The second: The following is some of the opinions of scholars refuting the opinion of those who inferred from Allah's Saying:

(Part No. 20; Page No. 312)

  ...so with those of whom you have enjoyed sexual relations, give them their Mahr as prescribed [1] that Mut`ah marriage (temporary marriage for a stipulated period) is permissible. Shaykhul-Islam in section two of his book "Minhaj Al-Sunnah," commented on the previous statement: " Actually, Allah (Exalted be He) only permitted in His Book (for sexual intercourse) wives and slave-girls one possesses. However, having sexual intercourse with a woman based on Mut`ah marriage is not included in the meaning. Had she been a wife, they would have inherited from each other; she would have been obliged to observe `Iddah (woman's prescribed waiting period after divorce or widowhood), and she would have been forbidden for him after the third divorce. These are the rulings of a wife stated in Allah's Book. In this type of marriage, women do not have these requisites of marriage, and this is why this type of marriage is nullified based on the ruling that the nullification of an entailment nullifies what is entailed. Allah (Exalted be He) only permitted in His Book marriage and the slave-girls one possesses and forbade any other form. Allah (Exalted be He) says: And those who guard their chastity (i.e. private parts, from illegal sexual acts) [2] Except from their wives or (the slaves) that their right hands possess, - for then, they are free from blame; [3] But whoever seeks beyond that, then those are the transgressors; [4] After this prohibition, if a man marries a woman temporarily she can neither be regarded as a wife nor a slave-girl based on the text of the Qur'an. It is obvious that she is not a slave-girl. She is not a wife because she lacks the conditions of marriage i.e., its (marriage's) being a cause for mutual inheritance, the obligation that the wife should observe `Iddah after divorce or her husband's death, that they are unmarriageable after the third divorce, and that the wife has half the Mahr (mandatory gift to a bride from her groom) if she is divorced before the marriage is consummated, in addition to other entailments of marriage. He then added: "It may be argued that despite being a wife, she does not inherit if she belongs to the People of the Book or if she is a slave, and this can be refuted by saying that those who permit Mut`ah marriage do not permit marrying from the People of the Book and only permit marrying a slave girl in case of necessity. Nevertheless, they consider Mut`ah marriage permissible without restrictions. Moreover,

(Part No. 20; Page No. 313)

 it can be argued that marrying a woman from the People of the Book or a female slave entails mutual inheritance but still there are two things that prohibit inheritance i.e. disbelief and slavery. An analogy is that even though kinship is a cause for deserving inheritance, yet if a relative is a slave or a disbeliever, inheritance is prevented. This is why once a son, for example, is emancipated or embraces Islam, he has the right to inherit his father. The same ruling applies to a wife i.e. if she embraces Islam or is emancipated during the lifetime of her husband and chooses to remain his wife. In this case, she has the right to inherit him according to Ijma` (consensus of scholars). On the other hand, this does not apply to a woman with whom one has entered into wedlock based on Mut`ah marriage, as marriage does not entail inheritance. The similitude of this type of marriage is like Zina (sexual intercourse outside marriage), where the illegitimate child cannot be attributed to the man who committed the Zina, which means that the child does not belong to him nor has the right to inherit him." He then added: "If it is claimed that some rulings apply to relationship and to marriage, then our reply is that this is an issue of disagreement among scholars, and the Jumhur (dominant majority of scholars) opine that all the rulings apply to relationship equally. Moreover, this is not an argument for them since none of the rulings pertaining to a wife apply to a woman with whom one has entered into wedlock based on Mut`ah marriage, about whom there is no text reported to prove any feature of a legal marriage. Thus, it should be known that she is not a wife. With regard to the proven rulings pertaining to this type of marriage, that acknowledge the child to be attributed to its parents, that the woman should be purified from menstruation before leaving her, that it stands for preventing executing Hudud (prescribed penalties) against the couple, that it entails offering Mahr, and so on, then we can say that this is proven to be a "doubtful marriage". Thus, it should be known that having sexual intercourse with a woman with whom one has entered into wedlock through Mut`ah marriage is by no means like that practiced with one's wife in a legal marriage. Rather, it is a "doubtful marriage" even in the sight of those who believe it is lawful. Its lawfulness is the cause of dispute, and this cannot be used as an argument by either of the disagreeing parties. Rather, the argument should be either a text or Ijma` (consensus of scholars)." Abu Bakr Al-Jassas was one of the scholars preceding Shaykhul-Islam who held the same opinion as Abu Bakr Al-Jassass

(Part No. 20; Page No. 314)

  in his book Ahkam Al-Qur'an: (vol 2, page 149), stated: "The evidence that it was forbidden is His (Exalted be He) Saying: And those who guard their chastity (i.e. private parts, from illegal sexual acts) [5] Except from their wives or (the slaves) that their right hands possess, - for then, they are free from blame; [6] But whoever seeks beyond that, then those are the transgressors; [7] Thus, Allah (Exalted be He) confined having sexual intercourse to either of these forms exclusively and excluded any other kind by His Saying: But whoever seeks beyond that, then those are the transgressors; [8] Since Mut`ah (temporary) marriage is not one of these two types, it is unlawful. If it is claimed: "You did not present proof that the woman with whom one has entered into wedlock based on Mut`ah marriage is not a wife, and thus Mut`ah marriage belongs to these two types that are exclusively permissible." In this case, we say to the person who holds this opinion: "This is wrong because a woman can only be given the name "wife" if her marriage is consummated based on a marriage contract. Since Mut`ah marriage is not based on a marriage contract, the woman in this case cannot be considered a wife." If it is asked: "What is the evidence that Mut`ah marriage is not a (legal) marriage?" We can say: "The evidence is that "marriage" is a name that refers to two meanings only: having sexual intercourse in consummation of marriage, and the marriage contract. We have previously illustrated that it is real in the first and figurative in the second. It should be known that the name (marriage) is confined to one of these two meanings and that giving it to "marriage contract" is figurative, as we have just mentioned. If we find that the Arabs gave this name (marriage) to a marriage contract even before the consummation of marriage and that they did not give it to Mut`ah marriage (that involves consummation), where the Arabs did not say such-and-such man married such-and-such woman if he conditioned to enter into wedlock with her based on Mut`ah marriage, then it is not correct to give the name "marriage" to Mut`ah. This is based on the fact that a figurative name can only be applied if it

(Part No. 20; Page No. 315)

 is heard from the Arabs or stated by the Shari`ah. Since neither Shari`ah nor the Arabs named Mut`ah "marriage," then Mut`ah must not have been made lawful by Allah (Exalted be He) and that the person who does it must be a transgressor and wronging himself by committing what Allah (Exalted be He) made unlawful. Moreover, marriage has certain conditions and failing to fulfill them renders it nullified. They include: Firstly, the passage of time does not affect the marriage contract i.e. it does not necessitate putting it to an end, which is not the case with Mut`ah. According to those who believe in its permissibility, it necessitates putting an end to marriage upon the termination of the agreed-upon period. Secondly, marriage entails attributing the child to its parents without resorting to prove this through courts. A baby born through marriage can only be denied through Li`an (allegation of adultery against a wife, accompanied by mutual invoking of Allah’s Curse/Wrath if lying). On the contrary, those believing in the permissibility of Mut`ah do not attribute the child to its parents. Thus, it should be known that it is neither a marriage nor is its bed lawful. Thirdly, consummating marriage with one's wife entails that she should observe `Iddah (woman's prescribed waiting period after divorce or widowhood) upon separation, and that one's death makes it obligatory for one's wife to observe `Iddah, regardless of whether or not the marriage was consummated. Allah (Exalted be He) says: And those of you who die and leave wives behind them, they (the wives) shall wait (as regards their marriage) for four months and ten (days) [9] On the contrary, Mut`ah does not make it obligatory for the woman to observe `Iddah upon the death of the man. Allah (Exalted be He) also says: In that which your wives leave, your share is a half [10] There is no mutual inheritance in Mut`ah. These are the rulings pertaining to marriage unless there is slavery or Kufr (disbelief) that prevents mutual inheritance. There is no mutual inheritance in Mut`ah even when there is nothing that prevents it, such as slavery or Kufr; since there is no cause that necessitates separation; and since there is nothing that prevents attributing the child to its parents, in spite of the fact that the man has sexual intercourse with her,

(Part No. 20; Page No. 316)

 which necessitates attributing the child to him, then all this proves that it is not a marriage. Consequently, if it is neither a marriage nor a slave-girl that one possesses, so it is forbidden based on the Qur'anic text: But whoever seeks beyond that, then those are the transgressors; [11] If it is claimed that the termination of the determined period after which a woman can marry due to the absence of her husband is what is meant by divorce, then this can be refuted as follows: Since divorce can only take place by means of a frank or figurative expression, which were not done by the husband, then how can this be considered a divorce? Even the previous statement of those who consider Mut`ah marriage permissible can also be refuted by saying that she should not be separated from him if the determined period after which a woman can marry due to the absence of her husband has passed while she is menstruating since those who believe that Mut`ah marriage is permissible, do not consider it permissible to divorce a woman during her menstruation. Accordingly, had the separation occurring due to the passage of the period been a divorce, it should not have occurred while the woman was menstruating. Since this is not the case with them, this proves that this is no divorce. On the other hand, if the woman in Mut`ah is separated without a divorce or any other cause on the part of the husband that necessitates separation, this proves that it is not a marriage. We have just stated that Mut`ah does not attribute the child to its parents, nullifies `Iddah, and abolishes the right of mutual inheritance. It might be claimed that lacking these rulings does prevent it from being marriage, since the marriage of a person under age is valid, the children of the marriage cannot be attributed to him; and even though a slave has no right in inheritance and even though it is not permissible for a Muslim to inherit a disbeliever, the absence of these rulings does not mean it is not a marriage. This claim can be refuted as follows: The children of a person under age who has the ability to have sexual intercourse with his wife are attributed to him. On the contrary, in Mut`ah marriage the children are not attributed to the man even though he had sexual intercourse that causes the children of a valid marriage to be attributed to him. Moreover, a slave and a disbeliever were deprived of inheriting because slavery and disbelief prevent mutual inheritance. Mut`ah lacks this. Marriage gives the spouses the right to inherit from each other. Thus, if there is nothing that prevents them from inheriting from each other and yet they cannot inherit from each other in Mut`ah,

(Part No. 20; Page No. 317)

 we should know that Mut`ah is not marriage. Had it been marriage, it would have entailed mutual inheritance because there is no impediment in either of the two parts."