Synopsis

 Title – Muta Marriage

 Research Problem & Methodology

Muta Marriages also known as Nikah al-Mutah is a private and verbal marriage contract
which lasts for a fixed period of time. The word “muta” is an Arabic word which translates to
enjoyment pleasure or delight. The specifics of this form of temporary marriage are unclear
and enigmatic till date and it has become a stigma among many in the Muslim community. It
is often referred to as a form of “legalized prostitution”. It is true that this prevalent practice
has many pros and cons but one cannot turn a blind eye to the fact that it is often used to
legitimize prostitution which is otherwise forbidden in Islam. Such a practice must be in
order to prevent gender discrimination and promote equality between men and women,
which is a very uncommon phenomenon in the Muslim fraternity controlled by male centric
Muslim Laws.
The study is a descriptive analytical study and is focused on the analysis of the history of
Muslim laws, legal provisions in relation with the theoretical framework in order to find out
an answer to the research problem. The researcher has followed a qualitative approach. The
research is based on both primary and secondary data. This methodology has been mainly
adopted due to lack of time and resources due to which the author was incapable of going
and researching in the field.

 Review of Literature
1. V.P. Bharatiya, Muslim Law, Eastern Book Company, 2009.
This book is a comprehensive and authoritative work which lucidly explains the
principles of law governing Muslims in Indian. This books covers the landmark
decisions affecting and changing some of the socially incongruous concepts
relating to marriage, divorce, mehar, maintenance etc. a significant feature of this
book is the exhaustive analysis of the constitutional aspects of Mohammedan law
principles. Further, the interactions between the personal law and social ethos
have been elucidated by notes.
 2. Manzar Saeed, Muslim Law in India, Orient Publishing Company, 2008.
This book is a comprehensive commentary on the Muslim Law in India. This
book covers a wide range of aspects of the Muslim Law in India relating to
marriage, inheritance, divorce etc. It talks about the history of Muta marriages, its
prevalence, its legal stand etc in India. This books also talks in length about
various important cases relating to Muta marriages in India.
3. Dr. Rakesh Kumar Singh, Muslim Law, Universal Publication, 2017.
This book is an elaborate, simple and concise work on the uncodified Muslim law
in India. This book discusses the law in a very systematic manner the Muslim law
with the help of authoritative texts which includes both ancient sources of law and
current judicial precedents. All the latest developments in Muslim Law have been
covered in this book.

 Research Tools and Techniques

This research has followed a descriptive and analytical approach. This research also follows a
qualitative approach. It has focused on the analysis of the history, the present situation and
legal framework in regards to the problem at hand. This research is based on primary data
taken from official statistics of the government and renowned organization, and secondary
data taken from books, academic articles, research papers, research reports etc.

 Hypothesis

It is difficult to gather statistics about muta marriages in India as such marriages are not
required to be registered and in addition to that it remains a stigma and people indulging in
the practice are not open about it. Although the Supreme Court has taken steps to negate the
negative impacts of Muta Marriage, after it has accepted the legitimacy of live-in
relationships it has become difficult to invalidate Muta Marriages. Invalidating Muta
marriage is and has remained an issue for the judiciary to ponder as it cannot be denied that
this practice has led to legitimizing prostitution which is a blow to the status of Muslim
women in an already patriarchal male centered society.
 Research Objectives
1. To figure out the concept of Muta Marriage by studying the types of marriages
given by the Muslim law, the history of Muta Marriages and also the present
situation regarding the same.
2. To find out the pros and cons of Muta marriages with respect to the status of
women in the society.
3. To find out the judicial precedent set by the Indian Judiciary with respect to muta
marriages.
 Bibliography
 V.P. Bharatiya, Muslim Law, Eastern Book Company, 2009.
 Manzar Saeed, Muslim Law in India, Orient Publishing Company, 2008.
 Dr. Rakesh Kumar Singh, Muslim Law, Universal Publication, 2017.
 CHAPTER 1 – PRE ISLAMIC BACKGROUND OF MARRIAGE

In pre-Islamic Arabia the relationship between the sexes was not in a certain state. The regular
form of marriages in the sense we understand in the present was very rare. The sexual unions that
flourished in those times can only be branded as prostitution, adultery, polyandry etc.1

To understand the forms of sexual unions prevalent in Pre-Islamic Arabia Abdur Rahim has
listed the following types of marriages:2

i. A custom according to which a man would say to his wife: “Send for so and so (naming a
famous man) and have intercourse with him.” The husband would then keep away from
her society until she had conceived by the man indicted, but after her pregnancy became
apparent, he would return to her. This originated from a desire to secure noble offspring.
ii. Several men, less than ten, used to go to a woman and have sexual intercourse with her. If
she conceived and was delivered of a child, she would send for them, and they would be
all bound to come. When they came and assembled, the women would address them
saying: “you know what happened. I have now brought forth a child. O so and so!
(naming whomsoever of them she chose), this is your son.” The child would then be
ascribed to him and he was not allowed to disclaim its paternity.
iii. Several men used to visit a woman who would not refuse any visitor. These women were
prostitutes and used to fix at the doors of their tents a flag as a sign of their calling. If a
women of this class conceived and brought forth a child, the men that frequented her
house would be assembled, and physionomists used to decide to whom the child
belonged.

In these type of “marriages” and sexual unions the only thing that separated them for ordinary
prostitution is the emphasis placed on establishment of paternity of children born out of such
unions. In addition to the forms of marriages listed above there were other forms of unions as
well, such as an union in which a man would purchase a from her parents for a fixed some, an
union of a man with his two real sisters at one and at the same time and Muta marriages were
also widely prevalent.

1
V.P. Bhartiya, Syed Khalid Rashid’s Muslim Law, 2018, fifith edition, pp. 61.
2
Ibid
Due to the prevalence of such loose sexual unions and marriages in the society, Islam tried to
reform these old practices and rules relating to marriage in sweeping and a far reaching manner.
Some regulations regarding marriages were laid down in Sura IV of the Koran. 3 It denounced
union such as the ones between a man and his mother or step mother, the ones between a man
and his sisters, aunts, daughters of brothers and sisters etc.

Although many forms of marriages and sexual unions were denounced and forbidden by Islam,
the prevalence of Muta marriages was such that in the beginning of Islam The Prophet tolerated
them as a matter of policy.

In the late 16th and 17th century temporary marriages were prevalent as the Prophet tolerated it to
an extent. Although the second Caliph, Umar banned temporary marriages, most Shiites rejected
it as they believed that it was approved by the holy Koran.4

Later, the state was successful in bringing reforms in family setups through the parliament which
led the people to believe that temporary marriages were banned. The temporary sexual unions
started losing its honour in the society and people only practiced them in secrecy. Due to the
stigma attached to such forms of marriage the specifics of it continues to be enigmatic and
unclear. 5

3
Ibid pp. 52.
4
Nadya Labi, Married For A Minute, MOTHER JONES, (Sept. 09, 2018, 9:09 PM),
https://www.motherjones.com/politics/2010/03/temporary-marriage-iran-islam/
5
Ibid
 CHAPTER II – THE CONCEPT OF MARRIAGE

The word “mut’a” in Arabic stands for “pleasure, enjoyment or delight”. 6 Muta marriages are
also known as “Nikah al Mutah” and is a temporary marriage fixed by a male Muslim with a
female Muslim after specifying a dower. It is generally a private contract that is most often
verbal than written in which there is a declaration of the intent to marry followed by the
acceptance to the terms and conditions in the same way as it is done in a normal Muslim
marriage i.e. Nikah. When the specified period of the marriage according to the contract ends,
the marriage also dissolves without doing through any process of divorce or talaaq. As the name
suggests, the purpose of such marriage is Mut’a i.e. pleasure and such marriages are mostly
practiced with the view of indulging in sexual activities.7

Temporary marriages of Mut’a are recognized by the Ithna School of Shia Law. The Zaidi and
Ismaeli Shias as well as the Sunni Muslims do not practice such forms of marriages. According
to the Sunni Law such marriages are banned.8

Mut’a marriages are validated and practiced under the Twelever Shia Jurisprudence. There are
several conditions that have to be followed for a Mut’a Marriage to take place such as9:

 The female must be unmarried

 She must be a Muslim
 She should not be addicted to sexual intercourse
 She should not be a young virgin especially if her father is not present to give consent.

In addition to these conditions, the most important conditions to be followed for a Mut’a
Marriage to take place are as follows:

 The duration for the marriage to last has to be fixed.

 The value of the dower has to be specified.
 In case the duration is not specified, the marriage is presumed to be a permanent one.

6
The Four Pillars of Mut’a, (Sept. 09, 2018, 9:09 PM), https://www.al-islam.org/muta-temporary-marriage-in-
islamic-law-sachiko-murata/four-pillars-muta
7
Manzar Saeed, Muslim Law in India, Orient Publishing Company 2008, fifith edition, pp. 125.
8
Ibid
9
(Sept. 09, 2018, 9:09 PM), http://www.jannaati.com/far/index.php?page=6&row=6&start=6
  In case the dower is not specified, the marriage is considered null and void.

Since there is no prescribed limits let for the duration of Mut’a marriages, it has been a point for
the judiciary to ponder upon. In the case of Sohrat Singh v. Jafri Bibi10, the court held that,
“Where cohabitation of the parties to a Muta marriage has commenced, but there is no evidence
of the term or duration for which the marriage was contracted, the inference would, in absence of
evidence to the contrary, be that the Muta continued during the entire period of cohabitation and
the children conceived during such period are legitimate and capable of inheriting from their
parents.”11

To understand the concept of Mut’a Marriages better one can find the differences between Mut’a
marriages and normal Muslim marriages i.e. Nikah12 –

 Mut’a marriages are temporary whereas, Nikahs are permanent.

 The main object of Mut’a Marriages is pleasure whereas, Nikah marriages are meant for
socio-religious union.
 The term of duration of marriage is fixed in a Mut’a as being a temporary marriage it is
an essential ingredient whereas, a Nikah is an union of life only subject to divorce.
 Marriages of Mut’a are recognized only by the Ithna School of Shia Law whereas; Nikah
marriages are recognized by both the Shias and Sunnis.
 In a Mut’a marriage the dower must be specified failing which the marriage is considered
void whereas, in a Nikah the dower is implied if not specified and the marriage does not
become void if the dower is not specified.
 In an unconsummated Mut’a would entitle the wife half of the dower whereas; in a Nikah
the wife is entitled to the full dower irrespective of the status of consummation.
 In Mut’a, early termination is possible by paying a gift to the bride for the unexpired
period whereas, in cases of Nikah there is no question of termination as the union is fixed
for a lifetime.
 In Mut’a divorce is not recognized whereas in Nikah divorce is the only way of
termination of marriage.

10
Sohrat Singh v Jafri Bibi, (1915) 17 Bom LR 13.
11
Ibid
12
Supra note 1. pp. 68-69
  In Mut’a there is no provision of maintenance for the wife as the wife is not regarded as
dependent in Shia Law for such marriages. In unions of Nikah the wife is entitled to
maintenance.
 In Mut’a there is not right of inheritance to the husband or wife in repect of each other’s
property. Whereas, in Nikah reciprocal rights of inheritance exists.

Although the majority opposes this form of loose union only held together by a sexual objective,
the pros and cons of Mut’a Marriages still remain a debated topic. In the next chapter, we look at
the pros and the cons and the response of the Indian Judiciary to this form of marriage.
 CHAPTER III – AN ANALYSIS OF THE PRESENT SCENARIO

 Pros and Cons:

According to ayatollah Sayyid Reza Borghei Mudaris temporary marriages such as Mut’a are a
boon for the impecunious and the young widows unable to afford permanent marriages and not
able to fulfil her venereal, physical and emotional needs or also for the men who are unable to
afford permanent marriage and are going through complications from their previous marriages.
A widow or a divorcee can also be able to gain status in a patriarchal society through such
marriages. In some cases Muta’h marriages are performed to procreate if the permanent wife is
unable to conceive. Children born out of such marriages are legitimate and they have the right to
inherit or share their father’s property. In a Muta’h marriage the obligation that the wife has is
less as compared to her permanent counterpart, the only obligation that the bride encompasses in
a Mut’a marriage is sexual intercourse.13

It is true that in a Mut’a marriage both the male and the female can have contentment as they are
satisfied with their choices with whom they can share feelings as well as physical intimacy. If
looked from that aspect such marriages can be a boon to young couples as the society does not
permit the living together of unmarried couples. Through such marriages a young couple can
satisfy their physical and emotional needs without violating the religious codes and regulations.
Through such a marriage they can be content and at the same time act inside the religious
framework and boundaries.14
The hard truth is that many Muslim women support Mut’a marriages as through such marriages
men can satisfy their venereal needs without committing adultery. Tahira Abbas an activist who
has stood for greter representation of Muslim women has drawn attention to the fact that if the
permanent wife of a man is disabled, he can satisfy his sexual needs by contracting a Mut’a
marriage and in this way he can financially support both without having to dissolute his previous
marriage.15

13
(Sept. 09, 2018, 9:09 PM), http://www.jannaati.com/far/index.php?page=6&row=6&start=6
14
Ibid
15
Konina Mondal, Concept Of Marriage Among Muslims : A Study On Muta Marriage, Vol 3 Issue 1 IJLLJS, 303
(2016)
But the most relevant fact which is often overlooked is that generally the permanent wife does
not entertain or appreciate the temporary union of her husband with another women and in most
cases her consent is neglected and often they are not even informed..
Rukhsana Banu is a widow who lives in a Jamaat-run house for destitute widows. Her first
husband had abandoned her and left with their only son. Her second husband used to abuse her
and frequently contract Mut’s marriages. He had then divorced her and fraudulently took away
all her property. There are thousands of Muslim women who have similar stories like
Rukhsana’s and their voices are quashed by the Muslim status quo.16
Mut’a marriages have become a threat to the permanent husband and wife as it creates a discord
between them. Since Mut’a marriages are supported by the religious leaders it becomes very
difficult for the women to publically raise their voice against this practice. The fact which is
often overlooked is that the Muslim law permits such marriages only when the husband is in a
position to provide for all the wives economically, sexually, emotionally and for his children as
well, and in case of failure the wife is under no obligation to respect him. For the sake of the
status of women and society at large, Mut’a marriages should be restricted or at least kept under
check, otherwise it becomes a license for men to indulge in philandering resulting in the
sabotaging filial ties.

 Indian Cases with relation to Mut’a Marriages:

Most judgments given by the courts have reflected the codes and regulation for Mut’a Marriages
prescribed by the Shia Laws mentioned above. In addition to the courts have made few othe
observations as well. For example, in the case of Mahomed Abid Ali Kumar Kadar vs Ludden
Sahiba, Minor17 the court held that the wife is entitled to the full dower only when the marriage
is consummated. In case the marriage is not consummated the husband is only liable to pay only
half of the dower. It was also held that the wife in a Mut’a Marriage is not entitled to
maintenance after the dissolution of marriage. The court said, “if the husband were to make the
woman a gift of the term before coition, he would be liable for half the dower, and if coition

16
Ibid
17
Mahomed Abid Ali Kumar Kadar vs Ludden Sahiba (1887) ILR 14 Cal 276
should have taken place, she is entitled whole dower on condition of her keeping the term, and if
she has prevented him, he is entitled to deduct a proportionate part of the dower."18

In the case of Akbar Hussain Sahib And Anr. vs Shoukhah Begam Saheba (Died)19 two youths
appealed in the Madras High Court against the relatives of the late Nawab of Masulipatnam,
claiming a share in the property of the deceased alleging him to have contracted Mut’a marriage
with their mother. Taking into consideration the evidence present before the court, the court had
dismissed the petition. The Madras High Court had in this case referred to Mut’a Marriages as
“lowest form of marriage known to Muhammadan Law, which is said by some to be so low a
form of union as to be practically indistinguishable from concubinage.”20

Most of the cases in the Indian Courts in respect to Mut’a Marriages had been centered on the
issue of the legitimacy of the child born out of such marriages for the purpose of transfer of
property. In the case of Hasanali Mirja And Ors. vs Nushratali Mirja And Anr.21, the Calcutta
High Court granted the declaration that the plaintiff was the son arising out of a Mut’a marriage
and was the legitimate heir of some Late Aziz Saheb. The court also dealt with similar facts in
the case of Sadik Husain Khan vs Hashim Ali Khan And Ors22. In the case of Shoharat Singh vs
Musammat Jafri Bibi23 the question before the court was whether the parties ever married and if
so when, and whether there were any children arising from that marriage.

18
Ibid
19
Akbar Hussain Sahib And Anr. vs Shoukhah Begam Saheba (Died) (1915) 31 Ind Cas 657
20
Ibid
21
Hasanali Mirja And Ors. vs Nushratali Mirja And Anr. (1934) AIR 1935 Cal 572
22
Sadik Husain Khan vs Hashim Ali Khan And Ors (1916) ILR 38 All 627
23
Shoharat Singh vs Musammat Jafri Bibi (1915) 17 BOMLR 13
 CONCLUSION
It can be easily made out that the practice of Mut’a marriages is extremely despised and
disapproved by feminists who often refer to this practice as a legitimized form of prostitution.
Such practice favours the wealthy men in the Muslim society to satisfy their venereal needs often
resulting in the exploitation of the divorced, widowed or the poor. It is often seen that women
contract Mut’a marriages at times of financial crisis and thus such marriages often result in class
difference and women oppression by giving a religious sanction to prostitution.

Muta marriage can be seen as yet another religious Muslim practice that is solely for the benefit
of male and goes against the favour of females in the Muslim society. One can not turn a blind
eye to the fact that Mut’a marriage acts as a form of legitimized prostitution and such a practice
should be curbed to bring gender equality, a concept that is hardly seen in the male dominant
Muslim society.