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temporary Nikah and its validity in India

What is mut’a marriage – and why it may be difficult for India’s Supreme Court to invalidate it Legal experts say since the apex court has upheld live-in relationships, the Shia Muslim practice of temporary marriage could withstand a challenge. Mut’a, or temporary marriage, is one of three forms of Muslim marriage – nikah halala and nikah misyar are the others – that the Supreme Courtrecently referred to a Constitution bench for adjudication. Though Sunni Muslims shun mut’a, mistakenly seeing it as prostitution, it is considered legitimate by the Twelver Shia sect, which is predominant in Iran and constitutes 90% of India’s Shia population. With the Supreme Court recognising, at least partially, the rights of partners in live-in relationships, it is debatable whether mut’a can be held constitutionally invalid. In fact, it can be argued that the Shia institution of temporary marriage is superior to live-in relationships, particularly those that do not endure for long. Essentially a pre-Islamic practice, mut’a is said to have Islamic sanction through verse 24, chapter 4, of the Quran. Caliph Umar (584 CE-644 CE) banned it, but Shias do not consider his ruling binding on them. Yet, the Pahlavi dynasty, which ruled Iran from 1925, pushed mut’a to the margins. It saw a revival after the Islamic Revolution swept the Pahlavis from power in 1979, not least because Shia clerics consciously injected it into public discourse to reify it. Old practice Mut’a is an Arabic word meaning pleasure. Shahla Haeri, an anthropologist at Boston University in the United States defines mut’a marriage in her authoritative work, Law of Desire: Temporary Marriage in Shi’i Iran, “as a contract between a man and an unmarried woman, be she a virgin, divorced, or widowed, in which both the period the marriage shall last and the amount of money to be exchanged must be specified”. In Iran, the word mut’a is seldom used. The practice is popularly known as sigheh, meaning a “form” or “type” of contract. The rules for drawing sigheh are set in stone. For instance, the contract for temporary marriage can be drawn for one hour to 99 years; it cannot be for an indeterminate period. This clause distinguishes mut’a from nikah or permanent marriage, which has no time limit. Like for nikah, though, the mut’a contract must specify monetary benefit for the bride. No witnesses are required for mut’a and a cleric does not have to solemnize it. Either of the couple can conduct it. Haeri provides the format: the woman, for instance, can say, “I [name], marry (or mut’a) thee, for the amount of [money] and for such and such period.” The man says, “I accept.” The contract can also lay down other conditions. “As in any contract, the woman can spell out her conditions for the sexual union, including daily maintenance, and once accepted by the temporary husband, these have to be met,” Raza Abbas, assistant professor of Theology at Aligarh Muslim University. “Obviously, such conditions cannot be in violation of Islamic principles.” The marriage automatically dissolves at the end of the stated period. Thereafter, regardless of how short the marriage was, the woman has to observe sexual abstinence for the length of two menstruation cycles. “This is to identify a child’s legitimate father in case she is pregnant,” writes Haeri. That determination is needed because children born of temporary marriage enjoy the same status as their siblings born of a permanent marriage. “Here lies the legal uniqueness of mut’a, that which distinguishes it ideologically from prostitution, despite their striking resemblance,” Haeri points out. After the contract expires, the temporary husband and wife can renew it. The husband has the unilateral right to revoke the contract, but must pay the amount agreed upon. The woman, theoretically, cannot revoke the contract – a mark of her subordinate status – but she can refuse to be intimate with him, even leave him. In that case, she must pay back a part of the amount agreed upon. Men and women are not on a par in every aspect of mut’a. A man can simultaneously enter into multiple temporary marriages, but a woman can have only one temporary husband at a time. A married man can have a mut’a marriage, but not a married woman. The rule of sexual abstinence too does not apply to men. Complaining about this rule, a woman, Mahvash Khanum, told Haeri she wished she could “sigheh every night”. A man is allowed to temporarily marry women of the book – Muslim, Christian, Jew, Zoroastrian. A woman can do so with only a Muslim man. New thinking But mut’a is not just about sex. There is also the concept of non-sexual sigheh for those wishing to pay for female companionship. This too has a time limit and the man cannot turn it into a sexual relationship; that is the woman’s prerogative alone. Non-sexual sigheh is in vogue in Iran, used for dating, or for what is called a trial marriage before the couple opts for nikah, or simply to overcome the country’s excessive gender segregation. It is becoming increasingly popular as the clerics and the Iranian state have consciously tried to destigmatise sigheh, sexual or otherwise. In this regard, the most telling intervention was made by President Hashemi Rafsanjani, who, while delivering a Friday sermon in 1990, challenged the notion that sexual abstinence was good. “It is wrong,” he proclaimed from the pulpit. “It is anti-Islamic.” He spoke of the plight of women whose husbands had been killed in the Iran-Iraq war of the 1980s. Haeri quotes Rafsanjani as saying, “If we had a healthy society…then when they felt the [sexual] need, niaz, they could approach one of their friends or relatives from a position of confidence and invite him to marry them temporarily…This they could do without fear of being shamed or ostracized by others.” Rafsanjani also spoke about the sexual desire of young men and women who, for instance, study together. “Presently in our society for our youth to remain pure and honourable and to respect the societal norms [of chastity and virginity] implies remaining unsatisfied until they are 25-30 years [before they can marry permanently],” he said. “Deprivation is harmful...Who says this is correct? God didn’t say that…The Prophet did not say that. The whole world doesn’t say so…To fight nature is wrong.” Iran went in a tizzy at Rafsanjani’s sermon. The feminist magazine Zan-e-Ruz, or Modern Women, criticised him for glossing over the role of love in marriage. But the magazine also put on a civilisational and moral lens: “If men and women get together for three, four months, what is the difference between this and male-female relationship in the West? What kind of human being will be, those men and women who make contracts?” The Kayhan daily supported Rafsanjani and, like many in Iran, positioned mut’a as the middle path between sexual deprivation and “moral decadence” and “promiscuity” of the West. In Temporary Marriage: An Islamic Discourse on Female Sexuality in Iran, Haeri says the response to mut’a is class-based – lower middle class women support it while urban middle class women oppose it vehemently, perceiving it as a threat to the institution of permanent marriage. “Most middle class women conceive of the institution of temporary marriage in its traditional configuration as a male prerogative,” Haeri writes. “This certainly has been the case in the past, but with changes spearheaded by the Islamic regime, it may not remain so.” She says the urban middle class women feel hesitant to “seize the moment and actually rethink issues of virginity, gender relations and sexuality”. Superior system? It is difficult to gather statistics on mut’a in Iran as such marriages do not require to be registered. This is as true of India. Shia scholar Kalbe Sadiq says mut’a perhaps constitute 2% of all marriages among the Twelver Shias in India. “It is just an option, not a compulsion,” Sadiq said. “It is more like a medicine, but when misused, medicine can become poison. Even misuse of permanent marriage creates havoc, doesn’t it?” Abbas knows some people who opted for temporary marriages. “They were temporarily married when they were living abroad – for instance, while doing research,” he said. “I know of just one person who opted for mut’a in India. It is a social taboo in India and, therefore, its invisibility. It is not so in Iran.” Given that the Supreme Court has accepted the legitimacy of live-in relationships, it is difficult to see it invalidating mut’a. There is no law governing live-in relationships in India. However, the Protection of Women from Domestic Violence Act, 2005 defines domestic relationship as to also include “relationship in the nature of marriage”. In D Velusamy v D Patchaiammal, the Court ruled in 2010 that for a live-in relationship to be considered a “relationship in the nature of marriage”, the couple must have been cohabiting for a reasonable period of time for the society look upon them as spouses. Mut’a does not suffer from such a drawback – the terms of the marriage contract are binding on the couple, regardless of the duration of their relationship. In Indra Sarma v VKV Sarma, 2013, the Supreme Court identified five types of live-in relationship, two of these being relationships between male and female adults and between married men and unmarried women. Mut’a can be clubbed under both these two categories. The judgement also laid down eight guidelines for considering a live-in relationship to be “in the nature of marriage”. These relate to the duration of the relationship, the partners’ respective roles during cohabitation, and whether others perceive them as husband and wife. In Abhijit Bhikaseth Auti v State of Maharashtra, the apex court ruled that marriage in “strict form” is not required to claim maintenance under Section 125 of the Criminal Procedure Code. These verdicts imply that a woman must go through a cumbersome process to have her live-in relationship recognised as being “in the nature of marriage” before she can avail of her rights to maintenance and protection under the Domestic Violence Act. It would also seem such rights won’t be hers if she has been in a live-in relationship for, say, a year or two. This is why Faizan Mustafa, vice chancellor of NALSAR University of Law, Hyderabad, argues that “mut’a is superior to live-in relationships that have not been preceded by a contract” spelling out the rights of the consenting partners. In the same vein, the cultural critic Ziauddin Sardar wrote in 2008, “Western critics, particularly feminists, equate mut’a with prostitution. I disagree. Indeed, I think these attitudes reflect our hypocrisy about sexual issues.”

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