Muta Marriage under Muslim Law – a brief study

          The word muta literally means 'enjoyment, use’; and in its legal context it may be rendered, according to Heffening, a ‘marriage for pleasure’. Such marriage is contracted for a fixed period and for a specified amount or reward.

 

         Marriage, according to Muslim law is a civil contract which can either be permanent or temporary. When a contract of marriage is entered into temporarily and for a specific period, it is called muta marriage.

 

         The institution of muta marriage was very popular amongst Arabs during the period before and even at the time of Prophet. Such type of marriage might have been justified in olden days because that was the period of wars and travels. The evils of muta marriage could not be cancelled and all schools of Muslim community discarded this practice, only Ithana Ashari (Shiatie's) school retained this practice and considered it lawful. Prophet Mohammed too, although he tolerated this practice for some time, finally rejected it.

 

          The practice of muta marriage is not very common in India. Normally, the women of Lucknow and other places belonging to Shiaites do not contract muta marriage. In Iraq and Persia, the practice of muta marriage is prevailing only upto that extent which may legalise prostitution.

 

Essentials of muta marriage

 

1. The terms of muta marriage must be specified.

 

2. The duration of a muta marriage must also be specified i.e., a few hours, a few days, a few weeks, or a few months or a few years etc. If the period or duration is not specified, such a marriage will be treated as a permanent union like any other permanent union or a Muslim marriage. In this connection, Asaf A.A. Fyzee said that the fixation of a period in the marriage destroys the concept of 'nikah'. The mere omission to specify the period may result in a valid muta for life. In Shohrat Singh v Jafri Bibi, (1914) 17 Bom LR 13 (17), it was held by Privy Council that if cohabitation commenced in a muta marriage where term was not stipulated, then in default of the evidence to the contrary, the marriage would be deemed to have continued for the entire period of cohabitation.

 

3. Some dower should be specified in the contract. If the term of cohabitation is not specified but the dower is fixed the contract would be void as muta but valid as nikah; S.A. Hussain v Rajamma, AIR 1977 AP 153, But if the dower is not specified, neither muta nor nikah will ensue.

 

4. The rule of limiting the number of wives to four as regards regular marriages, does not apply to muta marriage.

 

5. Where two persons having married under the muta form for a fixed period continue to live as husband and wife beyond the expiry of that period or till the death of the husband, the presumption in the absence of evidence to the contrary will be that the term of marriage had been extended till the period of cohabitation; Shoharat Singh v Jafri Bibi, 24 IC 499 (PC)

 

6. The parties must have attained the age of puberty and they must be of sound mind.

 

7. The consent of both parties must be free, and they should not be within prohibited degrees of relationship.

 

8. A Shia male can contract muta marriage with a Muslim woman, a Kitabia woman (Christian or Jewish) or a fire worshipping woman (majusiyya), but he cannot contract muta marriage with a woman following any other religion. A Shia female cannot contract muta marriage with a non-Muslim female.

 

9. There must be offer made by one of the parties to such a marriage and acceptance by the other party.

 

10. No witness is necessary at the time of marriage.

 

Legal effects of muta marriage

 

The following are the effects of muta marriage:

 

(1) Muta marriage does not create any mutual right of inheritance between parties to such marriage.

 

(2) Wife in a muta marriage is not entitled to maintenance. However, if in the contract of muta marriage; it has specifically been provided that she will be entitled to maintenance during the whole term even if the husband chooses not to cohabit with her, she can claim maintenance. Nowadays, even in absence of such stipulation, the court has power to grant maintenance under section 125 of the Code of Criminal Procedure, 1973 (now under section 144 of BNSS, 2023).

 

(3) Wife is entitled only for half dower, if marriage has not been consummated. If marriage has been consummated, she is entitled for full dower. If the husband leaves her before the expiry of stipulated term, she will be entitled only to proportionate dower.

 

(4) Wife has to undergo iddat of two courses, if her marriage has consummated. If it was not consummated, no iddat is required

 

(5) Husband in a muta marriage has a right to refuse procreation.

 

(6) The children born of muta marriage have the right to inherit the property of their father and mother. Their status is of the legitimate children like that of the offspring of a permanent marriage.

 

(7) Mute marriage comes to an end on the expiry of the stipulated term. Such marriage can be extended. Muta marriage can be terminated by the mutual consent of both the parties. Even husband alone can terminate the marriage by making a gift of the term or any portion of it, which is called Hiba i.e., muddat. In such cases, the consent of wife for termination of marriage is not necessary.

 

FAQ (Frequently Asked Question)

 

What are the differences between a muta marriage and a nikah?

 

Difference between 'regular marriage’ (nikah) and ‘muta-marriage' are as under:

 

(1) Regular marriage (nikah) is recognised by Shias and Sunnis both, whereas muta marriage is recognised only by Shiaites.

 

(2) Regular marriage is a permanent contract while muta marriage is temporary and a time being enforceable contract.

 

(3) Regular marriage gives a right of inheritance to spouses on the property of each other, while in muta marriage it is not so.

 

(4) The relation once established between a wife and husband due to regular marriage is dissolved only on divorce or death of any of them, whereas muta marriage is automatically dissolved on the expiry of the specified period.

 

(5) The woman becomes entitled to get the full amount of dower, no sooner her regular marriage is solemnized properly, but the payment of dower (Mahf) in muta marriage depends upon the consummation of such marriage. In case, marriage is not consummated in muta marriage, the wife is entitled only for half dower.

 

(6) Regular marriage can be dissolved only through divorce and the payment of dower is very necessary before doing so but in case of muta marriage, it can be terminated only on the expiry of the prescribed time

 

(7) The dower can either be "express" or "implied" in regular marriage, while in muta marriage, it is always express.

 

(8) In case, divorce takes place after sometime in the regular marriage, the wife is entitled to get maintenance during the period of iddat while in muta marriage, a woman has no right to take any maintenance after dissolution of such marriage.