fast to this
Third, the Imam al-Rida has a similar saying: 'If they should stipulate
the condition [of inheritance], it takes place; and if they should not, it
does not take place.' 
This position concerning inheritance is that held by such authorities as
al-Shahid al-Awwal, al-Shahid al Thani, al-Shaykh al-Ansari, al-Muhaqqiq
al-HiIIi, al-Shaykh Muhammad al-Hasan, and al Tabataba'i.
positions are worth quoting on this question, each of which finds its
basis in the hadith.
ulama' hold that inheritance cannot take place as a result of
mut'a, whether or not it is mentioned in the contract. They base this
opinion on the first hadith related from the Imam Ja'far above on
the question of inheritance, a hadith which they interpret to apply
to every case without exception.
ulama' hold that inheritance takes place as long as there is no
condition negating it in the contract. They base this opinion on the words
of the Imam al-Baqir: 'The two of them inherit from each other (as a
result of mut'a) as long as they do not mention a condition to the
There is also
the question of inheritance by a child born as the result of a temporary
marriage: its inheritance from its father is one-half of that of a child
by permanent marriage, while its inheritance from its mother is the same
as it would be in permanent marriage.
permanent marriage, so in muta there is a waiting period which must
be observed after the time period of the marriage has expired or the man
has returned the remainder of the period to the woman. It consists of two
menstrual periods, provided she menstruates. This statute is based upon
the following two hadith: 'To divorce a slave, one must pronounce
the formula of divorce twice; her waiting period is two menstrual periods'
(the Imam Musa), 
The Imam al-Baqir was asked about the waiting period of a wife by mut'a
if her husband should die. He answered: 'For every marriage, if the
husband should die, the wife must observe a waiting period of four months
and ten days, It makes no difference whether she is free or a slave, and
whether the marriage was permanent or temporary. The waiting period of a
divorced [free] woman is three months, and that of a divorced slave
one-half of what is required of a free woman. What is required of a wife
by mut'a is the same as what is required of a slave.'
It has been
related that al-Shaykh al-Mufid, 
al-'Allama al-Hilli, Ibn Idris, 
and a number of the other ulama' hold that the waiting period of a
wife by mut'a is two fuhrs i.e., two major ablutions
following menstrual periods. They base this opinion on the hadith
related from the Imam al-Baqir: '. ..If he is a free man married to a
slave girl, he divorces her by pronouncing the formula of divorce twice;
her waiting period is two fuhrs.'
And in the hadith quoted above, it is seen that the waiting
period of a wife by mut'a is the same as that of a slave girl.
Thani, al-Shaykh al-Ansari, al Tabataba'i, and al-Shaykh Muhammad al-Hasan
all state that caution demands that we prefer the first of these
opinions-that the waiting period of a wife by mut'a is two
menstrual periods, since the time period is longer. Besides the fact that
a number of hadith indicate that the first opinion is stronger, the
principle of jurisprudence which must be observed here is that of
'continuing prohibition': if something was definitely forbidden, but we
now doubt as to whether or not it is still forbidden, we must assume that
it continues to be forbidden until we have indisputable proof to the
If the woman
is of menstruating age but for some reason does not menstruate, her
waiting period is 45 days, whether she is free or a slave. AI Tabataba'i
claims a consensus of the ulama' on this point.
If the husband
by mut'a of a free woman should die, her waiting period is four
months and ten days, so long as she is not pregnant and whether or not the
marriage was consummated. 
According to the Qur'an: 'Those of you who die, leaving wives, they shall
wait by themselves for four months and ten days' (2:234). If the wife
should be a slave, her waiting period is two months and five days, a point
established by a large number of hadith.
It has been
related that al-Shaykh al-Mufid, al-Sayyid al-Murtada, and certain other
authorities held the opinion that the waiting period of a temporary wife
whose husband dies is two months and five days, 
for two reasons: first, two months and five days is the waiting period of
a slave and-as has already been shown-when the time period of mut'a
expires or the remaining time is returned to the wife, the wife's waiting
period is the same as that of a slave. Here also her waiting period must
be the same as that of a slave. Second, the Imam Ja'far was asked about
the waiting period of a temporary wife whose husband dies. He answered:
Muhammad al-Hasan rejects this opinion as follows: the first reason is
based on analogy (qiyas),
which cannot be a valid basis for a juridical opinion in Shi'ism. The
second reason is based upon a hadith of the mursal type,
i.e., its chain of transmission is incomplete. Such a hadith can
only be authoritative if it is strengthened by some other factor (such as
'shuhra': being accepted by most of the ulama). Hence, in
face of the stronger hadith which exist on the matter, one must
reject this particular hadith and say that the waiting period of a
temporary wife whose husband dies, whether she is free or a slave, is four
months and ten days. 
The reason given for this is the hadith of the Imam al-Baqir quoted
above: 'For every marriage, if the husband should die, the wife must
observe a waiting period of four months and ten days. ..' A hadith
is also related from the Imam Ja'far to this effect. But al-Shahid al
Thani rejects this opinion on the following grounds: To conclude from
these two hadith that the waiting period of a temporary wife is
definitely four months and ten days is problematic. In fact, one has no
choice but to take these hadith as referring only to free women, so
that they will be in accord with a number of other hadith which
state that the waiting period of a slave woman whose husband has died is
two months and five days.
reputable jurisprudent has held that the waiting period of a slave is four
months and ten days. Finally, since in permanent marriage there is no
question but that the waiting period of a slave is two months and five
days, with greater reason the waiting period must be the same in mut'a.
For the waiting period of mut'a is 'weaker' than other waiting
periods, just as a marriage of mut'a is 'weaker' than permanent
marriage. It is unreasonable to suppose that the waiting period of
mut'a be 'stronger' and more stringent than the waiting period of
permanent marriage. Nevertheless, because of the authority of the above
hadith, caution may dictate that the longer waiting period be
If the wife
should be pregnant, her waiting period will be either the usual one of
four months and ten days (two months and five days for a slave) or the
time it takes to give birth-whichever of the two is longer. AI Tabataba'i
claims consensus on this point.
A contract of
mut'a cannot be renewed before the time period expires. Hence, if
the parties wish to renew the contract, it is only necessary for the man
to return the remainder of the time period to the woman, thus in effect
ending the marriage. Then they may conclude a new contract. When she
remarries the same man, she has no waiting period.
This method of
renewing the contract is established by a hadith related from the
Imam Ja'far. He was asked about a man who married a woman for a period of
one month, but then found that a love for her was developing in his heart.
Before the period expires, could he renew the contract and increase the
time period and dowry? The Imam answered that such a course of action was
not permissible so long as the first contract remained in effect.
Therefore: 'He must return to her the remainder of the days [of the
contract] and then conclude a new contract.'
. Wasa'ill, XIV,
468-69, hadith, 2.
. Sharh al-lum'a, v,
288; Matajir, II, 301.
. Matajir ,lI,301;Jawahir,v,
. Wasa'il, XIV, 491,
. Riyad, II,116.
. Sahrh al-lum'a, V,
288; Riyad, II, 116.
. Wasa'il, XIV, 489-90,
. Sharh al-lum'a, v,
288; Riyad, II, I 16.
. Sharh al-lum'a, v,
288; Matajir, II, 300.
. Ibid., 173; Masalik,
1,542; Matajir, II,301.
. Wasa'il, XIV,
488-89, hadith 4 and 5.
. Masalik, 1,542.
. Matajir. II. 301;
Masalik, I, 542; Jawahir, v, 173; Riyad. II. 117;
Shara'i, II, 125
. Wasa'il, XIV,
478-79, hadith 1.
. Sharh al-lum'a, v,
289; Jawahir,v, 173.
. Wasa'il, xv, 596,
. Masalik, I, 542;
Sharh al-lum'a, v, 300; Riyad, II, I 17; Shara'i', II,
25; Mukhtasar-i nafi', 232.
. Matajir, II, 301;
Jawahir, v, 173-74.
. Wasa'il, XIV, 486,
. Ibid., hadith 5.
. Ibid., 485, hadith
. Luma, text, and
Sharh al-lum'a, v, 297-98; Masalik, I, 543; Matajir, II,
301; Shara'i', II, 25; Mukhtasar-i nafi', 232; Jawahir,
v, 274; Riyad, II, 117.
. Wasa'il, XIV, 486,
. Ibid., XV, 470, hadith
. Ibid., 484, hadith
. Muhammad b. Muhammad b.
al-Nu'man al-'Ukbari al-Baghdadi (d. 413/1022), author of numerous works
on theology and jurisprudence.
. Muhammad b. Idris al-Hilli
. Wasa'il, xv, 469,
. Sharh al-lum'a, v,
301-2; Masalik, I, 544; Matajir, II, 301; Riyad, II,
. Riyad, II,118.
. Sharh al-lum'a, v,
302; Masalik, I, 544; Matajir, II, 301; Jawahir, v,
176; Riyad, II, 118.
. Riyad, II,
118; Jawahir,v, 176.
. Wasa'il, XV, 485,
. Qiyas is the fourth
source of fiqh in Sunnism but not accepted by the Shi'is; instead
the latter employ 'aql' or 'reason'. This is one of the main
differences in usul al-fiqh between Sunnis and Shi'is.
. Jawahir, V, 176.
. Sharh al-lum'a, V,
. Riyad, II, 119.
. Mukhtasar-i nafi',
p.232; Riyad, 11, 119.
. Wasa'il, XIV, 478,