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

Session Nineteen

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 – Third Approach and Its Examination – Fourth Approach and Its Examination – Fifth Approach and Its Examination

October 26, 2025

Summary of the Previous Session

The discussion concerns the third of the traditions that conflict with the traditions indicating the bindingness of the marriage contract that a father or paternal grandfather has concluded for his daughter or granddaughter before she reached maturity. One of these traditions is the tradition of Muḥammad ibn Muslim; we stated that this tradition indicates the non-bindingness of the marriage contract, because it explicitly states: “but they have the option when they reach maturity”—the daughter and the son, when they reach the age of maturity, have the option. The chain of transmission of the tradition is also authoritative; therefore, there is no recourse except to reconcile between the traditions, or to set aside this tradition or the other traditions; in any case, either we must reconcile between these two categories of traditions, or set one of them aside. We stated that approaches have been mentioned for reconciling between these traditions; we presented two approaches, and both were cast into doubt. The two approaches we transmitted in the previous session were stated by Shaykh al-Ṭūsī.

Third Approach

The third approach has been stated by the late ʿAllāmah [al-Ḥillī] in Tadhkirah. He states: this tradition, which establishes the option for the minor boy and minor girl and states that, after reaching maturity, they can dissolve the contract, pertains to a supposition in which the father or paternal grandfather has not observed, in this marrying-off, the basic condition of guardianship—namely, the observance of the absence of corruption. For example, they have married off the daughter to someone who is ill or defective, or who is not her social equal (kafū). Here it is evident that the daughter and son have the option. This is the interpretation that the late ʿAllāmah has stated here. Shahīd al-Thānī, in Masālik, has reduced this interpretation of ʿAllāmah to the interpretation of Shaykh al-Ṭūsī; the statement of Shahīd [al-Thānī] is: “And ʿAllāmah has construed it as pertaining to a case in which the guardian has married them off to one who is not their equal, or who has a defect, or the like, and this reduces to the construal of Shaykh [al-Ṭūsī] in his statement, and to what runs along the same lines as that.” He first states the interpretation of ʿAllāmah and then states that this interpretation and approach is not separate from the approach of Shaykh al-Ṭūsī. Shaykh al-Ṭūsī had stated two approaches: one approach was that we should take “father” in the tradition to mean “paternal grandfather,” with the supposition being that the father was not alive and the paternal grandfather undertook the marrying-off. The other approach was also mentioned, namely that, since the father or paternal grandfather has undertaken this action, it might come to mind that this could be regarded as an insult to them; therefore the Imam (peace be upon him) has stated that there is no necessity for the [child] to remain bound, and he can dissolve it. He [Shahīd al-Thānī] states: this reduces to the construal of Shaykh [al-Ṭūsī]; therefore the option is established for him. The observance of the absence of corruption is, necessarily, the most important condition of guardianship; we have, of course, had a discussion as to whether the mere absence of corruption suffices, or whether, beyond this, benefit (maṣlaḥah) is also necessary. Here, with these examples that have been stated, it is evident that there is corruption, and that the absence of corruption is a condition for guardianship; and if he does not observe it, his guardianship is forfeited. This is the statement that the late Shahīd al-Thānī has made in Masālik. He himself then raises an objection and states: “And it is a far-fetched construal, but it is better than discarding one of the two sides [of the conflict]”; this construal is far-fetched, but it is nevertheless preferable to discarding one of the two sides of the conflict.

Examination of the Third Approach

We must determine whether the interpretation and approach that ʿAllāmah has stated truly reduces to one of the two approaches of Shaykh al-Ṭūsī or not. The two approaches that Shaykh al-Ṭūsī stated were: one, that, in order to avoid insulting the father or paternal grandfather, the daughter or son must remain bound by the contract; the Imam (peace be upon him), to dispel this misconception, stated, “they have the option”—that is, on account of that matter, there is no necessity for them to remain bound by this contract. In the second approach, he stated that “father” in the tradition means “paternal grandfather.” We raised objections to both; now we must determine whether this matter stated by ʿAllāmah al-Ḥillī truly reduces to one of these two approaches or not. The apparent indication is that these differ from one another. Shaykh al-Ṭūsī stated: when the daughter reaches maturity, she has the right to demand divorce or rescission of the contract from the husband; he has explicitly stated this matter. This differs from the “option” stated according to some of the approaches mentioned for reconciliation, namely that she herself can exercise it. At one point we say that the daughter herself has the right to dissolve the contract; at another point we say that she can demand of the husband that he dissolve the contract; here, what guarantee is there that the husband will divorce her? Because it has not been stated that the husband is obligated to respond to this request. Therefore, there is a difference between the interpretation and approach that the late ʿAllāmah has stated and both of the approaches that Shaykh al-Ṭūsī has stated. Setting aside whether this approach can be reduced to the two approaches of reconciliation stated by Shaykh al-Ṭūsī, is it, in itself, acceptable or not? It appears that this approach, too, is not adequate. This is because the matter of benefit, or at least the absence of corruption, requires some internal or external supporting evidence (shāhid); in this tradition we have no indicator or supporting evidence whatsoever by which we might construe this case as one in which the paternal grandfather did not observe the absence of corruption. The text of the tradition was: “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.” What indicator, allusion, or basis is there for construing the tradition as pertaining to a case in which the paternal grandfather has not taken into account the benefit of the boy or girl in this marrying-off? Therefore, this approach too is not acceptable.

Fourth Approach

The fourth approach is one that the late Āyatullāh Khūʾī has stated. He has taken a route different from the three routes we have mentioned—that is, different from the two approaches to reconciliation stated by Shaykh al-Ṭūsī and different from the approach to reconciliation stated by ʿAllāmah. He states: the traditions indicating the bindingness of marriage, which we have previously read, are unqualified; those traditions which indicate the non-establishment of the option for the daughter before maturity carry unqualified scope. That is, they encompass both the supposition of the immaturity of both the daughter and the son, and the supposition of the immaturity of only one of these two; in this respect, they are unqualified. The discussion pertains to the marriage of a minor girl and minor boy during minority; it is possible that both are immature, and it is possible that only one of these two is immature. The tradition, in this respect, is unqualified; on the other hand, the authentic tradition of Muḥammad ibn Muslim, according to its apparent sense, pertains to a case in which both have not yet reached maturity, because it states, “but they have the option when they reach maturity”; it becomes clear that neither of them was mature, since it states that, when they reach maturity, the option is established for them. Thus we have, as it were, two categories of traditions: one category is unqualified with respect to the immaturity of the daughter and the son—that is, it encompasses both the case where both are immature and the case where one party is immature. On the other hand, the tradition of Muḥammad ibn Muslim pertains only to the case where both of these two are immature. The tradition of Muḥammad ibn Muslim restricts (muqayyid) those unqualified statements, and the result of this restriction is that, if the daughter and son are both immature, and during their minority are married off to one another by the father or paternal grandfather, after reaching maturity, both have the right to either dissolve or ratify this contract; therefore, the option is established for them. This is in contrast to the case where only one of these two is immature; if only one is immature, this contract is binding. Thus, those traditions pertain to the case where one party is immature, and this tradition pertains to the case where both parties are immature; by this means, the conflict between these is removed. This is the statement that the late Āyatullāh Khūʾī has made here. He himself, at the conclusion of this approach, states: “However, no one among our jurists is known to have held this view”—we can mention this approach, but we have no jurist who holds to this matter.

Examination of the Fourth Approach

The main objection to this reconciliation is that the wording of these two categories of traditions is not the wording of unqualified scope and restriction. Those traditions have stated, in a general, very clear, and explicit manner, that if the father or paternal grandfather marries off the daughter to another, this contract is binding, and the daughter, after reaching maturity, has no right to dissolve it. The tradition of Muḥammad ibn Muslim has stated that, if these two reach maturity, they have the option; this too, according to the apparent sense, is unqualified—but is the unqualified scope of the first category stronger, or is this unqualified scope [stronger]? Is the unqualified scope of the traditions indicating bindingness clearer, or the unqualified scope of the traditions indicating non-bindingness? …

Question:

Professor: The supposition of the first category of traditions is the same; the traditions indicating bindingness, too, according to their apparent sense, are unqualified; from both, such an unqualified scope is understood. The unqualified scope of those traditions is stronger; this tradition, too, according to its apparent sense, is unqualified. The important matter is to determine whether the immaturity of both parties, or the immaturity of only one party, can give rise to a difference here—that is, can common usage (ʿurf) actually distinguish between these? Does common usage perceive a difference between these two? After all, the restriction of an unqualified statement is a matter for common usage; it observes the evidence and regards this as restricting that. Can we say such a thing? That is, can we, for example, say that common usage understands from the tradition of Muḥammad ibn Muslim that it pertains to the case where both have not reached maturity, while the traditions indicating bindingness encompass both suppositions, but are restricted by this one? The result would be that bindingness pertains to a case where only one of these two parties is immature. Therefore, this approach too appears unacceptable.

Fifth Approach

The fifth approach for reconciling between these two categories is this: if the father or paternal grandfather marries these two children to one another before maturity, this contract is effective and binding; but if this marrying-off occurs after maturity, it is contingent upon their ratification and consent. This is because the tradition contains a question and an answer; the question concerns the marrying-off of the daughter by the father before maturity: “I asked Abū Jaʿfar (peace be upon him) about the boy who marries the girl…”—the question concerns marrying-off before maturity. But the Imam (peace be upon him), in his answer, has stated: “If it was their two fathers who married them, then yes, it is valid; but they have the option when they reach maturity”; this, as it were, alludes to a case in which the father or paternal grandfather marries the daughter and son to one another before maturity, and therefore he states that, after maturity, they have the discretion and can dissolve it. Thus, according to this approach, the traditions indicating bindingness pertain to the supposition of [marrying-off] before maturity; this tradition, which indicates the option, pertains to [marrying-off] after maturity.

Examination of the Fifth Approach

First: this is contrary to the apparent sense of the tradition; according to the apparent sense of the tradition, the question concerns a minor boy and minor girl; the Imam (peace be upon him) said: if their fathers have done this, it is valid (jāʾiz). It is evident that the Imam’s (peace be upon him) answer pertains to that very marriage of the minor boy and minor girl; the Imam (peace be upon him) states that this is valid, but if they reach maturity, they have the option. The necessary consequence of this reconciliation is that we would have to regard the Imam’s (peace be upon him) answer as not pertaining to the supposition of the question. It is very clear that the Imam (peace be upon him) is attending to the very question itself, which concerns the marriage between the minor boy and the minor girl, and the establishment of the option, too, is established for these very same persons after they reach maturity. Therefore, it appears that this reconciliation is contrary to the apparent sense. Second: another objection that this reconciliation faces is that it is dependent upon the position we adopt regarding the guardianship of the father over a mature, competent virgin daughter; this discussion was previously dealt with at length. If someone says that the father has guardianship over the daughter even after she reaches maturity, this interpretation is not acceptable. But if someone says that the father has no guardianship after [the daughter reaches] maturity, there may possibly be room for this interpretation. It has thus become established from all that we have stated that the tradition of Muḥammad ibn Muslim, which indicates the option in the case under our discussion, conflicts with the traditions that indicate the bindingness of the marriage contract. Five approaches for reconciling between these two categories of traditions have been mentioned, all of which have been subjected to objection; what, then, is to be done here? On the one hand, some traditions indicate bindingness, and on the other hand, certain traditions indicate non-bindingness.