Introduction
Marriage or nikah, according to Muslim law, is defined to be a contract which has for its object the procreation and legalizing of children. The essential ingredients for a valid Muslim marriage are the capacity to contract marriage, proposal, and acceptance, and the absence of any impediment to the marriage.
Muta Marriage
The word “muta” literally means “enjoyment, use”. It is a ‘marriage for pleasure’ for a fixed period of time, also known as temporary marriage. The institution of muta, which was fairly common in Arabia before and at the time of the prophet, is now not recognized by any school of Muslim law in Indian, except the Ithna Ashari Shiite or Shia school. In practice, however, the institution of muta marriage is almost obsolete in India.
Essentials of Muta Marriage
There are four essentials of muta marriage,
- Form – Proper contract which means declaration and acceptance.
- Subject – A man may contract a muta with a woman professing the Mohammedan, Christian or Jewish religion or even with a fire- worship-per, but not with a woman following any other religion. A Shia woman, however, cannot contract a muta with a non–Muslim. Relations prohibited by affinity are also unlawful in such marriage;
- The term – Which means that the period of cohabitation should be fixed, which may be a day, a month, a year or a terms of years; and
- Dower.
When the term and the dower are fixed, the contract is valid. If, however, the term is fixed but the dower is not specified, the contract is void. Further, if the dower is specified and the term is not fixed, the contract, though void as muta may operate as a “permanent “marriage.
Legal incidents of Muta Marriage
The legal incidents of muta marriage are –
1. It does not create mutual rights of inheritance between the man and the woman.
2. Children conceived of the relationship are legitimate, and can inherit from both parents.
3. Where the cohabitation commences in a muta, but there is no evidence as to the term and the cohabitation continues, the proper inference would, in default of evidence to the contrary, be that the muta continued during the whole period of cohabitation. Children conceived during that period are legitimate and capable of inheritance.[1]
4. Where there is evidence of the term, but cohabitation continues after the expiry of the term, the inference is that the term was extended and the children conceived during the extended term are legitimate.
5. A muta marriage is dissolved ipso facto by the expiry of the term.
6. No right of divorce is recognized in muta, but the husband may, at his will, put an end to the contract by ‘making a gift of the term’ to the wife, even before the terms ends. The wife’s consent is not required for such termination.
7. Dower is a necessary condition of muta. Where the marriage is consummated, the wife is entitled to the whole amount, even if the husband ends the contract before the term expires. If the marriage is not consummated, the wife is entitled to half the dower. If she leaves before the expiry of the term, the husband is entitled to deduct a proportionate part of the dower.
8. A muta wife is not entitled to maintenance under Shia law. She was, however, held to be entitled to maintenance as a wife under the provisions of section 125, Code of Criminal Procedure, 1973 in Luddun v. Mirza Kumar.
This decision is of doubtful authority according to Mulla, because, as stated in Sharaya- ul- Islam ‘the name of a wife does not, in reality, apply to a woman contracted in muta.
9. A man may contract muta with any number of women.
Also Read – Difference Between Dower And Dowry
Muta marriage has its own advantages and disadvantages but on cannot turn a blind eye to the fact that it is indeed a form of Islamic prostitution and such a practice should be curbed in order to bring an end to gender discrimination and promote equality of women to men, a concept is hardly seen in male-centric patriarchal Muslim law. Muta marriage is yet another practice which favors the Muslim males more than the females.
[1] Family Law Lectures, Prof. Kusum.
