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

Session Seventeen

Issue 5 – First Position: Examination of the Establishment of the Option for a Minor Girl – Evidence for the Establishment of the Option (Conflicting Traditions) – Second Tradition – Discussion of the Indication – First Objection and Its Response – Second Objection

October 20, 2025

Summary of the Previous Session

The discussion concerns the second of the traditions that conflict with the traditions indicating the bindingness of the marriage of a minor girl who has been married off by her father or paternal grandfather to another. We stated that several traditions exist that conflict with the traditions indicating bindingness; we transmitted and examined the first tradition, and it became clear that the tradition of Abū ʿUbaydah al-Ḥadhdhāʾ does not conflict with those traditions. The second tradition is the tradition of Yazīd al-Kunāsī; the approach to the argument from this tradition was set forth. We stated that there is, with respect to this tradition, a discussion concerning its chain of transmission and a discussion concerning its indication; in the previous session, we discussed the chain of transmission of this tradition in detail and stated that two views exist regarding Yazīd al-Kunāsī and his traditions. The conclusion of the discussion and our chosen view was that, since this tradition is transmitted in some of the Four Books, such as Tahdhīb and Istibṣār, and likewise because of the transmission of traditions from Yazīd al-Kunāsī by eminent scholars, it has no problem of weakness in its chain of transmission. Therefore, with respect to its chain of transmission, this tradition is authoritative.

Discussion of the Indication

If we wish to enumerate the totality of objections raised regarding the indication of this tradition, there are several objections. We must determine whether these objections to the indication can be resolved or not.

First Objection

Shaykh al-Ṭūsī has invoked this tradition to establish a distinction between the minor boy and the minor girl with respect to the bindingness or non-bindingness of the contract; he states that this tradition indicates a distinction between the minor boy and the minor girl—meaning that it establishes the option for the minor boy but does not establish it for the minor girl. What is now the subject of our discussion is the establishment of the option for the minor girl, whereas Shaykh al-Ṭūsī holds that this tradition does not indicate the establishment of the option for the minor girl, but does indicate the establishment of the option with respect to the minor boy. This is, in fact, an objection to the indication of this tradition—namely, that this tradition does not indicate the permissibility of dissolving the marriage contract, or the absence of bindingness of the marriage contract, with respect to the minor girl.

Response

However, it appears that this objection to the indication of the tradition is not sound, and, according to the apparent sense, this tradition draws no distinction between the minor boy and the minor girl, and establishes the option for both. The narrator’s question is: “When is it permissible for the father to marry off his daughter without consulting her?” At what point is it permissible for the father to marry off his daughter to another without seeking her view? The Imam (peace be upon him) has stated: when a daughter is married off by her father, she has the right, after reaching maturity, to either rescind or ratify this contract. Of course, he has likewise stated this regarding the minor boy in what follows. The Imam (peace be upon him), in fact, in this tradition, has, as it were, deemed consultation (istiʾmār) necessary before maturity, up until the daughter reaches nine years of age; however, this does not mean that he is saying that her view is to be sought before maturity, but rather what is meant is that this daughter, upon reaching the age of maturity, can either grant permission to this contract or reject it, and this ratification or rejection is that of an unauthorized contract (fuḑūlī); until she has ratified it, the contract has not been concluded, and it is held to be contingent and in abeyance pending the daughter’s permission. The very fact that the right of option has been granted to the daughter after reaching maturity itself indicates the absence of bindingness of the contract. What has given rise to Shaykh al-Ṭūsī’s reading is that the Imam (peace be upon him), in answer to the narrator’s question, has stated that the daughter’s view is not consulted. When he negates consultation and the seeking of her view, this means that the contract is binding. But when this right has been given to the daughter to either grant permission to this contract or reject it after reaching maturity, this means that the right of option is established for her. Therefore, we cannot say that this tradition indicates the bindingness of the marriage with respect to the minor girl. The Imam (peace be upon him) has continued by stating that the minor boy, too, has this discretion. However, because the age of maturity for the daughter is nine years, the Imam (peace be upon him) has continued by setting the age of maturity for the boy, and the time at which he can reject this marriage, at fifteen years of age. The boy must reach fifteen years of age before he can reject the contract. Therefore, this tradition certainly does not yield a distinction, and this tradition draws no distinction between the daughter and the son with respect to the establishment of the option; the only difference set between the daughter and the son pertains to the age of maturity—the age of maturity for the daughter is declared to be nine years and the age of maturity for the son fifteen years. Therefore, the claim of Shaykh al-Ṭūsī, that this tradition does not indicate the bindingness of the contract with respect to the minor girl, is not correct. Question [posed in the session]: Professor’s response: When we entered into the fifth issue, in that very first session, we discussed the meaning of “option” in this case and in this issue. We stated that two possibilities exist regarding the meaning of “option”: One is the option of rescission or ratification of the marriage—meaning that this contract has previously been concluded and possesses actual validity, but the daughter or son has the right, at some point in time, to dissolve it. This is like the option arising from a defect or the option arising from deception; only the time for exercising it is after reaching maturity, but otherwise, this is, in fact, a contract that carries the capacity for rescission. We stated that, generally, the term “option” in the statements of jurists carries this meaning—especially in the contemporary period. The other meaning of “option” is the option of rejection or permission of the contract—meaning that a contract has been concluded in an unauthorized manner and possesses only a potential, contingent validity (ṣiḥḥah taʾahhuliyyah wa shaʾniyyah), not an actual validity; as in all unauthorized contracts, its validity has not yet attained actuality, but when permission is granted, it attains definitiveness and actuality. There, we stated that, in the traditions, “option” is sometimes used in this sense. This tradition is one of those traditions that, in fact, raises “option” in the sense of rejection or permission of the contract—like other contracts concluded in an unauthorized manner. … Yes, certainly guardianship has a time-frame; however, the matter is that, if guardianship is established—meaning that the father or paternal grandfather had, in accordance with the Sacred Law, the right to marry off this daughter or son to another—then, in one sense, it is not considered unauthorized; an unauthorized contract is one concluded by someone who lacks the legal capacity and competence for the marriage contract. But here, the matter is not so; because, once guardianship is established, the father or paternal grandfather has this right. Therefore, regarding this tradition, we say that this tradition not only does not indicate the bindingness of the contract with respect to the daughter, but, on the contrary, the option is derived from it. This option, according to the apparent sense of the tradition, treats this contract, if concluded, as unauthorized; but we wish to say that, if guardianship is established, this is no longer unauthorized. However, the daughter or son has been granted this discretion not to ratify this contract and to rescind it instead. … The discussion here is not about a customary guardian (walī ʿurfī).

Second Objection

The second objection is an objection that Shahīd al-Thānī has raised against this tradition, stating that this tradition suffers from inconsistency (iḑṭirāb) and conflicts with the general principles (uṣūl). Why does it conflict with the general principles, or why does it suffer from inconsistency? We shall mention several instances of matters stated in this tradition that conflict with the general principles, or, in other words, conflict with consensus. The late Āyatullāh Khūʾī and others name some of these, which prevent reliance on this tradition. It is true that its chain of transmission has been accepted, but its content and substance cannot be held to.

First Instance

One of the most important matters stated in this tradition that is unacceptable and contrary to consensus is the distinction drawn between the mature daughter and the immature one. According to this tradition, if a mature daughter is married off by her father to another, she has no right to rescind this contract; but if an immature daughter is married off to another, she has, after reaching maturity, the right to dissolve the marriage. The tradition stated: “I said to Abū Jaʿfar (peace be upon him): When is it permissible for the father to marry off his daughter without consulting her?” At what point can the father marry off his daughter to another without seeking her view? The Imam’s (peace be upon him) answer was: “When she has passed nine years of age”—if she has passed nine years of age and reached maturity; “but if he marries her off before she reaches nine years of age, she has the option when she reaches nine years of age”—but if he marries off this daughter to another before she is nine years old, this daughter, after nine years of age, has the right to dissolve this marriage. What does this mean? It means that a mature daughter, if married off by her father to another, has no right to rescind this marriage; but if an immature (minor) daughter is married off to another, she has, after reaching maturity, the right to dissolve the marriage. This distinction is contrary to consensus, and no one has drawn such a distinction—that is, this tradition entails a ruling to which none of the Shīʿī jurists have held. Question [posed in the session]: Professor’s response: It is, as it were, speaking of two categories; the question is: at what point can the father, without seeking his daughter’s view, marry her off to another? “When she has passed nine years of age”—that is, if the daughter has reached nine years of age, the father can marry her off to another without seeking her view; this means that the daughter has no discretion, and all discretion rests with the father. It then continues with another case and supposition, stating: if he marries off this daughter to another before nine years of age, she has the option after reaching maturity. Thus, the option is established for a daughter who was married off before maturity, not for a daughter who has already passed nine years of age. This distinction is contrary to consensus and contrary to the general principles, and no one accepts such a distinction.

Second Instance

In the tradition, the option is first established for the minor boy, but then two further suppositions are mentioned for him, and a distinction is drawn between them. “He said: O Abū Khālid, if a boy is married off by his father and has not yet reached maturity, he has the option when he reaches maturity and turns fifteen years of age, or [if] facial hair appears on him, or pubic hair grows before that.” If a boy is married off by his father to another and has not reached maturity, he has the option; when he reaches the age of fifteen, or when facial hair appears, or when pubic hair grows before that age. These pertain to the matter of maturity—either reaching a specific age, in the event that these signs have not appeared before that age, or, if these signs have appeared before that age, then age becomes irrelevant. Here it states that before maturity he has the option. But then it continues, asking: if a boy, after reaching maturity, states that he does not want this woman and expresses aversion, a distinction has been mentioned in this tradition which no one has accepted. “I said: What if his wife was brought to him before he reached maturity, and he lived with her for as long as God willed, and then he reached maturity and disliked her and refused her? He said: If it was his father who married him off, and he consummated [the marriage] with her, and enjoyed her, and remained with her for a year, then he has no option when he reaches maturity.” If the person to whom this boy has been married lives with him for a period such as a year, and he enjoys and consummates with her, then, when he reaches maturity, he no longer has the option; but if, during this period, these things did not occur, he has the option after reaching maturity. Question [posed in the session]: Professor’s response: If this is established after reaching maturity, in some traditions it states that the dower is to be paid by the girl herself or by the boy himself—because the father or paternal grandfather had the right to conclude this marriage.

Third Instance

Another matter in this tradition that is contrary to consensus or to the general principles is that, with respect to the boy, it states that he must reach fifteen years of age, or facial hair must appear on him, or pubic hair must become visible on him; this growth of hair on the face has been mentioned as a sign of maturity, but the jurists have not issued a ruling on this basis. This, however, is resolvable; we do have traditions concerning the matter of the growth of facial hair; but as for the relation between age and these natural signs, and how these differing traditions can be reconciled, we have, in our discussion of the maturity of girls in the book A Jurisprudential Examination of the Maturity of Girls, which has also been published, presented all these traditions in detail—traditions indicating that age is the criterion for maturity, and traditions indicating that maturity has natural signs—and the main matter is how to reconcile between these, especially with respect to the daughter. This is because, in boys, ordinarily, the natural signs appear before fifteen years of age, but this is not so with respect to the daughter; natural signs such as menstruation or certain other signs ordinarily do not occur before nine years of age. At that point, the question arises: if age is the criterion, then why have these natural signs been mentioned? There, we have charted a course which you may consult.