Temporary Unions And Permanent Questions – Pleasure Marriages And Their Lasting Legal, Ethical, And Social Challenges.

*by Sunidhi Khabya

Introduction

Marriage as an Institution has been universally recognised as a sacred and lasting bond, though its meaning has evolved with the changing needs of society. In many cultural and religious contexts, alternative forms of marriages have emerged. Amongst one such evolved ‘meaning’ is the practice of “pleasure marriages”. The practice allows for temporary unions, which are often cloaked in religious or societal justifications. Although short in duration, these unions generate permanent legal-ethical conflicts and ambiguities raising the inevitable questions of consent, gender justice and protection of vulnerable individuals.

Understanding Pleasure Marriages: Historical & Religious Context

Marriages in Islam, by their very nature, are contractual. Historically, pleasure marriages have found mentions in Islamic traditions. Muta’h Marriage is one of the forms. The term Muta’h derives from the Arabic word meaning “pleasure” or “enjoyment”. Historians trace the practice back to the times when Arab women used to entertain Men in their tents; the men had to pay an entrance fee and could be kicked out anytime at the desire of the women. Such a union conferred no rights or responsibilities, and the objective of this marriage was just for pleasure. The practice involves various hazards and has been denounced by multiple Islamic scholars due to its inherent risks and unethical nature.

Muta’h marriage is mostly practices by the followers of Ithna Ashari School under the Shia Muslims. Sunni Law however, does not consider it valid. In the Quran, such marriages have been permitted “And you are allowed to seek out wives with your wealth in decorous conduct, but not in fornication, but give them their reward for what you have enjoyed of them in keeping with your promise. (4:24)”

Notably, Muta’h marriages can also be concluded by the representatives of the woman. If the father gives the daughter to a man through an oral promise, even then the marriage becomes concluded and valid. If a woman agrees to a declaration of marriage by a man, then also the contract becomes valid.

By contrast, religions such as Hinduism and Christianity believe marriage to be a relatively permanent institution and view such practices as incompatible with their conception of marriage. In Hinduism, marriage is considered a sacred bond for seven lives. The purpose of this institution is broad and societal, not just the pleasure of individuals. 

Legal Perspectives In India: Judicial Interpretations.

Indian laws do not recognise such temporary marriages, and the courts have clarified the position of the law time and again. The meaning of Muta’h marriage was dwelled upon in “Shoharat Singh v. Musammat Jafri Bibi”, the court held that such marriage does not confer any rights upon the woman on her husband's property. Still, the courts consider any children conceived from such wedlock legitimate and capable of inheriting their father's property. The courts thus validated the status of children under personal laws whilst restricting their inheritance rights.

In the case of “Syed Amanuallah Hussain and Ors. v. Rajamma and Ors.” The question of law was whether a Muta’h marriage lasted till the death of the husband, and upon the husband's death, the wife inherited the husband's properties. The husband’s brother challenged this. The court held that if the term for the “Muta’h marriage” is not specified in the contract, then the court treats it as a normal, permanent marriage.

Previously, in the judgement of “Shahzada Qanum v. Fakher Jahan”, it was clarified that if a muta’h marriage lacks a specified time period, it is treated as a permanent nikah. Thus, time duration becomes critical in distinguishing between a temporary alliance and permanent marriage.

In “Mohammed Abid Ali Kumar Kadar v. Ludden Sahiba (Minor)” the court held that spouses do not have the right to divorce in Muta’h marriages. Nevertheless, there are alternative ways of disposing of the contract of marriage. If the parties cohabit even after the expiration of the fixed duration, then the court presumes that the duration has been extended. Thus, there can be an implied extension of the marriage if the partners continue to cohabit after the fixed duration of the alliance expires.

In “Luddun v. Mirza Kumar”, the wife filed a petition under Section 536 of the Code of Criminal Procedure for obtaining maintenance. The court observed that personal laws do not take away the statutory right of maintenance under section 536 of the Code of Criminal Procedure. Therefore, the wife could claim maintenance.

Thus, the Indian courts have, upheld women’s rights from the very beginning in cases of Muta’h Marriages or pleasure marriages. However, the legal recognition of temporary marriages varies across jurisdictions owing to the divergence in religious doctrines, socio-cultural contexts, and state policies.

International Practices: Contrasting Approaches

While some of the Islamic nations incorporate these unions into their personal laws, many secular and non-Islamic legal systems outrightly reject such practices as they conflict with the constitutional rights of women and are glaringly opposed to public policy.

In the Shia majority country of Iran, temporary alliances (Nikah mut’ah) are legally recognised and codified under the civil law system. The Iranian Civil Code, under Chapter 6 (Article 1075 to Article 1077) explicitly allows for temporary marriages, and the subsequent chapter sets out requirements for a specific duration and mahr (dower). The woman in temporary marriage is entitled to maintenance within the duration of the marriage, while the children born out of such a union are considered legitimate and enjoy inheritance rights under Iranian law. However, these statutory protections are not uniform in implementation and lead to potential misuse of the provisions to circumvent adultery laws and facilitate exploitative relationships under the garb of religious sanction.

In Iraq as well, pleasure marriages are illegally performed by some clerics, which is often child trafficking under the garb of muta’h marriage. Here, if a child under the age of 9 years is promised in marriage, then ‘sexual touching’ is considered to be religiously permitted. Thus, the practice has become a breeding ground for child trafficking and prostitution in Iraq.

The lack of judicial protection, combined with the patriarchal interpretations of sharia law, often leaves women and children vulnerable to the assaults of men in power, especially when it comes to cross-border elements or undocumented marriages.

In contrast to this, Sunni-majority countries, which follow the Hanafi jurisprudence of Sunni schools, generally regard such unions as invalid and akin to prostitution. India does accord statutory recognition to such an alliance, but the judiciary has constantly protected the rights of women and their children born through such an alliance.

Most western jurisdictions do not recognise temporary marriages in any form; any such alliance is either treated as non-marital cohabitation or null and void in some cases for public policy reasons.

The increasing global culture of pleasure marriages in the form of tourism in economically weak countries like Indonesia, Malaysia and parts of North Africa has drawn attention from      human rights organisations across the globe.

Ethical and Social Concerns

The practice of temporary pleasure marriages has many risks; the major problems include primarily the exploitation of women by forcing them into unwanted marriages and thereby into forced sexual intercourse with the temporary husband, with no legal recourse under the provisions for sexual offences. Such marriages might even lead to larger humanitarian issues, such as human trafficking of women for prostitution under the garb of marriage.

Consent becomes an issue as it is hard to decipher whether or not it was given without coercion. The question arises regarding the maintenance of the children born out of such wedlock, including their inheritance and property rights. Such problems as bigamy, which is prohibited by the laws of many countries, might arise when the spouses are not aware of the background of their partners, thus violating the rights of the original wife.

Pleasure marriage tourism, which has increased in recent times, also poses significant challenges as the husband leaves the country after such temporary marriage and cannot be contacted for maintenance or Alimony, thus leaving the women alone to deal with the consequences of such union. Problems of increased risks of sexually transmitted diseases and subjugation of women are another significant risk involved. This has been seen in the recent developments on pleasure marriage tourism in countries like Indonesia.

These alliances blur the lines between marriage, prostitution and trafficking, raising serious questions on consent, dignity and autonomy of women; while these unions are defended on grounds of religious identity, their real-world implications must be considered.

The Way Forward

It is imperative that countries that recognise pleasure marriages must introduce stringent procedural safeguards with clear and mandatorily written contracts ensuring informed consent of both parties. Further, the socio-economic protection of women must be secured through the right to maintenance, healthcare, and education for children born out of such a union.

It is of grave importance that cross-border pleasure marriage be criminalised to avoid sexual exploitation and human trafficking; bilateral and international agreements could be arrived at to hold perpetrators accountable across jurisdictions.

Moreover, the government should mandate the registration of all marriages, regardless of their form, to prevent abuse; this would ensure legal protection to undocumented spouses and children.

Conclusion

In pluralistic legal systems, there is an increasing need to harmonise personal laws with constitutional safeguards; the institution of temporary alliance is a tool of subjugation which cannot be shielded under the veil of religious sanction.

Thus, as societies evolve, legal systems must attempt to strike a balance between cultural pluralism and universal human rights. Lawmakers must regulate such practices, and protection must be provided to the vulnerable groups. Temporary unions may exist, but the questions they raise about consent, dignity, accountability and justice are far from temporary. They are permanent and critical. 

*Sunidhi Khabya is a third-year law student pursuing a B.A. LL.B (Hons.) from National Law University, Jodhpur.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.