Issue 7, First Secondary Case, Arguments for the Invalidity of the Marriage of the Imprudent Person Without the Guardian’s Permission

Session Thirty-Five

Issue 7 – First Secondary Case – Arguments for the Invalidity of the Marriage of the Imprudent Person Without the Guardian’s Permission – First Argument and Its Examination – First, Second, Third, Fourth, and Fifth Objections – Second Argument: Traditions – First Category

December 15, 2025

First Secondary Case

We stated that the seventh issue addresses two secondary cases; the first secondary case concerns the marriage of the imprudent spendthrift (safīh al-mubadhdhir). Having explained the meaning of “imprudent” and established that neither the qualifier of financial matters nor the qualifier of justice is at issue in imprudence and competence, the Imam states: “His marriage is not valid except with the permission of his father, or his paternal grandfather, or, in their absence, the judge; and the determination of the dower and the woman [to be married] rests with the guardian.” The marriage of such a person is valid only with the permission of the father or paternal grandfather, and, in the absence of the father and paternal grandfather, the judge [has this authority]; it is valid only with the permission of these. Not only must the guardian grant permission for the basic marriage, but the choice of spouse and the determination of the dower likewise rest with the guardian. This is the well-known position among the jurists; many jurists have explicitly stated this matter. The late Muḥaqqiq [al-Ḥillī], in al-Sharāʾiʿ; ʿAllāmah, in al-Qawāʿid and al-Tadhkirah; Muḥaqqiq al-Karakī, in Jāmiʿ al-Maqāṣid; Shahīd al-Thānī, in Masālik; and many of the eminent scholars have explicitly stated this ruling; the author of Jawāhir, too, following the late Muḥaqqiq [al-Ḥillī], has adopted and accepted this same ruling.

Arguments for the Invalidity of the Marriage of the Imprudent Person Without the Guardian’s Permission

The main point is to determine what the argument for this matter is; when the validity of the marriage is made contingent upon the permission of the father or paternal grandfather, this means the establishment of guardianship. If the view of the father or paternal grandfather is regarded as the criterion in this matter, this means that the father and paternal grandfather have guardianship over the imprudent person — whether this imprudence is continuous from the time of maturity, or has arisen subsequently; in any case, this guardianship is established. What is the argument for the necessity of the guardian’s permission, and for the requirement that the guardian must choose the dower and the spouse? Several arguments have been advanced for this claim.

First Argument

The first argument, which is referenced in the statements of many of the eminent scholars, consists of a minor premise and a major premise; they state that marriage is a contract that bears a relation to financial matters, and any dealing that bears a relation to financial matters is prohibited with respect to the imprudent person. The conclusion is that marriage, too, is prohibited. With respect to the minor premise — namely, that marriage is among financial matters — this is because it involves the dower and maintenance (nafaqah); therefore, one who marries incurs the dower upon himself and must provide maintenance to his wife. After all, an important component of marriage is financial matters. The major premise is that the imprudent person is, by consensus, interdicted from dealing [in his property]; no one disagrees on this matter; the imprudent person cannot deal in his own property. The conclusion is that he is therefore prohibited from marriage and cannot marry.

Question:

Professor: That is a different matter; we are discussing the basic contingency upon permission — whether he can, independently and without permission, undertake marriage on his own or not. They say: no. Therefore, on the authority of this argument, which is a syllogism of the first figure, they state: his marriage is not valid except with the guardian’s permission. Naturally, when marriage is made contingent upon his permission, then the determination of the dower and the spouse likewise rest with him.

Examination of the First Argument

This argument is open to objection, as some have indeed objected to it. Several objections are raised against it:

First Objection

One objection is that this argument (granting that its indication is complete) ultimately establishes only that the validity of the marriage and the determination of the dower rest with this person himself. This is because the supposition is that he has imprudence only in financial matters and has no imprudence in non-financial matters. Therefore, with respect to that category of matters that bear some relation to financial matters, he has no right to intervene; for example, he cannot determine the dower; but why should he be unable to determine his own spouse? The basic marriage has been held to be contingent upon the guardian’s permission. We observe three matters here in the text of Taḥrīr: one, the validity or invalidity of the marriage and its contingency upon permission; another, the determination of the dower; and third, the determination of the woman [to be married]. If all the elements of this argument were complete, it would establish two of these three rulings, but the matter of the guardian determining the spouse would not be established — unless this, too, bears some relation to financial matters; it is possible that the spouse is someone given to extravagance and squandering, and that, in this respect, she creates a problem for him. This is not a very significant objection.

Second Objection

The second objection is that, granting the indication of this argument, it is specific to the son, not the daughter; because the discussion is about the imprudent person, whether male or female. If an imprudent daughter wishes to marry a man, her father or paternal grandfather must grant permission. This argument is suited only to the supposition and case in which a son wishes to marry, because the entailment of the dower and maintenance arises only with respect to the son. The daughter neither gives a dower nor pays maintenance; the supposition, too, is that what is meant by “imprudent” here is the financially imprudent person.

Question:

Professor: At most, it states that his marriage is valid and that the dower should be entrusted to the guardian… this differs from the matter of minority; the daughter is mature, only she is an imprudent mature person — whether her imprudence has existed since the age of minority, or has arisen after maturity; in any case, she is mature; according to the general rule, the father or paternal grandfather has no guardianship over her. Here, they wish, in fact, to say that, if she is imprudent, the father’s guardianship is established.

Third Objection

The third objection is this: suppose this son, who wishes to marry and is imprudent, undertakes a generic obligation (kullī fī al-dhimmah), not a specific, actually existing property. That is, at one time, [the dower] is a piece of land, or a shop, or property that is a specific item (ʿayn) and is actually existing — for example, he says, “I have made this shop your dower.” Here he is prohibited from dealing in property and is interdicted; he has no right to do this, because he is, in effect, creating a debt (dayn) for himself. But if he sets a dower as a generic obligation [in the abstract], this is a matter of dispute, and there is no consensus on it. This objection is directed at the second premise of the syllogism; because, in the second premise, it was stated, “for he is, by consensus, interdicted [from dealing in his property]” — the imprudent person is, by consensus, prohibited from dealing in his property. What is meant by the property with respect to which the prohibition from dealing has been established, and which is included within the scope of the consensus, is a specific item that is actually existing — land, or cash, or, in any case, something with respect to which he has no right to deal. But with respect to a generic obligation [in the abstract], there is disagreement, and there is no consensus there; the very fact that consensus breaks down here means that this can no longer be cited as the major premise of the argument. Because he stated, “for he is, by consensus, interdicted [from dealing in his property]” — yes, the prohibition of the imprudent person from dealing in property that is not a specific item actually existing, but rather is a generic obligation, is a matter of dispute.

Fourth Objection

The fourth objection is that someone might well say, “I shall pay your dower for you.” When we advance the argument that marriage is among financial matters because it entails the dower and maintenance, and that he is prohibited from dealing in his own property — but if someone tells him, “Marry, and your dower and maintenance shall rest upon me” — can we, even then, say, in an unqualified manner, that his marriage is not valid? No; because the basis for the invalidity of the marriage was the prohibition from dealing in his own property. Now, if this is realized from another person’s property, does this present a problem? This objection, too, is directed at the major premise; because, in the major premise, it was stated, “the imprudent person is, by consensus, prohibited from financial dealings” — therefore, we cannot rely on this argument and rule, in an absolute and unqualified manner, the invalidity of the marriage.

Fifth Objection

The fifth objection reverts to the minor premise. Of these five objections, two objections are directed at the major premise of the argument, and three objections are directed at the minor premise. In the minor premise, the claim was that “marriage is a contract bearing a relation to financial matters” — marriage is a contract that bears a relation to financial matters, because it entails the dower and maintenance. The objection is directed at maintenance, namely that the obligation of maintenance is not a financial dealing, but rather a ruling of the Sacred Law. One who marries gives a portion of his property as the dower to the wife; this is counted as a financial dealing; but the obligation of maintenance is not counted as a financial dealing — the obligation of maintenance is a ruling of the Sacred Law, and this is not an instance of financial dealing.

Examination of the Fifth Objection

This is an objection that the late Āyatullāh Khūʾī has raised, but we can respond to this objection and say: the obligation of maintenance is indeed a ruling of the Sacred Law, but when the marriage contract is concluded, and the obligation of maintenance is subsequently established as a consequence, this entails financial dealing; after all, the obligation of maintenance has a certain necessary consequence; maintenance means financial dealing — namely, paying regularly to the wife from one’s own property. In any case, despite the fact that this argument has been invoked by many of the eminent scholars, it appears that it is not adequate to establish the claim.

Second Argument: Traditions

The second argument is the general traditions (riwāyāt ʿāmmah). By “general traditions” is meant traditions that, in a general manner, prohibit any dealing or action that the imprudent person wishes to undertake — for example, with this expression, “his affair (amruhu) is not valid (lā yajūz)” — his affair is not valid. It is true that these traditions, in a general manner, have stripped the imprudent person of any dealing whatsoever and have taken from him the right to deal, stating that his dealings are, in an unqualified manner, not effective, until his imprudence is resolved. Among these dealings is the contract; he cannot conclude a contract; the contract, too, is an action; the offer and acceptance, too, constitute a dealing. Therefore, this encompasses marriage as well. Thus, this ruling is, at one point, established by way of the unqualified scope of these evidences — that is, the unqualified scope of the traditions that indicate the non-effectiveness of the dealings of the imprudent person… the non-effectiveness of dealings in an unqualified manner, not merely in financial matters.

First Category

The tradition is from ʿAbd Allāh ibn Sinān; according to the transmission in al-Khiṣāl, ʿAbd Allāh ibn Sinān is mentioned; but in the transmission of Wasāʾil al-Shīʿah, the name of ʿAbd Allāh ibn Sinān has been omitted, and it is transmitted directly from Abū al-Ḥusayn al-Khādim Bayyāʿ al-Luʾluʾ; the text of the tradition is identical in both. It is possible that the copyist inadvertently failed to write the name of ʿAbd Allāh ibn Sinān; because, up to this point, it is correct — only between Bayyāʿ al-Luʾluʾ and the Imam (peace be upon him), according to the transmission of [al-]Ṣadūq, ʿAbd Allāh ibn Sinān appears. The tradition is as follows: “From ʿAbd Allāh ibn Sinān, from Abū ʿAbd Allāh (peace be upon him), who said: My father asked him, while I was present, about the orphan — when is his affair valid? He said: When he reaches the age of full maturity (ashuddahu).” My father and I were in the presence of Imam al-Ṣādiq (peace be upon him); my father asked the Imam (peace be upon him) about the orphan — when is his affair valid? That is, when can he himself undertake his own affairs, and his affairs are effective? The Imam said: when he reaches maturity. “He said: And what is his full maturity? He said: Nocturnal emission (al-iḥtilām).” My father asked: what does “full maturity” mean? The Imam said: it means nocturnal emission. “He said: I said: Sometimes the boy is eighteen years old, or less, or more, and does not have a nocturnal emission” — my father said: sometimes this boy is eighteen years old, or younger, or older, but does not have a nocturnal emission; what, then, is the ruling here? “He (peace be upon him) said: When he reaches maturity, and something [obligatory] is written upon him, his affair becomes valid, unless he is imprudent or weak [of mind].” He said: when he reaches maturity, and something [obligatory] becomes incumbent upon him, his affair is effective; unless he is imprudent or weak [of mind]. We have discussed the meaning and elements of this tradition in the discussion of maturity, and especially the maturity of boys, and shall not enter into that now; the main point is the closing of the tradition, which states that, when the orphan reaches maturity, provided he is not imprudent or weak [of mind], his affair is effective. This means that, if he were imprudent, the guardianship of the father and paternal grandfather would continue over him. If his guardianship is established, marriage without his permission is not valid. This tradition has unqualified scope; it states that, if he reaches maturity, provided he is not imprudent, his affair is valid (jāza amruhu). “His affair is valid” encompasses every kind of dealing, and, among these dealings, is the marriage contract; after all, it is an affair and an action. This indicates that the imprudent person has no right to marriage.

Discussion for the Next Session

Apart from this tradition, we have two further categories of traditions, which have likewise been invoked, and we must determine whether these indicate the contingency of the validity of marriage upon the guardian’s permission or not. You have observed the first category; we must examine those two categories as well.