Issue 7, First Secondary Case, Arguments for the Invalidity of the Marriage of the Imprudent Person Without the Guardian’s Permission

Session Thirty-Eight

Issue 7 – First Secondary Case – Arguments for the Invalidity of the Marriage of the Imprudent Person Without the Guardian’s Permission – Conditions for the Validity of the Marriage of the Imprudent Person – First Condition – The Argument for This Condition – Second Condition – Examination of the Second Condition

December 22, 2025

Summary of the Previous Session

The discussion of the ruling of the seventh issue has come to an end; the conclusion was that the marriage of the absolutely imprudent person — whether his imprudence is in financial matters or in non-financial matters — is not valid without the guardian’s permission. But the marriage of one who is imprudent in financial matters, yet has attained competence in the matter of marriage and the choice of spouse, is valid without the guardian’s permission.

Conditions for the Validity of the Marriage of the Imprudent Person

First Condition

The Imam (may God’s mercy be upon him), in continuation, has a statement, where he says: “and the determination of the dower and the woman [to be married] rests with the guardian.” This is, in fact, the condition for the permissibility, effectiveness, or validity of the marriage contract of the imprudent person — that is, the guardian’s permission makes the marriage of the imprudent person valid, but on the condition that the determination of the dower and the determination of the spouse be undertaken by the guardian. This is because, if he grants permission for the basic marriage but does not intervene in, or express a view on, the dower and the choice of spouse, the very same concern that pertained to the basic marriage would, in fact, manifest itself in the form of these two matters. This is the first condition for the effectiveness of the marriage of the imprudent person. In general, without the guardian’s permission, the marriage is not valid; with permission, the marriage is valid. But, according to this text of Taḥrīr and the statements of many jurists, the condition is that the guardian choose the dower and the spouse. Although the text states, “the determination of the dower and the woman,” if the daughter is imprudent and wishes to marry, then it becomes the determination of the dower and the man [that rests] with the guardian. Naturally, when the daughter wishes to marry, the determination of the dower and the determination of the man whom she wishes to marry rest with the guardian.

The Argument for This Condition

The argument for this condition is entirely evident. If the guardian does not express a view on, and does not determine, the dower and the choice of spouse, this might well result in corruption; because the imprudent person is one who does not know what is beneficial and harmful for himself, and if the guardian does not intervene in these two matters, this results in corruption and is not to the benefit of the ward. This is the statement that appears in Taḥrīr, and it alludes precisely to this condition — both the determination of the dower and of the spouse. Naturally, this condition (namely, the determination of the dower) is necessary only in a case where the person lacks financial competence; suppose someone lacks financial competence but is competent in non-financial matters and can choose his own spouse — in this supposition, the father’s or paternal grandfather’s permission is not necessary. Now, if someone can choose his own spouse himself, there is no reason here to entrust the determination of the spouse to the guardian. Moreover, in the supposition where the person lacks financial competence but has non-financial competence, we have stated that the basic marriage, without the guardian’s permission, is valid according to our basis. If someone has competence in non-financial matters, the validity of his marriage is not contingent upon the permission of the guardian or paternal grandfather. Even the determination of the dower is not a condition for the validity of the marriage. Yes, if he determines the dower himself, the dower becomes invalid; because we have stated that the separation between the basic marriage and the dower is possible; the basic marriage can be valid while the dower is invalid. If the dower is set with the father’s permission and view, the dower, too, is not invalid, and recourse is not had to the customary dower either. Therefore, at one point we wish to give a view on the condition of the dower and the determination of the spouse according to the well-known basis (to which the Imam (may God’s mercy be upon him), apparently, also belongs), and at another point according to our own basis. According to our basis, if he has competence in non-financial matters, this marriage does not require the guardian’s permission and is valid. Therefore, the determination of the woman is not a condition. Nor is the determination of the dower a condition for the validity of the marriage; the determination of the dower is only a condition for the validity of the dower. But according to the well-known basis, or that of the Imam (may God’s mercy be upon him) — namely, that if he has financial imprudence, even if he does not have imprudence in non-financial matters, it must be with the guardian’s permission — these are conditions, and naturally the determination [of the spouse] by the paternal grandfather or father bears upon the validity of the marriage. Therefore, in our view, the conditionality of the determination of the husband or wife pertains only to a case in which the person also has imprudence in the matter of marriage or in non-financial matters in general; otherwise, if he does not have imprudence in the matter of marriage, or in non-financial matters generally, the determination of the woman is not a condition. The determination of the dower, too, according to our basis, is not a condition for the validity of the marriage; it is a condition for the validity of the dower; it prevents the invalidity of the dower, but otherwise has no bearing upon the basic marriage. Yes, if someone holds to unity of object sought (waḥdat al-maṭlūb), he must regard this as a condition.

Second Condition

The second condition, which, of course, does not appear in the statements of the Imam or the late Sayyid, is necessity (iḑṭirār); the late Muḥaqqiq, in al-Sharāʾiʿ, states: “And one who has been placed under interdiction for squandering [his wealth] is not permitted to marry unless he is in [a state of] necessity; and if he undertakes [the contract regardless], the contract is corrupt.” He states: one who, on account of squandering and extravagance, has been interdicted and prohibited from dealing in his property — that is, the imprudent person — it is as though he states: “the imprudent person is not permitted to marry unless he is in [a state of] necessity”; the imprudent person cannot marry until he reaches a state of necessity. That is, the guardian’s permission alone is not sufficient, and he must also have reached the point of necessity for marriage. If an imprudent person concludes the contract without having reached a state of necessity, the contract is corrupt. This condition is transmitted neither in the text of al-ʿUrwah nor in the text of Taḥrīr; the late Sayyid, in the seventh issue of al-ʿUrwah, makes no reference whatsoever to the matter of necessity. Necessity with respect to marriage means that he has reached such a point that, if he does not marry, this entails bad effects and consequences for him — God forbid, he falls into what is forbidden and into sin, or, for example, it entails very severe physical and psychological effects for him. To be in necessity with respect to marriage means that, without marriage, he suffers severe harm; he must reach this stage before the father grants permission and he is able to marry.

Examination of the Second Condition

It appears that this condition has no basis. The basic institution of marriage is not only permissible but recommended (mustaḥabb), and indeed among the strongly emphasized recommended acts (mustaḥabbāt muʾakkadah); this is a general ruling, established for everyone. Now, on account of some impediment, certain persons have been prohibited — among them, the imprudent person and the minor — and that, too, [only] from undertaking [marriage] without the guardian’s permission and consent. In any case, the marriage of these persons has been deemed legitimate and permissible under certain conditions. Now, the imprudent person, on account of his squandering, and because he cannot discern what is beneficial and harmful for himself, has been prohibited; but the determination of the spouse and the discernment of what is beneficial and harmful in the matter of marriage have been entrusted to the guardian, and it has been said that he cannot marry without the guardian’s permission. Now, from where has this necessity arisen? On what grounds should we say that the imprudent person cannot marry until he reaches the level of necessity? In that general ruling of the recommendation of marriage, the matter of necessity is not raised at all; the marriage of someone who has no necessity whatsoever but desires to benefit from the advantages of marriage is not only without problem, but is, indeed, very strongly emphasized. On what grounds should we state the condition of necessity with respect to the imprudent person? Therefore, the late author of Jawāhir has expressed astonishment at this conditioning by the late Muḥaqqiq, and has stated: “And this is astonishing, for the guardian may permit the imprudent person to enjoy [marriage] in the same manner as other rational agents enjoy it.” The guardian can permit the imprudent person to engage in consummation, in the same manner as other rational agents engage in it. “And it is evident that the marriage of rational agents is not confined to situations of necessity” — is the marriage of rational agents confined only to a situation where they reach necessity? “Rather, they may not be in necessity of it at all, but rather benefit from it in a permissible manner of benefit; why, then, should it not be permitted for the imprudent person [likewise]?” Just as, in the case of rational agents, there is no need for them to reach the level of necessity in order to benefit and derive advantage from marriage, the same applies with respect to the imprudent person; the imprudent person has only one problem and obstacle, namely that he does not understand how to spend; when his discretion is entrusted to the guardian, this obstacle is removed. “Does the same hold, for example, with respect to residence, and the eating of fruits, and the wearing of clothes, such that these should be confined to necessity?” With respect to residing somewhere, eating fruit, and wearing clothes, has anyone confined these to necessity? Has anyone said that the imprudent person, in order to eat fruit, and to wear clothes, and to reside in a house, must reach the point of necessity? No; these are permissible benefits in which he himself cannot independently deal; his father or paternal grandfather can grant permission for any type of permissible benefit, even if he has not reached the level of necessity; the matter of marriage is the same.

Question:

Professor: The imprudent person is not lacking in intellect and is not insane; “imprudent” means someone who has a lightness of intellect, in the sense that he does not know what is beneficial and harmful for himself; but he has sexual instinct. The imprudent person, like the rest of mankind, has a desire for food and nourishment, emotional needs — all of these he has… why should he have to reach the level of necessity? If the imprudent person can endure, let him endure; now that he has not reached the level of necessity, on what grounds should we say this? … Necessity has degrees; at times it is to the level of eating carrion; you have become trapped somewhere with no food whatsoever and are dying of hunger; now there is an animal here that has died without ritual slaughter — for example, a sheep that has not been slaughtered according to the Sacred Law; here it has been said that you may, to save your own life, use the flesh of an animal not slaughtered according to the Sacred Law. This is the most severe degree of necessity; at a lower degree, suppose you reach a point where the water is dirty — here, although drinking this water has no religious prohibition, you drink it to quench your thirst. This is necessity — that is, to the degree that you are compelled to undertake that action. For example, someone has a severe illness and must incur expenses, and is compelled to sell his house; here it is said that he has reached a state of necessity with respect to the sale — that is, a factor has compelled him to do this, and, were it not for this factor, he would not have sold his house. On what grounds should we make necessity a condition for the validity of the marriage of the imprudent person — that is, that the imprudent person cannot marry until he reaches this point? The point is: what difference does this have from his other permissible benefits? Does anyone say that the imprudent person must reach the level of necessity in order to eat, and for his father to permit him, or for him to deal in his own property? No. Therefore, altogether, necessity, as a condition for the validity of the marriage of the imprudent person, is not acceptable. Therefore, this condition is mentioned neither in the statement of the Imam (may God’s mercy be upon him) nor in the statement of the late Sayyid. Therefore, according to the well-known basis, the only condition is that, in addition to the guardian’s permission, he must also determine the dower and the woman; but we had an objection to this very matter, and stated that the determination of the dower and the woman is necessary in certain suppositions, not in all the suppositions of the issue. After all, if he lacks financial competence but has competence in non-financial matters, neither the determination of the dower nor the determination of the woman is a condition. This is because he himself has the capacity with respect to the determination of the spouse and does not have imprudence in this regard; with respect to the dower as well, we have stated that, at most, if he determines the dower, the basic marriage does not become invalid, and only the dower becomes invalid. Yes, the determination of the dower is a condition for the validity of the dower, not for the validity of the marriage. But in a case where he has neither financial competence nor non-financial competence, there the determination of the woman rests with the guardian; but, again, the determination of the dower is not a condition for the validity of the marriage, but rather a condition for the validity of the dower. If this person has competence in non-financial matters but lacks competence in financial matters, the same applies here as well; the determination of the woman is not a condition for the validity of the marriage; the determination of the dower, too, is a condition for the validity of the dower. If he had competence in financial matters but lacked competence in non-financial matters, here too the validity of the marriage is contingent upon the guardian’s permission.

Question:

Professor: We have stated, contrary to the well-known view, which applies “imprudent” only to one who cannot discern what is beneficial and harmful for himself in financial matters, that this is not confined to financial matters. Therefore, one who lacks competence in non-financial matters but has competence in financial matters — the validity of his marriage is, nevertheless, contingent upon the guardian’s permission. The determination of the dower, of course, is a condition for the validity of the dower; but the determination of the spouse, too, must be undertaken by the guardian; if the guardian does not determine the spouse, that marriage is not valid. This concludes the discussion of the first secondary case, with all its observations.