Issue 6, Second Supposition, Examination of the Degree of Weakness and Anomalousness of the First Position

Session Twenty-Seven

Issue 6 – Second Supposition – Examination of the Degree of Weakness and Anomalousness of the First Position – Arguments for the First Position: The Validity and Bindingness of the Contract and the Dower – First Argument and Its Examination – Second Argument – Third Argument

November 29, 2025

Summary of the Previous Session

In the previous session, we gave a general explanation of the sixth issue; the sixth issue concerns the marrying-off of a minor boy or minor girl for less than the customary dower (mahr al-mithl) or more than it by the father or paternal grandfather—that is, he has married off the daughter to someone for less than the customary dower, and the son for more than the customary dower. Naturally, a lesser dower presents a problem for the daughter, and a greater dower presents a problem for the son. We stated that two suppositions can be envisioned here; the first supposition is that there was a benefit in this matter. The benefit is not in the basic contract, which is taken as settled, but rather in the fact that the daughter has been married for less than the customary dower; because the foundation of the guardian’s marrying-off must rest upon the absence of corruption, or upon benefit. If this foundation is not sound, the basic marrying-off itself has a problem. What matters is that there is benefit in marrying her off for less than the customary dower; or, for example, he has married off the son for more than the customary dower, and there was benefit in this. Here it was stated that the contract and the dower are valid and binding. This supposition presents no discussion, and therefore we proceeded to the second supposition. The second supposition is that the benefit lies in the marrying-off itself, but no such benefit exists in the dower. Here the matter becomes a subject of discussion and disagreement; we have stated that three positions are mentioned on this matter: The first position is the position of the validity of the contract and the validity of the dower, and their bindingness. This position, however, does not appear in the text of al-ʿUrwah, because it has been said that this is a very weak position, or even the expression “anomalous” (shādhdh) has been used regarding it. The second position is the position of the invalidity of both the contract and the dower. The third position is the validity of the contract and the invalidity of the dower, with recourse to the customary dower. Now we must examine the arguments for these positions to determine whether they are acceptable or not.

Examination of the Degree of Weakness and Anomalousness of the First Position

As has been indicated, the late Sayyid, in the text of the sixth issue of al-ʿUrwah, stated: “two positions.” He has not mentioned the third position. The late Āyatullāh Ḥakīm and the late Āyatullāh Khūʾī have stated that this possibility or position—that both the contract and the dower be valid—is a very weak and anomalous position, and, because of this weakness and anomalousness, no reference has been made to it. Now we wish to determine whether this is truly an anomalous and weak position or not. As has been indicated, this position has been stated by Shaykh al-Ṭūsī in al-Khilāf; we must determine whether others, besides Shaykh al-Ṭūsī, have also stated this position; if they have, is it truly a weak and anomalous position?

Shaykh al-Ṭūsī, in al-Khilāf, has stated: “If the father or paternal grandfather—who has the right to compel her into marriage”—that is, one over whom they have guardianship—”whether a minor or mature virgin, marries her off for a dower less than the customary dower, the stipulated [dower] is established, and the customary dower is not obligatory.” The apparent sense of this statement is both the validity of the contract and the validity of the dower; only it states that the dower should be paid to the same extent as stated in the contract; therefore, the contract is valid and the dower too is correct, and here the customary dower is not necessary. He then gives an argument for this, which we shall mention among the arguments.
Abū Ḥanīfah holds the same position, which Shaykh al-Ṭūsī himself indicates in al-Khilāf, stating: “And Abū Ḥanīfah has held this.” However, al-Shāfiʿī holds a different view; al-Shāfiʿī states that the contract is valid, but the dower is void. Shaykh [al-Ṭūsī] continues, writing: “And al-Shāfiʿī said: the stipulated [dower] is invalidated, and the customary dower becomes obligatory”—that which has been stipulated as less than the customary dower is invalid, but the customary dower becomes obligatory. Apart from Shaykh al-Ṭūsī, others too have referred to this position, even if only as a position and possibility; but they have not said that this position is weak or, for example, anomalous. Among these:
The late Muḥaqqiq al-Ḥillī, in al-Sharāʾiʿ, states: “Second: if the guardian marries her off for less than the customary dower, does she have the right to object?” If the guardian of the minor girl marries her off for less than the customary dower, can the girl object and have it reversed? “There is hesitation in this; the more apparent view is that she has the right to object.” There is hesitation on this matter; the more apparent view is that she can object. According to this position and possibility, the apparent sense of the statement is that the contract is valid; however, regarding whether the stipulated dower (mahr al-musammā) is necessary or not, he has hesitation.
The late ʿAllāmah [al-Ḥillī], in al-Qawāʿid, states: “Fifth: that the guardian marries her off for less than her customary dower, and the contract is valid, and regarding the validity of the stipulated [dower] there are two positions.” He apparently has no hesitation regarding the basic validity of this contract, and transmits no opposing position; but regarding the dower, he states that there are two positions. Thus, both the late Muḥaqqiq al-Ḥillī and ʿAllāmah al-Ḥillī have referred to this position without any indication, from their statements, that this position is weak or anomalous; had this been the case, it would necessarily have been stated in this manner. Therefore, someone like Shaykh al-Ṭūsī has transmitted this position, and apparently, in the book al-Khilāf, this is his own view.
In al-Mabsūṭ as well, he has referred to this matter; there, he first transmits the basic issue and then states: “And others have said: if it is less than the customary dower, the stipulated [dower] is established, and the customary dower is not obligatory, and this is what our school requires”—that is, they regard the validity of the contract and the validity of the dower as required by the [Imāmī] school. Therefore, the statement of the late Āyatullāh Ḥakīm, regarding this position or possibility as anomalous, is not correct. He states that this possibility is anomalous—that is, as it were, no one holds to it; or even if someone holds to it, his position is not worth considering. The late Āyatullāh Khūʾī, too, explicitly states that this position is weak, and that, because of its weakness, it has not been mentioned. The statement of Āyatullāh Khūʾī is: “However, its weakness is more evident than to need concealing, and perhaps for this reason the author [of al-ʿUrwah] has neglected to mention it”; the reason the author of al-ʿUrwah has not stated and referred to this position is on account of the evident weakness of this position. In any case, we must examine whether this position is weak or not; but anomalousness, and the claim that this is merely a possibility, indeed an anomalous position—this we cannot hold to, given the statements I have transmitted to you. The best evidence against this claim is precisely this expression of Shaykh al-Ṭūsī, who states, “this is what our school requires”; moreover, he himself has accepted it, and others have, at the very least, referred to it as a possibility. Therefore, this position or possibility is not an anomalous position or possibility.

Arguments for the First Position: The Validity and Bindingness of the Contract and the Dower

The scholars generally, because they have regarded this as an anomalous or very weak position, have not addressed its arguments in much detail. We shall very quickly present a list of the arguments stated for this position to determine whether we can accept these arguments or not. From Shaykh al-Ṭūsī himself, down to the late ʿAllāmah, his son the author of Īḑāḥ, and others, arguments have been stated, and it generally appears that these arguments are derived from earlier scholars.

First Argument

I shall read the statement of Shaykh [al-Ṭūsī] in order to explain it; he stated: “the stipulated [dower] is established, and the customary dower is not obligatory”; the apparent sense of this is that this contract is valid, and the dower less than the customary dower, which has been stipulated, is also established. He then states: “Our argument is that there is no disagreement that the stipulated [dower] is obligatory upon him, and whoever obligates the customary dower must provide the argument for it.” According to the general rule and the evidences, the dower that is stated and stipulated is obligatory upon the husband; he is obligated to pay this. Therefore, there is an underlying cause (muqtaḑī) for the payment of the stipulated dower; whoever says that the customary dower should be paid must provide an argument as to why the stipulated dower should not be paid and the customary dower must be paid instead; he must provide an argument as to why the stipulated dower is not obligatory here and the customary dower must be given, whereas he has provided no such argument. Therefore, as it were, he states that the underlying cause for the bindingness of the stipulated dower exists, and the impediment (māniʿ) is absent; therefore the stipulated dower becomes obligatory—that is, the contract is valid, and the dower too is valid and binding.

Question:

Professor: We wish to state these arguments in the form of a list and then respond to them all together; because, roughly in proportion to each argument, we can use the arguments that we shall later mention for the position of the invalidity of the dower in responding to these arguments. This is clear; he states that the underlying cause exists and the impediment is absent.

Examination of the First Argument

The response is: why does he say there is no impediment? Why does he say, “whoever obligates the customary dower must provide the argument”? Those who hold the customary dower to be obligatory have an argument; we shall state their arguments later, and we do not wish to enter into those arguments now. If those arguments, which are not few, are adequate to the purpose, they constitute the best impediment against the obligatoriness of the stipulated dower.

Second Argument

The second argument that he has stated is the verse: “And if you divorce them before you have touched them, but you have already specified a portion for them, then [give them] half of what you specified.” This verse concerns divorce before consummation (ṭalāq qabl al-dukhūl). It states: if someone divorces his wife before consummation, he must pay half of what has been stipulated. Here, no distinction has been drawn between the customary dower and an amount less or greater than it, or equal to it; rather, it emphasizes that you must pay half of whatever you have stipulated—that is, the stipulated dower (mahr al-musammā). Therefore, in this verse, no distinction has been made between the stipulated dower being equivalent to the customary dower, or less than it, or more than it. Therefore, the general scope of this verse requires that the stipulated dower be obligatory; the very fact that it has drawn no distinction among these cases is itself the best argument that the stipulated dower is, in every case, necessary and obligatory.

Third Argument

The third argument consists of several traditions, among them:

It is transmitted from the Prophet (peace be upon him): “Fulfill the bonds. It was said: O Messenger of God, what are the bonds? He said: Whatever the families have mutually agreed upon.” He states that one must fulfill the bonds (ʿalāʾiq). They asked the Prophet (peace be upon him): what are the bonds? He said: that very thing upon which the families have mutually consented and agreed. It is evident that one of the instances of “whatever the families have mutually agreed upon” is the dower; this is general and encompasses everything, and includes every mutual agreement. Among the instances of “whatever has been mutually agreed upon” is this very amount of the stipulated dower. Therefore, they cannot pay anything other than this; it is obligatory upon them not to pay anything other than this, and to pay precisely this amount.
In another transmitted tradition, the Prophet (peace be upon him) used to marry off his daughters for five hundred dirhams or dinars. The fact that the Messenger of God (peace be upon him) set this amount as the dower, while the customary dower for the Prophet’s (peace be upon him) daughter would be far above this—who is comparable to the Prophet (peace be upon him), such that his daughter’s dower should be measured against him? If marrying-off for less than the customary dower were not permissible, or if the dower in such a case were void, the Prophet (peace be upon him) would certainly not have done this. Since the Prophet (peace be upon him) did this, it becomes clear that it is permissible.

Question:

Professor: We explained this in the previous session and stated that what is meant by the invalidity of the dower is that this dower is not effective, and the customary dower must be paid. … Not between the two parties; one party is the guardian, and the other… the discussion is: what does it mean to say that this is invalid? It means that this daughter has the right to object; when? After reaching maturity. If, after maturity, she accepts this dower, well and good; otherwise, the discussion is not general; the discussion concerns the marrying-off of this daughter by the guardian.

Discussion for the Next Session

Several further arguments remain, which we shall state in the next session and then examine.