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

Session Thirteen

Issue 5 – First Position: Examination of the Establishment of the Option for a Minor Girl – Arguments for the Non-Establishment of the Option – Second Argument: Traditions – Second Category of Traditions – First and Second Approaches and Their Examination – Third Category of Traditions – First Tradition

October 12, 2025

Summary of the Previous Session

We stated that several arguments have been mentioned for the absence of an option, after reaching maturity, for a minor girl who has been married off by her paternal grandfather or guardian. The first argument was consensus, which was cast into doubt; the second argument is traditions. We stated that three categories of traditions have been mentioned and invoked in this position. The first category consists of traditions that indicate, either by their unqualified scope or by way of priority, the negation of the authority of the daughter’s permission and consent in the matter of marriage in the presence of her father; in other words, traditions that indicate the father’s independence in the marriage of a mature, competent daughter. The approach to the argument from this category of traditions was set forth; we stated that this category of traditions can be invoked for the non-establishment of the option by two approaches. This category, on both approaches, was met with objection; the main objection regarding the first category is that, fundamentally, these traditions do not indicate the father’s independence in the matter of the daughter’s marriage. This is because it is subject to a conflicting [tradition], or because, even within this tradition itself (setting aside the conflicting traditions), there exist indicators from which the father’s independence cannot be understood. Therefore, once the very indication itself was cast into doubt, neither the unqualified scope nor the priority [argument] can indicate the non-establishment of the option in our present case.

Second Category of Traditions

The second category consists of traditions that indicate the validity of the marrying-off of a minor girl by the guardian; in other words, the numerous traditions (riwāyāt mustafīḑah) that establish the basic guardianship of the father with respect to the daughter’s marriage. The number of these traditions is not small; they may well reach the threshold of profusion (istifāḑah)—that is, the matter is such that, due to the multiplicity of these traditions, one attains nearly certain assurance that they issued from the Infallible (peace be upon him). At the end of the previous session, we briefly indicated two approaches to the argument from these traditions, but their explanation remained outstanding; we stated that this category of traditions indicates the non-establishment of the option with respect to the minor girl either by literal unqualified scope or by contextual unqualified scope. Because time was short, we shall necessarily explain these two approaches in this session and, God willing, examine them. We have previously transmitted these traditions on a relevant occasion; in Wasāʾil, a chapter has been compiled under this heading: “The chapter on the establishment of guardianship for the father, and for the paternal grandfather specifically in the presence of the father, and not for others, over the immature, non-competent daughter, and likewise the immature son.” The heading of the chapter is: traditions according to which guardianship is established for the father and the paternal grandfather and is not established for others; guardianship over the immature, non-competent daughter—that is, the minor girl; that is, the chapter on the establishment of the guardianship of the father and paternal grandfather over the minor boy and minor girl. Numerous traditions have been mentioned in this chapter. How do these traditions, which indicate the establishment of guardianship with respect to the minor girl, indicate that this minor girl, after reaching maturity, has no right of rescission of the marriage? Two approaches can be mentioned for the argument from these traditions.

First Approach

One approach is by way of literal unqualified scope (iṭlāq lafẕī). Literal unqualified scope means that the marrying-off of the minor girl by the father or paternal grandfather has been deemed valid in an unqualified manner—that is, according to these traditions, if the father or paternal grandfather marries off the minor boy or minor girl to another, this contract is deemed valid and effective, and the ruling of validity and effectiveness for the marrying-off of the minor girl and minor boy is unqualified. This means that even after reaching maturity, there is no right of rescission—that is, with respect to the scope of the validity of this contract, whether before or after reaching maturity, it is unqualified. The validity of this marrying-off has not been restricted to the time of maturity, and it has not been said that it is valid only until the time of maturity; with respect to the ruling of validity, it is unqualified—that is, it encompasses both the period before maturity and the period after maturity, and no right whatsoever has been granted to this daughter to dissolve this marrying-off. Thus, the arguer wishes to establish, by means of these traditions, the validity of the contract by way of literal unqualified scope, and, as a consequence, the absence of the option of rescission and the fact that this contract is binding and cannot be dissolved.

Second Approach

The second approach is contextual unqualified scope (iṭlāq maqāmī). Contextual unqualified scope consists in this: an evidence states a ruling without any restriction whatsoever, and no restriction for it is mentioned in any other evidence either. This is because, if a particular restriction or limitation existed in the mind of the Lawgiver and legislator, he would, in any case, have to mention that restriction either in that very evidence or in another evidence; when we observe that no restriction whatsoever is mentioned, either in the evidence itself or in other evidences, we can make use of the unqualified scope. This is contextual unqualified scope, not literal unqualified scope. In literal unqualified scope, we derive the unqualified scope from the very wording of the evidence and the absence of a mentioned restriction. But in contextual unqualified scope (as its name indicates), we say that the legislator and Lawgiver, who is in the position of legislating, enacting, and promulgating law, if he had in mind a particular limitation or restriction for a given ruling, would, in any case, have to state this restriction by means of some evidence and in some context; if we find no such evidence, we say that it becomes clear that this restriction and limitation was not intended—otherwise, the station and position of the legislator would require that he state this restriction. The same applies here; on the one hand, we see that evidences and traditions have established the guardianship of the father over the minor girl and minor boy; on the other hand, no restriction whatsoever has been mentioned for this guardianship and for the validity of his marriage contract and marrying-off. In no evidence has it been said that this effectiveness and validity lasts only until the daughter reaches maturity. Not only in this very evidence, but in the other traditions as well, we observe no such restriction or limitation. Therefore, we say that contextual unqualified scope requires that this marrying-off be valid and effective forever—not merely until the daughter reaches maturity. Even after reaching maturity, this contract and marrying-off remains valid and effective.

Examination of the Second Category of Traditions

Now we must determine whether the second category of traditions indicates the non-establishment of the option or not.

Examination of the First Approach

The first approach to the argument, which seeks to establish the non-establishment of the option by way of literal unqualified scope, is problematic. This is because, for literal unqualified scope, we must verify the premises of wisdom (muqaddimāt al-ḥikmah); the most important of these premises is that the speaker be in the position of stating [the full intended meaning] (kawn al-mutakallim fī maqām al-bayān)—the speaker must be in the position of fully stating [his intent]. There are, of course, certain other premises as well: the possibility of mentioning a restriction yet not mentioning it, and the absence of a certain minimum in the context of address; but more important than all of these is that the speaker be in the position of fully stating his entire intent and purpose. Here, in order to invoke literal unqualified scope, we must verify that the speaker, in this respect, is in the position of stating [the full meaning]. With respect to which aspect? With respect to the continuation of the validity of the contract and the persistence of the effectiveness of this marrying-off. We must verify both that the speaker, with respect to the very fact that the father and paternal grandfather have the discretion and guardianship to marry off the minor boy and minor girl to another, is in the position of stating [the full meaning], and that this ruling (the ruling of the validity and effectiveness of the daughter’s marrying-off by the guardian) is, with respect to the time of the daughter’s maturity or immaturity, in the position of stating [the full meaning]. However, this cannot be verified. Yes, all the traditions mentioned in this chapter are, with respect to the first aspect, in the position of stating [the full meaning]—that is, it is clear that these traditions, with respect to stating the basic guardianship of the father and the validity of his marrying-off, are in the position of stating [the full meaning]; that is, they are in the position of stating the basic ruling of the guardianship of the father or paternal grandfather over the minor boy and minor girl. But whether these traditions, with respect to how long this marrying-off remains valid and how long it can continue (whether only until the time of maturity, or whether it also extends to after maturity), are in the position of stating [the full meaning], is not the case. Therefore, the main objection to the first approach to the argument from the second category of traditions is that, since these traditions are not in the position of stating [the full meaning] with respect to the aspect we are concerned with, we cannot invoke these traditions as an argument.

Examination of the Second Approach

The other approach to the argument from these traditions is that these traditions possess contextual unqualified scope, and by this route we can establish that the guardianship and the validity of the marrying-off extend to the period after maturity. Can contextual unqualified scope be relied upon and encompass our present case? It is not improbable that we should regard these traditions, in this respect, as unqualified—though by way of contextual, not literal, unqualified scope. We can say that, in any case, the Lawgiver, who has established and stated the basic validity of the marrying-off in question, has made no mention whatsoever of any restriction or limitation. Therefore, it is not improbable that we can accept the argument from the second category of traditions by way of contextual unqualified scope.

Third Category of Traditions

The third category of traditions consists of specific traditions (riwāyāt khāṣṣah). The first two categories were general and unqualified traditions—that is, traditions by which, relying on certain general and unqualified traditions, we establish the bindingness of the marriage contract. We say that there is a general or unqualified designation that, in any case, encompasses our present case as well. But the third category of traditions is introduced as specific traditions; by specific traditions is meant traditions that have come specifically with respect to this very matter—namely, the marrying-off of a minor girl by the father or paternal grandfather. In this category as well, we can mention several traditions. For example, some have mentioned two traditions, and others have mentioned two different traditions; the late Āyatullāh Khūʾī has referred to the two traditions of ʿAbd Allāh ibn al-Ṣalt and ʿAlī ibn Yaqṭīn. The late Āyatullāh Ḥakīm has mentioned three traditions: that of ʿAbd Allāh ibn al-Ṣalt, the tradition of Ismāʿīl ibn Buzayʿ, and likewise the authentic tradition (ṣaḥīḥah) of ʿAlī ibn Yaqṭīn. The late Āyatullāh Khūʾī, of course, has mentioned these as examples and has stated explicitly that there are other traditions here as well. That is, the traditions are numerous, and therefore there is no problem in this respect. Now we shall read these several traditions to see whether they carry an indication or not.

First Tradition

The first tradition is the authentic tradition of Muḥammad ibn Ismāʿīl ibn Buzayʿ: “From Aḥmad ibn Muḥammad, from Muḥammad ibn Ismāʿīl ibn Buzayʿ, who said: I asked Abū al-Ḥasan (peace be upon him) about the girl whom her father marries off, and then he dies while she is still young, and she reaches maturity before her husband has consummated the marriage with her—is the marriage binding upon her, or is the matter left to her [discretion]? He (peace be upon him) said: Her father’s marrying her off is binding upon her.” Muḥammad ibn Ismāʿīl ibn Buzayʿ states: I asked the Imam (peace be upon him) about a girl whom her father has married off to another, but he has passed away. Before her husband had consummated the marriage with her, this girl reached maturity; is that marrying-off effective and valid, or is this matter left to the daughter, to be decided however she determines? The Imam (peace be upon him) said: Her father’s marrying-off is binding (jāʾiz) upon her—that is, it is effective; her father’s marrying-off is effective upon her. He has explicitly spoken of the effectiveness of this contract; this means that she has no option, and this contract is binding. Therefore, this tradition indicates the bindingness of this girl’s marriage. Question [posed in the session]: Professor’s response: As for whether “jāʾiz” [in this context] means an obligational ruling (ḥukm taklīfī) or a constitutive ruling (ḥukm waḑʿī), this is understood from the question and answer themselves. When the Imam (peace be upon him) here says “jāʾiz,” it means “binding” (yalzam).

Discussion for the Next Session

There are two or three further traditions which we must also present and then examine, to determine whether they indicate this matter or not.