Shighar, muta and the muhallil: forbidden forms

This chapter of the fiqh encyclopedia (al-Mawsu'a al-fiqhiyya) on prohibited marriages examines in turn the shighar marriage (the exchange of daughters between two guardians, in three questions), then the time-limited pleasure marriage (mut'a), the question of the hadd punishment for contracting it, marriage with a condition of divorce, marriage with an intention of divorce, and finally the forms of the muhallil marriage, in which a man marries a woman in order to make her lawful again for her first husband. Each sheet reports the exact positions of the four schools, the hadiths with their numbers, and the references of the classical works that cite them.

The shighar marriage: unanimous prohibition and the first question (without mention of the mahr)

The scholars are unanimous that the shighar marriage is forbidden and cannot be validated (al-Tamhid, 14/72; al-Istidhkar, 5/465; al-Iqna' fi masa'il al-ijma', 3/1205, 1207). Imam al-Nawawi reports this agreement and states that it is forbidden; here, like daughters, are the nieces (sisters' daughters), the daughters of paternal uncles and aunts, and slave girls. The clear form of shighar is: "I have married my daughter to you on condition that you marry me your daughter, and the private part of each is the mahr of the other," the other replying: "I accept" (Sharh Sahih Muslim, 9/201).

The jurists differed over three questions: shighar without mention of the mahr; shighar with mention of the mahr; and shighar in which a mahr is named for one of the two but not the other.

The jurists agree that if a man marries his ward to another man on condition that the latter marries him his ward, with no mahr between them except the private part of each in exchange for the private part of the other, the contract is not valid, because of the prohibition established from the Prophet (peace and blessings of Allah be upon him).

Nafi' reported to me from Abdullah ibn Umar (may Allah be pleased with them both): "The Messenger of Allah (peace and blessings of Allah be upon him) forbade shighar." I said to Nafi': "What is shighar?" He said: "A man marries the daughter of a man and gives him his daughter without a mahr, or marries the sister of a man and gives him his sister without a mahr."Narrated by al-Bukhari (6559) and Muslim (1415)

And the prohibition implies the invalidity of what is forbidden.

Muslim reports, from Ibn Numayr and Abu Usama, from Ubaydullah, from Abu al-Zinad, from al-A'raj, from Abu Hurayra (may Allah be pleased with him): "The Messenger of Allah forbade shighar"; Ibn Numayr added: "Shighar is when a man says to another: marry me your daughter and I will marry you my daughter, or: marry me your sister and I will marry you my sister."Narrated by Muslim (1416)

It is reported that Umar and Zayd ibn Thabit (may Allah be pleased with them both) separated the two couples, on the basis of the hadith of Ibn Umar: "The Messenger of Allah forbade shighar"; and because each of the two contracts was placed as consideration for the other, so that neither was valid, as in the statement: "sell me your garment on condition that I sell you mine." Its invalidity does not stem from the specification of the mahr, but from the fact that one of them agreed to a corrupt condition, and conditioned the transfer of ownership of the private part to someone other than the husband: he made his marriage to her the mahr of the other, as if he had alienated her on condition of wresting her away from himself; and it results in a partnership over the private parts, so that the contract is not valid, just as if he married his daughter to two men at once (al-Mudawwana al-Kubra, 4/152; Sharh Sahih al-Bukhari, 7/220; al-Tamhid, 14/71-72; al-Ishraf 'ala nukat masa'il al-khilaf, 3/343-344, no. 1179; al-Dhakhira, 4/385; Sharh al-Zarqani, 3/186; Sharh Miyara, 1/277; al-Ishraf, 5/48-49; al-Bayan, 9/273; al-Mughni, 7/135-136; Sharh al-Zarkashi, 2/396-397; al-Mubdi, 7/83-84; al-Insaf, 8/160-161; Kashshaf al-Qina, 5/101; Matalib Uli al-Nuha, 5/123-124; Manar al-Sabil, 2/588-589).

The Hanafis, however, hold that the shighar marriage, meaning that a man marries his daughter, his sister, or his slave girl to another on condition that the other marries him his daughter, his sister, or his slave girl, with one of the two contracts serving as consideration for the other, is valid and necessarily carries the mahr of similitude (mahr al-mithl). The specification is in fact void: he named as a mahr something that cannot be one, since what was named is not property; the mahr of similitude therefore becomes due, just as if he married her in exchange for wine or a carrion animal. A marriage is not annulled by corrupt conditions, and this is one: consider that it is not corrupted by specifying what is not property, such as blood, nor by absolute omission of specification. The prohibition reported on this came only because he had dispensed with specifying the mahr and made do with that, so that no other property became due, as was their custom in the Jahiliyya; or the hadith is carried as reprobation.

For shighar to be realized, it is required that each of them make the private part of the other the mahr of his ward, with the acceptance of the other. If he does not say that nor its meaning, but says: "I have married my daughter to you on condition that you marry me your daughter" and the other accepts, or says: "on condition that my daughter's private part be the mahr of your daughter" while the other does not accept, and he marries her without making it the mahr, then it is not shighar but a valid marriage by agreement, with the mahr of similitude due in all cases, since he named as a mahr what cannot be one (Sharh Mukhtasar al-Tahawi, 4/362, 364; al-Mabsut, 5/105; Bada'i al-Sana'i, 2/278; Tabyin al-Haqa'iq, 2/145; al-Bahr al-Ra'iq, 3/167; al-Bunaya, 5/157; al-Jawhara al-Nayyira, 4/312; Hashiyat Ibn Abidin, 3/106).

Muhammad ibn al-Hasan (may Allah have mercy on him) said: "The mahr is not marriage to a woman. If someone marries her on condition that her mahr be his marrying to him his daughter, the marriage is valid and she has the mahr of similitude of her peers, with no refund of the excess and no irregularity; this is the opinion of Abu Hanifa and the majority of our jurists" (Muwatta Malik in the transmission of Muhammad ibn al-Hasan, 2/444).

Ibn Rushd (may Allah have mercy on him) said: as for the shighar marriage, they agree that its description is that a man marries his ward to another man on condition that the other marries him his ward, with no mahr between them except the private part of each for the private part of the other; they also agree that it is an unlawful marriage, because of the prohibition established concerning it. They differed once it has occurred: is it corrected by the mahr of similitude or not? Malik said: no, it is dissolved absolutely, both before consummation and after; al-Shafi'i said the same, except that if a mahr was named for one of them or for both together, the marriage stands with the mahr of similitude, and the mahr they named is corrupt. Abu Hanifa said: the shighar marriage is valid with the mahr of similitude made due (Bidayat al-Mujtahid, 2/43).

The cause of their disagreement is whether the prohibition suspended over it is motivated by the absence of consideration, or without motivation. If we say "without motivation," dissolution follows absolutely; if we say "the cause is the absence of a mahr," it is valid with the mahr of similitude made due, like a contract made on wine or a pig: they agree that a marriage contracted on wine or a pig is not dissolved once consummation has occurred, and the mahr of similitude is due in it. Malik appears to have held that although the mahr is not a condition of the contract's validity, the corruption of the contract here is specific, because of the prohibition being tied to it; or he held that the prohibition attaches to the very specification of the contract, and the prohibition indicates the invalidity of what is forbidden.

If one says: "marry me your daughter on condition that I marry you your daughter" and stops at that, the marriage is valid according to the Hanafis, the Shafi'is (the most famous view) and the Hanbalis (in one view), because no partnership occurred; only the mahr is corrupt: he made his daughter's mahr the other's marrying him his daughter, so the named mahr is corrupt and the mahr of similitude becomes due. The Malikis, the Hanbalis (in the madhhab) and the Shafi'is (in one view) hold that it is not valid, because they named no valid mahr; rather each of them made the other's marriage contract the mahr of his own ward, having raised that to the level of a mahr (al-Tajrid al-daruri, 9/4570; al-Bahr al-Ra'iq, 3/167; al-Dhakhira, 4/385; Sharh al-Zarqani, 3/186; Sharh Miyara, 1/277; al-Bayan, 9/273; al-Najm al-Wahhaj, 7/54-55; Mughni al-Muhtaj, 4/239, 241; al-Dibaj, 3/186-187; al-Mughni, 7/135-136; Sharh al-Zarkashi, 2/396-397; al-Mubdi, 7/83-84; al-Insaf, 8/160-161; Kashshaf al-Qina, 5/101; Manar al-Sabil, 2/588-589; al-Ifsah, 2/147-148).

The second question: shighar with mention of the mahr

The jurists differed over the case where each of the two guardians marries his ward to the other while mentioning the mahr of each, whether equal to that of the other or different, as in: "marry me your sister for a hundred on condition that I marry you my sister for a hundred, or for fifty": is it valid or not? The Malikis and the Hanbalis (in one view) hold the marriage corrupt and invalid.

The Malikis say: the shighar marriage has two forms: pure shighar and the form of shighar. Pure shighar is that in which no mahr is mentioned, as in "marry me your daughter on condition that I marry you my daughter": the private part of each is the mahr of the other, and it is dissolved absolutely, even if consummation occurred, time passed and children were born. The form of shighar is that in which the mahr of each is mentioned, equal or different, as in "marry me your sister for a hundred on condition that I marry you my sister for a hundred, or for fifty": it is dissolved before consummation and stands after it with the mahr of similitude, unless the mahr of similitude is less than what was named, in which case she does not fall below the named amount (al-Mudawwana, 4/152; al-Tamhid, 14/71-72; al-Dhakhira, 4/385; Sharh Miyara, 1/277; Sharh al-Zarqani, 3/186).

The majority of jurists, the Hanafis, Shafi'is and Hanbalis (in the madhhab), hold the marriage valid; they then differed: does she receive the named mahr or the mahr of similitude? The Hanafis say: if he says "I have married my sister to you for a hundred on condition that you marry me your sister for a hundred," both marriages are valid and the specification is void, and each of the two has the mahr of similitude; thus al-Quduri reports it in his Tajrid (al-Tajrid al-daruri, 9/4570).

But al-Sarakhsi and Ibn Nujaym (may Allah have mercy on them both) say: if he marries his daughter to a man for a named mahr on condition that the other marries him his daughter for a named mahr, then if he does marry her, each of the two has the mahr named for her; and if he does not marry her, the one who was married has the full mahr of similitude, because her consent to less than the mahr of similitude was understood in terms of a benefit conditioned for her father, and the father's benefit counts like her own; likewise, if he had conditioned for her, in addition to the named amount, a benefit, she would have the mahr of similitude (al-Mabsut, 5/107; al-Bahr al-Ra'iq, 3/167).

The Shafi'is say: if he says "I have married my daughter to you on condition that you marry me your daughter, and the mahr of each of them be such and such," both marriages are valid and the two named mahrs are void, and the mahr of similitude is due to them, whether the two mahrs are alike or different; because no partnership over the private parts occurred, only the corruption of the mahr: he conditioned, in addition to the named mahr, that the other marry him his daughter, just as if he said "I have married my daughter to you for a hundred on condition that you sell me your house": the marriage is valid and the mahr is void.

If he says: "I have married my daughter to you on condition that you marry me your daughter, and the private part of each of them, plus a hundred dirhams, be the mahr of the other," there are two views: the first is that both marriages are valid and the mahr of similitude is due to them, because shighar is that which is devoid of a mahr, and here it was not devoid of a mahr; the second, which is the correct one, is that both marriages are void, because the partnership over the private parts is present despite the naming of the mahr, and it is the partnership that corrupts (al-Bayan, 9/273-274; al-Najm al-Wahhaj, 7/54-55; Mughni al-Muhtaj, 4/239, 241; al-Dibaj, 3/186-187).

The Hanbalis say: if they named a mahr for each, saying "I have married my daughter to you on condition that you marry me your daughter, and the mahr of each be a hundred, or my daughter's mahr a hundred and your daughter's fifty, or less, or more," the contract is valid upon her with the named amount according to the correct view, on the basis of the hadith of Ibn Umar mentioned above, and because he named a mahr, so that it is valid as if they had not imposed that condition. The place of validity also exists if the mahr is not a small stratagem (hiyal), whether it be the mahr of similitude or less; if it is small to the point of being a stratagem, it is not valid; if it is substantial, it is valid even as a stratagem.

Al-Kharqi (may Allah have mercy on him) said that it is not valid, because of the hadith of Abu Hurayra, and because of what Abu Dawud reports from al-A'raj: "al-Abbas ibn Ubaydullah ibn al-Abbas married his daughter to Abd al-Rahman ibn al-Hakam, and Abd al-Rahman married him his daughter; they made the private part of each the mahr of the other. Mu'awiya wrote to Marwan ordering him to separate them, and said in his letter: this is the shighar which the Messenger of Allah (peace and blessings of Allah be upon him) forbade." For he conditioned the marriage of one upon the marriage of the other, so that it is not valid, as if they had named no mahr.

The proof of this: the absence of specification of the mahr is not what corrupts the contract, as shown by the marriage of the woman of full delegation (al-mufawwada); this indicates that what corrupts is the condition, and it is present. And because the mahr was placed as consideration within a contract, it is not valid, just as if he said "I sell you my garment for ten on condition that you sell me yours for twenty." This disagreement concerns only the case where the partnership is not stated explicitly; but if he says: "I have married my daughter to you on condition that you marry me your daughter, and the mahr of each be a hundred and the private part of the other," the marriage is corrupt, because he explicitly stated the partnership, and the contract is not valid, as if he had named no specified amount.

Ibn Qudama (may Allah have mercy on him) said: when we hold the contract valid if they named a mahr, there are two views. The first: the specification becomes corrupt and the mahr of similitude becomes due, and this is al-Shafi'i's view; for each of the two accepted the named amount only on condition that the guardian of his ward marry him, so the mahr is diminished by that condition, and that condition is corrupt; and once we must guarantee the shortfall, the named amount becomes unknown and is void.

The second view, mentioned by the Qadi in al-Jami', is that the named amount is due, because he mentioned a known quantity that can validly be a mahr; the contract is therefore valid as if he said: "I have married my daughter to you for a thousand, on condition that I have from her a hundred" (al-Mughni, 7/135-136; Sharh al-Zarkashi, 2/396-397; al-Mubdi, 7/83-84; al-Insaf, 8/160-161; Kashshaf al-Qina, 5/101; Manar al-Sabil, 2/588-589).

The third question: a mahr named for one of them and not the other

The jurists differed over the case where a mahr is named for one of the two and not the other: is the marriage valid, and does it take place with the named mahr or the mahr of similitude? The Shafi'is and the Hanbalis (in the madhhab) hold that if the mahr is named for one and not the other, the marriage of the one for whom a mahr was named is valid, because her marriage includes a specification and a condition, like the case where a mahr would be named for both; she has the mahr of similitude according to the Shafi'is, and the named mahr according to the Hanbalis. The marriage of the one for whom no mahr was named is corrupt, because her marriage is devoid of a mahr (al-Bayan, 9/273-274; al-Najm al-Wahhaj, 7/54-55; Mughni al-Muhtaj, 4/239, 241; al-Dibaj, 3/186-187; al-Tamhid, 14/71-72; al-Mughni, 7/135-136; Sharh al-Zarkashi, 2/396-397; al-Mubdi, 7/83-84; al-Insaf, 8/160-161; Kashshaf al-Qina, 5/101; Manar al-Sabil, 2/588-589).

Abu Bakr al-Khiraqi, among the Hanbalis, holds that if a mahr is named for one without the other, the marriage is corrupt for both, because it became corrupt for one and thus became corrupt for the other (al-Mughni, 7/135-136; Sharh al-Zarkashi, 2/396-397; al-Mubdi, 7/83-84; al-Insaf, 8/160-161; Kashshaf al-Qina, 5/101; Manar al-Sabil, 2/588-589).

The Malikis say: if a mahr is named for one only, as in "marry me your sister for a hundred on condition that I marry you my sister," the contract is composed of the two forms and each falls under its own ruling: the one for whom a mahr was named, her marriage is dissolved before consummation and stands after it with the mahr of similitude; the one for whom no mahr was named, her marriage is dissolved absolutely, before consummation and after, and she has the mahr of similitude if he consummated. This marriage is called among them "the composite of shighar" (al-Dhakhira, 4/385; Sharh Miyara, 1/277; al-Tamhid, 14/71-72).

The Hanafi madhhab indicates that the marriage is valid: the one for whom a mahr was named receives what was named, and the one for whom nothing was named receives the mahr of similitude (al-Mabsut, 5/107; al-Bahr al-Ra'iq, 3/167).

The mut'a marriage (second category)

The jurists of the four schools agree that no marriage may be limited by a term, for this is precisely the mut'a marriage which is forbidden: it is established from the Prophet (peace and blessings of Allah be upon him), through multiple chains among the Companions, that he forbade the mut'a marriage.

Ali ibn Abi Talib (may Allah be pleased with him) said to Ibn Abbas (may Allah be pleased with them both): "The Prophet forbade mut'a and the flesh of domestic donkeys at the time of Khaybar."Narrated by al-Bukhari (4825) and Muslim (1407)

From al-Rabi' ibn Sabra, from his father: "the Prophet forbade the mut'a marriage"; and in one wording: "the Messenger of Allah forbade, on the day of the Conquest, the mut'a of women"; and in another, from Ibn Shihab, from al-Rabi' ibn Sabra al-Juhani, from his father: "the Messenger of Allah forbade, at the time of the Conquest, the mut'a of women, and my father had contracted a mut'a for two red cloaks."Narrated by Muslim (1406)

From al-Rabi' ibn Sabra, from his father: "We set out with the Messenger of Allah (peace and blessings of Allah be upon him) from Madina for the Farewell Pilgrimage. When we were at 'Usfan, the Messenger of Allah said: 'The umra has now entered into the hajj.' Surqa ibn Malik, or Malik ibn Surqa (one of the narrators, Abd al-Aziz, was unsure), said: O Messenger of Allah, teach us as you would teach people born today: is our umra this year for this year only, or forever? He said: 'Rather forever.' When we arrived in Mecca, we circled the House and ran between Safa and Marwa, then he ordered us the mut'a of women. We returned to him and said: O Messenger of Allah, they accept only for a specified term. He said: 'Then do it.' I went out with a companion, each of us wearing a cloak; we entered upon a woman and offered ourselves to her. She kept looking at my companion's cloak and found it more generous than mine, then she looked at me and found me younger than he. She said: 'A cloak for a cloak,' and chose me. I married her for ten (days) for my cloak and spent that night with her. In the morning I went to the mosque and heard the Messenger of Allah standing on the pulpit delivering a sermon in which he said: 'Whoever among you has married a woman for a term, let him give her what he specified for her, let him take back nothing of what he gave her, and let them separate; Allah, the Most High, has indeed forbidden it to you until the Day of Resurrection.'"Authentic hadith, narrated by Imam Ahmad in his Musnad (15381)

These hadiths indicate, some of them, that the prohibition occurred on the day of Khaybar, others on the day of the Conquest, others at the Farewell Pilgrimage: such was the habit of the Prophet (peace and blessings of Allah be upon him), who repeated this kind of announcement in his campaigns and in the general gatherings. He mentioned it at the Farewell Pilgrimage because of the gathering of the people, so that whoever had not heard it would hear, and he stressed it so that no pretext would remain for anyone claiming to make it lawful; and because the people of Mecca made great use of it.

Two answers can be given to the fact that between each of these hadiths a long stretch of time passed. The first: it was a prohibition he repeated in several places so that it would be more manifest and more widely known, so that whoever had not learned it would learn it, and because someone may be present in one place who was not present with him in another; that made the prohibition more eloquent and firmer, until no pretext remained for anyone claiming to make it lawful. The second: it was lawful, then forbidden in the year of Khaybar, then he permitted it afterward for a benefit he knew, then forbade it at the Farewell Pilgrimage; that is why he said of it: "it is forbidden until the Day of Resurrection," to signal that the earlier prohibition was temporary and followed by a permission, whereas this one is a permanent prohibition that will not be followed by any permission (al-Hawi al-Kabir, 9/330; Sharh Sahih al-Bukhari, 7/226; al-Tamhid, 10/99).

Imam Ibn al-Qayyim said in Zad al-Ma'ad (3/459-464): the differing opinions on the time when mut'a was forbidden are four. The first: on the day of Khaybar, the view of a group of scholars including al-Shafi'i. The second: the year of the Conquest of Mecca, the view of Ibn 'Uyayna and a group. The third: the year of Hunayn, which in reality is the same as the second view, since the campaigns of Hunayn are connected to the Conquest. The fourth: the year of the Farewell Pilgrimage, which is an error on the part of some narrators, whose error traveled from the Conquest of Mecca to the Farewell Pilgrimage, just as Mu'awiya's error traveled from the lesser pilgrimage of al-Ji'rrana to the Farewell Pilgrimage, where he said: "I did tamattu' with the Messenger of Allah (peace and blessings of Allah be upon him) at Mishqas, on the road to Marwa." The travel of error, from one time to another, from one place to another and from one event to another, often befalls the memorizers, and even more so those below them. The correct view is that mut'a was forbidden only in the year of the Conquest: it is established in the Sahih of Muslim that they practiced mut'a in the year of the Conquest, with the Prophet and by his permission; if the prohibition dated from Khaybar, two successive abrogations would be required, something absolutely unknown in the Shari'a, in which nothing of the sort occurs. Moreover, at Khaybar there were no Muslim women, only Jewish women; and the lawfulness of the women of the People of the Book had not yet been established: it was established only afterward, in the sura of the Table Spread:

"This day all good things are made lawful for you; the food of those who were given the Scripture is lawful for you and your food is lawful for them, as are the chaste women from among the believers and the chaste women from among those who were given the Scripture before you."

Surah al-Ma'ida, 5

a verse connected to: "This day I have perfected for you your religion," and to: "This day those who disbelieve have despaired of your religion" (Surah al-Ma'ida, 3), and this occurred at the end, after the Farewell Pilgrimage or during it. The lawfulness of the women of the People of the Book was therefore not established at the time of Khaybar, and the Muslims had no desire to enjoy the women of their enemy before the Conquest; after the Conquest, those of them who were captured were captured, and they became slaves of the Muslims.

If it is asked: what do you do with the hadith of Ali ibn Abi Talib reported in the Two Sahihs: "the Messenger of Allah forbade, on the day of Khaybar, the mut'a of women and the flesh of domestic donkeys," an authentic and explicit hadith? The answer is that this hadith has been authentically transmitted in two wordings. The first is this one; the second restricts itself to the Prophet's prohibition (peace and blessings of Allah be upon him), on the day of Khaybar, of the mut'a marriage and the flesh of domestic donkeys: this is the transmission of Ibn 'Uyayna from al-Zuhri. Qasim ibn Asbagh reports that Sufyan ibn 'Uyayna said: this means that he forbade the flesh of domestic donkeys at the time of Khaybar, not the mut'a marriage; Abu Umar mentions this in al-Tamhid and then says: "most people are on this." Some narrators thus imagined that the day of Khaybar was the moment of the prohibition of women, and reported it as: "the Messenger of Allah forbade mut'a at the time of Khaybar, as well as the domestic donkeys"; and some restricted themselves to part of the hadith, saying: "the Messenger of Allah forbade mut'a at the time of Khaybar," committing a manifest error.

If it is asked: what benefit is there in combining the two prohibitions if they did not occur at the same time, and what does mut'a have to do with the prohibition of donkeys? The answer is that this hadith was reported by Ali ibn Abi Talib (may Allah be pleased with him) arguing against his cousin Abdullah ibn Abbas on both questions, for the latter permitted mut'a and the flesh of donkeys; Ali argued against him on both points and reported the two prohibitions to him, tying the prohibition of donkeys to the time of Khaybar while leaving the prohibition of mut'a absolute, and said: "You are a lost man; the Messenger of Allah forbade mut'a and the flesh of domestic donkeys on the day of Khaybar," as Sufyan ibn 'Uyayna said, and on this are most people; he thus reported the two prohibitions as proofs, without restricting them to the day of Khaybar.

Another consideration presents itself here: did he forbid it as the indecencies which are never lawful under any circumstance, or did he forbid it for the one who can do without it while permitting it to the compelled? This is what Ibn Abbas considered, saying: "I make it lawful for the compelled, like carrion and blood"; then, when people went beyond necessity, he stopped giving fatwa on its lawfulness and turned away from it. Ibn Mas'ud, for his part, considered it lawful and recited:

"O you who believe, do not make unlawful the good things Allah has made lawful to you, and do not transgress: Allah does not love the transgressors."

Surah al-Ma'ida, 87

In the Two Sahihs it is reported from him: "We went on campaign with the Messenger of Allah while having no women; we said: should we not castrate ourselves? He forbade us, then permitted us to marry a woman for a garment, for a term. Then Abdullah recited this verse." His recitation of this verse after this hadith admits two meanings: the first is to refute the one who forbids it, for were it not among the good things, the Messenger of Allah would not have permitted it. The second is that he intended the end of the verse, refuting the one who permits it absolutely: he is then a transgressor, for the Messenger of Allah permitted it only out of necessity, on campaign, when women were lacking and the need for a woman was pressing; whoever permits it in residence, with many women and the possibility of ordinary marriage, has transgressed, and Allah does not love the transgressors.

The meaning of the mut'a marriage is every marriage contracted for a term, near or far. It was called mut'a because its purpose is mere enjoyment, excluding procreation and the other purposes of marriage. Imam al-Shafi'i (may Allah be pleased with him) said: the report concerning the forbidden mut'a marriage is every marriage contracted for a term, near or far, such as when a man says to a woman: "I have married you for a day, or ten days, or a month; or I have married you until I leave this land; or I have married you until you are struck by the divorce which will make you lawful again for the husband who divorced you three times," or anything similar in which the marriage is not absolute and permanent. The muhallil marriage, of which it is reported that his Messenger (peace and blessings of Allah be upon him) cursed it, is in our view a type of the mut'a marriage, for it is not absolute, since he conditions marrying her until he consummates with her, which may be delayed or advanced; its origin is that he contracted the marriage with her until he consummates, and once he consummates there is no marriage between them. In the contract "I marry you for ten days" there is the meaning of "I marry you for ten days on condition that no marriage take place between us after the ten days," just as in the contract "I marry you in order to make you lawful for your first husband: once I consummate with you, there is no marriage between us"; as one would say: "I rent this house from you for ten days," or "I hire this slave for a month": in the month's contract there is the meaning that, the month having elapsed, no rent and no hire remain; just as one says: "I rent this house from you for my stay in the land": if I leave the land, no rent is due from me; and this corrupts the hire. If, then, the marriage is contracted on one of the models I have described, it falls within the mut'a marriage; likewise every marriage limited to a known or unknown time: the marriage is dissolved, there is no inheritance between the spouses, and none of the rights of marriage subsists between them, neither divorce, nor zihar, nor ila', nor li'an, except with a child. If he has not consummated with her, she has no mahr; if he has consummated, she has the mahr of similitude, not what was named for her. The waiting period is due from her, with no maintenance during it, even if she is pregnant. And if he then marries her by a valid marriage, she remains with him for three (divorces) (al-Umm, 5/79-80; al-Hawi al-Kabir, 9/330-332; al-Muhadhdhab, 2/46; Kanz al-Raghibin, 3/538-539; al-Najm al-Wahhaj, 7/53-54; Mughni al-Muhtaj, 4/239; Nihayat al-Muhtaj, 6/248; al-Dibaj, 3/186).

It is stated in al-Mudawwana al-Kubra, concerning marriage for a term: "Consider the case of a man who marries a woman with the authorization of the guardian, for a specified mahr, for a month, a year, or two: is this marriage valid?" Malik replied: "This marriage is void: to marry for a term is a void marriage." It was said: "And if he marries her for a specified mahr and they condition upon the husband that he pay her mahr before such a term, otherwise there will be no marriage between them?" Malik said: "This marriage is void." It was asked: "Has he consummated or not?" Malik replied: "It is dissolved in all cases, whether he has consummated or not"; and he said: "I deemed it dissolved because it is a marriage whose people do not inherit from one another." Sahnun said: "This question was his view on the khiyar marriage, which he dissolves whether consummation occurred or not; then he retracted and said: if he has consummated, it is valid, and it is dissolved before consummation." It was asked: "If one says 'I marry you for a month,' is the marriage annulled, or does the marriage remain valid and the condition void?" Malik replied: "The marriage is void and dissolved; and this mut'a is established as forbidden by the Messenger of Allah (peace and blessings of Allah be upon him)" (al-Mudawwana al-Kubra, 4/196; see also al-Ishraf 'ala nukat masa'il al-khilaf, 3/344-345; Mawahib al-Jalil, 5/84; al-Sharh al-Kabir with al-Dasuqi's gloss, 3/42; Tahrir al-Mukhtasar, 2/582).

Abu Umar Ibn Abd al-Barr (may Allah have mercy on him) said: the scholars differed over the man who marries for ten days or the like, until a term: does one say "I marry her for a month," or does she say: "avail yourself of me for this dinar, for a month"? Malik, al-Thawri, Abu Hanifa and his companions, al-Shafi'i and al-Awza'i all say: this is the mut'a marriage, and it is void, whether he has consummated or not; it is dissolved before consummation and after; this is the forbidden, unlawful mut'a; and this is the view of Ahmad (may Allah have mercy on him) and the people of hadith. Zufar said: if he marries her for ten days or a month, the marriage stands and the condition is void (al-Tamhid, 10/122).

Ibn al-Humam (may Allah have mercy on him) said: the mut'a marriage is void; it consists of saying to a woman free of impediments: "I enjoy you for such a duration, ten days for example," or "for so many days," or "give me yourself for so many days," or without mentioning days, for such a sum. The Shaykh of Islam (Ibn Taymiyya) explained the difference between this and the time-limited marriage: in the time-limited marriage one uses the wording of marriage and contracting; in mut'a, "I enjoy you" and the like, meaning anything containing the root of mut'a. It appears nonetheless that mut'a requires neither witnesses nor a specified duration, whereas the time-limited marriage requires witnesses and a duration. There is no doubt that those who claim that the mut'a marriage which the Prophet (peace and blessings of Allah be upon him) permitted and then forbade is only that which contains the root (m-t-a') have no decisive proof from the traditions: what is established is only that he permitted them the enjoyment; and this does not imply that the one who engages in it must address her with the words "I enjoy you" and the like, since it is known that wording is used for its meaning. If he says "enjoy these women," the implication is not "say: I enjoy you," but that they realize the meaning of these words, namely to conclude upon a woman a contract whose aims are not the purposes of marriage, stability for the child and his upbringing, but a specified duration at the end of which the contract ends, or an unspecified one, meaning that the contract lasts as long as I remain with you and ends when I depart from you. In sum, the meaning of mut'a is a time-bound contract that ends with the time: it includes what contains the root of mut'a, and also the time-limited marriage, so that the time-limited marriage is a type of mut'a, even if contracted with the wording of marriage and witnesses brought, and whatever the expressions conveying humility toward the woman in this sense may be. And there is not known, in any tradition, a single instance of wording from any Companion (may Allah be pleased with them) who engaged in this using the form "I enjoyed you" and the like (Sharh Fath al-Qadir, 3/246-247; al-Mabsut, 5/152-153; Tabyin al-Haqa'iq, 2/115; al-Bahr al-Ra'iq, 3/115; Mukhtasar al-Wiqaya, 2/353-354).

The mut'a marriage was first lawful, then forbidden, then permitted again, then forbidden until the Hour is established. Imam al-Shafi'i (may Allah be pleased with him) said: "I know of nothing that was forbidden then permitted then forbidden, except mut'a" (Mughni al-Muhtaj, 4/239). Muslim reports from Abd al-Aziz ibn Omar, from al-Rabi' ibn Sabra al-Juhani, that his father reported to him that he was with the Messenger of Allah (peace and blessings of Allah be upon him) when he said:

"O people, I had permitted you the enjoyment of women; Allah has indeed forbidden it until the Day of Resurrection. Whoever has any of them, let him release her, and take back nothing of what you gave them."Narrated by Muslim (1406)

Imam al-Nawawi (may Allah have mercy on him) said: in this hadith, the abrogated and the abrogating are explicitly mentioned within a single statement of the Messenger of Allah (peace and blessings of Allah be upon him), like the hadith: "I used to forbid you from visiting graves, so visit them"; and it contains the explicit prohibition of the mut'a marriage until the Day of Resurrection (Sharh Sahih Muslim, 9/186).

An old disagreement occurred between the Companions of the Prophet (peace and blessings of Allah be upon him) and the Successors over the ruling of the mut'a marriage; then the word of the jurists of the four schools agreed on forbidding it, and some of them reported consensus on forbidding it; the proofs of its prohibition have been given above. Imam Ibn Battal (may Allah have mercy on him), reporting al-Tahawi, said: the jurists of the lands, both those of opinion and those of tradition, agreed on the prohibition of the mut'a marriage; only Zufar diverged from the jurists, saying: if he marries her for ten days, or the like, or a month, the marriage stands and the condition is void. There is no disagreement that mut'a is a marriage for a term, without inheritance, in which separation occurs at the end of the term without divorce; and this is not the status of marriage according to anyone in this umma (Sharh Sahih al-Bukhari, 7/225).

Ibn Abd al-Barr (may Allah have mercy on him) said: as for the Companions, they differed over the mut'a marriage. Ibn Abbas held that it is permitted and made it lawful: this from him is not disputed, and most of his companions followed him, among them Ata' ibn Abi Rabah, Sa'id ibn Jubayr and Tawus; its lawfulness was also reported from Abu Sa'id al-Khudri and Jabir ibn Abdallah. Abd al-Razzaq reports from Ibn Jurayj, from Ata', who said: I was informed, on the authority of Abu Sa'id al-Khudri, that he said: "One of us would contract mut'a for a handful of food." And I was informed, on the authority of al-Zubayr: I heard Jabir ibn Abdallah say: "We used to practice mut'a for a handful of dates and flour, for a few days, in the time of the Messenger of Allah (peace and blessings of Allah be upon him) and Abu Bakr, until Umar forbade the people from it in the affair of Amr ibn Hurayth."

Then he said: there has been reported from the Prophet (peace and blessings of Allah be upon him), concerning the prohibition of the mut'a marriage, what we have mentioned, which leaves no excuse; there is no creature of Allah whose word is taken and whose word is disregarded, except the Messenger of Allah (peace and blessings of Allah be upon him). Then he said: they agreed that mut'a is a marriage without witnesses or guardian, a marriage for a term in which separation occurs without divorce or inheritance, and this is not the status of wives in the Book of Allah nor in the sunna of His Messenger (peace and blessings of Allah be upon him). Ibn Abd al-Barr then said, after mentioning the reports from Ibn Abbas (may Allah be pleased with them both) indicating his withdrawal from permitting mut'a: all these reports, coming from Ibn Abbas, are suspended, their chains not allowing them to be used as proof; but the scholars hold to them. The reports that the Meccans transmitted from Ibn Abbas have sound chains, and Ibn Abbas's companions hold to them. As for the rest of the scholars, Companions and Successors, and those who came after them among the scholars and jurists of the Muslims, all are on the prohibition of mut'a: Malik among the people of Madina, al-Thawri and Abu Hanifa among the people of Kufa, al-Shafi'i and those who followed his path among the people of hadith, fiqh and reasoning, unanimously; al-Awza'i among the people of Syria; al-Layth ibn Sa'd among the people of Egypt; and the rest of the people of tradition (al-Tamhid, 10/114-116, 10/121).

Abu Umar said in al-Istidhkar: the imams of the scholars of the lands, of opinion and of tradition, agree, among them Malik and his companions among the people of Madina, Sufyan and Abu Hanifa among the people of Kufa, al-Shafi'i and those who followed his path among the people of hadith, fiqh and reasoning, al-Layth ibn Sa'd among the people of Egypt and the Maghrib, al-Awza'i among the people of Syria, as well as Ahmad, Ishaq, Abu Thawr, Abu Ubayd, Dawud and al-Tabari, on the prohibition of the mut'a marriage, because of the authenticity of the Messenger of Allah's prohibition (peace and blessings of Allah be upon him) concerning it. They differed over the man who marries a woman for ten days, or a month, or known days, until a known term. Malik, al-Thawri, Abu Hanifa, al-Shafi'i and al-Awza'i say: this is the mut'a marriage, and it is void, dissolved before consummation and after. Zufar said: if he marries her for ten days or the like, or a month, the marriage stands and the condition is void (al-Istidhkar, 5/508; Ahkam al-Qur'an by Ibn al-Arabi, 3/315; Tafsir al-Qurtubi, 12/106).

Imam al-Tirmidhi (may Allah have mercy on him) said, after mentioning the hadith of Ali ibn Abi Talib on the prohibition of mut'a: this is what is in force and practiced among the scholars, the Companions of the Prophet (peace and blessings of Allah be upon him) and others; nothing is reported from Ibn Abbas except some of the concession regarding mut'a, and he retracted his view when informed of the Prophet's statement; and the view of most scholars is the prohibition of mut'a: such is the view of al-Thawri, Ibn al-Mubarak, al-Shafi'i, Ahmad and Ishaq (Sunan al-Tirmidhi, 3/429).

Imam al-Nawawi (may Allah have mercy on him) said: Qadi Iyad said: the scholars agreed that this mut'a was a marriage for a term, without inheritance, whose separation occurs at the end of the term without divorce; then consensus took place, from all the scholars, on its prohibition, except the Rawafid; and Ibn Abbas (may Allah be pleased with him) used to say it was permitted, and it is reported from him that he retracted. He said: they agreed that if a mut'a marriage occurs today, it is ruled void, before consummation or after, except what precedes from Zufar. Malik's companions differed over whether the one who penetrates it is liable to the hadd; and our madhhab is that there is no hadd, because of the doubt in the contract and the doubt in the disagreement. The origin of that disagreement is the disagreement of the legal theorists: does consensus after disagreement remove the disagreement and make the question unanimous? The sounder position among our companions is that it does not remove it: the disagreement persists, and the question never becomes unanimous after that; Qadi Abu Bakr al-Baqillani said the same (Sharh Sahih Muslim, 9/181-182).

Imam al-Khattabi (may Allah have mercy on him) said: the prohibition of the mut'a marriage is like a consensus among the Muslims; it was lawful in early Islam, then he forbade it at the Farewell Pilgrimage, in the last days of the Messenger of Allah (peace and blessings of Allah be upon him); so no disagreement remains today among the imams, except for what some Rawafid say. Ibn Abbas interpreted its permission for the compelled on account of long absence, poverty and travel; then he stopped and withheld from giving fatwa on it. Ibn al-Sammak reported to us, from al-Hasan ibn Salam al-Sawwaq, from al-Fadl ibn Dukayn, from Abd al-Salam, from al-Hajjaj, from Abu Khalid, from al-Minhaj, from Sa'id ibn Jubayr: I said to Ibn Abbas: do you know what you have done and with what you have given fatwas? The caravans have traveled with your fatwa and the poets have sung of it. He said: and what did they say? I said: they said:

"I said to the old man, when his confinement grew long: O friend, would you like the fatwa of Ibn Abbas? Would you like the license of the limbs with a charming companion, to be your resting place until the people depart?"

Ibn Abbas then said: "To Allah we belong and to Him we return; by Allah, I did not give fatwa with this, nor did I intend this. I made lawful only what Allah made lawful, like carrion, blood and the flesh of the pig, and it is lawful only for the compelled; it is like carrion, blood and the flesh of the pig." The shaykh (al-Nawawi) said: this shows that he followed in this only the path of analogy, likening it to the one compelled to eat; but this is an incorrect analogy, for the necessity is not verified here as it is verified in the case of food, by which the soul subsists and without which it perishes; this rather belongs to the domination of desire, whose repression is possible and whose ardor can be cooled by fasting and treatment; the two cases do not therefore share the same ruling of necessity (Ma'alim al-Sunan, 3/190-191).

Imam Ibn al-Mundhir (may Allah have mercy on him) said: it is established that the Messenger of Allah (peace and blessings of Allah be upon him) forbade the mut'a marriage; and his saying "know that Allah has forbidden it until the Day of Resurrection" shows that no dissolution can befall it. Reports have reached us from the early generations about its permission, but they have no meaning and serve no purpose against the sunna of the Messenger of Allah. Among those who forbade it: the Commander of the Believers Umar ibn al-Khattab. Al-Qasim ibn Muhammad said: its prohibition is in the Qur'an:

"And those who guard their chastity, except from their wives or those their right hands possess: for then they are not to be blamed."

Surah al-Mu'minun, 5-6

It is reported from Ibn Mas'ud that he said: the verse of divorce abrogated it, as well as the waiting period and inheritance; it is also reported from Ali. Ibn Umar said: "I know nothing of it but the sifah, the slaying by the sword." Al-Zubayr said: "Mut'a is manifest fornication; I know no one who practices it whom I would not stone." Al-Hasan al-Basri said: "Mut'a was only for three days, until Allah the Most High and His Messenger forbade it." Among those who declared the mut'a marriage void: Malik, al-Thawri, al-Shafi'i, Ishaq, Abu Thawr and the people of opinion; and I know of no one today who permits the mut'a marriage except some Rawafid; and a statement contradicting the Book and the sunna has no meaning (al-Ishraf 'ala madhahib al-'ulama, 5/72-73).

Imam Ibn Qudama (may Allah have mercy on him) said: "The mut'a marriage is not permitted." The meaning of the mut'a marriage is to marry a woman for a duration, as in: "I have married my daughter to you for a month, or a year, or until the end of the season, or the arrival of the pilgrims," and the like, whether the duration is known or unknown: this is a void marriage. Ahmad stated it explicitly, saying: the mut'a marriage is unlawful. Abu Bakr said: another narration about it makes it reprobate rather than unlawful; for Ibn Mansur asked Ahmad about it, and he replied: "Avoiding it is dearer to me." The apparent meaning of this statement is reprobation, not prohibition. Abu Bakr's other companions among us deny this and say: there is only one narration on the question, which is its prohibition; and this is the view of most of the Companions and the jurists. Those from whom its prohibition is reported: Umar, Ali, Ibn Umar, Ibn Mas'ud and al-Zubayr. Ibn Abd al-Barr said: on the prohibition of mut'a are Malik among the people of Madina, Abu Hanifa among the people of Kufa, al-Awza'i among the people of Syria, al-Layth among the people of Egypt, al-Shafi'i and the rest of the people of tradition; Zufar said: the marriage is valid and the condition is void. It is reported from Ibn Abbas that it is permitted, and this is the view of most of his companions, Ata' and Tawus, as well as Ibn Jurayj; it is also reported from Abu Sa'id al-Khudri and Jabir; and the Shi'a hold to it, since it is established that the Prophet (peace and blessings of Allah be upon him) permitted it. It is reported that Umar said: "Two mut'as existed in the time of the Messenger of Allah; I forbid them and punish those who do them: the mut'a of women and the mut'a of the pilgrimage." Their proof is that it is a contract on a benefit, valid temporarily like a lease contract. Our proof is what al-Rabi' ibn Sabra reports: I bear witness that my father reported that "the Prophet (peace and blessings of Allah be upon him) forbade it at the Farewell Pilgrimage"; and in one wording: "the Messenger of Allah forbade the mut'a of women," reported by Abu Dawud; and in a wording reported by Ibn Majah: "the Messenger of Allah forbade mut'a and said: O people, I had permitted you the enjoyment; know that Allah has forbidden it until the Day of Resurrection" (Ibn Majah, 1962; and Muslim, 1406).

It is reported from Ali ibn Abi Talib (may Allah be pleased with him): "the Messenger of Allah forbade, on the day of Khaybar, the mut'a of women and the flesh of domestic donkeys," reported by Malik in al-Muwatta, and by Imam al-Nasa'i and others. The scholars differed over reconciling these two reports. Some say: in the hadith of Ali there is anticipation and postponement, meaning that the Prophet (peace and blessings of Allah be upon him) forbade the flesh of domestic donkeys on the day of Khaybar, and forbade the mut'a of women without mentioning its date; and al-Rabi' ibn Sabra specified it in his hadith: it occurred at the Farewell Pilgrimage. Imam Ahmad reported this from some of the scholars, and Ibn Abd al-Barr mentioned it. Al-Shafi'i said: "I know of nothing that Allah permitted then forbade then permitted then forbade, except mut'a"; the matter was thus carried on its apparent: the Prophet (peace and blessings of Allah be upon him) forbade it on the day of Khaybar, then permitted it at the Farewell Pilgrimage for three days, then forbade it; and because none of the rulings of marriage attach to it, divorce, zihar, li'an and inheritance, it is void like the other void marriages. As for Ibn Abbas's view, his retraction is reported. Abu Bakr reports, by his chain, from Sa'id ibn Jubayr: I said to Ibn Abbas: talk about mut'a has multiplied, until the poet said: "I said, as the journey grew long together: O friend, would you like the fatwa of the young Ibn Abbas? Would you like the license of the limbs with a charming companion, to be your resting place until the people return?" He then stood, delivered a speech, and said: "Mut'a is like carrion, blood and the flesh of the pig." As for the permission of the Messenger of Allah (peace and blessings of Allah be upon him), its abrogation is established. As for Umar's hadith, if it is authentic from him, its apparent meaning is that he intended only to inform of the Prophet's prohibition (peace and blessings of Allah be upon him) and his forbiddance, for one cannot forbid what the Prophet permitted so long as it remains permitted (al-Mughni, 7/136-137).

Marriage indeed carries rulings which do not subsist in a corrupt marriage, namely divorce, zihar, the waiting period and inheritance; these rulings being absent from mut'a, this indicates its corruption like the other corrupt marriages (al-Hawi al-Kabir, 9/331).

Imam Abu Bakr al-Jassas (may Allah have mercy on him) said: among what indicates the prohibition of mut'a by reasoning: we know that the marriage contract, although it concerns making lawful the benefits of the private part, is, with respect to acquiring those benefits through the contract, like the contracts over owned goods, and differs from the lease contracts over the benefits of goods. Consider that the marriage contract is valid absolutely, without a stated condition of duration, whereas lease contracts are valid only for known durations or upon known work. The contract over the benefits of the private part therefore resembles the contracts of sale and what follows their pattern when contracted over goods, and cannot be contracted for a duration, just as the transfer of ownership of owned goods cannot be for a duration; once a duration is conditioned in it, it is no longer a marriage, and the making lawful of the private part is not valid through it, just as sale is not valid if the duration of ownership is conditioned in it, and likewise gifts and bequests: through these contracts one owns nothing for a duration. Likewise, the benefits of the private part, having the status of owned goods, admit no time-limiting. And among what the proponents of mut'a's permissibility claim is the agreement of all that it was lawful at some point in time, before we differed over its prohibition; we therefore hold to what was agreed upon and do not abandon it through disagreement. It is said to them: the reports by which permissibility is established, by them the prohibition is established as well; for every report in which the permissibility of mut'a is mentioned also contains its prohibition, so that from the very place where permissibility is established the prohibition must be established; and if the prohibition is not established, permissibility is not established either. And the claim of the one who says: "when we agreed and then differed, we do not descend from consensus through disagreement," is a corrupt statement: the place of the disagreement is not the place of consensus; it is therefore not a consensus, and a proof is needed to establish his claim. Moreover, the fact that a thing is lawful at a time does not entail that its lawfulness persists in what can be abrogated; and we have established the prohibition after the permission from the apparent meaning of the Book, the sunna and the consensus of the early generations. Abu Bakr said: we have mentioned regarding mut'a and its ruling of prohibition what suffices whoever counsels his own soul; there is no disagreement about it in the first generation, and for all that the jurists of the lands agreed on its prohibition, without differing over it. They differed over the one who marries a woman for known days. Abu Hanifa, Abu Yusuf, Muhammad, Malik ibn Anas, al-Thawri, al-Awza'i and al-Shafi'i say: if he marries a woman for ten days, it is void and there is no marriage between them. Zufar said: the marriage is lawful and the condition is void. Al-Awza'i said: if he marries a woman intending to divorce her, with no condition, there is no good in this: it is a mut'a. Abu Bakr said: there is no disagreement between them and Zufar that the marriage contract is not valid with the wording of mut'a, and that if he says "I enjoy you for ten days," that is not a marriage; the disagreement occurs only if he contracts it with the wording of marriage, saying "I marry you for ten days": Zufar made it a valid marriage and voided the condition in it, because corrupt conditions do not corrupt the marriage, as if he said "I marry you on condition that I divorce you after ten days": the marriage would be lawful and the condition void. The disagreement between them and Zufar thus concerns whether this is a marriage or a mut'a: the majority say it is a mut'a and not a marriage (Ahkam al-Qur'an, 3/102-104).

Imam al-Tahawi (may Allah have mercy on him) said: the proof against Zufar is the hadith of al-Rabi' ibn Sabra, from his father: the Messenger (peace and blessings of Allah be upon him), after forbidding mut'a, said to them: "Whoever has any of these women, let him separate from them; Allah has indeed forbidden mut'a until the Day of Resurrection." This shows that the prior contract does not entail the permanence of the contract forever; had it done so, it would have sufficed to void the condition on which they had agreed, whereas a marriage established as valid and lawful before the prohibition is not dissolved by the prohibition. His ordering them to separate is therefore proof that such a contract does not entail ownership of the private part; and this is the view of Abu Hanifa, Abu Yusuf and Muhammad (may Allah have mercy on them) (Sharh Ma'ani al-Athar, 3/26; Sharh Sahih al-Bukhari, 7/227).

Imam al-Kasani (may Allah have mercy on him) said: the time-limited marriage, which is the mut'a marriage, is not permitted; it has two forms: the first by the wording of enjoyment; the second by the wording of marriage and contracting, and what takes their place. As for the first: "I give you such and such on condition that I enjoy you for a day, a month, or a year," and the like: it is void according to most scholars. Some people deemed it lawful, relying on the apparent meaning of Allah the Most High's statement:

"So for the enjoyment you have had from them, give them their prescribed compensation."

Surah al-Nisa, 24

This argument has three aspects. The first: it mentioned the enjoyment without mentioning marriage, and enjoyment and mut'a are one and the same. The second: the Most High commanded giving the compensation, and the reality of hire and mut'a is the contract of lease over the benefit of the private part. The third: the Most High commanded giving the compensation after the enjoyment, which occurs in the lease contract and mut'a, whereas the mahr becomes due in marriage through the contract itself, the husband taking the mahr first and then becoming able to enjoy; the verse would thus indicate the lawfulness of the mut'a contract. Our proof is the Book, the sunna, consensus and reason. As for the noble Book: His statement:

"And those who guard their chastity, except from their wives or those their right hands possess."

Surah al-Mu'minun, 5-6

The Most High forbade intercourse except through one of two means, and mut'a is neither a marriage nor possession by right hand: the prohibition therefore remains. The proof that it is not a marriage is that it ends without divorce or separation, and that there is no inheritance between the two: this indicates that it is not a marriage, and she is thus not his wife. His statement, at the end of the verse: "Whoever seeks beyond that, then those are the transgressors" (Surah al-Ma'arij, 31): the one who seeks beyond these two means is named a transgressor, which indicates the unlawfulness of intercourse without one of these two means. And His statement: "And do not compel your girls to prostitution" (Surah al-Nur, 33), which some of them practiced as the hire of slave girls: Allah the Most High forbade it and named it prostitution, which indicates the unlawfulness. As for the sunna: what is reported from Ali (may Allah be pleased with him): "the Messenger of Allah forbade, on the day of Khaybar, the mut'a of women and the flesh of domestic donkeys"; from Sabra al-Juhani (may Allah be pleased with him): "the Messenger of Allah forbade, on the day of the Conquest of Mecca, the mut'a of women"; and from Abdullah ibn Umar: "the Messenger of Allah forbade, on the day of Khaybar, the mut'a of women and the flesh of domestic donkeys"; and it is reported that "the Messenger of Allah (peace and blessings of Allah be upon him) stood between the Rukn and the Maqam and said: I had permitted you mut'a; whoever has anything, let him separate from it; and take back nothing of what you gave them; Allah has indeed forbidden it until the Day of Resurrection." As for consensus: the entire umma abstained from practicing mut'a despite the appearance of need. As for reason: marriage was not legislated for the mere satisfaction of desire, but for purposes and aims reached through it; the satisfaction of desire through mut'a is not a means to those aims: it is therefore not legislated. As for the noble verse, the meaning of His statement "for the enjoyment you have had from them" is: within marriage; for what is mentioned at the beginning and the end of the verse is marriage: Allah the Most High mentions categories of forbidden women in marriage, then permits what is beyond them through marriage, saying: "It is lawful for you to seek beyond that with your wealth" (Surah al-Nisa, 24), that is, through marriage; and His statement "as wedded ones, not as fornicators" means: as spouses, not as fornicators; and in the context of the noble verse: "And whoever among you cannot afford to marry free believing women" (Surah al-Nisa, 25), He mentions marriage, not hire and mut'a; the statement "for the enjoyment you have had from them" is thus redirected to enjoyment within marriage. As for His saying "He named the obligation a compensation": it is true that the mahr in marriage is called a compensation, as Allah the Most High says: "marry them with the permission of their families and give them their compensation" (Surah al-Nisa, 25), that is, their mahrs; and He says: "O Prophet, We have made lawful for you your wives to whom you have given their compensation" (Surah al-Ahzab, 50). And as for His saying "the Most High commanded giving the compensation after the enjoyment," whereas the mahr becomes due through the marriage itself and is taken before the enjoyment: we answer that in the noble verse there is anticipation and postponement, as if the Most High said: "give them their prescribed compensation," meaning when you wish to enjoy them, like His statement: "O Prophet, when you divorce women, divorce them at their waiting period" (Surah al-Talaq, 1), meaning when you intend to divorce them. And even if the verse referred to hire and mut'a, it would be abrogated by the verses we have cited and the hadiths we have reported. And from Ibn Abbas (may Allah be pleased with them both): His statement "for the enjoyment you have had from them" was abrogated by His statement: "O Prophet, when you divorce women" (Surah al-Talaq, 1). And from Ibn Mas'ud (may Allah be pleased with him): the mut'a of women is abrogated, abrogated by the verse of divorce, the mahr, the waiting period, the inheritances and the rights that marriage gives rise to; that is, it is marriage through which these things are established, and none of them is established through mut'a. As for the second form, "I marry you for ten days" and the like, it is corrupt according to the three companions of Abu Hanifa; Zufar said: the marriage is lawful, it is permanent, and the condition is void (Bada'i al-Sana'i, 2/272-274; al-Ikhtiyar, 3/111-112; al-Jawhara al-Nayyira, 4/337).

The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: as for the mut'a marriage, the four imams and the others agreed on its prohibition, although a group permits it, either absolutely or for the compelled, as occurred in early Islam. The correct view is that this is abrogated, as established in the Sahih that the Prophet, after permitting mut'a in the year of the Conquest, said: "Allah has forbidden mut'a until the Day of Resurrection." The Qur'an indeed forbade a man intercourse except with a wife or a slave woman, by His statement:

"And those who guard their private parts, except from their wives or those their right hands possess, for then they are not to be blamed; but whoever seeks beyond that, then those are the transgressors."

Surah al-Ma'arij, 29-31

The woman with whom one enjoys is neither among the wives nor a possession by right hand: Allah established for the wives rulings of inheritance, of a waiting period of four months and ten days after death, and of three courses for divorce, rulings that do not subsist for the woman with whom one enjoys; were she a wife, these rulings would subsist for her. That is why some of the early generations said: it is these rulings that abrogated mut'a (Majmu' al-Fatawa, 32/107-108).

Is the mut'a marriage subject to the hadd punishment?

The majority of jurists, the Hanafis (Bada'i al-Sana'i, 7/36; al-Natfi fi al-Fatawa, 1/267), the Malikis in the madhhab (Tafsir al-Qurtubi, 12/106; Mawahib al-Jalil, 5/84; Sharh Mukhtasar Khalil, 3/196; al-Sharh al-Kabir with al-Dasuqi's gloss, 3/42; Tahrir al-Mukhtasar, 2/582; Hashiyat al-Sawi, 4/497), the Shafi'is (Sharh Sahih Muslim, 9/181-182) and the Hanbalis, state that whoever contracts a mut'a marriage is not subject to the hadd, but undergoes disciplinary punishment and correction.

Imam Ibn Qudama (may Allah have mercy on him) said: the hadd does not become due for intercourse in a disputed marriage, such as the mut'a marriage, shighar, the muhallil marriage, a marriage without guardian or witnesses, the marriage of a sister during the bayin waiting period of her sister, the marriage of a fifth wife during the bayin waiting period of the fourth, and the marriage of a Magian woman; and this is the view of most of the scholars, because the disagreement over the lawfulness of intercourse involves a doubt, and the legal punishments are averted by doubts. Ibn al-Mundhir said: all the scholars whose statements we preserve agree that the legal punishments are averted by doubt (al-Mughni, 9/55; 'Umdat al-Fiqh, 1/146; al-Rawd al-Murba', 2/555; Matalib Uli al-Nuha, 6/184).

Some Malikis hold that the hadd is due: if he is a virgin he is flogged, and if he is married he is stoned. Al-Nawawi (may Allah have mercy on him) said: Malik's companions differed over whether the one who penetrates it is liable to the hadd; and our madhhab is that there is no hadd, because of the doubt in the contract and the doubt in the disagreement (Sharh Sahih Muslim, 9/181-182). Al-Mawardi (may Allah have mercy on him) said: the prohibition of mut'a being established, there is no hadd because of the doubt; they are subjected to disciplinary punishment by way of correction, if they knew of the prohibition. She has the mahr of similitude upon consummation, not the named amount, as well as the waiting period; and if she gives birth to a child, it is attributed to the one who consummated, for she became a bed through a doubtful consummation; they are separated without divorce, since there is no binding marriage between them; and this consummation establishes the prohibition of affinity (al-Hawi al-Kabir, 9/332).

Al-Dardir (may Allah have mercy on him) said: the marriage is dissolved absolutely, before consummation and after, like a marriage for a term, whether the term is specified or not, and this is what is called the mut'a marriage; it is dissolved without divorce; it is said: with it (the divorce); and the two spouses undergo punishment in it according to the madhhab; it is said: they are subject to the hadd. Al-Dasuqi (may Allah have mercy on him) said: his statement "the two spouses undergo punishment in it according to the madhhab" means that the child is attributed to the husband, and that the ruler's punishment does not reach the amount of the hadd; and his statement "it is said: they are subject to the hadd" refers to a weak view (al-Sharh al-Kabir with al-Dasuqi's gloss, 3/42; see also Tafsir al-Qurtubi, 12/106; Mawahib al-Jalil, 5/84; Sharh Mukhtasar Khalil, 3/196; Tahrir al-Mukhtasar, 2/582; Hashiyat al-Sawi, 4/497).

Marriage with a condition of divorce (third category)

The jurists differed over the case where the marriage is contracted with a condition of divorce: is it valid or not? The Hanafis hold that if he conditions divorcing her after a month, for example, the marriage is valid and the condition is void; for divorce is what terminates the marriage, and conditioning the termination after a month, so that the marriage ceases by it, is proof that they contracted permanently. The difference between the time-limited marriage (such as marrying a woman before the testimony of two witnesses for ten days, which is void) and the marriage with a condition of divorce (which is valid) is apparent: divorce terminates the marriage, and conditioning the termination after a month proves the existence of the contract permanently; that is why, once the month has elapsed, the marriage is not annulled: the marriage is valid and the condition void. As for the time-limited marriage, if the time-limiting were valid, there would be no contract between them after the duration has elapsed, as in a hire (al-Mabsut, 5/153; Bada'i al-Sana'i, 2/287; Sharh Fath al-Qadir, 3/249; Tabyin al-Haqa'iq, 2/115; al-'Inaya, 4/394-395; al-Bahr al-Ra'iq, 3/116; Durrar al-Hukam, 4/76; Majma' al-Anhar, 1/488).

The Malikis and the Hanbalis hold that this marriage is void. Imam Ibn Qudama (may Allah have mercy on him) said: an issue: "If he marries her on condition that he divorce her at a specific time, the marriage is not concluded"; meaning: if he marries her on condition of divorcing her at a specified time, the marriage is not valid, whether the time is known or unknown, as if it were conditioned upon him to divorce her if her father or her brother arrived (al-Mughni, 7/137; see also al-Sharh al-Kabir with al-Dasuqi's gloss, 3/42). Abu Hanifa said: the marriage is valid and the condition is void; and this is al-Shafi'i's most apparent view, which he states in most of his books, for the marriage occurred absolutely, and he only conditioned upon himself a condition, which has no effect on it, as if he conditioned not to marry over her nor to travel with her. Our proof is that this is a condition preventing the duration of the marriage, resembling the mut'a marriage; and it differs from that on which they made their analogy, for he did not condition the cutting off of the marriage (al-Mughni, 7/137).

As for the Shafi'is, Imam al-Mawardi (may Allah have mercy on him) said: if he marries her on condition of divorcing her after a month: if the condition comes from the husband's side, the contract is valid, for he may divorce her without a condition; if it comes from the wife's side, the contract is void, for he has prevented the duration of the contract. If he marries her on condition of releasing her by khul' after a month: if the condition comes from her side, the contract is void; if it comes from his side, its invalidity has two views. The first is that the contract is void, for he has obliged her, through khul', to pay what is not her obligation. The second is that the contract is valid, for it is a condition that did not prevent the purpose of the contract, so it reverts to the mahr: the named mahr is void, and the mahr of similitude is due to her (al-Hawi al-Kabir, 9/508; see also Bahr al-Madhhab by al-Ruyani, 9/489).

Marriage with an intention of divorce (fourth category)

The jurists of the four schools agree that whoever marries a woman intending to divorce her after a period, his marriage is valid and is not a mut'a marriage, except for one Hanbali view explained below. Imam Ibn Abd al-Barr (may Allah have mercy on him) said: all of them said, except al-Awza'i: if he marries her by a valid marriage, without a condition, but intending not to keep her except for a month or a known period, there is no harm in that, and his intention does not harm him if that is not among the conditions of his marriage. Malik said: "The man, when marrying, must not intend to keep his wife confined; her confinement is if she agrees, otherwise let him divorce her." Al-Awza'i said: if he marries her without a condition but intending not to keep her except for a month or the like, and then divorces her, this is a mut'a and there is no good in it (al-Tamhid, 10/122-123).

Al-Nawawi (may Allah have mercy on him) said: Qadi Iyad said: they agreed that whoever marries by an absolute marriage, intending not to remain with her except for a period he has set, his marriage is valid and lawful and is not a mut'a marriage; the mut'a marriage is only that which occurs with the condition mentioned. Malik, however, said: "this is not among the morals of the people." Al-Awza'i diverged, saying it is a mut'a marriage and there is no good in it (Sharh Sahih Muslim, 9/182). Ibn Nujaym the Hanafi (may Allah have mercy on him) said: if he marries her intending to remain with her for a period he has set, the marriage is valid, for time-limiting occurs only through wording (al-Bahr al-Ra'iq, 3/116). Imam Badr al-Din al-'Ayni (may Allah have mercy on him) said, citing Zayn al-Din in the commentary on al-Tirmidhi: the forbidden mut'a marriage is that which occurs with time-limiting; as for the husband's determining in his own mind that he will remain with her only a year or a month or the like, without conditioning that, it is a valid marriage according to most of the scholars, except al-Awza'i, who said in this case: it is a mut'a and there is no good in it (al-Bunaya, Sharh al-Hidaya, 5/62).

The Malikis say: the reality of the mut'a marriage that is dissolved absolutely is that the contract take place with the term mentioned before the woman or her guardian. As for the case where that does not occur in the contract and the husband does not inform her, but intends it within himself, resolving to marry her, for example, as long as he remains in that town, or for a duration like a year, and then leave her after that period: this does no harm, by agreement, and it is not a mut'a marriage. And even if the woman or her guardian perceived that from his state, it does no harm either, according to the preferred view in the madhhab; it is a benefit that serves the expatriate. It is said: if she perceives from him the intention he holds within himself, the marriage is not valid and it is corrupt; the correct view is the first. Al-Mawwaq (may Allah have mercy on him) said: Ibn al-Qasim heard: there is no harm in marrying a woman with the intention of satisfying one's need and then divorcing her; "it is not among the morals of the people"; Ibn Rushd: this if he does not make it a condition (al-Sharh al-Kabir with al-Dasuqi's gloss, 3/42; Hashiyat al-Sawi, 4/497; al-Taj wa-l-Iklil, 2/514; Mawahib al-Jalil, 5/85).

Imam al-Shafi'i (may Allah be pleased with him) said: the basis of my position is that every contract which is valid in appearance, I do not void it on the basis of suspicion, nor of hostility between the two contracting parties, but I validate it by the validity of its appearance; and I disapprove between them the intention which, were it revealed, would corrupt the sale. Just as I disapprove of a man buying a sword in order to kill with it, without it being forbidden for the seller to sell it to someone he sees would kill unjustly, for he may not kill; and I do not void this sale. Just as I disapprove of a man selling grapes to someone he sees would press wine from them, without voiding the sale if he sells them to him, for he sold them lawfully, and it may be that he will never make wine of them, just as the bearer of the sword may never kill anyone; and just as the mut'a marriage is corrupted. If a man marries a woman by a valid contract, intending not to keep her except for a day, or less, or more, I do not void the marriage: it is voided only by a corrupt contract. And if a man arrives in a land and desires to marry a woman, and his intention, or his and her intention, is not to keep her except for the duration of his stay in the land, or a day or two or three, whether it is his intention without hers, hers without his, both of them, or the guardian's intention: if they contract the marriage absolutely, without a condition, the marriage stands and the intention corrupts nothing of the marriage, for the intention is inner speech, and people are absolved of what they tell themselves; one may intend a thing and not do it, and intend it and do it, the act then being an event distinct from the intention. Likewise if he marries her, he or she, or one of them without the other, intending not to keep her except as long as is needed for him to make her lawful for her husband who divorced her three times, the marriage stands, whether the guardian intends that along with them, or someone else intends it, or neither of them intends it; and the guardian here has no power to corrupt anything so long as the marriage has not taken place with a condition that corrupts it.

Al-Shafi'i said: if there was between them a negotiation in which he promised her, if she married him, not to keep her except for days, or for his stay in the land, or as long as needed to make her lawful, whether by oath or without oath, it is the same, and I disapprove of this negotiation. I examine the contract: if it is absolute, without condition, it stands, for each of them obtained from the other the rights of spouses; if it is contracted upon that condition, it is corrupt and becomes like the mut'a marriage. Any valid marriage in which consummation occurs protects (ihsan) the man and the woman if she is free, makes the woman lawful for the husband who divorced her three times, and makes the full mahr due; and the minimum of consummation for these rulings to apply is for the glans to disappear within the vulva itself. Any corrupt marriage does not protect the man or the woman, nor make her lawful for her husband; if he consummates with her, she has the mahr for what he made lawful of her private part.

Al-Shafi'i said: if someone objects: is there, in what I have mentioned, namely that a man marries intending the making lawful, with negotiation or without it, and that so long as the marriage is not contracted upon a condition, the marriage stands, a report from one of the Companions of the Messenger of Allah, or from below them? It is said: what we have mentioned, the prohibition of mut'a and the fact that mut'a is marriage for a term, suffices; and we have been informed, through Muslim ibn Khalid, from Ibn Jurayj, from Sayf ibn Sulayman, from Mujahid, who said: "A man of Quraysh irrevocably divorced his wife. He passed by an old man and his son, bedouins who had arrived in the market with their merchandise. He said to the young man: is there any good in you? Then he went on, returned, repeated it, and said the like of it again; again, then he went on, returned again and repeated the like of it. He said: yes. He said: show me your hand. He took him, told him the story, and ordered him to marry her. He married her and spent the night with her; in the morning he asked permission to leave, and it was granted; and behold, he had left and divorced her. She said: by Allah, if you divorce me, I will never marry you again. He mentioned this to Umar, who summoned him and said: had you married her, she would have done such and such to you; he threatened him, summoned her first husband and said to him: hold on to her." It is also reported, from Sa'id, from Ibn Jurayj, from Mujahid, from Umar, the like of it. Sa'd ibn Salim reported from Ibn Jurayj: I was informed, on the authority of Ibn Sirin, that a woman was divorced three times by her husband, who was a poor bedouin who sat at the door of the mosque. A woman came to him and said: would you like a woman whom you marry, with whom you spend the night and whom you leave in the morning? He said: yes, and it took place. His wife said to him: in the morning they will say to you: leave her, do not do it; I remain with you as you see; go to Umar. In the morning they went to him; she said: speak to him, you are the ones who brought him. They spoke to him, he refused, and went to Umar, who said: hold on to your wife; if they suspect you, come to me. He sent for the woman who had instigated this and disciplined her. Then the man went out in the morning and evening, dressed in a garment, saying: "Praise be to Allah who clothed you, O you of the two patches, in a garment for morning and evening." Al-Shafi'i said: I heard this hadith connected through an unbroken chain from Ibn Sirin, who connected it to Umar with this same meaning (al-Umm, 3/74 and 5/80-81).

Imam Ibn Qudama (may Allah have mercy on him) said: if he marries her without a condition, but intending in himself to divorce her after a month, or when his need ends in this land, the marriage is valid according to the view of most of the scholars, except al-Awza'i, who said it is a mut'a marriage. The correct view is that there is no harm in it and his intention does not harm him; and it is not fitting for a man to intend to keep his wife confined: her confinement is if she agrees, otherwise let him divorce her (al-Mughni, 7/137). The Hanbalis, however, say: the stranger who marries a woman intending to divorce her when he departs to return to his homeland: the marriage is void, for it resembles mut'a; likewise if he forms in his heart the intention of divorcing her after such a time (al-Rawd al-Murba', 2/304; Manar al-Sabil, 2/597; Matalib Uli al-Nuha, 5/127).

The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was asked about a restless man who travels through the lands, a month or two in each city, practices withdrawal (coitus interruptus) and fears falling into sin: may he marry during his stay in that town and divorce her when he travels, giving her her right? And is the marriage valid or not? He answered: he may marry, but let him marry by an absolute marriage without conditioning a time-limit, so that if he wishes he keeps her, and if he wishes he divorces her. If he firmly resolves to divorce her at the end of his journey, that is disapproved, and the validity of the marriage is disputed in that case. If he thinks: if I travel and she pleases me, I keep her, otherwise I divorce her, that is permitted. As for conditioning the time-limit, this is the mut'a marriage, on the prohibition of which the four imams and others agreed, although a group permits it, either absolutely or for the compelled, as occurred in early Islam; the correct view is that this is abrogated, as established in the Sahih that the Prophet, after permitting mut'a in the year of the Conquest, said: "Allah has forbidden mut'a until the Day of Resurrection"; and the Qur'an forbade a man intercourse except with a wife or a slave woman, through the verse cited above (Surah al-Ma'arij, 29-31), the woman with whom one enjoys being neither among the wives nor a possession by right hand, the wives' rulings (inheritance, the waiting period of four months and ten days after death, three courses for divorce) not subsisting for her; that is why some of the early generations said that these rulings abrogated mut'a, and the elaboration of this is long and out of place here. If the term is conditioned before the contract, it is a simultaneous condition according to the sounder of the scholars' two views; likewise in the muhallil marriage. As for the case where the husband forms the intention of the term without revealing it to the woman, it is a disputed matter: Abu Hanifa and al-Shafi'i permit it, while Malik and Ahmad and others disapprove of it; just as if he formed the intention of making lawful, this belongs to what the Companions agreed to forbid, classing it among the muhallil marriage. But the muhallil marriage is more evil than the mut'a marriage: the muhallil marriage was never lawful, for the muhallil's purpose is not to marry, but to return the woman to her first divorcer; he establishes the contract in order to remove it, and this can never be legislated; unlike the one who enjoys, who has a purpose in the enjoyment. But the postponement nonetheless undermines the purpose of marriage, affection, mercy and tranquility, and places the wife in the position of a hiree; that is why the intention in the mut'a marriage is lighter than the intention in the muhallil marriage; it oscillates between the prohibitive disapproval and the disapproval of lesser degree. As for withdrawal (al-'azl), some scholars forbade it, but the madhhab of the four imams is that it is permitted with the woman's consent (Majmu' al-Fatawa, 32/107-108).

The forms of the muhallil marriage: the first form

It is reported that the Prophet (peace and blessings of Allah be upon him) said: "Shall I not tell you of the borrowed billy goat? They said: yes, O Messenger of Allah. He said: it is the muhallil; may Allah curse the muhallil and the one for whom the making lawful is done" (hasan hadith, narrated by Ibn Majah, 1936). The jurists, however, differed over some of its forms: does the marriage remain valid despite its unlawfulness, or is it void because of the prohibition concerning it? This is set out in the following forms.

The muhallil marriage has forms. First form: that they condition in the marriage contract that he marry her on condition that, if he makes her lawful for the first husband through consummation, there will be no marriage between them. The jurists differed over this form. The majority of jurists, the Malikis, Shafi'is and Hanbalis, as well as Abu Yusuf among the Hanafis, hold this marriage void, because of what Ibn Abbas and Ali (may Allah be pleased with them both) reported: "The Messenger of Allah (peace and blessings of Allah be upon him) cursed the muhallil and the one for whom the making lawful is done" (sahih hadith, narrated by Abu Dawud, 2076, and Ibn Majah, 1934). And from 'Uqba ibn Amir (may Allah be pleased with him): the Messenger of Allah said: "Shall I not tell you of the borrowed billy goat? ... may Allah curse the muhallil and the one for whom the making lawful is done" (hasan hadith, narrated by Ibn Majah, 1936). And Ibn Abbas reports that the Messenger of Allah (peace and blessings of Allah be upon him) was asked about the muhallil and said: "No marriage except a marriage of desire; no marriage of deception, nor mocking the Book of Allah, by one who has not tasted the 'usayla"; a hadith declared fabricated by Ibn Hazm in al-Muhalla (10/184), reported by al-Tabarani in al-Kabir (11567).

It is a forbidden contract, whose maker and beneficiary deserve the curse and the threat: it must therefore be void, its origin being marriage to the mahrams; and once it is established as corrupt, the woman does not become lawful again for her first husband. It is also a marriage with a condition attached for a duration, so that it is more corrupt than the mut'a marriage in two respects: its duration is unknown; and its consummation is conditioned for the benefit of another, so that it is more specific in its corruption. It is a marriage in which its termination was conditioned before its end: it must therefore be void, like the one who marries her for a month, or until intercourse, or until touching (al-Ishraf 'ala nukat masa'il al-khilaf, 3/450-451, no. 1267; al-Mu'awana, 1/557-558; al-Tamhid, 13/232-235; Sharh Zarruq on the Risala, 2/658; al-Tabsira by al-Khumi, 5/2095-2096; Mukhtasar Ikhtilaf al-'Ulama, 2/323-324; al-Hawi al-Kabir, 9/332-333; Bahr al-Madhhab, 9/324-325; al-Bayan, 9/277-278; al-Najm al-Wahhaj, 7/177-179; Mughni al-Muhtaj, 4/303; Nihayat al-Muhtaj, 6/326-327; al-Dibaj, 3/251-252; al-Mughni, 7/138-139; al-Insaf, 8/161; Manar al-Sabil, 2/589).

The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was asked about a man who had taken an oath not to take back his wife, so that she married another in order to make her lawful for the first: is this marriage valid or not? He answered: it is authenticated from the Prophet (peace and blessings of Allah be upon him) that he said: "Allah cursed the muhallil and the one for whom the making lawful is done," and: "Shall I not tell you of the borrowed billy goat? They said: yes, O Messenger of Allah. He said: it is the muhallil; may Allah curse the muhallil and the one for whom the making lawful is done." The Companions of the Messenger of Allah and the Successors in good fashion agreed on the prohibition of that, such as Umar ibn al-Khattab, Uthman ibn Affan, Ali ibn Abi Talib, Abdullah ibn Mas'ud, Abdullah ibn Abbas and Abdullah ibn Umar and others, to the point that some of them said: "They remain fornicators, even if they stay twenty years, if Allah knows from his heart that he intends to make her lawful for him." Some said: "No marriage except a marriage of desire, no marriage of deception"; some said: "Whoever deceives Allah, Allah deceives him"; some said: "We counted it as fornication in the time of the Messenger of Allah." All the imams of fatwa agreed that if the making lawful is conditioned in the contract, it is void; some gave no effect either to the prior condition or to the persistent custom, and held the contract, despite that, like the known marriage, the marriage of desire. As for the Companions, the Successors and most of the imams of fatwa, they make no difference between this custom and the wording; this is the madhhab of the people of Madina and the people of hadith, and others (Majmu' al-Fatawa, 32/154-155).

The Shafi'is say: if it is conditioned upon him in the marriage contract that he marry her in order to make her lawful for the first husband, this condition is disapproved, but the contract is valid with it, for he did not condition the separation; the ruling of his marriage, which makes her lawful for the first husband, is the same without the condition. If he remains with her, divorce from her may not be imposed on him; if he divorces her by his own choice, she becomes lawful. But if it is conditioned upon him in the contract that he marry her in order to make her lawful for the first husband and that, once he has made her lawful, there will be no marriage between them, this is a corrupt marriage, for it is a marriage for a duration; and this is more corrupt than the mut'a marriage, for it is for an unknown duration, whereas the mut'a marriage is for a known duration. Does he do it so that she becomes lawful for the first husband? There are two views. The first, which is his later view: he does not make her lawful, for the corruption of the contract has stripped him of his ruling and applied to him the ruling of doubt. The second, which is his earlier view: he makes her lawful for the first husband. The cause of her lawfulness for the first husband was disputed: Abu Ali ibn Abi Hurayra and the majority of the Baghdadis hold that the cause is that she was consummated in the name of marriage; on this basis, the ruling of intercourse in every corrupt marriage would be that of the muhallil marriage. The Basrans hold that the cause is that the Prophet (peace and blessings of Allah be upon him) applied the name of making lawful (ihtilal) to him in his prohibition; on this basis, the ruling of intercourse in other corrupt marriages does not make lawful, unlike him, being specified by this name to the exclusion of others (al-Hawi al-Kabir, 10/331).

The Hanafis, and this is the view of Abu Hanifa and Zufar, upon which the fatwa rests, hold that the muhallil marriage is valid, with prohibitive disapproval, if it carries the condition of making her lawful for the first husband. If he marries her with this condition, the woman saying "marry me and make me lawful," or the first husband saying "marry this woman and make her lawful for me," or the second saying to the woman "I marry you and make you lawful for the first," this is disapproved because of the Prophet's curse (peace and blessings be upon him) upon the muhallil and the one for whom the making lawful is done, which means the marriage with the condition of making lawful; it is disapproved because of the hadith. And she becomes lawful for the second, for the Prophet named him muhallil, that is, the establisher of lawfulness; or we say: consummation occurred within a valid marriage, for the marriage is not corrupted by the condition, and the condition of making lawful is a corrupt condition: the marriage is thus not corrupted by it, and she becomes lawful for the first. If he divorces her after consummating with her, she becomes lawful for the first according to Abu Hanifa and Zufar.

Abu Yusuf said: this marriage is corrupt, for it amounts to a time-limiting of the marriage, and time-limiting corrupts the marriage, as if he married a woman for a month; the marriage being corrupt, consummation within the corrupt marriage does not make her lawful for the first husband. Muhammad said: the marriage is valid, and she does not become lawful for the first, for he hastened what the Law delayed; he is therefore punished by the denial of his aim, as in the killing of the inheritor. Al-Kasani (may Allah have mercy on him) said: if the making lawful is conditioned by word and that he marries her for that purpose, and the condition comes from her, it is a valid marriage according to Abu Hanifa and Zufar, she becomes lawful for the first, and it is disapproved for the second as for the first. Abu Yusuf said: the second marriage is corrupt, and if he consummates with her, she does not become lawful for the first. Muhammad said: the second marriage is valid, and she does not become lawful for the first. Abu Yusuf's view: the marriage with the condition of making lawful is in the meaning of the time-limited marriage, and the condition of time-limiting in a marriage corrupts it; and a corrupt marriage does not effect the making lawful. For Muhammad: marriage is a permanent contract; the condition of making lawful is thus a hastening of what Allah the Most High delayed, for the purpose of the making lawful; the condition is void, the marriage remains valid, but the purpose is not achieved, like the one who kills his inheritor and is barred from inheritance, as we have said. For Abu Hanifa: the general texts of marriage require validity, without distinguishing between the case where the making lawful is conditioned and the case where it is not: the marriage with this condition is thus a valid marriage, falling under the statement of the Most High:

"... until she marries a husband other than him."

Surah al-Baqara, 230

the prohibition of the first husband ending once this second husband exists. The marriage with this condition is nonetheless disapproved for the second, for it is a condition contradicting the purpose of marriage, which are tranquility, procreation and chastity; this marriage rests, indeed, on rupture and on the non-permanence of the bond. And this, in our view, is the meaning of attaching the curse to the muhallil in his statement (peace and blessings be upon him): "Allah cursed the muhallil and the one for whom the making lawful is done." As for attaching the curse to the first husband, the one for whom the making lawful is done, it admits two meanings. The first: he is the cause for which the second husband contracted this marriage with the aim of separation and divorce, without attachment or realization of the purposes for which marriage was instituted; and the one who is the cause shares, through his causation, in the sin as in the reward. The second: he consummated what leads to that which sound nature finds repugnant and disapproves: the woman's return to him from the embraces of another who enjoyed her, namely the three divorces; without them this would not have occurred: he is thus cursed on account of the three divorces (Bada'i al-Sana'i, 3/187-188).

It is said in response to Abu Yusuf, who says that "time-limiting corrupts the marriage": what corrupts the marriage is explicit time-limiting; consider that every limited marriage is "limited" by divorce, death and the like, without explicit time-limiting: it is therefore not corrupted. And Muhammad's statement that he "hastened what Allah the Most High delayed" is to be set aside: hastening what Allah the Most High delayed is not conceivable, for when Allah the Most High sets a term for a thing, that term neither advances nor is delayed; once the second husband divorces her, it becomes clear that Allah the Most High delayed this marriage until that moment; that is why we say that the slain dies at his appointed term, contrary to the Mu'tazila (Bada'i al-Sana'i, 3/187-188; al-Mabsut, 30/228; Sharh Fath al-Qadir, 4/181; Tabyin al-Haqa'iq, 2/259; al-Ikhtiyar, 3/185-186; al-Jawhara al-Nayyira, 4/491; al-Bahr al-Ra'iq, 4/63).

Ibn Nujaym (may Allah have mercy on him) said in al-Bahr al-Ra'iq (4/63): is this condition binding? It is stated in al-Bazzaziyya: a woman divorced (three times) married the second man on condition that he consummate with her and divorce her so that she becomes lawful for the first. The imam said: the marriage and the condition are valid, to the point that if the second refuses to divorce her, the judge compels him, and she becomes lawful for the first. This statement was transmitted in Ghayat al-Bayan from Rawdat al-Zandawsani, and refuted in Fath al-Qadir: it belongs to what is not known in the apparent transmission of the madhhab, and should be neither relied upon nor made a rule; for beyond its weak establishment, the principles of the madhhab reject it: it is beyond doubt a marriage condition that the contract does not require, and contracts in such a case divide into two kinds: that which is corrupted, like sale, and that in which the condition is void while the origin remains valid; there is no doubt that marriage is among those which are not voided by corrupt conditions; rather the condition is void and the marriage remains valid; this condition is therefore void, and he is not compelled to divorce; it is nonetheless disapproved, as precedes from the general meaning of the hadith, while what lies beyond it, the aim of making lawful, remains without disapproval.

The Hanafis further interpreted the curse reported concerning the muhallil by means other than al-Kasani's (may Allah have mercy on him), among them: the curse targets the one who conditions a fee for the making lawful. Ibn Abidin (may Allah have mercy on him) said: the curse on this interpretation is the most apparent, for it is like taking a fee for the 'asab of the billy goat, which is unlawful; and it is supported by the fact that the Prophet (peace and blessings be upon him) called the muhallil "the borrowed billy goat" (Hashiyat Ibn Abidin, 3/415).

The second form: marriage with a condition of divorce after the making lawful

Second form: that he marry her while conditioning in the contract that, if he makes her lawful for the first husband, he divorces her. The jurists differed over this form, which consists of marrying her such that, if he makes her lawful for the first husband, he divorces her; for example if the guardian says: "I have married my daughter to you on condition that, if you consummate with her, you divorce her," or if he says: "I marry you on condition that, if I make you lawful for the first, I divorce you," or if she says: "Marry me on condition that, if you make me lawful for the first, you divorce me." The Hanafis, according to what is adopted for fatwa among them, and the Shafi'is in the earlier view, hold that the marriage is valid and the condition void: the contract occurred absolutely, without time-limiting, and he only conditioned upon himself the divorce, which has no effect on the marriage; for if he married her on condition of not divorcing her, the marriage would be valid and he would have the right to divorce her; likewise, if he marries her on condition of divorcing her, the marriage must be valid, without his being obliged to divorce her. And because the general texts of marriage require validity, without distinguishing between the case where the making lawful is conditioned and the case where it is not, the marriage with this condition is a valid marriage, falling under the statement of the Most High: "until she marries a husband other than him" (Surah al-Baqara, 230), the prohibition ending once this second husband exists; it is nonetheless disapproved for the second, for it is a condition contradicting the purpose of marriage, which are tranquility, procreation and chastity, this marriage resting on rupture and non-permanence. Al-Kasani (may Allah have mercy on him) said: this, in our view, is the meaning of attaching the curse to the muhallil in his statement (peace and blessings be upon him): "Allah cursed the muhallil and the one for whom the making lawful is done"; and the attaching of the curse to the first husband, the one for whom the making lawful is done, admits the two meanings set out above (Bada'i al-Sana'i, 3/187-188; al-Mabsut, 30/228; Sharh Fath al-Qadir, 4/181; Tabyin al-Haqa'iq, 2/259; al-Ikhtiyar, 3/185-186; al-Jawhara al-Nayyira, 4/491; al-Bahr al-Ra'iq, 4/63; Mukhtasar Ikhtilaf al-'Ulama, 2/323-324; al-Hawi al-Kabir, 9/332-333; al-Bayan, 9/278-279; al-Najm al-Wahhaj, 7/177-179; Mughni al-Muhtaj, 4/303; Nihayat al-Muhtaj, 6/326-327; al-Dibaj, 3/251-252).

The Malikis, the Shafi'is in the later view (which is the sounder), the Hanbalis and Abu Yusuf hold that the marriage is void, because of the generality of the Prophet's statement (peace and blessings of Allah be upon him): "Allah cursed the muhallil and the one for whom the making lawful is done" (hasan hadith, narrated by Ibn Majah, 1936), no distinction being made; and because with the conditioning of the divorce it is temporary, whereas marriage is that which is permanent: it is in this sense that we distinguish between conditioning not to divorce her, in which case the marriage is valid because it is permanent, and conditioning to divorce her, in which case it is not valid because it is temporary (Bada'i al-Sana'i, 3/187-188; al-Mabsut, 30/228; Sharh Fath al-Qadir, 4/181; Tabyin al-Haqa'iq, 2/259; al-Ikhtiyar, 3/185-186; al-Jawhara al-Nayyira, 4/491; al-Bahr al-Ra'iq, 4/63; al-Ishraf 'ala nukat masa'il al-khilaf, 3/450-451, no. 1267; al-Mu'awana, 1/557-558; al-Tamhid, 13/232-235; Sharh Zarruq on the Risala, 2/658; al-Tabsira by al-Khumi, 5/2095-2096; Mukhtasar Ikhtilaf al-'Ulama, 2/323-324; al-Hawi al-Kabir, 9/332-333; Bahr al-Madhhab, 9/324-325; al-Bayan, 9/277-278; al-Najm al-Wahhaj, 7/177-179; Mughni al-Muhtaj, 4/303; Nihayat al-Muhtaj, 6/326-327; al-Dibaj, 3/251-252; al-Mughni, 7/138-139; al-Insaf, 8/161; Manar al-Sabil, 2/589; Majmu' al-Fatawa, 32/154-155; al-Fatawa al-Kubra, 3/106-107).

Al-Mawardi (may Allah have mercy on him) said: if he marries her on condition that, if he makes her lawful for the first husband through his consummation, he divorces her, the corruption of this contract has two views. (The sheet breaks off here; the continuation appears in the second part of this chapter.)