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.