Issue 2 – General Explanation of the Issue – Statement of the Late Sayyid – 1. Examination of the Father’s Guardianship over the Mature and Rational Male – Evidence for the Lack of Guardianship – First, Second, and Third Evidence

General Explanation of the Issue

The second issue in the chapter on guardians of the marriage contract concerns the guardianship of the father and paternal grandfather over three groups: the mature and rational male, the mature and rational non-virgin female, and the mature and rational virgin female. Let us review the text of the issue and then, God willing, proceed to the discussion. Issue 2: “The father and paternal grandfather have no guardianship over the mature and rational male, nor over the mature and rational female if she is non-virgin.” However, regarding the virgin mature and rational female, there are several opinions. “As for if she is a virgin, there are opinions on it.” Imam Khomeini mentions five opinions regarding the mature and rational virgin female: First opinion: “Her independence and the lack of guardianship for them over her,” this is the first opinion; that this girl is independent and the father and paternal grandfather have no guardianship over her, “neither independently nor jointly.” This contrasts with an opinion that guardianship for the father is established jointly. Second opinion: “And their independence and the lack of authority and guardianship for her likewise,” the independence of the father and paternal grandfather in guardianship over this girl; “likewise” means neither independently nor jointly. The first opinion is the girl’s independence and lack of guardianship; meaning they have no guardianship at all. The second opinion is that they have guardianship and the girl has no authority. Third opinion: “And sharing, meaning the necessity of both the guardian’s permission and her permission together,” the father’s guardianship is established jointly with the girl’s permission and consent. Thus, guardianship is established but not independently, rather jointly. Fourth opinion: “And distinction between permanent and temporary marriage, either by her independence in the former and not in the latter,” there is a distinction between permanent marriage and temporary marriage; meaning that in permanent marriage, the girl is independent and the father has no guardianship; but in temporary marriage, the father has guardianship and the girl cannot decide on her own. Fifth opinion: “Or the reverse,” some have said the opposite; the girl is independent in temporary marriage but not in permanent marriage, meaning the father has guardianship in permanent marriage. Imam Khomeini has mentioned these five opinions in the text of Tahrir al-Wasilah. He then states: “And the more precautionary is to seek permission from them.” He does not issue a fatwa but mandates obligatory caution that the girl seeks permission from the father or paternal grandfather. He then makes a qualification and states: “Yes, there is no issue in the lapse of the necessity of their permission if they prevent her from marrying someone who is her equal legally and customarily while she is inclined.” Imam Khomeini, while mandating obligatory caution that the girl must seek permission from the father and paternal grandfather in both permanent and temporary marriage—or in other words, they have guardianship over the girl—states: If the father or paternal grandfather prevents her from marrying someone who is her equal and compatible in all respects, both legally and customarily, and the girl herself has an inner inclination, here their permission has no validity and their guardianship is not established. He has also excepted another case: “And likewise if they are absent such that seeking permission from them is not possible while she needs to marry.” Another place where the father’s guardianship lapses is—in fact, these two cases are exceptions from that obligatory caution; they are considered exceptions from the father’s guardianship over the virgin girl. Where the father and paternal grandfather are absent and inaccessible (this especially occurred frequently in the past) such that seeking permission from them is not possible, while this girl needs to marry. Now, sometimes she can wait until they become accessible, in which case the guardianship does not lapse; but if she needs to marry, here the validity of the father’s permission lapses. These are the two cases he has excepted. Therefore, the second issue primarily focuses on examining the father’s guardianship over the virgin girl. The late Sayyid in al-Urwah al-Wuthqa has stated nearly the same; in Issue 1, after accepting the guardianship of the father and grandfather over the insane person, he stated: “And they have no guardianship over the mature and rational male, nor over the mature and rational female if she is non-virgin, and they differ regarding its establishment over the rational virgin female, with opinions.” Now, let us see how many opinions the late Sayyid has mentioned. First opinion: “And it is the independence of the guardian,” meaning the father is in full control and the girl has no role; the father has guardianship. Second opinion: “And her independence,” meaning the girl is independent and the father’s permission is not valid. Third opinion: “And distinction between permanent and temporary marriage by her independence in the former and not in the latter,” distinction between permanent and temporary marriage such that in permanent marriage the girl is independent, but in temporary marriage she is not independent and the father must give permission. Fourth opinion: “And the reverse,” that in permanent marriage she is not independent and in temporary marriage she is independent and the father has no guardianship. Fifth opinion: “And sharing, meaning the necessity of both permissions together,” that both the girl’s consent and the father’s permission are necessary. “And the issue is problematic, so precaution should not be abandoned by seeking permission from them.” The five opinions that Imam Khomeini mentioned in Tahrir are derived from the text of al-Urwah; in al-Urwah, the same five opinions and views are mentioned, and even Imam Khomeini’s opinion on obligatory caution is similar to that of the late Sayyid. The late Sayyid then proceeds to some subsidiary issues, which we will examine later. Question: Professor: The late Sayyid, in the continuation of Issue 1, has referred to and mentioned these excepted cases. We will discuss this later. Question: Professor: There it is in the form of sharing, and here it is independence; … but with the addition of the father’s permission; meaning each is part of the condition. Sometimes we say the father has no guardianship and the girl is in full control; here seeking permission is not valid at all. … The phrase in Tahrir is identical to that in al-Urwah, “and sharing, meaning the necessity of the guardian’s permission and her permission together,” both the guardian’s permission and the girl’s permission are necessary. The late Sayyid stated exactly this: “and sharing, meaning the necessity of both permissions together.”

1. Examination of the Father’s Guardianship over the Mature and Rational Male

The first case is the mature and rational male, a boy who has reached the age of maturity and has rationality; we previously discussed rationality; the meaning of maturity is clear; what is rationality? Rationality has a general meaning, which is distinguishing benefit and interest from corruption and harm in general. Rationality sometimes pertains to financial matters and sometimes to other matters; rationality means this, i.e., the ability to distinguish benefit from harm. Of course, the benefits and harms of individuals, the interests and detriments that affect people’s lives, have levels and degrees; sometimes at a basic level, sometimes somewhat broader; sometimes much deeper. In summary, what is intended here is that someone who has reached maturity and become rational; meaning he can generally distinguish his own benefit and distinguish it from harm. Does the father have guardianship over him or not? It is stated: No.

Evidence for the Lack of Guardianship

Here, no discussion has been made, and due to its clarity, they have passed over it. The author of Jawahir al-Kalam states: “There is no issue in the lack of their guardianship over the mature and rational male,” there is no issue in this; “rather, there is no disagreement.” The author of Kashf al-Litham stated “by consensus among us and the Sunnis,” meaning this is a matter of consensus, not only among Shiites but agreed upon between Shiites and Sunnis. Therefore, no discussion has been made about it. However, in summary, I will briefly list several pieces of evidence that we can mention here and move on. First Evidence: Consensus The first evidence is the lack of disagreement, rather, one can claim consensus. Claiming consensus means not only reported consensus but definitive consensus can be realized. Many have claimed consensus; the late Allamah in Qawa’id al-Ahkam, Muhaqqiq Karki in Jami‘ al-Maqasid, Shahid Thani in Masalik, the author of Hada’iq al-Nadirah, all of them have claimed consensus. Their consensuses become reported for us, but beyond reported consensus, we can establish definitive consensus here, and it truly poses no problem. Thus, the first evidence is consensus; this is unanimously agreed upon among Muslims.

Second Evidence: Principle

The second evidence is that this is required by the principle, and we have nothing that overrides this principle; meaning the principle of the lack of anyone’s guardianship over another. This principle has been established in its place. We have multiple pieces of evidence that establish this primary principle that no one has guardianship over another except what is excepted by evidence; this is a jurisprudential rule, and we have discussed it previously. How the lack of anyone’s guardianship over another reconciles with God’s guardianship has been explained in its place, how God’s guardianship is interpreted in this regard; then the guardianship of the Prophet (PBUH), the guardianship of the infallible Imams (AS), how these reconcile with this rule—these are discussions beyond the scope and time of this session. In any case, we have the principle of lack of guardianship, and as long as there is no evidence establishing guardianship for someone, we act according to that principle; here too, the principle of lack of guardianship for this person is established. Objection: Someone might say the principle of the lack of anyone’s guardianship over another is qualified in the case of a child, and the father has guardianship over the child; therefore, we have an override here that the father has guardianship over the child. Response: The father’s guardianship over the child is until maturity; after maturity, there is no guardianship. The issue of respect, honor, and even obedience in a sense is another matter that should not be confused with this issue. The issue of guardianship in marriage means that without the father’s permission, the marriage is invalid; the lack of anyone’s guardianship over another requires that the father has no guardianship in marriage, meaning the absence of his permission does not invalidate the marriage contract. Hence, we stated that there is no override here.

Third Evidence: Narrations

In addition to these, we have narrations that prove this matter. If we want to read these narrations, there are many; I will just provide references. Chapters on marriage contracts, Chapter 6 and Chapter 13; in the chapters on dowries, some narrations exist from which such an inference can be made. For reference, I will quote just one narration; the author of Jawahir also stated: “Rather, one can claim consensus on it due to the principle and some texts.” “From Ibn Abi Ya‘fur from Abu Abdillah (AS): He said: I said to him, ‘I want to marry a woman, but my parents want to marry me to another.’ He (AS) said: ‘Marry the one you desire and leave the one your parents desire.’” The title of Chapter 13, where the author of Wasail al-Shia has collected the narrations, is: “Chapter that there is no guardianship over the boy after maturity and rationality for the parents or others; if they marry him off, it depends on his consent, and it is permissible for him to marry even if they dislike it.” There are multiple narrations, but we will not linger here and move on; here, generally, no discussion has been made, and no one has marginal notes, because the issue is completely clear.

Question:

Professor: If a boy is mature but has not attained rationality, his case is separate. The discussion is not about good guidance and consultation; the discussion is whether the father’s permission affects the validity of this contract or not. Yes, youth is full of emotions; it is clear that no human at the age of youth and 18 years has experience equal to a 40-year-old; this is a natural and clear matter. But if rationality is mentioned, it means someone who at that age can generally distinguish his benefit and his harm; at his level, he discerns that he can live with her. … The important thing is that the faculty and ability have emerged in him. In the validity of marriage, it is not conditioned that the marriage must be in the person’s interest. This differs; sometimes someone wants to dispose of an orphan’s property, it is said that it must be in the orphan’s interest; meaning if it is not in his interest, the disposal is forbidden. In the chapter on marriage, the discussion is whether if someone is rational himself, can he marry? What is the meaning of rational? Meaning he has this ability, but now suppose everyone tells him this marriage is not in your interest, but he thinks this marriage is in his interest and performs it; is this marriage invalid? That marriage must be in the interest of the spouses is not a condition for the validity of marriage. We have no such thing anywhere, and no one has conditioned it in the validity of marriage. Yes, first-rate marriage and good life require that these interests be observed and these points be considered. But if someone does not observe them, is this marriage invalid? Certainly not.

Discussion for the Next Session

The second case is the mature and rational non-virgin female. Imam Khomeini stated: “The father and grandfather have no guardianship over the mature and rational female if she is non-virgin.” In this too, no discussion has been made. However, it is not unanimously agreed upon like the mature and rational male. Some, like Ibn Abi Aqil, have opined that the father and paternal grandfather have guardianship over her as well, and this has been attributed to Shaykh Mufid. A statement has been quoted from Ibn Abi Aqil that the mature and rational non-virgin girl has no independence in this matter and the father must give permission. On what basis did Ibn Abi Aqil or some others issue such a fatwa and consider guardianship established? There are several narrations here from which this may be inferred. We must examine these narrations and see whether they can truly prove this or whether the right is with the overwhelming majority of jurists who say the father has no guardianship over the non-virgin girl.