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Islamic Voice Logo
MONTHLY    *    Vol 11-10 No:129    *   OCTOBER 1997 / JAMADI UL AKHIR 1418H

email: editor@islamicvoice.com

OUR DIALOGUE


Halal and Muta
Are Captive Women Lawful for Men
Utterance Talaq in Anger


Halal and Muta

S. Abdullah Tariq

Q. I came to know if someone has divorced his wife and wants to remarry her again, he cannot remarry her till she marries someone else and gets divorced by the second husband to remarry her first husband. This is called ‘Halal’. Is Halal really Halal? Is it quoted some where in Qur’an? In Indian sub continent the concept of Halal exists but not in the Middle East.

2. In Iran there is a concept of Muta (contract marriage). Was this acceptable at the time of the Prophet (Pbuh)? Since when is it not accepted in Sunnis? In Shias, it is accepted at present also? In both the conditions i.e.Halal or Muta, the intention of the marrying man is to give divorce to the woman. Is this acceptable in Islam? If this problem is mentioned in Qur’an, please give reference.

Dr.Riazul Abidin, New Delhi.

A. As you have pointed out, the intention of giving a divorce after sometime, is common to both the distorted version of halal and Mufta (the short term marriage). A Nikah with a prior intention of Talaq is not permitted and hence both the above are unlawful.

A Nikah in Islam is an Ibadat and is a contract of permanent nature till it is impossible for them to adjust later on for reasons unforeseen at the time of marriage. Describing the nature of permanency in a contract of Nikah, the Qur’an says: “They (the wives) have taken from you a solemn covenant.” (4:21)

This solemn covenant is not merely to satiate the sexual desire but its purpose is to achieve mental peace in life.

“And among his signs is this, that He created for you mates from among yourselves that you may dwell in tranquility with them and He has put love and mercy among you..” (30:21)

The husband and wife are like garments for each other. The garments act as adornment and provide protection, likewise the spouse are each other’s adornment and provide protection to each other.

“They are your garments and you are their garments..” (2:187)

“Nobody sows seeds in his land to abandon it afterwards. Wives are like tilth for men whom they care for and maintain. Your wives are your tilth..” (2:223)

The Prophet (Pbuh) pronounced a good wife a most prized possession and for Talaq he said it is most abhorrent of permitted acts in the eyes of Allah. Qur’an advised men to adjust with their wives even if they came to dislike them (4:19) and the Prophet (Pbuh) advised men not to divorce their wives for reasons other than their licentlousness. (Tabrani)

The above scenario has no relation with the concept of distorted Halal and Muta. Both these concepts are being discussed below separately.

Halal

The Holy Qur’an expounds: “So if a husband divorces his wife (for a third time), he cannot, after that remarry her until after she has married another husband and he has divorced her. In that case, there is no blame on either of them if they re-unite, provided they can keep the limits ordained by Allah. Such are the limits ordained by Allah which He makes plain to those who know”. (2:230).

A man is entitled to take his wife back twice after two respective Talaqs and for a third time also before the expiry of her Iddat after he gives her a Talaq for the third time. But after that the separation is irrevocable. She is then free to be married to any other person of her choice. If then in the normal course of life a dispute between them develops leading to first Talaq by the second husband, she is again free to be married to any person of her choice including the second husband (by whom she has got the first divorce) and also including the first husband as well. The relevant point here is that a Halal cannot be planned in advance, as a Nikah between her and the second husband with an understanding of a divorce afterwards will not be valid. If she does so, it will be an illegitimate relationship with the second husband and with the first husband also with whom she comes to live after a pre-planned Halal. The Prophet (Pbuh) has cursed both such men who perform Halal and for whom Halal is performed. The second Caliph Hazrat Umar ruled during his reign that he will punish with stoning to death, those who perform a pre-planned Halal. Imam Sufian Sauri says: “ If someone marries a woman to make her Halal (for her ex-husband) and then wants to keep her as wife, he is not permitted to do so unless he solemnises a Nikah afresh, as the previous Nikah was unlawful.” (Trimizi)

Muta Limited term marriage contract

The following comparison between a universally accepted Nikah and a Muta will be sufficient for even a layman to pronounce through common sense that muta is illegitimate sex.
* Two witnesses are a must (according to all Shia Scholars) for a normal Nikah to be solemnised. No witness is required for the contract of Muta.
* The husband is responsible for the maintenance of wife including her clothes and lodging.
* In a Muta, the man has no such responsibility.
* In special circumstances, and subject to some stiff conditions, a man can have more than one wife, but not exceeding four wives.
* In case of Muta, a man can keep as many women as he likes without any condition of equality between them.
* A wife has a share in her husband’s property after his death. The women of the Muta contract has no share in the man’s property in case of his death.
* According, to Shia scholars, the consent of the girls father is essential in a marriage if the girl is a virgin. The consent of the girl’s father is not necessary in Muta even if the girl is a virgin.
* The term of the normal Nikah is till the death of the spouse. The term of a Muta contract may be fixed at 15 minutes or 50 years as per agreement between them.
* Shia scholars decree that two just witnesses are necessary for a Talaq to be valid. No witness is required to terminate the contract of Muta.
* The Iddat or waiting period of the divorced woman is 3 months and 10 days. The waiting period of the divorced woman of a Muta is half of the above.
* Talaq of a normal marriage cannot be pronounced during the menstrual period of the wife. There is no such condition for terminating Muta contract.
* The wife is entitled to her maintenance during the Iddat of Talaq in a normal marriage. She has no right of maintenance during the Iddat of a Muta.

Shia scholars try to legitimise Muta by quoting the following Qur’anic verse: “Except for those (women described earlier) all other are lawful provided you seek them in marriage with gifts from your property desiring chastity, not fornication. Give them their Mehar for the “Istamta benefit you have of them as a duty..” (4:24).

From the Arabic word ‘Istamta’, the Shias of Imamia sect derive that the verse is about ‘Muta’ as both the words have the same root. But reading it with the specific instruction of the same verse, “desiring chastity, not fornication” makes it amply clear that the verse concerns a legitimate permanent Nikah instead of a short term ‘Muta’ which is nothing but fornication as is evident from the comparison given earlier. Fixed term marriage, that is the Nikah with prior intention of termination, is a sexual independence limited by only one condition that the woman in contract should not be a legitimate wife of someone at the time of contract. If this condition is met anyone can enter into Muta contract with her consent without having a witness at the time of contract, without taking her father’s consent even if she is a virgin and minor. There is no responsibility of the man to provide her maintenance and he is free to keep hundreds of such women together under one roof. If this is not fornication then what is?

Allah Almighty declared in Qur’an: “We exalted the sons of Adam..” (17:70).

The Prophet(Pbuh) said: I have been raised for the completion of moral values.

How can there be a place for Muta in Islam whose scripture declares that successful are those believers “..who guard their modesty except with those joined to them in the marriage bond or (the captives) in your possession (whom you can marry). For (in the above two cases) they are free from blame. But those whose desires exceed those limits are transgressors.” (23:5.7)

Muta, in fact was a custom of the Arabs of the days of ignorance which remained in practice during the earlier days of the Prophet’s (Pbuh) era till on the day of Khaibar of the last Haj, the Prophet (Pbuh) pronounced its total prohibition, in the same manner as wines were declared unlawful in a phased manner.

Those Shia scholars who claim that Muta was first banned by Umar during his reign forget that Imam Ali maintained the prohibition of Muta during his rule of Caliphdom and the actions of Imam Ali should be binding on all Shia Muslims.
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Are Captive Women Lawful for Men

Q. I am a member of an Islamic Organization called the sister of the Islamic Society. We undertake Dawah and community service. We have discussions, discourses and seminars through which we learn more and remove our doubts. But there has been a question to which none of us could find a suitable explanation. Time and again we have come upon this phrase in the Qur’an. “And we have made lawful to you your wives and those whom your right hands possess” or “And those who guard their chastity, except with their wives and the captives whom their right hands possess, for them they are not to be blamed” (70:29,30) According to the precepts of Islam, until a man and woman are bound by the lawful tie of marriage, whatever physical relationship or emotional connection they have outside it is akin to adultery or fornication. So, then my question is, how are the captives which your right hands possess lawful to a man without him giving them a marital status?

Naaz Fathima; Madras.

A. Though widespread, it is a wrong notion that Islam holds no bar on free sex with the enslaved women taken as war captives. Women are justified for having reservations against such practice (though rarely applicable in present days) said to be permitted by Deen-e-Fitrat. The verses you have quoted from 70:29-30 also occurred in 23:5-6. Both these Surahs (23&70) were revealed in Makkah. Later, in Madina, the law concerning sex with captive women was completed vide 4:25. Which specifically mentions Nikah with them after the payment of Mehr. It is like the order concerning drinks which were not strictly banned in the beginning but were later declared unlawful. All the three orders related to drinks should be read together for a complete understanding of the law, which now states: 1. There are some benefits of drinks but its evil surpasses its benefits. 2. Salat is not valid if offered while under influence of intoxicants. 3. Intoxicants are unlawful. Similarly the law regarding captive women can only be comprehended when all the verses concerning them are put together. Before elaborating it further, I might point out a slip by many a translator while translating these verses (i.e. 23:6 and 70:30). The Arabic word ‘WA’ means ‘AND’, while ‘AU’ is for the word ‘OR’. In both these verses ‘AU’ has occurred implying the permission of sex with their wives or the captives they possess. Replace ‘OR’ by ‘AND’ in the above and the meaning changes. Now compare it with the verse 33:50 where ‘WA’ (AND) has been used while describing an order exclusively for the Prophet (Pbuh). The verse reads: “O Prophet (Pbuh), indeed, we have made lawful unto you your wives unto whom you have paid their dowries ‘AND’ those whom you possess out of those whom Allah has given you as spoils of war...., a privilege for you only, not for the (rest of) believers. We are aware of that which we enjoined upon them concerning their wives and those whom they possess (as captives). (This has been made clear) so that you may be free from difficulty... “ (33:50) Read the correct word ‘OR’ in context with the believers (other than the Prophet) making it their wives ‘OR’ their captives and then read the exclusive order for the Prophet (Pbuh) in the above verse which allows your wives ‘AND’ your captives and then ponder over the explanation given in the last part of the verse (23:50), it will become evident that for general believers, the sexual relation with captives while they have wives, is not permitted. Another point which must be made clear is that for a number of reasons, (racial discrimination, not very certainly being one of them), which are not being discussed here, Islam in general does not approve of the marriages between free men and enslaved women, though it does not prohibit them. That is why they have been described as a different category alongwith wives, although they would also become wives after Nikah with them (which is a pre-condition for sex). Till the clear cut order of legitimate marriage with captive women was not revealed, sex without taking them into marriage was not prohibited, which explains the earlier practice and traditions. After the revelation of Surah Nisa (No-4) in Madina, the comprehensive law can be read as under: 1. (The believers) who guard their chastity except with their wives or (The captives) whom their right hands possess, for them they are not blame worthy. (23:5,6 & 70:29:30) 2. And whosoever is not able to afford to marry free believing women, let them many from the believing maids whom your right hands possess instead of availing free sex with them. Allah knoweth best (concerning) your faith. You proceed from one another (so the racialism is not behind the wisdom of this order). Wed them by permission of their folk and give unto them, their dowers (Mehrs) according to what is reasonable. They should be chaste, not fornicators (who submit to sex without marriage), nor of loose conduct.. this (leave of marrying captives) is for him among you who fear sin. But it is better for you (who have no means to marry free believing women), if you practise self restraint (instead of availing leave of marrying captives). Allah is forgiving, Merciful. (4:25) Therefore, in the light of the 2nd rule, the first rule will read as: “Who guard their chastity except with their wives (taken from the free believing women) or (the believing captives in their marriage) whom their right hands possess, for then they are not blame worthy.” Top

Utterance Talaq in Anger

Q. I and my husband always have petty quarrels which end with cursing one another. Everytime he says, ‘I am going to Talaq you and let God’s curse be upon you’ and I also always request him for the Talaq. But as soon as we join together we forget and start living happily again. My doubt is, will God sanction the curse and Talaq which we pronounced when we were quarrelling?

(XXX, Chaliyam)

A. The Talaq is not effectual if pronounced in a sense of future tense. The words making it effective should be of the past or present tense, like “I gave you Talaq” or “I give you Talaq”, “I am going to Talaq you”, as you have stated in your query contain a sense of future tense, which is a reprieve for you. Otherwise also at least two witnesses should be present for Talaq to be effective according to appropriate words used by your husband. Your divorce would have been valid according to the four Sunni Schools of fiqh. Try to control your anger and sort this thing out with your husband in moments of understanding so that such a situation never arises in future. His ‘Talaqing’ in this way is a grave sin and a punishable act in Islamic Shariah. You also commit sin when you ask for Talaq during quarrels. The Prophet (Pbuh) said: “The women disobeying their husbands and those who ask for ‘Khula’ (without genuine reasons) are Munafiq” (Nisai)

Cursing a believer man or woman is also sin. Petty quarrels are unavoidable but resolve to avoid a situation where the Talaq will happen and both of you will regret. Tell this to your husband, ask Allah’s forgiveness and make a resolution not to repeat this situation ever again. Try to withdraw from the scene instead of answering him, when there is a quarrel.
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