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

Session Fifteen

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 – Third Category of Traditions – Fifth Tradition – The Substance of the Second Argument – Third Argument: Presumption of Continuity (Istiṣḥāb) – Examination of the Third Argument – First Objection – Second Objection – Third Objection and Its Response – Evidences for the Establishment of the Option (Conflicting Traditions) – First Tradition

October 18, 2025

Summary of the Previous Session

The discussion concerned the arguments for the non-establishment of the option for a minor girl—that is, if a minor girl, during her minority, is married off by the guardian to another, does she have, after reaching maturity, the right to rescind this contract or not? In other words, is this contract binding or not? We stated that several arguments have been invoked to establish the bindingness of this marriage; the first argument was consensus, which was cast into doubt; the second argument was traditions, of which, we stated, several have been invoked. We transmitted four traditions, and the approach to the argument from them was set forth.

Fifth Tradition

One further tradition remains, which is a tradition transmitted in Daʿāʾim al-Islām from the Commander of the Faithful (peace be upon him): “The marrying-off [conducted] by fathers is binding upon sons and daughters when they are minors, and they have no option when they grow up.” According to this tradition, the marrying-off of daughters and sons, while they are minors, by their fathers, is binding, and when they leave their minority and reach maturity, they have no option. This tradition, with respect to its indication, is explicit regarding bindingness; because it employs the expression “they have no option” (laysa lahum khiyār); it explicitly states that, when they reach maturity, they have no discretion to dissolve this marriage. The problem lies in the chain of transmission (sanad) of this tradition; this tradition is weak with respect to its chain of transmission and is not acceptable. Therefore, this tradition is not usable as an argument.

The Substance of the Second Argument

In any case, the substance of the second argument—that is, the traditions—is that we have traditions that are sound both in chain of transmission and in indication, on the authority of which we can say that the marriage contract of a minor girl, concluded by the paternal grandfather and father, is binding, and that she cannot dissolve the contract after reaching maturity.

Third Argument: Presumption of Continuity

The third argument in this matter is the presumption of continuity (istiṣḥāb). Shahīd al-Thānī, in Masālik, has invoked the presumption of continuity to establish the bindingness of this contract; he first established the basic validity of the contract by means of general and unqualified statements (ʿumūmāt and iṭlāqāt), and then, in a subsequent stage, established bindingness by means of the presumption of continuity. The approach of the presumption of continuity is this: this contract was certainly concluded validly; after reaching maturity, we doubt whether that contract continues or not, and we apply the presumption of continuity to the persistence of the contract. Thus, the prior certainty pertains to the actual validity of the contract; how can we apply the presumption of continuity to the option [itself]? Question [posed in the session]: Professor’s response: At that time it certainly did not have an option… at the time when this contract was concluded, do you have certainty regarding an option such that you now doubt it? At that time, the contract was concluded, and it was not even at a stage where there could be such discretion at all. The father or paternal grandfather concluded the contract, and it was concluded validly; this, too, was done on the basis of the guardianship established for the father, and therefore it was concluded validly. Now, after reaching maturity, we doubt whether that contract still remains in force or has become unsettled—meaning that this girl, after reaching maturity, can dissolve it. We apply the presumption of continuity to the persistence of the contract after maturity; of course, this argument and reliance on the presumption of continuity can be invoked with respect to both the minor girl and the minor boy; in the statement of Shahīd al-Thānī, this can be invoked for both.

Examination of the Third Argument

We must determine whether this argument is acceptable or not. Several objections are raised against this argument.

First Objection

We can raise a particular-case objection (ishkāl ṣughrawī) against this presumption of continuity, namely that our certain matter is the validity of the contract; at that time, bindingness was not [yet] established either—because, fundamentally, the discussion is whether, after reaching maturity, the daughter has the right to dissolve this contract or not; that is, whether the contract, after maturity, is revocable (jāʾiz) or not. What was the object of certainty was the validity of the contract; if we say that this contract was validly concluded and, at that time, was binding, and remains binding until she reaches maturity—because the guardian married her off and his marrying-off was binding—but now we doubt whether the bindingness has ceased or not, we apply the presumption of continuity to the persistence of bindingness. If this presumption is framed in this manner, the form of the argument becomes sound; the elements of the presumption of continuity are present, and there is no problem with respect to prior certainty and subsequent doubt. However, this matter—that the bindingness of the contract was realized at that very time and was subsequently transformed into revocability—is open to question. When we say that this contract can be rescinded by the daughter, this means that this contract was, from the outset, revocable; only the time for exercising the option is after reaching maturity. This is important: how do we conceive of revocability and bindingness with respect to the contract, and at what time? The apparent form of the argument is that the contract was validly concluded at that time, and now too the presumption of continuity is applied to the persistence of the contract; whereas we ought to establish bindingness during that period and then apply the presumption of continuity to it now. This matter is not very clear and is ambiguous; therefore, from the standpoint of the particular case, this presumption of continuity is beset with difficulty. Question [posed in the session]: Professor’s response: Because this girl, during her minority, was married off to another, and now that she has reached maturity, the discussion is whether she must consent to that same marriage or whether she can dissolve it… those who invoke bindingness… in the course of stating the various positions, we mentioned that those who say the guardian has guardianship and accept his guardianship state that the guardian stands in place of the ward herself; if the ward herself had concluded this contract, would she have had the right to dissolve it or not? No; therefore the guardian, too, cannot dissolve it. If you recall, we stated that there is a discussion as to whether the bindingness of this marriage is in accordance with the general rule (qāʿidah) or contrary to it. Some hold that, fundamentally, the bindingness of this marriage is in accordance with the rules; but others have a discussion on this matter as to whether the guardian’s contract is the very same contract of the ward, or whether he marries her off on the basis of certain interests, such that this contract is valid, yet revocable, and the daughter, after reaching maturity, can dissolve it…

Second Objection

The second objection is a general-principle objection (ishkāl kubrawī); granting that, with respect to the realization of the elements of the presumption of continuity, this contract has no problem—the main matter and the chief problem is that this is a doubt regarding a [general] ruling (shubhah ḥukmiyyah), and the presumption of continuity does not run in doubts regarding rulings. This, of course, is a foundational dispute, namely whether the presumption of continuity runs only in doubts regarding particular matters (shubhāt mawḑūʿiyyah) or also in doubts regarding rulings; many hold the view that the presumption of continuity does not run in doubts regarding rulings, and our present case is a doubt regarding a ruling; because we doubt the bindingness of the contract after the daughter’s reaching maturity. Therefore, this is a foundational objection, and whether the presumption of continuity also runs in doubts regarding rulings or not must be referred back to its proper place [of discussion].

Third Objection

The third objection is that a presumption (aṣl) applies only where there is no [other] evidence (dalīl); “the presumption is an evidence where there is no [other] evidence” (al-aṣl dalīlun ḥaythu lā dalīl). When we have here evidence and numerous traditions (whether for bindingness or for revocability—since the traditions indicating bindingness also have conflicting traditions, to which we shall refer later), there is no longer occasion to resort to the presumption of continuity. Yes, if someone deems those evidences insufficient, he can establish [bindingness] by means of the presumption of continuity.

Response

This objection, however, can be answered—that is, those who hold to the bindingness of the marriage can say that we have mentioned the presumption of continuity as a corroboration (muʾayyid), not as an [independent] argument; that is, we have said that those traditions which establish the bindingness of the contract can also be corroborated by the presumption of continuity.

Summary of the Arguments for the Absence of the Option

In any case, from the totality of the arguments for the bindingness of the minor girl’s marriage contract concluded by the paternal grandfather, we can rely on certain traditions that are sound both in chain of transmission and in indication, and say that these indicate bindingness. We have not accepted the first and third arguments (consensus and the presumption of continuity) and have raised objections to them; the main argument of those who hold to the bindingness of the contract is the traditions that you have observed.

Evidences for the Establishment of the Option (Conflicting Traditions)

In opposition to these traditions, we have traditions that indicate revocability—that is, they negate the bindingness of such a marriage; we must read these traditions and determine how we can reconcile between these two categories of traditions. Pay close attention! Ijtihād (independent legal reasoning) is realized precisely through such examples; these are exercises through which you can discover the method and approach of ijtihād and derivation of rulings. Ijtihād is not something that can be acquired separately, after a brief period of study and instruction; it is precisely through such particular cases, and through observing how the jurists confront conflicting traditions and reconcile between traditions, that the faculty of ijtihād gradually develops within a person. Here we have traditions from which the absence of bindingness is derived.

First Tradition

The first tradition is the tradition of Abū ʿUbaydah al-Ḥadhdhāʾ. We have previously read this tradition; if you recall, we stated there that the opening of this tradition has the apparent sense of indicating the absence of bindingness; yet it has been transmitted among the traditions indicating bindingness. The tradition is lengthy, and I shall not read all of it; the opening of the tradition is as follows: “I asked Abū Jaʿfar (peace be upon him) about a boy and a girl whom their two guardians had married to each other, while both were not yet of age. He said: The marriage is valid, and whichever of them reaches maturity has the option [of rescission]. And if they both die before reaching maturity, there is no inheritance between them and no dower…” The opening of this tradition indicates the absence of bindingness; it states: I asked Imam al-Bāqir (peace be upon him) about a boy and a girl whose guardian had married them to one another, and both were not of age; what, in the end, is the status of their marriage? The Imam (peace be upon him) said: this marriage is revocable (jāʾiz); whichever of them reaches maturity, the option is established for him. This sentence very clearly indicates revocability. One might, on the basis of the opening of this tradition, say that this tradition, in its opening, conflicts with the traditions that indicate bindingness. Of course, if you recall, there is a sentence in the closing part of the tradition that indicates bindingness; that sentence was: “I said: What if it was her father who married her off before she reached maturity? He said: The father’s marrying her off is binding upon her, and it is binding upon the boy, and the dower is upon the father, owed to the girl.” The Imam (peace be upon him) said: the marrying-off of this girl by the father is correct; “yajūz” here means validity and effectiveness—that is, this contract is valid and effective, and the dower is upon the father; the very statement that the dower is upon the father carries the apparent sense of bindingness—otherwise, why would he state, “the dower is upon the father”? On the basis of this closing part, the tradition indicates bindingness.

Examination of the First Tradition

The objection that we previously stated was: how is it possible that the opening of the tradition has the apparent sense of revocability, while its closing indicates bindingness? The chain of transmission of the tradition is also sound, and there is no problem with it from the standpoint of the chain. There, we stated that the response to this objection is that what is meant by the expression “their two guardians” (waliyyān lahumā) in the opening of the tradition is not the father and paternal grandfather, but rather customary guardians (awliyāʾ ʿurfī), not legal ones (sharʿī). Customary guardians means the paternal uncle, the maternal uncle, and the brother; especially in that era, from the perspective of common usage, the paternal uncle, the maternal uncle, and the brother had guardianship and discretion. The Imam (peace be upon him), in stating “the marriage is valid [i.e., revocable],” in fact wishes to say that if a girl or boy is married to one another by a customary guardian, such as a paternal uncle, maternal uncle, or brother, this contract is considered unauthorized (fuḑūlī) and is, from its very foundation, contingent upon the permission and ratification of these two persons. Therefore, “the two guardians” does not encompass the father and paternal grandfather. If we accept this interpretation, this tradition is not counted among the traditions indicating revocability. In any case, if we wish to accept both the opening and the closing of the tradition as having issued from the Imam (peace be upon him), there is no way except to interpret the opening of the tradition in this manner, or else to say that, because of the inconsistency between the opening and the closing, we should set this tradition aside and say that knowledge of it must be referred back to its proper experts (ʿilmuhu ʿinda ahlihi). The closing cannot be interpreted otherwise; it states that the father had the right to do this, and the dower is also upon the father of the girl. But, as has been stated, the opening of the tradition can be construed as referring to a customary guardian, and as not encompassing the father and paternal grandfather. Therefore, the first tradition does not indicate revocability; because the subject of our discussion is the marrying-off by the father and paternal grandfather, not by a customary guardian such as a brother or maternal uncle; therefore, it bears no relevance to our discussion.