By: Allamah Sayyid Abdul Husayn Sharafuddeen
1. The way of this marriage
The way of this marriage is that a free1 adult Muslim or kitabi2 woman accepts to marry herself to a Muslim man on condition that there is no any legal objection to this marriage according to Islam such as kinship (one’s mother, grandmother or upward, sister, niece or niece’s daughter, daughter, granddaughter or downward and aunt; father’s sister or mother’s sister), suckling milk (if both the man and the woman, who want to get married, have suckled milk from a same woman in their childhood), marriage (that the woman has another husband), iddah (a prescribed period, which a woman has to pass after her divorce or her husband’s death before her remarriage) or any other legal prohibitions such as if the woman has been engaged by one of the man’s sons or she was the man’s wife’s sister or other reasons.
Such a woman accepts to marry herself with a specified dower to a definite period according to a legal bond including all the conditions required to make the marriage valid. After agreement and consent, the woman says to the man: I marry myself to you with a dower of so and so and for a day, two days, a month, two months, a year or two years for example. She may mention a more specified period. The man says to her immediately: I accept. Agency is permitted in this bond for both of the man and the woman exactly as any other bond.
When the bond is concluded, the woman becomes the man’s wife until the end of the period specified in the bond. As soon as the period ends, the wife separates from the husband without divorce. The husband has the right to separate from the wife before the end of the period specified in the bond as a matter of granting the remained period to the wife and not a matter of divorce. The wife has, if the husband sleeps with her in the bed,3 to undergo iddah after the end of the temporary marriage. Her iddah is equal to a period of two menstruations if she still menstruates otherwise it will be forty-five days as the iddah of a bondmaid according to special conditions concerning the subject.
If the husband grants his wife the period of the temporary marriage or the period ends without sleeping with her, then she doesn’t have to undergo the iddah just like the divorced wife of the ordinary (continuous) marriage if her husband hasn’t slept with her.4
The iddah of the pregnant wife of temporary marriage lasts until she gives birth to her child like the iddah of the divorced wife of the ordinary marriage. The iddah of the wife, whose husbands dies before the period of the temporary marriage ends, is like the iddah of the wife, whose husband dies, in the continuous marriage.5
The child of the temporary marriage whether boy or girl is to be ascribed to the father as the other offspring of the continuous marriage. There is no difference between the child of the temporary marriage and that of the continuous marriage in the legal verdicts such as inheritance (Allah enjoins you concerning your children: The male shall have the equal of the portion of two females 4:11), the relationship with the sisters and brothers and their children, the uncles and aunts and their children (and those who are akin are nearer one to another in the ordinance of Allah 8:75) and all the other legal laws.
The very temporary marriage itself doesn’t determine the obligation of inheritance between the spouses and the wife has no right of getting spending from her husband according to special laws concerning the subject.
This is the temporary marriage as it is and this is the point of the dispute between the Shia and the Sunni.
2. The consensus of the umma on the legality of the temporary marriage
All the Muslims agreed upon that Allah had legislated temporary marriage in Islam. No one of the Muslim scholars of the different sects doubted about this. In fact this was one of the necessities, which had been confirmed by the Prophet (s), and so no one of the ulema of the Prophet’s umma would deny it. Whoever studied the jurisprudent of the different sects would find that they had agreed upon the legality of this marriage but they pretended that it was annulled. You shall see that soon inshallah.
3. The evidences of the Quran
It was sufficient for us as best evidence for legislating the temporary marriage that Allah had said: (And those of whom ye seek content (by marrying them), give unto them their portions as a duty. 4:24)
The infallible imams of the Prophet’s progeny agreed upon that this verse had been revealed about the temporary marriage.
Obayy bin Ka’b, ibn Abbas, Sa’eed bin Jubayr and as-Sadiy used to recite this verse in this way: (And those of whom ye seek content (by marrying them) until a specified period…).6 Imran bin Hussayn declared that this verse had been revealed about the temporary marriage and it had not been annulled but a man said according to his own thinking what he liked!7 Mujahid declared that this verse had been revealed about the temporary marriage.8
What confirmed this was that Allah had showed at the beginning of the sura the verdict of the continuous marriage by saying: (…then marry such women as seem good to you, two and three and four. 4:3) until He said: (And give unto the women (whom ye marry) free gift of their marriage portions. 4:4). So if this verse (And those of whom ye seek content (by marrying them), give unto them their portions as a duty) concerned the continuous marriage too then there would be no use of repeating the same thing in the same sura but if it concerned the temporary marriage then it would talk about a new subject.
Those, who studied the Quran well, knew that the sura of an-Nissa’ (4) had declared all kinds of the Islamic marriages. The continuous marriage and the marriage of mulk al-yameen9 were declared by this saying: (…then marry such women as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess) and the marriage of the bondmaids was declared by this verse: (And whoever among you has not within his power ampleness of means to marry free believing women, then (he may marry) of those whom your right hands possess from among your believing maidens. 4:25) until Allah said: (so marry them with the permission of their masters, and give them their dowries justly. 4:25) whereas the temporary marriage was declared by this verse (And those of whom ye seek content (by marrying them), give unto them their portions as a duty).
4. Temporary marriage in the Sunna
Many traditions were narrated by the infallible imams confirming the legality of the temporary marriage.
Al-Bukhari and Muslim mentioned many traditions about the temporary marriage narrated by Salama bin al-Akwa’, Jabir bin Abdullah, Abdullah bin Mass’ood, ibn Abbas, Abu Tharr al-Ghifari, Imran bin Hussayn, al-Akwa’ bin Abdullah al-Aslami and Sabra bin Ma’bad. Ahmad bin Hanbal mentioned all these traditions in his Musnad besides traditions narrated by Omar and his son Abdullah.
Muslim mentioned in his Sahih vol.1 chap. of marriage, a tradition narrated by Jabir bin Abdullah and Salama bin al-Akwa’. They said: “The caller of the Prophet (s) came to us and said: The Prophet (s) permitted you to enjoy yourselves. He meant temporary marriage.” The traditions concerning this subject are much more than to be quoted in this short chapter.
5. Those who said it was annulled and their excuses about that
The scholars and the people of the four Sunni sects said that temporary marriage had been annulled and prohibited justifying that according to traditions mentioned in al-Bukhari and Muslim’s Sahihs.
We examined those traditions and found that they had many contradictions that we couldn’t trust in them. Some traditions showed that the annulment was determined on the day of Khaybar (during the battle of Khaybar). Some of them showed that it was on the day of al-Fat~h (the conquest of Mecca). Some showed it was during the battle of Tabook. Some showed it was during Hijjatul Wada’ (the last or farewell pilgrimage of the Prophet (s)). Some said it was during the in lieu-minor hajj and some said it was in the year (of the battle) of Awtas.
These traditions contradicted other true traditions mentioned by al-Bukhari and Muslim showing that there was no annulment. You will see these traditions soon inshallah.
In fact annulling and prohibiting temporary marriage was determined by the second caliph Omar after an event committed by Amr bin Hurayth and before that the companions often practiced temporary marriage during the reign of Abu Bakr and Omar before this event as they did during the age of the Prophet (s).
The true traditions narrated by Imran bin Hussayn, Abdullah bin Mass’ood, Abdullah bin Omar, Abdullah bin Abbas and Imam Ali showed that prohibiting temporary marriage had not been legislated by Allah or His messenger but it was determined by Omar. It was impossible that there was annulment legislated by Allah or His messenger but it was ignored by these great persons, who had high position in knowledge and faith, who had high position near the Prophet (s) and who kept to the Prophet (s) often and always. If there was annulment, some of those, who knew about it, would inform these persons of it but since no one objected to them when they ascribed this annulment to Omar hence we knew that the annulment was determined neither by Allah nor by His messenger (s).
Omar himself didn’t pretend that the annulment was legislated by Allah or His messenger. He, when talking about prohibiting temporary marriage, clearly ascribed this prohibition to himself. If it was determined by Allah or by the Prophet (s), Omar would ascribe it to Allah or to the Prophet (s) and this would be more effective.
I thought that those, who came late after the time of the companions, had fabricated the traditions talking about the annulment just to justify the situation of Omar when he interpreted the evidences according to his own thinking and then prohibited temporary marriage and threatened to punish whoever would practice it. Omar said: “Two pleasures were practiced at the time of the Prophet (s) but I prohibit them and punish for them; pleasure of hajj and pleasure of women (temporary marriage).”
It was odd that some of the successors had pretended that temporary marriage had been annulled by this Quranic verse (And who guard their private parts except before their spouses or those whom their right hands possess. 23:5-6) pretending that the wife of temporary marriage was not to be considered as a wife or a possession of right hand (bondmaid). As for that she was not to be considered as possession of right hand, it was right but as for their pretense that she was not to be considered as wife, they thought that because she had no right of getting spending, inheritance or a specified night (if the husband had more than one wife).
The answer: the wife in the temporary marriage is a legal wife according to a legal bond of marriage. That she has no right of getting spending, inheritance or specified nights is because of special evidences concerning the laws of marriages as we have explained previously.
This verse was revealed in Mecca before the hijra according to the consensus of the umma; then how could it annul temporary marriage, which was legislated in Medina some years after the hijra?
What was odder of those, who said that this verse (And who guard their private parts except before their spouses or those whom their right hands possess) had annulled temporary marriage, that when we said to them: this verse might be revealed to annul the marriage of the bondmaids, who were possessed by other than the husbands and who were not considered as wives or possession of right hand. Then they said: this verse was revealed in Mecca whereas marrying bondmaids was legislated in Medina by this verse of sura of an-Nisa’: (And whoever among you has not within his power ampleness of means to marry free believing women, then (he may marry) of those whom your right hands possess from among your believing maidens. 4:25)
and the verses revealed in Mecca would never annul the verses revealed in Medina because what was revealed in Mecca preceded what was revealed in Medina. They said so and forgot that temporary marriage had been legislated in Medina by the verse of sura of an-Nissa’ too. We were afflicted of ignorant people but surely we are Allah’s and to Him we shall surely return.
6. True traditions betraying the caliph
Muslim mentioned in his Sahih10 a tradition that Abu Nadhra said: “Ibn Abbas used to order to practice temporary marriage but ibn az-Zubayr used to prohibit it. This was mentioned to Jabir. He said: Before me the tradition occurred. We used to practice temporary marriage at the time of the Prophet (s) but when Omar became the caliph, he said: Allah permitted His messenger to do whatever he liked.11 Henceforth complete the hajj and the minor hajj and stop temporary marriage! If anyone is brought to me accused of practicing temporary marriage, I will stone him until he dies.”
Ahmad bin Hanbal mentioned in his Musnad12 that Abu Nadhra had said: “I said to Jabir that ibn az-Zubayr forbade from practicing temporary marriage while ibn Abbas permitted it. He said to me: Before me the tradition occurred. We used to practice temporary marriage during the time of the Prophet (s) and Abu Bakr, but when Omar became the caliph, he did a speech to the people saying: The Quran is the Quran and the messenger of Allah is the messenger of Allah. Two pleasures were at the time of the Prophet (s); one was the pleasure of hajj and the other was the pleasure of women (temporary marriage.”13
This showed clearly that it was Omar, who had prohibited these two pleasures when he became the caliph.
Muslim mentioned in his Sahih14 that Ata’ had said: “Once Jabir bin Abdullah came to perform the minor hajj. We came to him in his house. The people asked him about some things and then asked him about temporary marriage. He said: Yes, we used to practice temporary marriage at the time of the Prophet (s), Abu Bakr and Omar.”15
Muslim mentioned in his Sahih that Abuz Zubayr had said: “I heard Jabir bin Abdullah saying: We used to practice temporary marriage16 for a handful of dates or flour (as dower) at the days of the Prophet (s) and Abu Bakr until Omar prohibited it after the case of Amr bin Hurayth.”
In the same chapter of Muslim’s Sahih it was mentioned that Abu Nadhra had said: “I was with Jabir when someone came to him and said: Ibn Abbas and ibn az-Zubayr disagreed about temporary marriage. Jabir said: We used to practice it at the time of the Prophet (s) but later on Omar forbade us from doing it.”
Omar often said from above the Minbar: “Two pleasures were practiced at the time of the Prophet (s) but I prohibit them and punish for them; the pleasure of hajj and the pleasure of women (temporary marriage).”17
Al-Qawshaji, the imam of the Ash’arites, said at the end of his research about imamate in his book Sharh at-Tajreed: “Omar said from above the minbar: Three things were practiced at the time of the Prophet (s) but I prohibit them and punish for them; temporary marriage, pleasure of hajj and “hayya ala khayril amal”.18
Some people justified his doing by saying that it was his ijtihad19 after interpreting the evidences. The news talking about this thing were too many to be mentioned in this chapter.”
During the reign of Omar, Rabee’a bin Umayya bin Khalaf ath-Thaqafi practiced temporary marriage. Malik mentioned in his Muwatta’ chap. temporary marriage, that Orwa bin az-Zubayr had said: “Khwla bint Hakeem as-Salamiyya came to Omar and said to him: “Rabee’a bin Umayya got married to a woman in temporary marriage and the woman became pregnant from him.” Omar came out drawing his garment after him and said: “It is the temporary marriage! If I had prohibited it since time ago, I would have stoned!” He meant that if he had prohibited temporary marriage since before, he would have stoned Rabee’a and the woman, with whom he had got married.20 This speech showed clearly that prohibiting temporary marriage was his decision and not of any one else.
7. The deniers of Omar’s decision
Imam Ali (s) denied that as it was mentioned by ath-Tha’labi and at-Tabari when interpreting the Quranic verse of temporary marriage in their Tafseers. They mentioned that Imam Ali (s) had said: “If Omar hadn’t prohibited temporary marriage, no one would have committed adultery except a very few people.”
Ibn Abbas denied that by saying: “Temporary marriage was a mercy that Allah had granted to the umma of Muhammad and unless he (Omar) prohibited it, no one would need to commit adultery except a very few people.”
Ibn Abbas often declared openly that temporary marriage was permissible and he had many arguments with ibn az-Zubayr about it even when ibn az-Zubayr became the emir.21
Jabir denied that too as you already saw his saying previously.
Abdullah (Omar’s son) denied his father’s decision as it was mentioned by Imam Ahmad bin Hanbal in his Musnad.22 Abdullah bin Omar said when he had been asked about temporary marriage: “By Allah, we weren’t considered as adulterers at the time of the Prophet (s).” Then he said: “I had heard the Prophet (s) saying: Before the Day of Resurrection there will be the antichrist and thirty or more of liars.”
Once again he had been asked about temporary marriage and he said as it was mentioned by at-Tarmithi in his Sahih: “It is permissible.” It was said to him: “Your father has prohibited it.” He said: “If my father prohibited it whereas the Prophet (s) used to practice it, would we then give up the Prophet’s Sunna and follow my father’s saying?”
Abdullah bin Mass’ood denied Omar’s decision as it was mentioned by Muslim and al-Bukhari in their Sahihs. Al-Bukhari mentioned in his Sahih23 that Abdullah bin Mass’ood had said: “We fought with the Prophet (s) and we had nothing with us.24 We Said: Don’t we castrate ourselves? The Prophet (s) did forbid us from that and permitted us to practice temporary marriage then he recited to us: (O you who believe! do not forbid (yourselves) the good things which Allah has made lawful for you and do not exceed the limits; surely Allah does not love those who exceed the limits 5:87). The interpreters said that this verse had denied strictly prohibiting temporary marriage.
Imran bin Hussayn denied Omar’s decision. Ar-Razi said in his Tafseer that Imran had said: “Allah had revealed a verse about temporary marriage and He hadn’t annulled it by any other verse. The Prophet (s) had ordered us to practice temporary marriage then a man decided according to his own thought what he liked.” Ar-Razi said: “He meant Omar.”
Al-Bukhari mentioned in his Sahih that Imran bin Hussayn had said: “The verse of temporary marriage had been revealed and we began to practice it at the time of the Prophet (s). No any other verse had been revealed to annul the first one and it was not prohibited by the Prophet (s) but when the Prophet (s) went to the better world, a man decided according to his own thinking what he liked.”
Ahmad mentioned in his Musnad a tradition narrated by Abu Raja’ that Imran bin Hussayn had said: “The verse of temporary marriage had been revealed and we practiced it at the time of the Prophet (s). No other verse had been revealed to annul it and the Prophet (s) hadn’t prohibited it until he went to the better world.”
Al-Ma’moon25 ordered during his caliphate to announce the permissibility of temporary marriage. Muhammad bin Mansoor and Abul Ayna’ came to him and found him brushing his teeth and repeating angrily: “Two pleasures were practiced at the time of the Prophet (s) and the time of Abu Bakr but I prohibit them!”26 Then he said: “And who are you, o you scarab, to prohibit what the Prophet (s) and Abu Bakr used to practice!” Muhammad bin Mansoor wanted to talk with al-Ma’moon but Abul Ayna’ made a sign to him and said to him: “A man saying about Omar so and so, how could we talk to him?” They didn’t talk to him.
Yahya bin Aktham came in and became alone with al-Ma’moon. He warned him of sedition to be occurred and said to him that the people would think that he changed in Islam a great change and this would excite the public and the upper class against him because there would be no difference for them between announcing temporary marriage and announcing adultery. He still warned him until he made him give up for fear of the loss of his rule and life.
From among those, who denied prohibiting temporary marriage and who permitted and practiced it, was Abdul Melik bin Abdul Aziz bin Jurayj Abu Khalid al-Mekki, who died in 149 A.H. He was one of the famous scholars among the companions’ successors. Ibn Khillikan mentioned his biography in his book Wafiyyatul A’yan and ibn Sa’d in his Tabaqat (Vol.5 p.361). The authors of Sihah depended upon his traditions. Ibn al-Qaysarani detailed his biography in his book al-Jam’ Bayna Rijal as-Sahihayn p.314. Ath-Thahabi talked about him in his Mizan and mentioned that he had got married to about ninety women in temporary marriage and that he thought that temporary marriage was permissible. Ath-Thahabi said about him that he was the best jurisprudent among the people of Mecca at his time.
8. The Shia’s thought about temporary marriage
The Shia agreed unanimously, according to their twelve imams, upon the permissibility of temporary marriage. It sufficed the Shia as evidence that all the Muslims had agreed unanimously upon that Allah had legislated temporary marriage in His religion, the Prophet’s caller had announced among people of its permissibility and that it had never been proved that Allah or His messenger had annulled it until the revelation stopped when Allah had chosen for His messenger to be near Him in the better world.
According to our (the Shia’s) traditions narrated by our infallible imams (s) it was definitely proved that temporary marriage had never been annulled. Refer to Wassa’il ash-Shia ila Ahkam ash-Sharia.
In the Sunni books there were many traditions showing clearly that temporary marriage was still permissible during the reign of Abu Bakr and during a part of Omar’s reign until he decided to prohibit it after the case of Amr bin Hurayth. What we mentioned about this subject in this short chapter was enough to show the truth.
Most surely there is a reminder in this for him who has a heart or he gives ear and is a witness. 50:37.
1. Not slave.
2. Kitabi means a Jew or a Christian.
3. If she doesn’t undergo menopause yet.
4. And there is no iddah for the woman undergoing menopause.
5. Whether she is slept with or not, whether undergoes menopause or not, whether pregnant or not. The iddah of the pregnant wife when her husband dies in both kinds of marriage is the longest of the two periods; either by giving birth to her child or after passing four months and ten days since the death of the husband.
6. Many historians mentioned this in their books such as Imam At-Tabari in his Tafseer, vol.5 when talking about this verse, az-Zamakhshari in his Kashashaf, an-Nawawi in his book Sharh Sahih Muslim and ar-Razi in his Tafseer vol.3 p.201.
7. You will see this man’s saying soon inshallah.
8. Refer to at-Tabari’s Tafseer vol.5 p.9.
9. Mulk al-yameen; the bondmaids that one had.
10. Vol.1 p.467.
11. Would that I knew or anyone knew if there was any justification out of this word that might lead to prohibiting temporary marriage! Did Omar think that temporary marriage concerned the Prophet (s) only? I didn’t think so!
12. Vol.1 p.52.
13. He said that they were at the time of the Prophet (s) but only Omar himself knew why he had prohibited them!
14. Vol.1 p.535.
15. Just at the first years of the caliphate of Omar because later on he prohibited it.
16. His saying “we used to practice temporary marriage” showed that the companions used to do that and the Prophet (s), Abu Bakr and Omar, before he prohibited it, knew about it.
17. It became clear that prohibiting temporary marriage was determined by Omar and neither by Allah nor by His messenger (s). Refer to ar-Razi’s Tafseer when talking about the verse of temporary marriage.
18. Hayya ala khayril amal is a part of the azan. It means: come to the best of doings!
19. Ijtihad is examining the legal evidences in order to get a religious verdict.
20. Mentioned by az-Zarqani in Sharh Muwatta’ Malik.
21. Refer to Sharh Nahjol Balagha, vol.4 p.489.
22. vol.2 p.95.
23. The second or third page in chap. of marriage.
24. He meant that their wives were not with them.
25. He was one of the Abbasid caliphs.
26. This was the saying of Omar.
By: Allamah Sayyid Abdul Husayn Sharafuddeen