Bukhari

Hadith Commentary:
Imam Bukhari has brought this hadith here because the prohibition mentioned in the chapter of mut‘ah is expressed with the phrase “prohibition of mut‘ah,” and the prohibition of shighar is also expressed with the same phrase. Therefore, to declare one contract valid and the other invalid, as some people have chosen, how can this be correct?

Hafiz (rahimahullah) has said that the Hanafis differentiate between the two in that shighar is, in its essence, legislated (mashru‘), but is corrupt (fasid) due to its description (sifah), whereas mut‘ah is, in its very essence, not legislated (ghayr mashru‘).

Shighar is when a man marries another’s daughter on the condition that he will give his own daughter in marriage to the other man. This alone is the dowry (mahr) for both, and there is no other dowry.

Imam Abu Hanifah (rahimahullah) says that if someone, by way of legal stratagem (hiylah), contracts a shighar marriage, the marriage contract will be valid, but the condition will be void, and each woman will be entitled to the mahr equivalent to that of women of her status (mahr mithl). And this same Imam Abu Hanifah (rahimahullah) has said regarding mut‘ah that both the marriage contract is invalid (fasid) and the condition is void; he did not say there that the marriage is valid and the condition is void and that mahr mithl would be obligatory.

Apparently, this is a preference without a preponderant argument (tarjih bila murajjih), because the prohibition of both mut‘ah and shighar is established equally by hadith.

Rather, mut‘ah was, due to certain circumstances, permitted at first, but shighar was never permitted. Now, mut‘ah is absolutely forbidden until the Day of Judgment.

Shighar is when women are exchanged between parties without dowry, giving one’s daughter without dowry and taking the other’s daughter also without dowry, and considering this exchange itself as the dowry, such that if one divorces the other’s daughter, the other will also divorce his daughter.

This is called a marriage of resemblance (nikah al-shubha); it is absolutely forbidden.

Hadith Commentary:
1.
Mut‘ah refers to contracting a marriage with a woman for a specified period. This type of marriage was prevalent during the pre-Islamic era (Jahiliyyah). Its practice continued up until the Battle of Khaybar, after which its prohibition was announced. Subsequently, during the general campaign of Awtas, a concession was granted for only three days, after which it was declared absolutely and permanently forbidden. Its details have already been discussed in the Book of Marriage (Kitab al-Nikah). However, according to some scholars, the contract of mut‘ah marriage is invalid (fasid), and the correction of such invalidity is possible by annulling the condition, whereas the correction of a void (batil) contract is not possible by annulling the condition. Accordingly, the reference from Sharh Wiqayah has already been mentioned: in sales, a contract becomes void due to invalid conditions, but in marriage, invalid conditions do not render the contract void. Therefore, shighar marriage and temporary marriage (nikah muwaqqat) are considered permissible.
2.
It should be clear that although a distinction is made between mut‘ah marriage and temporary marriage (nikah muwaqqat), in terms of outcome, both are the same. Imam al-Bukhari rahimahullah has raised two objections against these scholars:
➊ According to them, mut‘ah marriage is invalid (fasid), not void (batil), and in their view, the correction of invalidity is achieved by removing the condition. Therefore, by removing the condition of time limitation, mut‘ah marriage could become permissible, whereas the Shari‘ah has abrogated it forever.
➋ According to these scholars, mut‘ah is permissible and the condition is void, as Hafiz Ibn Hajar rahimahullah has written with reference to Imam Zufar that, according to him, mut‘ah is permissible and the condition is void.
(Fath al-Bari: 12/419)
3.
It should be noted that through Hasan ibn Ziyad, one narration from Imam Abu Hanifah rahimahullah is that if, in a temporary marriage (nikah muwaqqat), such a period is specified that, customarily, such a lifespan is not expected—for example, two hundred years, etc.—then in this case, the marriage becomes valid (but the present writer could not find its reference). In any case, mut‘ah marriage is forbidden (haram) and void (batil), and it has been declared forbidden until the Day of Judgment. No one except the Rawafid (Rafidites/Shi‘a) holds its permissibility; according to the Rawafid, this marriage is highly blessed.
(Fala barakallahu fihim wa la ‘alayhim)