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

Session Eighteen

Issue 5 – First Position: Examination of the Establishment of the Option for a Minor Girl – Evidences for the Establishment of the Option (Conflicting Traditions) – Third Tradition – Approaches to Reconciling the Third Tradition with the Traditions Indicating Bindingness – First Approach and Its Examination – Second Approach and Its Examination

October 25, 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? From the totality of the arguments for the bindingness of the marriage contract of a minor girl concluded by the father or 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. In opposition to these traditions, we have traditions that indicate revocability—that is, they negate the bindingness of such a marriage; we must now examine how we can reconcile between these two categories of traditions. Among the conflicting traditions, we have referred to two traditions and set forth the approach to the argument from them.

Third Tradition

“From Muḥammad ibn Muslim, who said: I asked Abū Jaʿfar (peace be upon him) about the boy who marries the girl. He said: If it was their two fathers who married them, then yes, it is valid; but they have the option when they reach maturity, and if they consent to it thereafter, the dower is upon the father. I said to him: Is it permissible for the father to divorce his son [on his behalf] during his minority? He (peace be upon him) said: No.” This tradition is sound and authentic with respect to its chain of transmission; its indication, too, is clear. Muḥammad ibn Muslim states: I asked Imam al-Bāqir (peace be upon him) whether a minor boy can marry a minor girl. The Imam (peace be upon him) said: if the fathers of these two have married them to one another, this contract is effective and valid; but the minor boy and minor girl have the option, and have the right to rescind this contract. If these two, after reaching maturity, are satisfied with this contract, the dower is upon the father—that is, the father of the boy must pay the dower to the girl. Muḥammad ibn Muslim states: I said to the Imam (peace be upon him): can the father, on behalf of his son, divorce him during his minority? That is, for example, he has married him off to another, but before he reaches maturity, he obtains a divorce on his behalf; the Imam (peace be upon him) said: no. This tradition explicitly states, “but they have the option when they reach maturity”; the minor boy and minor girl, when they reach maturity, have the option established for them. Both the chain of transmission of the tradition and its indication are clear; therefore, it conflicts with the traditions indicating bindingness, or the non-establishment of the option, for the minor boy and minor girl. Those traditions indicate the bindingness of this marriage and the non-establishment of the option; this tradition indicates the establishment of the option.

Approaches to Reconciling the Third Tradition with the Traditions Indicating Bindingness

Several approaches have been mentioned here for reconciliation. Some of the eminent scholars have undertaken to resolve the conflict and interpret the tradition of Muḥammad ibn Muslim; Shaykh al-Ṭūsī, in the book Tahdhīb, has mentioned two solutions for the conflict between this tradition and the traditions indicating bindingness. The late Āyatullāh Khūʾī has set forth one approach; of course, certain other approaches have also been stated for resolving the conflict. We shall mention some of these approaches and interpretations, by which the conflict might possibly be resolved, in order to determine whether they are acceptable or not.

First Approach

According to Shaykh al-Ṭūsī, one approach is that “option” in this tradition, where it states, “but they have the option when they reach maturity,” carries a broad meaning; “option,” with respect to the minor boy, means that, after reaching maturity, he can, by means of divorce or some other route, annul and dissolve this contract. But with respect to the minor girl, its meaning is that she can demand of the man that he annul this contract by means of divorce or the like. Thus, in fact, “option” with respect to the minor boy carries one meaning, and with respect to the minor girl carries another meaning. What is the subject of our discussion is the minor girl; he has taken “option” in a sense that does not conflict with the traditions indicating bindingness and the non-establishment of the option. On this basis, he states that what is meant by “option” here is that she has the right to demand divorce and the like; the mere fact that she has the right to demand divorce constitutes a kind of option. This approach is grounded in the supposition that, if the daughter, after reaching maturity, wishes to dissolve the contract, this might constitute an insult to the father or paternal grandfather; because they have married her off to another, and now, after reaching maturity, dissolving this contract would be regarded as an insult to the paternal grandfather or father. Therefore, the Imam (peace be upon him), in response, states: no; if the father or paternal grandfather has done something, it is not necessary for the minor boy or minor girl to remain bound by it; rather, the minor boy, after reaching maturity, can rescind this marriage; the minor girl, too, can request divorce or exercise her option—that is, she can tell the man: I am not satisfied, and my father or paternal grandfather did this; you exercise your own option and rescind such a marriage. This is the matter that Shaykh al-Ṭūsī has stated in connection with this tradition, as an approach to reconciling this tradition with the traditions indicating bindingness.

Examination of the First Approach

This interpretation is not very acceptable; that, in a single sentence stated by the Imam (peace be upon him), we should construe the word “option” in one manner with respect to the minor boy and in another manner with respect to the minor girl—this is not supported by common usage or by the language (lā yusāʿiduhu al-ʿurf wa al-lughah); neither common usage nor the language supports this approach. In the sentence stated by the Imam (peace be upon him), “but they have the option when they reach maturity,” there is no basis whatsoever for us to derive two different meanings from the term “option,” which has been mentioned once and applied to both.

Second Approach

The second approach is that what is meant by “father” (ab) here is specifically the paternal grandfather; even though “father” or “fathers” is applied both to the father and to the paternal grandfather, unless there is an indicator to the contrary—as is likewise the case in the authentic tradition of Yazīd al-Kunāsī. On this basis, the supposition of this tradition is one in which the father has passed away and the paternal grandfather has undertaken this action. If the father passes away, according to the position of Shaykh al-Ṭūsī, the paternal grandfather has no guardianship; therefore, if he marries off the daughter to another, this contract is unauthorized, and “option” here means the right of rejection and permission, not the meaning of the right of ratification and rescission. Thus, as it were, this tradition pertains to a case in which the father has passed away and the paternal grandfather—who has no guardianship (because, according to this position, the condition for the paternal grandfather’s guardianship is the father’s being alive)—undertakes the marrying-off; therefore, there is no difference between this case and any other [unauthorized contract]. Just as, if someone else were to marry [the children] off, this contract would be unauthorized, the same applies here as well; for this very reason, it states, “but they have the option,” because the paternal grandfather has done this. The statement, “If it was their two fathers who married them, then yes, it is valid,” in fact means: if it was their two paternal grandfathers… the paternal grandfather of these two has done this, and they have the option. In this case, the paternal grandfather’s contract becomes an unauthorized contract. If it is an unauthorized contract, then naturally, when both the boy and the girl reach maturity, “they have the option”—but “option” in this sense. Of course, we have rejected this basis. Thus, in his view, the marrying-off and contract of the paternal grandfather is unauthorized because he had no guardianship, and therefore the option is established for both—meaning that they have the discretion to either ratify or reject this contract. Therefore, the case of this tradition is entirely different from the traditions indicating bindingness; those traditions, as we stated, pertain to a case in which the father or paternal grandfather has guardianship—either the father has done this, or, if the paternal grandfather has done it, he had guardianship; therefore, the contract they have concluded is not unauthorized. There, the traditions have stated that the option is not established; but if the contract is unauthorized, the option is necessarily established. Thus, in this manner, they have sought to resolve the conflict between this tradition and the traditions indicating bindingness. Thus, the second interpretation is that we say what is meant by “father” is the paternal grandfather, and the supposition is also that the father has passed away. Therefore, as it were, the supposition of the questioner is that the paternal grandfather, in a case where the boy’s or girl’s father has died, has married these two to one another; then the question was raised as to whether this contract is valid or not; the Imam (peace be upon him) said it is valid (jāʾiz), but they have discretion after reaching maturity. The “option” mentioned here is not in the sense of the right of ratification and rescission established in the customary sense of “option,” but rather in the sense of the right of rejection or ratification of the contract, which exists with respect to an unauthorized contract.

Question:

Professor: When we say that “option” means the right of ratification or rescission, and the contract is not unauthorized, this means that the contract possesses actual validity and is not contingent upon or held in abeyance pending anything. It is like a sale that someone concludes in which there is deception (ghabn); that sale is valid and possesses actual validity; or, for example, someone purchases goods that are defective—this contract possesses actual validity, but the buyer has the right to rescind the transaction. But if we say that “option” is established with respect to an unauthorized contract, this means that the marrying-off which the paternal grandfather has concluded possesses only a potential, contingent validity—that is, it is capable of being qualified as valid (yaṣiḥḥu an yattaṣifa bi-l-ṣiḥḥah); it has this capacity. At present, it is held in abeyance and contingent; if, after reaching maturity, they grant permission, this contract attains actuality and is completed; but if they reject it, then, as it were, no contract exists at all, and it is as though nothing had ever occurred…

Question:

Professor: We have previously stated this; the paternal grandfather’s guardianship is established through the father’s line and is not established through the mother’s line. The supposition is that the boy’s paternal grandfather, on the father’s side, has married him off, and, on the other side, the girl’s paternal grandfather, on the father’s side, has married her off; suppose both [marriages] were undertaken by the paternal grandfather, while the father, too, was not alive in either case. The late Shaykh al-Ṭūsī, in fact, attempts to present the contract concluded by the paternal grandfather as an unauthorized contract, in order to construe “option” in the sense of the right of rejection or permission.

Examination of the Second Approach

This statement of Shaykh al-Ṭūsī is subject to three objections:

First objection: that what is meant by “father” is specifically the paternal grandfather is contrary to the apparent sense. It is true that, at times, “father” is used in a manner that does not encompass the paternal grandfather, and what is meant by “father” is the father himself. At times, “father” is used in a broader sense that encompasses both the father and the paternal grandfather; but to say that “father” is used while specifically meaning the paternal grandfather, when there is no indicator [for this], is contrary to the apparent sense.

Second objection: this tradition has no apparent indication of this supposition; on what basis does he say that the supposition is one in which the father has passed away? There ought to be some indication or allusion; therefore the objection is that it is unclear on what basis Shaykh al-Ṭūsī has imposed this supposition upon this tradition.

Third objection: the very basis of his position is also problematic; that the guardianship of the paternal grandfather is conditioned upon the father being alive—this we do not accept. We have previously stated that the guardianship of the paternal grandfather is not conditioned upon the father being alive; rather, in the case of the father’s absence or death, the guardianship of the paternal grandfather is needed all the more, relative to the period when the father is alive. Therefore, these two approaches are set aside.

Discussion for the Next Session

Other approaches have been stated here as well, which we must examine, and then determine what is to be done with this tradition.