Fiqh Today
Muslim as
Minorities
5th
Annual AMSS (UK) Conference
21-22
February þ 2004þ
þ
Organizd by
The
Association Of Social Scientists (UK)
London
Sexual
relationships for Muslims in the West:
The problem and its different solutions
By Ahmad ALKATIB
Abstract: Muslims who comes to
live in the West, whether temporarily or on a more permanent basis, often find
themselves facing new problems and difficulties that they may not have
encountered in their country of origin. They may feel that they are now part of
a minority, in a society that does not cater for their particular needs and
requirements, and owing to these new circumstances, that they do not have the
Islamic solutions to these unforeseen problems. Even Muslim who have spent all
or a large part of their life in the West may find it difficult to adjust to
their social surroundings without compromising aspects of their religion. One
such problem is the problem of abstaining from
Islamically prohibited sexual relationships, in a society rife with sex and moral
corruption. This applies particularly to young people, who now tend to marry
later, and have to endure a longer period of abstinence as a result. Due to
this and due to the incessant lures and enticements put before them by society,
they are themselves put before great danger of moral transgression. This paper
turns to the Quran and Sunnah in order to propose a number of possible
solutions to this problem. These include the ‘early marriage’, ‘alleviating the
conditions of marriage’, ‘marriage with the intention of divorce’, and the
‘pleasure marriage’. These solutions are put forward merely as suggestions,
with discussion focusing primarily on the permissibility of each from an
Islamic perspective, and are therefore not meant to be decisive or concluding
judgments. However, with regard to the pleasure marriage, to which the largest
section of this paper is devoted, it is argued that it can become permissible
in times of necessity.
Muslims living in the West in general, and young Muslims who emigrate to the West in particular, face a problem regarding sexual relationships. This, on the one hand, is due to the repugnant pornographic environment and the widespread exhibition of nakedness, be it on the streets, in schools, offices, the mass media and the internet, which undoubtedly go against with the most basic of Islamic beliefs and values, and the great difficulty of finding a suitable Muslim partner on the other. This compels the Muslim to either endure a life of abstinence and fast from the opposite sex, with all the hardship and agony that this involves, or to get immersed in a non-Islamic western lifestyle that greatly facilitates the building of prohibited sexual relationships, with all the health and social dangers that accompanies this. Moreover, many Islamic societies witnessing great explosions in the population and increases in the proportion of young people, may be suffering from a similar problem due to the inability of many young people to marry early as a result of the education system and economic conditions. However, the sexual problem in the West is of a higher level of intensity, due to the widespread availability of sex, the ease in which it is possible to build Islamically prohibited sexual relationships, the difficulty of marriage, and the absence of social supervision and deterrent Islamic laws. This has created great pressure on many Muslim parents to think of practical and effective solutions in order to prevent their children from falling into the pit of sin and sexual corruption, and to help them overcome the suffocating sexual crisis. The problem has also pushed scholars of Islamic law, Muslim thinkers and social scientists to reflect in the matter more deeply and to deduce the best possible solutions in the contest of a Western social and economic setting.
I will begin by discussing the ideal or preferred solution to the problem in question: the early marriage. However, after outlining some of the reasons why this may no longer be feasible for many in the West, I will go on to discuss other alternatives, the first of which is alleviating the conditions of marriage. This does not in any sense insinuate a dispensation of any marriage rights decreed by Islam, especially those belonging to women, but a negotiation of some of the restrains that may be standing in the way of marriage. Two other alternatives that shall be discussed are marriage with the intention of divorce, and the ‘pleasure’ or temporary marriage. The main issue with the first is whether or not it is necessary to declare the intention of divorce before marriage. The second alternative, to which the largest section of this paper is devoted, since it is the one which raises the most amount of disagreement and contention among Muslims, both today and in days that have passed, centres on permissibility of the pleasure marriage, and if so, under what circumstances.
Naturally, the best solution to the problem of abstaining from Islamically prohibited sexual relationships is the early marriage. This was the norm practiced in traditional Islamic societies, before it was pushed aside by modern (Western) education systems. Thus, in many cases, marriage was delayed until after graduation from university, and the acquisition of a suitable employment and sufficient income, probably till after the age of thirty. Nonetheless, if the early marriage is compatible with Islamic law, it collides with most Western laws, which do not permit marriage until after the age of eighteen, although they permit sexual intercourse at the age of sixteen, and with Western social norms and values that fiercely denounce the early marriage, although they do not denounce to the same extent the formation of sexual relationships between very young and unmarried boys and girls. The early marriage also collides with economic conditions that prevent young people from marrying early, or prevent their families from aiding them by providing them with a suitable accommodation and the source for an independent income as they did in traditional Islamic societies. It also collides with educational conditions that do not allow the young man or woman to fully vacant themselves to the upbringing of children and the running of a marital home while they are still studying. Thus, we rarely see among Muslim communities in the West marriages that occur under the age of twenty-five. In fact, we often see men and women who have passed the age of thirty and are approaching forty, and are still unmarried.
Despite the proportion of marriages from Westerners, or from other Muslim communities living in the West, many Muslims nonetheless prefer marriages not only from other Muslims but Muslims who share the same ethnicity and who belong to the same country of origin and religious faction, out of fear that marriage from outsiders will more likely than not end in failure. This makes finding the appropriate spouse early even more difficult and as a result many young men, or their families, resort to searching for a wife in their country of origin and to return there to live or to bring their wives with great difficulty to live in the west. Thus, due to this and due to the delay in the average age of marriage, young Muslims living in the West very often have to endure a long, difficult and challenging sexual period that can last at least ten years. Since, for many Muslims, this constitutes a very long time, especially with all the temptations and enticements that they are continually confronted with in Western society, the problem urgently requires an alternative and practical solution, because ignoring or overlooking it will certainly put the young Muslim before great danger of sexual corruption.
Customarily, the formal traditional marriage requires the husband to pay a great amount of dowry, to provide accommodation and to take care of the marital expenses (the naffaqah). However, this is not easily attainable for the majority of young men. For this reason, a number of contemporary scholars of Islamic law have put forth alternative solutions. Abdul-Majeed Al-Zindani, director of the Al-Eman University in the Yemen and chairman of the Consultation Council of the Islah (Reform) party, for example, has come up with a solution that has come to be known as “friend marriage”. This does not mean marriage in the form of western sexual relationships, which are based on friendship, but marriage in an entirely Islamic way, based on a lawful contract, but with a reduction in the dowry of the present and the postponement of the amount that has been reduced to a future date. It also means discarding the conditions that stipulate the provision of accommodation and marriage expenses for a specific period of time, until the young man is able to provide them. Al-Zindani maintains that the marriage that is intended in his legal opinion (fatwa) is based on,
[A] legal contract,
with a pronouncement, an acceptance, a wali, a proclamation, a dowry, and the
absence of any legal obstructions on the couple. As long as this contract has
been sealed, then it is the right of the married couple to enjoy each other as
any lawful couple. The provision of accommodation is not one of the conditions
which authenticate a marriage contract, and failure to provide it does not annul
the contract, with the agreement of scholars. 1
Al-Zindani asserts that he consents to and indeed searches for anything that facilitates life for Muslims and that he only intended to legislate and make lawful the friendship based relationship that is so widespread among young men and women in the west. Furthermore, he argues that he did not coin the term “friendship marriage”, and that it was the media which called it such. He believes that the more appropriate designation for this kind of marriage should be, “the facilitated marriage for Muslims living in the West” (ibid).
However, despite the legitimacy of this kind of marriage according to Sunni Islamic criteria, some scholars, like doctor Abdul-Sabour Chahine (ibid), lecturer at the college of Dar-el-Ulum at Cairo University, see this as a modern variant of the pleasure marriage. Furthermore, doctor Abdul-Mu’tee Bayoumie (ibid), former dean of the college of Ussul Addeen at Al-Azhar University, argues that this kind of marriage does not achieve the abode, cordiality and mercy required in a marriage, that it realizes nothing but the legitimisation of sexual intercourse between the young man and woman and that it achieves only the twisting of Islamic law to satisfy sexual desire. However, sheikh Ali Abu Al Hassan, former chairman of the committee for legal opinion at Al-Azhar, claims that with his contention, sheikh Al-Zindani only sought to “avoid the evils of moral tribulations and that his attempts to find legal and pertinent solutions to the crises of spinsterhood, the problem of unemployment that currently exists in many European and other Western countries and the difficulty of acquiring a marital home, succeed to prevent the spread of illegal sexual relationships”, since, according to sheikh Ali Abu Al Hassan, there is a base in jurisprudence which affirms that “necessities permit prohibitions”. He argues that this is a legitimate contract from all sides, since it fulfils all the conditions for a lawful marriage as stipulated by Islam. However, he supplements this by saying that “this legal opinion is liable for application only in western countries… as a matter of the jurisprudence of Muslim minorities who live in countries that do not submit to Islamic laws and traditions and who suffer from many problems” as a result of this (ibid).
In actual fact, there is nothing entirely new in sheikh Al-Zindani’s
contention, except the alleviation and facilitation of the issue of marriage.
There already exists in some Islamic countries (like Egypt), a similar
counterpart to this type of marriage, known as the “civil marriage”.
Nonetheless, the majority of Muslim parents in the West, as in the East, prefer
their children to first obtain the complete marriage requirements, with the
primary stipulation being the provision of accommodation, instead of allowing
them to hold otherwise unstable marriages, out of fear that the prolongation of
the period of economic instability would end the marriage in divorce. Thus, it
is extremely uncommon to find among Muslims one who allows his son or daughter,
even if she was over the age of eighteen, to establish a marital relationship
with each of the couple living in his or her own parental home. Furthermore,
the refusal is perhaps stronger among young Muslim women, while young Muslim
men may find from non-Muslim Western women, one who will welcome the
establishment of such a relationship.
Many scholars
believe that marriage with the intention of divorce is prohibited and invalid,
since it contradicts the state of duration in marriage and incorporates a kind
of betrayal, which is both deceitful and harmful to the wife, and especially
the virgin. However, the
persistence of the sexual problem on many Muslims in the west, and particularly
on students from Muslim countries who spend up to four or five years abroad and
who may not be able to bring their wives with them, especially at a time in
which they cannot endure a life of celibacy, has pushed sheikh Abdul-Aziz Ibn
Baz, former mufti of the kingdom of Saudi Arabia, to a different view. He has
permitted marriage with the intention of divorce to the woman living in the
West, who the young Muslim student cannot take back with him once he returns
home to his country of origin, and is therefore compelled to end his life with
her. This, however, is on condition that he does not declare the intention of
his divorce. Furthermore, there is a narration about the caliph Umar Ibn
Al-Khattab which points to his suggestion of this kind of marriage, instead of
the temporary pleasure marriage. It is narrated that Omran Ibn Sawaadah came to
Umar and said, “they mentioned that you prohibited the pleasure marriage and it
was permitted by Allah, that we enjoy by a handful [of dates or flour- as dowry]
and then leave [her] after three [days]’. To this Umar replied, “the messenger
of Allah (may Allah’s peace and blessings be upon him) permitted it at a time
of necessity, and then the people returned to a normal situation. After that I
did not know of any one from the Muslims who practiced it or retuned to it. And
now whoever wants let him marry by a handful [of dates or flour as dowry] and
separate after three [days] with divorce.”2
This implies that divorce was
intended after three days of marriage and consequently sheikh
Abdul-Aziz Ibn Baz has permitted
marriage with the intention of divorce.
Sheikh Faysal Mowlawy was perhaps pointing to this solution (divorce
after marriage) as better practice than the pleasure marriage, which includes specification
of the marriage period in advance, when he pointed out that there is no need
for the pleasure marriage in Islamic law, ‘because the basis in marriage is
permanence and because the prospect of divorce is easy’ (ibid). He argues that
if a Muslim married for a specific period of time, and then found his wife
suitable for him, ‘he can make this marriage permanent. And if he married a
permanent marriage and after a few days he found that he could not live with
his wife, then it is within his capability to divorce her. So why then’, he
asks, ‘is there a need to specify a marriage period when the possibility for
divorce is present even before the end of that period?’ (ibid).
However, marriage with the intention of divorce, although it resembles the pleasure marriage in specifying a period of time, it does not include the declaration of this intention in the contract and so the intention remains hidden. Its termination therefore requires the utterance of the words of divorce, while the pleasure marriage does not require this. Marriage with the intention of divorce also warrants the wife to a dowry, marital expenses and an inheritance like any other marriage, while the pleasure marriage does not.
The pleasure marriage
The permissibility or prohibition of the pleasure marriage under Islamic law is one subject around which argument and discussion between Shiite and Sunni Muslims has amplified throughout history. I, however, do not intend to give a decisive opinion on the subject, as much as I want to approach it a little in light of the exacerbated sexual problem for Muslims living in the west. I simply seek to reveal the different opinions from both Shiite and Sunni scholars, and to analyse the social circumstances for its prohibition.
The pleasure marriage resembles the permanent marriage with regard to the contract, dowry and wali, but differs from it with regard to the specification of the marriage period, and the lack of need for a divorce at the end of this period. It also differs from it with regard to some of the judgments associated with marriage, such as those concerning the marital expense (naffaqah), inheritance, the number of wives that a man can have under the pleasure marriage and the period of waiting after the termination of the marriage (Iddah). As you may already know, the pleasure marriage is permitted among Ja’ffari Shiites and prohibited among Sunnis and Zaidi Shiites. However, the two sides agree that it was permitted during the lifetime of the messenger of Allah (may Allah’s peace and blessings be upon him), although Sunnis say that the prophet prohibited it a number of times and permitted it on specific occasions, but that he prohibited it permanently near the end of his life. They also believe that that the second caliph Umar Ibn Al-Khattab (may Allah be pleased with him) confirmed the prohibition of the pleasure marriage and threatened to punish whoever practiced it thereafter. Yet despite this some of the companions continued to believe in its permissibility and denied that the prophet prohibited it permanently. Before I discuss the Sunni opinion further, however, allow me first to disclose the Shiite view regarding the issue in question.
Evidence for
the Shiite opinion
Shiites refute the claim that consensus with regard to the prohibition of the pleasure marriage has taken place. Thus, in saying that the pleasure marriage is permitted, they rely on a verse from the Holy Quran, the Sunnah of the noble prophet (may Allah’s peace and blessings be upon him) and the sayings of some of the companions. As for the noble verse, Allah (great and glorious) says, ‘And those of whom ye seek pleasure (by marrying them), give unto them their earnings as a duty’ (The Quran 4:24). It has been narrated about a group of the companions, which included Ubay Bn Kaa'b, Abdullah Bn Abbas and Abdullah Bn Mas’oud, that they read this verse as: ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time- give unto them their earnings as a duty’ (see footnote 17). Thus, there is an assertion that what is intended by this verse is the pleasure marriage and Al-Razi in his interpretation of this verse in question, has no doubt in saying that ‘the intended by this verse is the ruling regarding the pleasure marriage. It is an expression of a man who hires a woman for a known amount of money and a specified period of time in order to sleep with her.’
Furthermore, Al-Bukhari in his Sahih has revealed that Omran Bn Hasseen said, “the enjoyment verse descended in Allah’s book, and we practiced it at the time of the messenger of Allah (may Allah’s peace and blessings be upon him). No Quran descended prohibiting it, and he did not prohibit it even when he died (may Allah’s peace and blessings be upon him), and let whoever say whatever they want to say!”3. Muslim in his Sahih revealed that Abi Al-Zubair said, “I heard Jaabir Bn Abdullah say ‘we used to enjoy by a handful of dates and flour [given as dowry] in the life times of the messenger of Allah (may Allah’s peace and blessings be upon him) and Abu Bakar, until Umar forbade it in the affair of Amr Bn Hareeth’”4. In his Sahih Muslim also revealed that Qays said, “I heard Abdullah say ‘we were invading with the messenger of Allah (may Allah’s peace and blessings be upon him) and we did not have women, so we said shall we not castrate ourselves? He prohibited us from that and then permitted us to marry a woman by [giving her as dowry] a garment, for a specific period of time. Then Abdullah read ‘O ye who believe! Make not unlawful the good things which Allah hath made lawful for you, and transgress not; surely Allah does not love the transgressors,” (The Quran 5:87)5. In The Book of Marriage6 Muslim also narrated the following:
- Muhammad Bn Bashaar narrated, that Muhammad Bn Ja’far narrated, that Sa’bah said about Amr Bn Deenar that he said, ‘I heard Al-Hassan Bn Muhammad talk about Jaabir Bn Abdullah and Salmah Bn Al-Akwa’, saying ‘the caller of the messenger of Allah (may Allah’s peace and blessings be upon him) came out on us and said ‘the messenger of Allah (may Allah’s peace and blessings be upon him) has permitted for you to enjoy”, and by this he meant the pleasure marriage.
- Umayyah Bn Bassttam Al-’eishi
narrated, that Yazeed (meaning Ibn Zuray’), narrated about Rawh (meaning Ibn
Al-Kassim) about Umru Bn… that “the messenger of Allah (may Allah’s peace and
blessings be upon him) came to us and permitted for us the pleasure marriage”
- Al-Hassan Al-Halwani narrated, that Abd Al-Razzaq narrated that, Ibn Juraige narrated that “Atta said ‘Jaabir Bn Abdullah offered a minor pilgrimage, so we went to his home. Then the folk asked him about some issues. He said ‘yes, we practiced the pleasure marriage in the lifetime of the messenger of Allah (may Allah’s peace and blessings be upon him) and Abu Bakar and Umar”.
- Muhammad Bn Raafi’ narrated that, Abd Al-Razzaq narrated that, Ibn Juraige narrated that, Abu Al-Zubair narrated ‘I heard Jaabir Bn Abdullah say ‘we used to practice the pleasure marriage by a handful of dates and flour [given as dowry] in the lifetime of the messenger of Allah (may Allah’s peace and blessings be upon him) and Abu Bakar, until Umar forbade it in the affair of Amr Bn Hurayth”.
- Hamid Bn Umar Al Bakrawi narrated that, Abd Al-Wahid (meaning Ibn Ziyad) narrated about Aasim, who narrated about Abu Naddrah, that he said “I was at Jaabir Bn Abdullah’s, and someone came and said ‘Ibn Abbas and Ibn Al-Zubair disagreed with regard to the two pleasures [the pleasure marriage and the pleasure of the pilgrimage]’. Jaabir said, ‘we practiced them in the lifetime of the messenger of Allah (may Allah’s peace and blessings be upon him) and then Umar forbade us from them, and so we have not returned to them’.
- Abu Bakar Bn Abi Sheebah narrated that, Younis Bn Muhammad narrated that, Abd Al-Wahid Bn Ziyad narrated that, Abu A’mees narrated about Iyaas Bn Salamah, who narrated about his father that he said, “the messenger of Allah (may Allah’s peace and blessings be upon him) permitted the pleasure marriage in the year of Awtaas for three days, and then he prohibited it”.
- Qutaybah Bn Sa’id narrated that, Laith narrated about Al-Rabee’ Bn Sabbrah Al-Jahni, about his father Sabbrah, that he said “the messenger of Allah (may Allah’s peace and blessings be upon him) permitted us the pleasure marriage, and so I … went to a woman from Bani Aamir, and she was like a little lamb”
Imam Ahmad Bn Hanbal narrated in his volume7, about Abi Naddrah about Jaabir that he said, “we practiced the pleasure marriage at the time of the messenger of Allah (may Allah’s peace and blessings be upon him) and at the time of Abu Bakar. But when Umar ruled, he gave a speech to the people and said, ‘if any of the two pleasure were permitted in the lifetime of the messenger of Allah (may Allah’s peace and blessings be upon him), I prohibit them and will punish [who practices] them”.
Therefore, in accordance with the noble verse, which was never abrogated, and these prophetic traditions that the Sunnis themselves narrate, and other narrations that they have about the imams of the prophets family, the Shiites permit the pleasure marriage, and deny that the great messenger (may Allah’s peace and blessings be upon him) prohibited it a permanent prohibition. They attribute the prohibition to the second caliph Umar Bn Al-Khattab, who deduced a legal ruling concerning the pleasure marriage after the incident of Amr Bn Hurayth when he said, “there were two pleasures that existed in the lifetime of the messenger of Allah (may Allah’s peace and blessings be upon him). I forbid them and will punish whoever practices them: the pleasure [marriage] of women and the pleasure of the pilgrimage”. His phrase “I forbid them and will punish whoever practices them” suggests that these two pleasures were permitted throughout the lifetime of the prophet, and the life of the first caliph Abu Bakar. For this reason many of the companions adhered to the legality of the pleasure marriage, despite what Umar adhered to, and blamed him for the prohibition of the pleasure marriage. These companions include Ali Bn Abi Talib8 (may Allah be pleased with him), Abdullah Bn Abbas9, and even Abdullah Bn Umar10, who reviewed his opinion, which differed from that of his fathers, and said, “praise be to Allah! We say to you the messenger of Allah says, and you say Umar says” 11. This is in addition to another number of companions like Omran Bn Hasseen12, Ubay Bn Kaa’b, Asmaa’ Bint Abu Bakar13, Jaabir, Ibn Mas’oud, Mu’awiyah Bn Abi Sufyaan14, Amr Bn Hurayth, Abu Sa’id, Salamah Ibna Umayah Bn Khalaf, and some of the followers such as Mujaahid, Qutaadah, Sha’bah, Abu Thabit, Taawus, Ataa, Sa’id Bn Jubair, and all the scholars of Mecca including Ibn Juraige15. They then differed with regard to the abrogation of this prohibition, and whether the abrogation was from the Prophet (may Allah’s peace and blessings be upon him) or from the caliph Umar Bn Al-Khattab.
The Shiites say that the prohibition was not from the great prophet (may Allah’s peace and blessings be upon him), and that it was the decision or legal ruling (ijtihaad) deduced by the caliph Umar Ibn Al-Khattab. However, we cannot accept any ijtihaad when it comes against text. Furthermore, according to the Shiites, the abrogation of the verse was not firmly fixed and that there are no strong narrations (ahadeeth Mutawatirah) that say the prophet (may Allah’s peace and blessings be upon him) abrogated it. Thus, the narrations in this matter do not appear to be those of single individuals (akhbaar ahaad), of a week chain (when passed down by narrators), or of a contradictory content. The narrations indicate that the pleasure marriage was permitted and then forbidden many times, and in several different places, including the day of Kheibar, the day of Fateh, the battle of Tabbuk, and the farewell pilgrimage (hajjul-widaa’), that is, the ruling permitting the pleasure marriage was abrogated more than two or three times. Furthermore, narrations about the abrogation of the pleasure marriage are contradicted by the narrations that are mentioned about the prophet’s family (peace be upon them), who say that it was not abrogated. At any rate, if there was an abrogating act annulling the legality of the pleasure marriages, Umar would have relied on it and he would not have resorted to deducing a legal ruling before a text.
Sunni Muslims acknowledge that the noble prophet (may Allah’s peace and blessings be upon him) permitted the pleasure marriage. However, they claim that it was permitted only for short periods of time, that the prophet prohibited it a number of times in a number of different places, and that he prohibited it a permanent prohibition and abrogated the first law which permitted it near the end of his life. According to Imam Al-Nawawi, ‘the right chosen opinion is that the prohibition and permission occurred twice. It [the pleasure marriage] was permissible before Khaybar and it was then prohibited on the day of Khaybar. Then it was permitted on the day of Fateh, and that is the day of Outaas…and then after three days it was prohibited a permanent prohibition until the Day of Judgment’. From then on the prohibition continued and according to Al-Qadi, ‘consensus fell…on its prohibition from all scholars except the Rawafid’.
Of the contemporary scholars, doctor Wahbah Al-Zuheeli16 argues that, “the four schools of thought and most of the companions have agreed that the pleasure marriage and anything similar is prohibited and void”. According to Al-Zuheeli what is intended by ‘pleasure’ in the verse reading ‘And those of whom ye seek pleasure’ (the Quran 4:24), is pleasure or enjoyment by way of ordinary marriage (nikaah), because in verse 4:22 Allah (Great and Glorious) says ‘And marry not women whom your fathers married’ and in verse 4:25 Allah says ‘And whoso is not able to afford to marry free, believing women’. According to Al-Zuheeli the prophet’s permission concerning the pleasure marriage in some of the battles was “due to the overwhelming necessity in war” and “the reason for this was celibacy during travel”. However, he argues that the prophet permanently prohibited it until the Day of Judgment, on evidence of many narrations, including:
1- “O people, I had permitted to you the practice of the pleasure marriage, and Allah has now prohibited this till the Day of Judgment. So whoever has from them a thing, let him go his way [i.e. leave them], and do not take of what you have given them anything”
2- Salmah Bn Al-Akwa’ said, “the messenger of Allah (may Allah’s peace and blessings be upon him) licensed for us the pleasure marriage for three days in the year of Outaas, then he prohibited it”.
3- Sabrah Bn Ma’bad said, “the messenger of Allah (may Allah’s peace and blessings be upon him) forbade the pleasure marriage in the farewell pilgrimage”
4- [It is narrated] about Ali (may Allah be pleased with him), that the messenger of Allah (may Allah’s peace and blessings be upon him) forbade the pleasure marriage and the meat of domestic donkeys at the time of Khaybar. (Ibid)
According to Al-Zuheeli, Ibn Abbas used to permit the pleasure marriage only to the one who was driven to necessity, as narrated by Sa’id Bn Jubair about him, that he said, “Glory be to God! This is not what I ruled. It [the pleasure marriage] is like dead meat, it is not permitted except to the one who is driven to necessity”. However, Al-Al-Zuheeli argues that Ibn Abbas’s opinion is odd and individual, since some of the companions rejected his ruling. Ali (may Allah be pleased with him), for example, rebuked him saying, ‘you are a confused man, since the prophet (may Allah’s peace and blessings be upon him) forbade the pleasure marriage on the day of Khaybar, together with the meat of domestic donkeys’ and Abdullah Bn Al-Zubair (may Allah be pleased with him) also rebuked him, when he stood in Mecca and said, ‘a people whom Allah has blinded their hearts as he blinded their sight give religious rulings on the pleasure marriage’, by this indicating Abdullah Bn Abbas. Ibn Abbas then called him, and said, ‘you are rude and callous, for by my life the pleasure marriage used to be practiced during the lifetime of the prince of the God-conscious’, i.e. the messenger of Allah (may Allah’s peace and blessings be upon him). To this, Ibn Al-Zubair said, ‘you try it yourself, for I swear by Allah if you practice it I shall stone you’ (narrated by Muslim)’.
According to Al-Zuheeli, the narrators convey that Ibn Abbas then withdrew what he said. Al-Tirmathy for example, narrates that Ibn Abbas said, “the pleasure marriage used to be practiced at the beginning of Islam. A man would come to a town in which he did not know anyone, and would marry a woman for as long as he thinks he will be staying. She would look after his belongings, and make stable for him his affair. However, this was only until the following verse descended: ‘Except before their mates or those whom their right hands possess’ (the Quran 23:6).” Ibn Abbas then said, “Every private part except from these two are prohibited”. According to Al-Zuheeli, the return of Ibn Abbas is also narrated by Al-Baihaqi and Abu ‘Awanah. He argues that the ‘pronouncement of his return is the one regarded correct by many scholars’ and that this is confirmed by the consensus of the companions regarding its permanent prohibition. To further support his argument, Al-Zuheeli narrates the speech of Jaabir Bn Abdullah (as narrated by Al-Haazimi) that he said, “ we went out with the messenger of Allah (may Allah’s peace and blessings be upon him) to the battle of Tabbuk, until we reached the Aqaba which comes after Ash-sham. Some women came and we thought about the pleasure marriage, while they toured among our tents. The messenger of Allah (may Allah’s peace and blessings be upon him) came and saw them and said, ‘who are these women?’ We said, ‘O messenger of Allah, they are women whom we enjoyed’. The messenger of Allah (may Allah’s peace and blessings be upon him) got angry until his cheeks reddened and his face creased. He then stood among us to give a speech. He praised Allah and thanked Him, and then forbade the pleasure marriage. On that day we parted, men and women, and we have not returned and we will never return to it ever’, and the narration by Abu ‘Awanah about Ibn Jurage, that in the city of Basrah he said, ‘I testify that I have reconsidered regarding the pleasure marriage’, after he had talked to them of eighteen narrations that said there was no harm in it. All this, according to Al-Zuheeli, indicates that the law permitting the pleasure marriage was abrogated and that the evidence of the abrogation perhaps never reached Ibn Abbas and the companions and followers who agreed with him. Furthermore, he contends that if the abrogation has been fixed, then we should hold on to it, and that the legality of the pleasure marriage can be said to be in the rank of pardon, where no specific law has been given concerning it, like alcohol before it was prohibited, and then a decisive text appeared prohibiting it.
Al-Zuheeli argues that the masses have come to accept the prohibition of the pleasure marriage, on evidence from the Quran, the sunnah, consensus and common sense. With regard to the Quran, according to Al-Zuheeli, the verses reading, ‘And who guard their private parts, Except before their mates or those whom their right hands possess, for they surely are not blameable. But whoever seeks to go beyond that, these are they that exceed the limits’ (The Quran 23:5-7), prohibited the enjoyment of women except on two accounts: marriage and what the right hand possesses. Al-Zuheeli argues the pleasure marriage is not a proper marriage (nikaah), since it is terminated without a divorce, it does not include marital expenses (nafaqah), and it does not secure an inheritance. Nor is it, he argues, possession of the right hand, and therefore it is prohibited. As for the sunnah, Al-Zuheeli argues that the many narrations on which there is consensus about their authenticity, about Ali, Sabrah Al-Jahni, Salmah Bn Al-Akwa’ and others (may Allah be pleased with them) denote the forthright prohibition of the pleasure marriage in the year of Khaybar and after the conquest of Mecca (Fateh) by fifteen days and in the Farwell pilgrimage. With regard to the consensus, Al-Zuheeli argues that the Ummah, except the Imamiays, have agreed on the abstention from the pleasure marriages because if it was permitted they would have given religious rulings regarding it, if it is at all possible, he reasons, to give a religious rulings on the subject. He quotes Ibn Al-Monzir, who said, “it has been passed on from the first people [in Islam] that it [the pleasure marriage] was permitted. Today I do not know anyone who allows it, except some of the Rawafid, and there is no meaning to anything that contradicts the book of Allah, and the sunnah of the messenger of Allah (may Allah’s peace and blessings be upon him).” He also quotes Judge A’yaad, as saying “consensus then ensued from all the scholars regarding its prohibition, except the Rawafid’. And finally, with regard to common sense, Al-Zuheeli argues that marriage was legislated to be a permanent fixation for social issues and purposes, like tranquillising the soul, reproduction and the construction of a family, and there is nothing to the pleasure marriage except the temporary fulfilment of (sexual) desire. Therefore, he argues, it is completely like fornication and there is no meaning in prohibiting this, while permitting the pleasure marriage. According to Al-Zuheeli, with this evidence the stance of the masses on the prohibition and invalidity of the pleasure marriage, is strengthened and that this is what the spirit and logic of the Shariaa can only accept. It is not possible, he argues, for any neutral and objective person, to do anything except reject the pleasure marriage and to abstain from it completely.
According to Sheikh Yousif Al-Qurdawi the philosophy behind ordinary marriage is absent from the pleasure marriage. He argues that ‘marriage in Islam is based on a strong contract and a firm binding, which arises on the intention of a permanent abode from the two parties’. This is so that they can ‘attain the psychological fruit that is mentioned in the Quran- from personal tranquillity, mercy and cordiality- and also the constructional function of reproduction’ which ensures the continued existence of mankind. Al-Qurdawi argues that these consequences of marriage do not materialize with the pleasure marriage. He claims that the prophet (may Allah’s peace and blessings be upon him) permitted the pleasure marriage ‘before legislation was stabilized in Islam’ and that he permitted it during travel and combat and then permanently prohibited it. The reason why the pleasure marriage was permitted in the first place, he argues, is that ‘people at the time were in a period that can rightly be called a ‘transitory period’ from ignorance to Islam’. In the time of ignorance fornication was easy and widespread and when Islam came about, and required them to travel long distances for conquest and jihad, the separation from their wives was extremely difficult on them:
There was among them, those who were strong in faith and those who were weak. As for the weak, it was feared that they would get implicated in fornication, an ugly atrocity and diversion from the straight path. As for the strong, they were set on castrating themselves or cutting their private parts, as was mentioned by Ibn Mas’oud…for this reason, the legalization of the pleasure marriage was an authorization to solve the problem of both the weak and the strong, and a step in the way of legalising a complete marital life
Thus Al-Qurdawi considers the issue of the prohibition of the pleasure marriage from within the framework of gradual prohibition. He argues that ‘in a similar way to the way in which the Quran progressively prohibited alcohol and usury, which were extremely widespread and had much power in the time of ignorance, so the prophet (may Allah’s peace and blessings be upon him) progressively prohibited [the exposing of] private parts’. Therefore, according to Al-Qurdawi, the messenger of Allah (may Allah’s peace and blessings be upon him) permitted the pleasure marriage in times of necessity and then prohibited it. Nonetheless, Al-Qurdawi stops to ask about the kind of prohibition. ‘Did this prohibition’, he asks ‘become like the prohibition of marrying mothers and daughters or is it a prohibition like the prohibition of eating dead meat, blood and the flesh of swine, which becomes permissible in times of necessity?’ He claims that the majority of the companions considered the prohibition as being decisive, with no license in it after the stability of legislation. However Ibn Abbas, who argued that it becomes permissible in times of necessity, opposed them,
Someone asked him concerning the pleasure marriage and he permitted it to him. A friend of his then said, ‘but this is only in sever Situations, and there is a shortage of women or something similar?’ and Ibn Abbas said, ‘yes’. However, when it became clear to Ibn Abbas (may Allah be pleased with him) that the people broadened in its practice and were not being strict about the issue of necessity, he held his religious judgment and withdrew it.
If we accept the evidence regarding the prohibition of the pleasure marriage and tried to bring this in line with the evidence regarding its permissibility, then we could arrive at a new middle opinion, in which we do not say that it is completely permitted, like the Shiaats, or that it is completely prohibited, like the Sunnis, but that it becomes permissible in times of necessity, hardship and great difficulty. This is because the verse, ‘And those of whom ye seek pleasure (by marrying them), give unto them their earnings as a duty’ (The Quran 4:24), without doubt, decanted with regard to the pleasure marriages and not marriage in general, as it has been narrated about a group of the companions, including Abi Bn Kaa’b, Abdullah Bn Abbas, and Abdullah Bn Mas’oud, who read the above mentioned verse as: ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time-, give unto them their earnings as a duty’ and considered it a frank declaration indicating the pleasure marriage17. Thus, according to Al-Razi in his interpretation of this verse, ‘the intended by this verse is the judgment regarding the pleasure marriage’. The many prophetic traditions that permitted the pleasure marriage also support this interpretation. It is, therefore, not possible to abandon that verse or those tradition which frankly talk about the pleasure marriage, except by an abrogation from the Holy Quran, or strong and authentic Sunna. However, an abrogative verse does not exist, and neither does an authentic narration that confirms the permanent prohibition of the pleasure marriage. The senior Companions disagreed regarding the pleasure marriage and some insisted until a belated time on its permissibility. The narration of Imam Ali, regarding the prophet’s prohibition of the pleasure marriage at Khaybar, does not mean the prohibition was permanent, since the prophet (may Allah’s peace and blessings be upon him) permitted it after that in the conquest of Mecca (Fateh) and during his farewell pilgrimage. Thus, the repeated narrations of prohibition about the issue support the basis for legalization, although only in times of necessity and not in normal situations. This explains why some of the companions continued to practice it and why they did not hear of a decision that prohibited permanently from the prophet (may Allah’s peace and blessings be upon him).
Perhaps we can take the prohibition of the pleasure marriage by the caliph Umar Ibn Al-Khattab, as being dependent on the disappearance of the necessary cases for its practice18, or out of fear of the lack of concern of the people to abide by its conditions, (such as the condition of having a witness 19), and not as a permanent prohibition or a denial of its original permissibility. For this reason he said, “if any of the two pleasure were permitted in the lifetime of the messenger of Allah (may Allah’s peace and blessings be upon him), I prohibit them and will punish [who practices them]” 20, as narrated by Imam Ahmad Bn Hanbal in his collection (ch1, p52)21, while the adherence of some of the companions to its permissibility was based on their adherence to the source of its permissibility. On any hand, if there had been a decisive prohibition from the prophet, it would not have remained hidden from Ibn Abbas, Ibn Mas’oud, Ibn Umar, and the rest of the companions and even from the caliph Umar himself until near the end of his life when he prohibited it. This, therefore, perhaps explains Ibn Abbas saying to Sa’id Bn Jubair, that ‘it is like dead meat, it does not become permissible except to the one driven to nessesity’22.
The narration of Al-Tirmathy about Ibn Abbas, saying that he withdrew
what he said about the pleasure marriage after the verse ‘Except before their
mates or those whom their right hands possess’ (the Quran 23:6) descended and
his saying, “every private part excluding these two is prohibited”, are not
compatible with what Ibn Abbas said regarding the pleasure marriage at the time
of Abdullah Bn Al-Zubair, when the latter stood in Mecca and said, “a people
whom Allah has blinded their hearts as he has blinded their sight give
religious rulings on the pleasure marriage” indicating Abdullah Bn Abbas, who
then called Abdullah Bn Al-Zubair, and said ‘you are rude and callous, for by
my life the pleasure marriage used to be practiced during the lifetime of the
prince of the God-conscious’, that is, the messenger of Allah (may Allah’s peace and blessings be
upon him). Ibn Al- Zubair, who at the time was ruler, then said, “you try it
yourself, for I swear by Allah if you practice it I shall stone you”, as was
narrated by Muslim. However, despite the conveyance of some of the narrators
about the withdrawal of Ibn Abbas at that time, their narrations do not mean
that Ibn Abbas changed his mind, since he was merely obeying Ibn Al-Zubair,
especially since this was under threat of stoning. Similarly the withdrawal of
Ibn Juraige in Basrah does not man that he changed his mind, since he had given
eighteen narrations that said there was no harm in it before. As for the
consensus regarding the prohibition of the pleasure marriage, it is without a
strong backing, since it is a consensus taken by Sunnis only, and since the
Jaffari Shiaats have not agreed with them on it, and therefore it is not a
consensus among all Muslims. Furthermore, the consensus did not take place at
the time of the companions, who themselves clearly disagreed on it.23 For these reasons Imam Malik Bn Annas
in his interpretation of the verse on the pleasure marriage said, ‘the pleasure
marriage is permissible, since it was permitted and so it will stay until there
is an abrogation’24.
If there is any doubt as to whether or not the prohibition of the pleasure marriage was a permanent prohibition from Allah (Great and Glorious) or from his great messenger (may Allah’s peace and blessings be upon him)25, it at least remains permitted only in cases of necessity, great hardship and difficulty, as is the case with the young Muslim in the west, who may not be able to marry permanently. The pleasure marriage forms only one solution among the different solutions suggested in order to treat the problem of sexual relationships in the west and the inquisition of Sheik Yousif Al-Qurdawi about the kind of prohibition, whether it is a permanent prohibition like the prohibition of marriage from mothers, daughters or sisters or like the prohibition of eating dead meat and the flesh of swine, which is lifted in times of necessity, sheds some light on this exceptional and temporary solution, and pushes researchers and scholars to study the subject more seriously, away from the clamour of old sectarian debates.
1 Al-Quds Al-Arabi, issue 4447-
2 Narrated in The Biography of Umar by Al-Taabri, 5:32
3 Al-Bukhari ch.2, p.172
4 Muslim, ch.2, p.1024
5 Muslim, ch.6, p.119
6 Muslim, The Book of Marriage (Kitab Al-Nikaah) chapter 3
7 Imam Ahmad Bn Hanbal, volume 1, p.52
8 Al-Tha’labi and Al-Tabbiry in their interpretation of the verse concerning the pleasure marriage narrated the saying of Imam Ali (may Allah be pleased with him), ‘if Umar had not prohibited the pleasure marriage, then none but the wicked will have committed fornication’
9 Ibn Juraige and Umar Bn Deenar narrated about Ibn Abbas that he said, ‘the pleasure marriage is not but a mercy, which Allah endowed the Ummah of Muhammad mercy with. And if it was not prohibited by him (i.e. Umar), no one would have had recourse to fornication except the wicked’.
10 Imam Ahmad Bn Hanbal revealed in his collection (volume 2, p.95) that Abdullah Bn Umar was asked concerning the pleasure marriage, and he said, ‘by Allah, we were not fornicators or evildoers during the lifetime of the prophet!’
11 In Sahih Al-Tirmathi, it is narrated that when ‘Ibn Umar said that the pleasure marriage is permitted it was said to him, ‘your father forbade it’. He replied, ‘if my father forbade it and the messenger of Allah (may Allah’s peace and blessings be upon him) created it, do we leave the Sunnah of the prophet and follow the saying of my father?’ And perhaps by ‘created’ Ibn Umar meant permitted’.
12 Al-Razi mentions in his interpretation of the verse concerning the pleasure marriage, and Ahmad in his collection, the saying of Omran Bn Hasseen, that he said ‘Allah brought down a verse concerning the pleasure marriage and He did not abrogate it by another verse. The messenger of Allah (may Allah’s peace and blessings be upon him) instructed us with regard to the pleasure marriage and he did not forbid us from it, and let whoever say whatever they want to say!’
13 In the collection of Al-Taialisi it is narrated about Muslim Al-Qurashi, that he said, ‘we entered on Asmaa bint Abu Bakar and asked her about the pleasure marriage and she said, ‘we practiced it during the lifetime of the prophet (may Allah’s peace and blessings be upon him)’, (narration 1637)
14 In the collection of Abdul Razzaq it is narrated that ‘Mu’awiyah Bn Abi Sufyaan, when he arrived at Thqeef in Altaa’if, practiced the pleasure marriage with the servant girl of Ibn Al-Hadrami who was called Ma’aanah. …[she] remained alive until Mu’awiyah became caliph and he used to send her a [money] gift every year until she died, (The compilation of Abdul-Razzaq (7:499), the chapter on the pleasure marriage).
15 In the interpretation of Al-Tabarri (ch.5, p9), in ‘The rules of the Quran’ By Al-Jisas’ (Ch.2, p.178), in the marginal interpretation of Al-Baghawey, in the interpretation of Al-Hazin (ch.2, p.423), in the interpretation of Al-Qurtabi (ch.5, p130), and in the interpretation of Al-Sayuti ‘Al-Dur Al-Manthur’, it is said, ‘the masses say (the verse) descended with regard to the pleasure marriage, which was allowed in the beginning of Islam’
16 Islam on-line: http://www.islam-online.net/fatwa/arabic/FatwaDisplay.asp?hFatwaID=28489
17 1) Abd Al-Razzaq narrated in his Volume about Atta’ that ‘Ibn Abbas used to read, ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time-, give unto them their earnings as a duty’, (volume 7, p497-498, chapter ‘The Pleasure Marriage’) by Abd Al-Razzaq Bn Hamaam Al-San’aani Mawla Humair (126-211 hijreeah), edition 1390-1392 h : Al-Majma’ Al-‘Ilmi Beirut. See the narration ‘the six collectors of hadeeth’, who all narrated about him.
2) In the interpretation of Al-Tabbiry about Habib Bn Abi Thabit, that he said, ‘Ibn Abbas gave me a Quran and said, ‘this is based on the reading of Ubay, who said ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time’.
3) In the interpretation of Al-Tabbiry about Abi Naddrah, that he said, ‘I asked Ibn Abbas about the pleasure marriage. He said ‘haven’t you read the chapter entitled Women’. I said, ‘yes,’ and he said, ‘have you not read in it, ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time?’ I said ‘if I had read it like that, I would not have asked you’, and he said, ‘it is like that’.
Also about Abi Naddrah, that he said, ‘I read the ‘And those of whom ye seek pleasure’ verse to Ibn Abbas and he said, ‘for a specified period of time’. I said, ‘I do not read it like that’, and he said ‘By Allah, Allah sent it down like that’ and he repeated this three times.’
About Umair and Abi Ishaaq that Ibn Abbas read, ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time-’
About Mujaahid that he said, ‘And those of whom ye seek pleasure- it means the pleasure marriage’.
About Umru Bn Marrah, that he heard Sa’id Bn Jubair read ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time-’
About Quttadah, that he said, ‘in the reading of Ubay Bn Ka’aab: ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time-’.
About Sha’bah, narrating about Al- Hukum, who said, ‘I asked him concerning this verse, whether it was abrogated?’ and he said, ‘no’
4)- The narrations about Abi Naddrah and Abi Thabit about Ibn Abbas and the discussion regarding the reading of Abi Bn Ka’aab, are also mentioned in ‘the rulings of the Quran’ by Al-Jissas.
5)- Al-Bayhaqi narrated in ‘Al-Sunnah Al-Kubra’, about Muhaamad Bn Ka’aab, that Ibn Abbas said, ‘the pleasure marriage was practiced at the beginning of Islam and they used to read the verse ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time-’.
6)- In Al-Nawawi’s explanation of Muslim’s hadeeth collection: ‘the reading of Ibn Mas’oud is ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time…’
7)- In the interpretation of Al-Zamkhashr, ‘it is said that it descended with regard to the pleasure marriage which was for three days…’ and he said, ‘it was named Mut’aa [pleasure marriage]- because it was for pleasure’. Al-Zamkhashr also said, ‘and about Ibn Abbas, he said [the verse] is fixed and that means it was not abrogated, and he used to read ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time-‘
8) Al-Qartabi said, ‘the masses said, the intended [by this verse] is the pleasure marriage which was [practiced] in the beginning of Islam, and Ibn Abbas, and Ubay, and Ibn Jubair read ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time-, give unto them their earnings as a duty’
9) In the interpretation of Ibn Katheer: ‘Ibn Abbas, Ubay Bn Ka’aab, Sa’id Bn Jubair and Al-Saddi used to read ‘And those of whom ye seek pleasure (by marrying them)- for a specified period of time-, give unto them their earnings as a duty’. And Mujaahid said, ‘it descended with regard to the pleasure marriage’.
10) In the interpretation of Al-Sayutti, we find the speech of Abi Thabit, and Abi Naddrah and the narrations of Qutaadah and Sa’id Bn Jubair, and the reading of Ubay, and the speech of Mujaahid and Al-Saddi, and Atta’ abut Ibn Abbas, and the speech of Al-Hukum that the verse was not abrogated. And about Atta’ about Ibn Abbas, that he said, ‘it is what is in the chapter entitled ‘Women’, ‘And those of whom ye seek pleasure (by marrying them)- for this and this amount of time and for this and this [condition]’. He [Ibn Abbas] also said ‘and there is not between them an inheritance, but if they agreed after the specified time [to continue], then that is ok, and if they separated, then that is also ok…’
18 Al-Taabri narrated in The Biography of Umar, 5:32- that Omran Ibn Sawaadah came to Umar and said, “they mentioned that you prohibited the pleasure marriage and it was permitted by Allah, that we enjoy by a handful [e.g. a dowry of dates or flour] and then leave [her] after three days’. To this Umar replied, “the messenger of Allah (may Allah’s peace and blessings be upon him) permitted it at a time of necessity, and then the people returned to a normal situation. After that I did not know of any one from the Muslims who practiced it or retuned to it. And now whoever wants let him marry by a handful [of dates or flour as dowry] and separate after three [days] with divorce.”
19 Ibn Hazm in his ‘Al-Mahali’ said, ‘ Umar Bn Al-Khattab rejected it if two do not witness it, and he permitted it with the witness of two’. volume 9, 519-120, case 1854
20 Many narrations (tawatur) about the caliph Umar say that he said, ‘two pleasures were [practiced] in the lifetime of the messenger of Allah-, I now forbid them and will punish (who practices them): they are the pleasure of pilgrimage and the pleasure marriage’. In the interpretation of Al-Qurtabi: 388, and the interpretation of Al-Fakher Al-Razi 2:167 and 3: 202-201, and Kanz Al-‘umal 8:239, and Al-Jahith’s ‘Al-Bayaan wa Al-Tabayun’ 2:223.
21 The collection of Imam Ahmad Bn Hanbal ch.1, p52
22 Sa’id Bn Jubair practiced the pleasure marriage of in Mecca- the collection of Abd Al-Razzaq 7:496.
23 In the collection of Abd Al-Razzaq (7:500) that ‘Ali in Al-Kuffa said, ‘if it was not for the opinion of Umar Bn Al-Khattab…I would have instructed in the pleasure marriage and then no one would have committed fornication except the wicked’
Ibn Hazm in his ‘Al-Mahali’ (9: 519-520, case 1854) said, ‘a group of the first generation, including the companion Asmaa’ Bint Abi Bakar, Jaabir Bn Abdullah, Ibn Mas’oud, Ibn Abbas, Mu’awiyah Bn Abi Sufyaan, Umru Bn Hurayth, Abo Sa’id Al-Kudory, Salmah and Ma’bad the sons of Umayah Bn Khalaf continued to believe that it was permitted, as did all the companions (as was narrated by Jaabir) in the time of the messenger of Allah (may Allah’s peace and blessings be upon him), and Abi Bakar and Umar, until near the end of his rule.’
24 The
pleasure marriage was still practiced by Muslims in the time of Abi Bakar and
Umar, until near the end of his rule when he forbade it. In Sahih Muslim (and the collection of
Abd Al-Razzaq, and the volume of Ahmad and in ‘Sunnan Al-Bayhaqi’ and
others and the pronunciation of Muslim about Jaabir Bn Abdullah , that he said,
‘we used to enjoy by a handful of flour and dates in the days of the messenger
of Allah (may Allahs peace and blessings be upon Him), and Abi Bakar, until
Umar forbade it in the affair of Umru Bn Huraith’.
- In
the narration of Abd Al-Razzaq (volume 7: 49-497) about Atta’ Bn Jaabir that he
said, ‘we used to practice the pleasure marriage during the time of the
messenger of Allah (may Allah’s peace and blessings be upon Him) and Abi Bakar
and Umar- until near the end of his rule when Amr Bn Hurayth practiced the
pleasure marriage with a servant- Jaabir named her but I have forgotten it- the
woman got pregnant and Umar was informed of this. He called her and asked her
and she said, ‘yes’. He said ‘who witnessed it?’ Atta’ said ‘I do not know
whether she said ‘my mother’ or ‘my guardian’. He [Umar] said, ‘was there
anyone else? [Atta’] said ‘he [Umar] feared that there was a fraud’.
- In
another narration about Muhammad Bn Al-Aswad Bn Khalaf, that ‘Amr Bn Hawshab
[ie. Hurayth] practiced the pleasure marriage with a virgin from Bani Aaamir Bn
Law’. She got pregnant. This was mentioned to Umar, - he asked her and she
said, ‘Umru Bn Hawshab enjoyed her’. He asked him and he admitted it. Umar then
said ‘who witnessed it?’ He said I
do not know, her mother and sister or her mother and brother, so Umar got up on
the pulpit and said ‘what is wrong with men who practice the pleasure marriage
and do not have two witness and do not make it public. Whoever does this I will
punish’. Muhammad Bn Al-Aswad Bn Khalaf said, ‘he who was under Umars’ pulpit
informed me of this speech about Umar- he heard it when he said it, and the
people accepted it from him.’
25 In ‘Kanz Al-Umal’, it is narrated about Um Abdullah Ibnata Abi Khaythamah, that a man came to her from Al-shaam and said, ‘celibacy has become hard on me, so get me a woman that I can practice the pleasure marriage with. She led him to a woman and they made an agreement and it two witnesses witnessed it and he stayed with her as long as Allah had prescribed and then left. Umar Bn Al-Khattab was informed of this, so he sent for me and asked me if what happened was true. I said ‘yes’, and he said, ‘if he comes then let me know’. So when he came I informed him and he sent for him and said ‘what is the reason for what you did?’ He said I did it at the time of the messenger of Allah and he did not forbid us from it until Allah took Him, then with Abi Bakar and he did not forbid us from it until Allah took him, and then with you and you did not speak to us of its forbiddance. Umar said ‘By He whose my life is in His hand- if I had already fobidden it, I would have stoned you. Make it clear so that marraig is distigushd fom siffah (adultry /fornication)’.