NASKH AL-HADITH: A REVIEW OF THE
TRADITIONS ON NIKĀ H AL-MUTCAH
Dr. Abubakr Yacqub Imam
This paper examines Naskh al-hadith (the theory of abrogation in the hadith) as it affects Nikāh al-mutcah (temporary marriage), against the background that the Qur’an and the hadīth are acclaimed as the main sources of the Islamic law. It is, however, a common knowledge that the hadith, as a colophon of the Qur’an, is, to some extent affected by forgery, based on identifiable factors coupled with the fact that the compilers recorded glaringly contradictory Traditions without providing guided information. This lapse, among others, has led to the introduction of two sciences, namely the science of harmonization technically called cIlm mukhtalaf al-hadith and the science of abrogation and replacement known as al-Naskh wa al-mansukh to explain the contradictory Traditions. Prophet Muhammad, it must be admitted, actually proclaimed abrogation on certain issues, while in some other instances it could only be inferred by those who were aware of an earlier pronouncement, which the new declaration was set to modify or correct under certain prevailing circumstances. The following Tradition lends credence to this claim. “I used to forbid that you visit graves but now you may visit them” ( Al-Khatib 1997:288).
The science of abrogation is considered imperative in the application and enactment of the Islamic law. In a recent research, Al-khatib ( 1997:288)
traces the first attempt to compile the abrogated Ahadith and their replacements to the early part of the second century of hijrah. Most of the books written on the subject are allegedly lost. It must be pointed out, however, that the scholars of hadith do not consider the knowledge of abrogation and its replacement as one of the instrumental sciences to test and evaluate the textual context of the hadith. Al-Faruqi and Al-Faruqi (1986:257) exclude it in their discourse on the sciences of the hadith despite their acceptance that one of the factors for variations in hadith is “a real change of judgement by the Prophet (Naskh)”. Ibn Kathir (1951:174) is even more categorical in stating that the science of abrogation of hadith is of jurisprudence outlook than an aspect of sciences of hadith, probably because of its implication on fiqh. This assertion, in our view, explains why the subject attracts the attention of the Islamic jurists more than the scholars of hadith.
Attempts were also made by the Usūli (scholars of jurisprudence) to compile the abrogated Ahādith relying mainly on the techniques of cilm ar-Riwāyah. (knowledge of narrative techniques). This paper, however, employs the science of cilm al-Dirāyah (knowledge of textual analysis) to examine the occurrence of abrogation on Nikah al-mutcah (temporary marriage) which is generating endless discussion among the Sunni and the Shicah scholars.
Temporary Marriage (Nikah al-mutcah)
Mutcah as an Arabic word means “enjoyment”. The word as used in the following verse leads to two opposing views between the Sunni and the Shicah schools.
Also (forbidden are) women already married, except those (slaves) whom your right hands possess. Thus has Allah ordained for you. All others are lawful, provided you seek (them in marriage) with Mahr (bridal-money given by the husband to his wife at the time of marriage) from your property, desiring chastity, not committing illegal sexual intercourse, so with those of whom you have enjoyed sexual relations "فما استمتعتم", give them their Mahr as prescribed; but if after Mahr is prescribed, you agree mutually (to give more), there is no sin on you. Surely, Allah is Ever All-Knowing, All-Wise Qur’an (Q4:24).
Temporary marriage is a marriage in which the woman
or her Waliy concedes that it will last for a specified period and
then the couple will separate (1998:154).
Temporary marriage is a marriage in which the woman or her Waliy concedes that it will last for a specified period and then the couple will separate (1998:154).
The fact that a Waliy will agree to a contract of a day or less is contestable in the present time, a point which Ambali glosses over. It should be pointed out, however, that a woman or a man under this arrangement is at liberty to endless temporary marriages. Admittedly the controversy between the two schools is not on its legality as they are unanimous on the existence of the practice in the Jahiliyyah period, which was carried over to the early days of Islam. Being an old established custom, the Prophet allowed it temporarily before his final word on it. Al-Far’s position in this regard, in our view, is accurate. He says:
The fact that temporary marriage is a contract between a male and a female for a specified period necessitates its total abrogation, which though was (initially) allowed in the early days of Islam (1983:114).
In contrast, the Shicah School considers it as an integral part of their faith and one of their distinguished practices till the present time. Al-kulayni(1374:120) categorically states that:
The Qur’an was revealed to justify Mutcah and people practised it in accordance with the Sunnah of the Prophet.
It is apposite to note that the two schools rely on the same sources for their positions i.e. the Qur’an and some established sound hadith. It is these seemingly contradictory positions we set to explore with a view to finding out whether some Ahādith are replaced by others. We shall, however, in passing, examine the evidence adduced by each school.
The Sunni argument on the abrogation of temporary marriage is based principally on the following verse.
(The Believers) who guard their modesty except with those joined to them in marriage bond or (the captives) whom their right hands possess, for in their case (they are free from blame). But those whose desires exceed those limits are transgressors (Q 23: 5-7).
The central theme of the verse could be summarized as follows:
(1) Faithfulness of the two contracting partners is emphatically stressed.
(2) Any kind of sexual intercourse is prohibited except on two grounds namely conjugal union or slavery.
It is alleged that some prominent companions opposed temporary marriage based on the quoted verse. Ibn cAbbas states categorically that any sexual intercourse outside the two mentioned ways is null and void (Ibn Rushd:57). His position will be revisited later as he is also alleged by the advocates of temporary marriage to have supported it. The bone of contention of some opponents of temporary marriage is that the word Istimtach is different from Nikah (Al-Askari:53).The proponents on the other hand cited the alleged unique recitation of both Ibn Mas’ud and Ibn Abbas of the verse with the clause إلى أجل مسمى which connotes a fixed time of enjoyment as a possible clue to its legality as it is clearly stated in the verse that dower is paid after the intercourse(Al-Askari:53). Al-far (1983:126) contended that if Q4: 24 as quoted above is to be accepted as a provision that legalises temporary marriage as claimed by the shicah, there are several Ahādith which suggest its abrogation. The Ahādith will later be considered in detail. It should however be pointed out here that As-shafic (1985:216) is also seen to have declared his support for the abrogation of mutach. He writes:
Al-Muhamadiyyah (1997:7) while reproducing this argument explained that the concept of mutcah negates some other major principles of the sharicah such as inheritance between couples and laws regulating marital relationship. Al-far (1983:126) is also seen to have subscribed to this view and concluded that temporary marriage leads to sheer promiscuity, hence its total abrogation in the Qur’an. He also identifies the following Ahādith as the Prophet’s final position on Mutcah:
عن محمد بن على عن على بن أبى طالب أن رسول الله نهى عن متعة النساء يوم خيبر وعن أكل لحوم الحمر الأهلية.
Form the authority of Muhammad ibn. cAli from cAli Ibn Abi-Talib: The Prophet forbade temporary marriage and the eating of meat of donkey on the day of khaybar .
عن الربيع بن سبرة الجهنى عن أبيه أن رسول الله صلى الله عليه وسلم نهى عن المتعة فقال إنها حرام من يومكم هذا إلى يوم القيامة.
Rabic ibn sabra al-juhanni reported on the authority of his father that Allah’s messenger, May the blessing and peace be upon Him, prohibited contracting of temporary marriage and said: Verily it is forbidden from this day to the day for Resurrection.
عن الربيع بن شبرة الجهنى عن جده قال أمرنا رسول الله (ص) بالمتعة عام حين دخلنا مكة ثم لم نخرج منها حتى نهانا عنها.
Rabi ibn Sabra al-juhanni reported on the authority of his grand father that: Allah’s Messenger, May the blessing and peace be upon him, permitted us to contract temporary marriage in the year (of victory) as we entered Makkah and we had not come out of it before he forbade us from practicing it..
عن ابن عباس رضى الله عنهما قال "إنما كانت المتعة في أول الإسلام حتى نزلت الآية الكريمة" إلا علي أزواجهم أ, ما ملكت أيمانهم" فكل فرج سواهما فهو جرم.
Ibn Abbas May Allah be pleased with both of them, narrated that temporary marriage was allowed in the early day of Islam until the revelation of (Q 23: 5-7) “except with those joined to them in marriage bond or the captives”. Any form of cohabitation other than the two mentioned is prohibited (At-Tirmidhi:707).
The quoted Ahādith emphasise the fact that Mutcah was allowed before its abrogation. The initial permission according to Al-Far (1983:126), was under strict exceptional conditions and can be regarded as a concession in Islam (Rukhsah). Ibn Rushd, on the other hand opined that temporary marriage was abrogated based on the aforementioned Ahādith and claims further that some companions of the Prophet also upheld that the provision of temporary marriage was annulled by the Prophet (Ibn Rushd:58)
The Shicah school on the other hand, contends the claim that mutcah was annulled by the Prophet. They allege that it was the second caliph cUmar who forcefully prohibited the practice as mutcah was openly practised during the Prophet’s lifetime (Al-cAskari:258). They rest their claim principally on the following two reports:
عن جابر بن عبد الله يقول: كنا نستمتع بالقبضة من التمر والرقيق الأيام على عهد رسول الله وأبى بكر حتى نهى عنه عمر.
Jabir Ibn cAbdullah reported: we contracted temporary marriage giving a handful of dates and flour as a dower during the life time of Allah’s Messenger and during the time of Abu-Bakr until cUmar forbade it.
عن جابر بن عبد الله وسلمة بن الأكوع قالا: خرجنا علينا منادى رسول الله أن قد أذن لكم أن تستمتعوا.
Jabir Ibn cAbdullah and Salma Ibn Al-akuc reported that Allah’s messenger sent a message to us saying: permission has been granted to you to contract temporary marriage(Ibn Rushd:58)
Another argument worthy of note is the contradictory positions of Ibn cAbbas. He was alleged to have recited "إلى أجل مسمى"as part of "فما استمتعتم" on which the Shicah school base its argument of non-abrogation of mutcah, similarly (Ibn Rushd:58) quotes him as having declared that:
ما كان المتعة إلا رحمة من الله عز وجل رحم بها أمة محمد.
Temporary marriage (Mutcah) is nothing but a mercy from Allah the most high to the Ummah of Muhammad.
These two positions notwithstanding, Ibn cAbbas as could be seen in the Ahādith in support of abrogation distanced himself from his earlier position. The golden rule of Usulūl al-fiqh that ”if a reporter abandons an earlier narration, it should be regarded as a weak narration” can be relied upon in this respect. However, a fact worthy of admitting is that Mutcah is seen to have been abrogated twice. The dates are put as Yaum al-khaybar and cAm al-fil. The probable dates have been given as Muharam 07. A.H for yaumu’l-khaybar and Ramadan 08 A.H for cAmu’l-fil (Al-Far1983:131). Al-cAskari, representing the Shicah’sٍ view submits that the inconsistency of the Sunni scholars on the date of the alleged abrogation of Mutcah is an indication that all Ahadith in support of its abrogation were forged (Al-cAskari:281) . In contrast to this view, As-Shafic explains the two dates of abrogation as follows:
لا أعلم في الإسلام شيئا أحل ثم حرم ثم أحل ثم حرم غير المتعة.
I do not know of an issue in Islam that was allowed and cancelled and later allowed and cancelled except temporary marriage (Al-Far1983:131).
Al-clyad supports this view and states further that the second cancellation is a form of reiterating the early proclamation for the larger audience at the farewell pilgrimage (Al-Far1983:131). What could be deduced from these submissions is that the abrogation was made twice. The second annulment is an indication that it was first cancelled but people continued to practice it due to ignorance or misinterpretation of the Prophet’s proclamation.
This paper examines the occurrence of abrogation of Ahādith on Nikah al-mutcah (temporary marriage) from the perspective of cIlm al-Dirāyah. It is clear from our analyses that the provision of temporary marriage is contained in annulled provision. The clamor for its legality by the shicah school of thought is seen to be a renewal of an annulled provision. Apart from the fact that its provision and practice in the present time cannot be encouraged based on the Islamic principle of morality, it is found that the Prophet was indeed emphatic on its cancellation, which was made twice. This portrays the dynamism of Islam and its adequacy in catering for both psychological and physiological well being of its adherents. The relevance of this assertion could be understood in the context of sexually transmitted diseases (most especially AIDS) that can spread from one person to another by sexual contract. It should be recalled that temporary marriage from its intent and purpose is a contract that can last for a specified period of time. Thus, if the provision of temporary marriage were retained as claimed by the shicah group, it would be a religious vehicle for Sexually Transmitted Diseases. The claim of the dynamic nature of Islam would therefore be put to question. It is the contention of this paper that the Ahādith on temporary marriage are abrogated Traditions. Its continued practice by the shicah group is seen to be in sharp contrast to the dynamism exhibited by Islam and therefore should be discarded for religious, moral and health considerations.
Al-cAskari,A.M Mucalim al-madrasatayn, 3(1-2) Al-majmac al-
Al-Far,M.S (1983), “Nikah al- mutcah bayna Ahal al-sunnah
wa shic’ah” in Al-Azhar Journal,1(1)
Al-Faruqi, I.R.and Al-Faruqi, L.L. (1986) The cultural Atlas of Islam,
Al-Khatib, M.cA. (1997) Usul al-hadith cUlumihi wa Mustalāhihī,
Lebanon: Dār al-fikr.
Al-Kulayni, M.Y, (1374 A.H) Furuc al-kāfi, (2) Tehran:Dar al-kutub
Al-Muhammadiyyah,Y.J, (1997) Taharim al- Mutcah fi al-kitabi wa
Al-Tirmidhi,A.M Jamic al-Tirmidhi 5(2) Dār al-Itihad al- cArabiyyah.
Ambali, M.A, (1998) The Practice of Muslim Family Law in Nigeria, Zaria: Tamaza Publishing Company
Asharazuri, cU. (1966)cUlum al-hadith, Nurudin Atar (ed), Madinah
maktabah al- cIlmiyyah.
As-Shafic,M.I Kitāb al-Ikhtilāf al-hadith (1985) , Beirut: mucassasah al-
Ibn Kathir, Al-Hafiz. (1951) Al-Bācith al-hathith Sharh aI Ikhtisār cUlum al- hadith, Ahmad Muhammad Shakir (ed) Beirut: Dār al-Kitāb al- cilmiyyah,
Ibn Rushd, M.A Bidāyah al-Mujtahid wa Nihāyah al-Muqtasid, 3 (2) . Beirut: Dār al-fikr.
Salamah, A.A. (1998) Sunni and Shiah Perspective of Islam,
Jeddah: Abul-Qasim Publishing House.