Arabisch-Islamische Welt in Tradition und Moderne

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1 Arabisch-Islamische Welt in Tradition und Moderne Herausgegeben von Raif Georges Khoury Band Harrassowitz Verlag Wiesbaden

2 Khalid Sindawi Temporary Marriage in Sunni and Shiʿite Islam A Comparative Study 2013 Harrassowitz Verlag Wiesbaden

3 Die Bände 1 4 der Reihe sind im Verlag Martin Schmidt, Neckarhausen, erschienen. Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the internet at For further information about our publishing program consult our website Otto Harrassowitz GmbH & Co. KG, Wiesbaden 2013 This work, including all of its parts, is protected by copyright. Any use beyond the limits of copyright law without the permission of the publisher is forbidden and subject to penalty. This applies particularly to reproductions, translations, microfilms and storage and processing in electronic systems. Printed on permanent/durable paper. Printing and binding: A Hubert & Co., Göttingen Printed in Germany ISSN ISBN

4 Contents Transliteration... 9 Acknowledgments Preface Temporary Marriage in ShÐÝÐ and SunnÐ Islam: A Comparative Study Objectives of the Study Introduction Marriage in Islam: General Introduction and Socio-Historical Investigation Marriage: Definition The laws of marriage in Islamic canonical law (sharðýa) The conditions of a valid marriage in Islamic law Islamic canonical law encourages marriage at any time Dissolution and annulment of a marriage Permanent and temporary marriage Chapter One: Matrimonial Institutions Abolished by Islam Impregnation marriage (nikáî al-istibãáý) Prostitution Group marriage (nikáî al-rahô) Spouse exchange (nikáî al-badal) Fraternity marriage (nikáî al-mukhádana, nikáî al-muòáîaba) Marriage to the wife of one s father (nikáî al-maqt, nikáî al-ãayzan) Marriage to prisoners of war and/or marriage by abduction (nikáî al-masbiyyát, nikáî al-makhôùfát) Paramour marriage (nikáî al-muãámada) Chapter Two: Disputed Marriage Types That Are Still Practiced Today Concubinage (nikáî al-tasarrð) Marriage without a dowry (nikáî al-shighár) Usufruct marriage (nikáî al-mutýa) Common-law marriage (al-nikáî al-ýurfð) Forms of common-law marriage Marriage of validation (nikáî al-taîlðl) Marrying with the intention to divorce (al-nikáî bi-niyyat al-ôaláq) Chapter Three: Contemporary Marriage Types Travel marriage (zawáj al-misyár) Marriage of preference (zawáj al-ðthár) Day marriage and night marriage (zawáj al-naháriyyát wal-layliyyát) Civil marriage (al-zawáj al-madanð)... 43

5 6 Contents Fictitious marriage (al-zawáj al-òuwarð) White marriage or cohabitation (al-sakan al-mushtarak) Forced marriage (zawáj al-taljiþa, zawáj al-ikráh) Tourism marriage (al-zawáj al-siyáîð) Soap opera marriage (zawáj al-musalsalát) Internet marriage/electronic marriage (zawáj al-intarnit / al-zawáj al-iliktrùnð) Tattoo marriage (zawáj al-washm) Blood oath marriage (zawáj al-dam wal-tashbðka) Abduction marriage (zawáj al-khaôðfa) Stamp/postal marriage (zawáj al-ôawábiý/al-bùsôa) Cassette marriage (zawáj al-kásðt) Trip marriage (zawáj al-misyár) Summer marriage (zawáj al-miòyáf/al-òayf) Friend marriage (zawáj al-frðnd) FÁtiÎa marriage (al-zawáj bil-fátiîa) Take-away marriage (zawáj al-tek away) Business marriage (zawáj al-bðznes) Cohabitation (zawáj al-musákana, al-zawáj al-funduqð) Entertainment marriage (zawáj al-wanása) Chapter Four: Usufruct marriage (mutýa) in Islam and Islamic jurisprudence, and social traditions among Twelver ShÐÝites Usufruct marriage in the Quran and its commentaries Usufruct marriage according to SunnÐ ÎadÐth Usufruct marriage according to ShÐÝÐ traditions MutÝa marriage in SunnÐ religious law Usufruct marriage in Twelver ShÐÝite jurisprudence Chapter Five: Travel Marriage (zawáj al-misyár) in Islamic Jurisprudence and Social Tradition among SunnÐs The emergence and spread of contemporary travel marriage The etymology of al-misyár The term travel marriage (zawáj al-misyár) Chapter Six: Friend Marriage in Islam and Islamic Jurisprudence, and Social Customs among SunnÐ Muslims Friend marriage The fundamentals of Islamic law on which the idea is based: A comparison among usufruct, travel and friend marriage The differences between travel and usufruct marriage The differences between travel and conventional marriage The differences between friend marriage and conventional marriage The differences between travel and friend marriage Epilogue

6 Contents References Arabic sources Hebrew sources Sources in European languages Links to internet websites Index

8 Transliteration ا ء = a ض = Ã ا = vowel) Á (long ط = Ô ب = b ظ = Û ت = t ع = Ý ث = th غ = gh ج = j ف = f ح = Î ق = q خ = kh ك = k د = d ل = l ذ = dh م = m ر = r ن = n ز = z ه = h س = s و = w ش = sh و = vowel) Ù (long ص = Ò ي = vowel) Ð (long

10 Acknowledgments I would like to thank Prof. R. G. Khoury, University of Heidelberg, and Mrs. Dr. Barbara Krauß the Director of the Printing House Harrassowitz, for including this book in the series Tradition and Modernity. I would also like to thank my wife Hadiyya, for encouraging me, without her love, support, and continued patience my contribution to this book would not have been possible. Finally I want to thank my sons Ahmad, Aya, and Razi who have over the years supported me in my endeavors. Emek Yezreel, January 2013 Khalid Sindawi

12 Preface Temporary Marriage in ShÐÝÐ and SunnÐ Islam: A Comparative Study Muslim jurists have used a variety of devices to deal with issues of theology and religious jurisprudence throughout the ages. The system is quite complex, although based only a number of basic components. The principle of independent judgment or ijtihád differs from other juridical devices in Islam, in particular those that are considered as constituting the basic principles of the faith. Thus the QurÞÁn, as the main pillar of Islamic jurisprudence, has remained the leading source of Islamic legislation from the earliest times to our days, despite the many different and contradictory interpretations to which it has been subjected, since it is regarded as a divine text, untouched by the hands of human beings and their narrow interests. Two other important sources of jurisprudence, although slightly inferior in status to that of the QurÞÁn are the Sunna, the binding sayings and actions of the Prophet, and the ÎadÐth or reports of the sayings and deeds of the Prophet and his Companions. The principles of analogy and consensus have had varying fortunes in the discussions of jurists and their juridical texts. In fact, although both analogy and consensus have been recognized as important principles, they were only applied to certain specific juridical issues and were ignored in the great majority of cases in which independent judgment had been applied. The problematic nature of independent judgment (ijtihád ) and the literature on the subject is due to the fact that Islamic scholars in any one age were unable to come to agreement on any specific issues. In the course of time the disputes based on independent judgment grew more acrimonious, while schools of religious thought proliferated through the ages. The topic of temporary marriage involves a great many problematic issues in Islamic religious law (sharðýa ), due to the aforementioned disagreements among jurists which are engendered by contrasting views on independent judgment and the existence of many different and mutually inconsistent schools of thought and jurisprudence. This has brought about a situation in which juridical matters, instead of being discussed for their own sake, have been exploited for sectarian purposes far removed from the interests of Muslim society as a whole. This study will analyze the issue of temporary marriage in Islamic canonical law (sharý) in light of contemporary positive and civil law in a number of Muslim countries. It will also discuss the social aspects of temporary marriage, as well as the influence that social sentiments may have had on the way in which this institution has been appraised in Islamic law. We shall compare the juridical approaches of a number of modern Islamic legal scholars who have focused on this issue, in addition to a perusal of relevant manuscripts in which the opinions of past scholars can be seen. The written materials used in this study are thus derived from both ancient and modern sources. The variety of sources also reflects quite well the great differences of opinion on the issue at hand among different scholars and the various schools of jurisprudence, including various innovations in a number of matters,

13 14 Preface especially those concerning problems of the modern age, which are unprecedented and are therefore not discussed by medieval jurists. The study itself is divided into an Introduction, seven chapters and an epilogue. The Introduction explores the concept of marriage, its conditions and laws, the encouragement of matrimony in Islamic law, divorce and annulment of marriage, and the two types of legal marriage, permanent and temporary. Chapter One describes marriage types that were in existence in pre-islamic times and were abolished by Islam. Chapter Two presents the various types of marriage in Islam, some of which are still in vogue to this day. Chapter Three discusses the many kinds of marriage in modern times in the Arab and Muslim world. Chapter Four deals with usufruct marriage (mutýa ) in Islamic jurisprudence and the attendant social customs among Twelver ShÐÝÐtes. The main issues it addresses are the following: MutÝa marriage in light of the text of the QurÞÁn and its commentators, in light of ShÐÝite ÎadÐth, in light of SunnÐ ÎadÐth, in light of SunnÐ jurisprudence (fiqh) and in light of Twelver ShÐÝÐte jurisprudence. Chapter Five deals with travel marriage (misyár) in Islamic jurisprudence and SunnÐ social practice. Chapter Six describes what is known as friend marriage, discusses the views of Islamic jurists on this kind of liaison, and analyzes it in light of the juridical and social interpretations that have been given it. The final chapter, Chapter Seven, provides a brief digest of the points of similarity and difference between usufruct (mutýa), travel (misyár) and friend marriage. The Epilogue summarizes the most important results of this study, followed by a list of references.

14 Objectives of the Study The main objective of this study is to analyze and survey the views of Islamic jurists both ancient and modern on the issue of temporary marriage, that is, a marriage that is limited in time, and whether such a marriage is licit or not. Using juridical texts, religious rulings (fatáwá), independent opinions and more, this study has been able to illuminate the main disputes among early and modern Islamic scholars on the issue of temporary marriage. It has also been able to track the sources of the obvious disagreements on this matter in Islamic religious circles. In fact, one of the major causes of dispute on this issue, in early as well as in modern times, in addition to differences in individual judgment, was sectarian considerations. Neither SunnÐ nor ShÐÝite scholars were able to free themselves from the partisan spirit with which the various schools had been imbued, and they therefore kept alive juridical disputes on a number of issues, including temporary marriage, for no other reason than to maintain the distinctions between the various sectarian trends. Were it not for the fact that the issue of temporary marriage became a bone of contention among the various rival Muslim schools of jurisprudence, it would certainly have ceased to inflame the passions with the passage of time. However, since it has been used by these schools to attack each other, it will in all likelihood remain a controversial issue. Social factors and changing norms of behavior in contemporary Muslim culture have played a considerable role in the evolution of legal and judicial opinions on various issues in modern times, including, of course, temporary marriage, an issue that cannot be separated from the structure of Muslim society and the Muslim family in the East and the West, and that demonstrates the strong interrelationship and manifest mutual influence between Islamic jurisprudence and the current state of society.

TURCOLOGICA. Herausgegeben von Lars Johanson. Band 98. Harrassowitz Verlag Wiesbaden

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