Issue 5, First Position: Examination of the Establishment of the Option for a Minor Girl

Session Twelve

Issue 5 – First Position: Examination of the Establishment of the Option for a Minor Girl – Arguments for the Non-Establishment of the Option – First Argument: Consensus – Examination of the First Argument – Second Argument: Traditions – First Category of Traditions – Examination of the First Category – Second Category of Traditions

October 11, 2025

Summary of the Previous Session

Our discussion concerned the fifth issue of Taḥrīr al-Wasīlah; we stated that we must pursue the discussion in two positions: one concerning the minor girl and the other concerning the minor boy. Thus, the first position concerns the establishment of the option of rescission for a minor girl who has been given in marriage to another by the paternal grandfather or father, where this marriage also carried benefit for her; “with the observance of what must be observed”—these matters are taken as settled; the marriage was concluded by one who had the right to do so, and the conditions were observed, and benefit was present as well. Does this girl, after reaching maturity, have the right to dissolve this marriage or not? The second position concerns the minor boy; does the minor boy have such a right or not? Here too, the supposition is that everything that is authoritative for the validity of the guardian’s marrying-off is present. We also stated that “option” here means: do the minor boy and minor girl, after reaching maturity, have the discretion to preserve and maintain that actually valid contract which has been concluded, or to terminate it? If she rescinds it, this means that it no longer continues; but up until now it has existed, and the contract was not, from the outset, an unauthorized contract.

First Position: Examination of the Establishment of the Option for a Minor Girl

Arguments for the Non-Establishment of the Option

With respect to the minor girl, the Imam has stated that, in this case, the option is not established for the minor girl and she has no right of rescission. Several arguments have been invoked for this position.

First Argument: Consensus

It has been claimed that “there is no disagreement regarding the absence of the option for her”—indeed, it is a matter of consensus; there is no disagreement whatsoever that the minor girl has no such option and has no right to dissolve this contract; rather, it is a matter of consensus. The author of Jawāhir has claimed something even stronger than a transmitted consensus (ijmāʿ manqūl)—namely, an ascertained consensus (ijmāʿ muḥaṣṣal): “There is no disagreement from anyone regarding the minor girl, and it is possible to obtain consensus on it with respect to her.” Some have claimed consensus, including: the author of Nihāyat al-Marām, the author of al-Ḥadāʾiq al-Nāḍirah, and Riyāḑ al-Masāʾil; this could serve as an argument for the non-establishment of the option for the minor girl.

Examination of the First Argument

However, it appears that this is open to examination and reflection. It is true that we may perhaps be unable to find anyone who has explicitly stated a contrary position on this matter—that is, who has said that the option is established for the minor girl after reaching maturity, meaning that he has negated bindingness and considers this contract revocable. But this consensus is a transmitted consensus, and a transmitted consensus has no authority. Even the obtaining of [an ascertained] consensus has merely been claimed as a possibility, and the author of Jawāhir himself has not stated that such a consensus is obtainable, but rather has stated that it is possible that this consensus is obtainable. Moreover, from certain statements, it may well be inferred that some are uncertain regarding this matter, and uncertainty regarding this ruling undermines the consensus. Yes, a claim of the absence of disagreement might be made; the absence of disagreement is compatible with the fact that many have simply not addressed this issue at all so as to express a view. But the certain matter is that, if we take into account those who have not addressed it, this does not undermine the claim of the absence of disagreement. Therefore, a claim of the absence of disagreement, or of strong renown (shuhrah qawiyyah), or of agreement, might be advanced in this matter, but not consensus. Unless it be said that if this transmitted consensus is joined with that strong renown, it could be authoritative, as Shaykh al-Anṣārī held. A transmitted consensus, in itself, has no probative force, but if it is reinforced by renown, it is not improbable that we might regard it as authoritative. If we accept this, the argument becomes a composite of consensus and strong renown. Question [posed in the session]: Professor’s response: If the renown in question were a renown based on transmission [of traditions] (shuhrah riwāʾiyyah), it would itself independently constitute a separate argument; here, when we mention renown as reinforcing the consensus, what is meant is renown of legal opinion (shuhrah fatwāʾiyyah). … If you recall, the late Shaykh [al-Anṣārī], in Rasāʾil, raises this discussion, stating that a transmitted consensus, in itself, has no authority, and renown of legal opinion, too, in itself, has no authority. But when these two are placed alongside one another—that is, two things whose authority is each individually open to question—they may well be counted among the [valid] evidences. An objection arises here: if neither of these is, by itself, authoritative, how can you derive a single authority from the combination of a non-authority with a non-authority? This is an objection that has been raised there as well; however, a response has been given to this objection, namely that, although neither of these is, in itself, authoritative, when these two are placed together and combined, they produce in us a certain assurance regarding the matter agreed upon and the well-known ruling. Therefore, we may well be able to accept this as an argument, though this itself is open to discussion; I stated that, unless it be said that, although this is indeed a transmitted consensus, given the strong renown that exists on this matter, we might well accept it here. Question [posed in the session]: Professor’s response: A transmitted consensus is simply a consensus that some jurists have claimed; for example, here, the author of Nihāyat al-Marām states, “The Imāmiyyah have reached consensus”—he has transmitted a consensus. But renown is realized differently—it means that, when you examine the legal opinions, you find that most jurists have issued rulings, and their rulings are similar to one another. This very renown of legal opinion, when joined to a transmitted consensus (as some have claimed), gains authority; I stated that this is open to discussion. It is not a transmission of renown, but renown itself; renown itself, joined to a transmitted consensus, might well be said by someone to be advanceable as an argument. Therefore, the first argument cannot establish the claim.

Second Argument: Traditions

The second argument for the absence of an option for the minor girl in the case under discussion is traditions. We have three categories of traditions that indicate the absence of an option—that is, the traditions invoked on this matter, if we wish to categorize them, fall into three categories. Question [posed in the session]: Professor’s response: We have cast doubt upon the consensus itself, stating that, ultimately, it is a transmitted consensus, which is not acceptable; we stated that the obtaining of consensus has merely been claimed as a possibility, whereas even this cannot be claimed. Yes, we can say, regarding your point, that, granting that consensus could be obtained, the problem is that, given the existence of the numerous traditions (riwāyāt mustafīḑah) that exist on this matter, this consensus is either grounded in a [textual] source (madrakī) or possibly so grounded; but someone might say that a consensus grounded in a source, or possibly so grounded, is also authoritative—that is a separate discussion.

Categorization of the Traditions

The reason we have stated that there are three categories of traditions on this matter is as follows:

1. One category consists of traditions indicating the absence of the daughter’s discretion in the matter of marriage in the presence of her father.
2. The second category consists of unqualified statements (muṭlaqāt) that indicate the validity and effectiveness of the guardian’s marrying-off of the minor girl.
3. The third category consists of specific traditions (riwāyāt khāṣṣah)—by specific traditions is meant traditions that have come specifically with respect to this very issue. The first two categories are unqualified or general in nature, because these traditions pertain to a general subject matter that also encompasses our present case. We must transmit these traditions and then examine them.

First Category of Traditions

The first category consists of a number of traditions that indicate the independence of the father and paternal grandfather in the matter of the daughter’s marriage—meaning that, fundamentally, the permission of the mature daughter plays no role in marriage. The subject matter of the first category is the marrying-off of a mature, competent daughter by the paternal grandfather, according to which this daughter has no discretion whatsoever, and all discretion has been entrusted to her father. How does this tradition indicate the absence of the option? In other words, what is the approach to the argument from these traditions? The argument has been advanced as follows: these traditions encompass our present case either by their unqualified scope or by way of priority (awlawiyyah). We must explain both of these—how these traditions, by their unqualified scope, encompass our present case.

First Approach

The encompassing by way of literal unqualified scope proceeds as follows: the subject matter of this category of traditions is “woman” (marʾah); “woman” is unqualified, and its unqualified scope encompasses both the mature girl and the minor girl. If you recall, we have previously read these traditions; there, in general, in some of these traditions, the expression “mature” is not used; for example, it states that the affair of the girl (jāriyah) or woman is in her father’s hands, and the father has independence in this matter, and the daughter has no role. If we have the term “woman” or “girl” or some general designation, this encompasses the minor girl as well.

Second Approach

The second approach is that if these traditions indicate the father’s independence in the matter of marrying off a mature, competent daughter, then, with respect to the minor girl, they indicate this all the more so (bi-ṭarīq al-awlā). Thus, you have observed that this category of traditions, which, in some manner, conveys the statement of the father’s independence and the non-authority of the mature daughter’s permission, encompasses our present case (the minor girl) as well—either by unqualified scope or by priority. This was the approach to the argument from the first category; we have previously read these traditions, and you may refer back to them. Question [posed in the session]: Professor’s response: We have stated that if the marrying-off is concluded by the father or paternal grandfather with the observance of what must be observed, such as benefit, this contract undoubtedly possesses actual validity. But the discussion is whether, once this girl reaches maturity, she has the right to dissolve this contract, which was validly concluded, or not. She says: until now I was a minor, and my father or paternal grandfather did this; now I myself have reached maturity and competence, and I wish to decide. We wish to determine whether, after reaching maturity, the daughter has the right to dissolve this marriage or not; this is the subject of our discussion, not the basic validity of the contract.

Examination of the First Category of Traditions

We cannot establish the absence of the option from these traditions; the claim is the non-establishment of the option for the minor girl after reaching maturity. This is because we have cast doubt upon the very indication of these traditions regarding the father’s independence. Therefore, these are not usable as an argument here. Note, however, one important point: at one time, we accept the indication of this category regarding the father’s independence and the negation of the authority of the mature daughter’s permission; if we accept that there, naturally this approach to the argument is acceptable—whether by the first statement (unqualified scope) or by the second (priority). But if we do not accept the indication of these traditions, this could itself be because, although these traditions do indeed carry this indication, since they are subject to a conflicting [tradition] (muʿāraḑ), we have set aside their apparent sense. The position we adopt, in that issue, with respect to this category of traditions is highly influential in our accepting or rejecting this category here. At one time we say that these traditions carry no such indication; then reliance on their unqualified scope and on priority no longer makes sense. At another time we say that this category of traditions does indicate this, but, because it has a conflicting [tradition], or because there are two or three other categories of traditions, we must reconcile between them. Then, in the matter of reconciliation, we either hold to a sharing [of authority] or hold to one of the positions that exist on that issue. But, in any case, we have accepted the indication of these traditions, even though we have also committed to the existence of a conflicting [tradition]. At yet another time, we say that these traditions indicate this and have no conflicting [tradition], and we construe all of them accordingly; here too we can advance the argument. The main point is whether this category of traditions indicates that very meaning—namely, the father’s independence and the non-authority of the daughter’s permission—or not. If we accept this indication, regardless of whether there is a conflicting [tradition] against it or not, this category can be used as an argument; but if we do not accept its indication, then it cannot be used as an argument here. This concerned the first category of traditions. Thus, the first category does not provide an indication [for our present purpose].

Second Category of Traditions

The second category of traditions, to which reference has been made in the statements of some, such as the late Āyatullāh Khūʾī, consists of the unqualified statements regarding the validity of the marrying-off of a minor girl or minor boy by the father. In other words, these are traditions that indicate the validity and effectiveness of the guardianship of the father and paternal grandfather, and that a contract concluded by the father and paternal grandfather is valid and effective. Thus, the second category consists of unqualified traditions indicating the effectiveness and validity of the contract of the father or paternal grandfather—in other words, the evidences for the guardianship of the father and paternal grandfather. The question is: how do these traditions indicate the claim? That is, traditions that state, in a general manner, that the father or paternal grandfather has guardianship in every matter—this alone does not settle the discussion; we must hold that those traditions encompass our present case. That is, when we establish the guardianship of the father in a general manner, its unqualified scope encompasses the minor girl as well. Therefore, the encompassing of our present case by the second category of traditions is either by way of literal unqualified scope or by way of contextual unqualified scope (iṭlāq maqāmī); whichever it may be, it ultimately encompasses our present case.

Discussion for the Next Session

God willing, in the next session we shall examine the second category of traditions and shall also address the third category.