By Ustādh Rafi‘īpūr – teacher of baḥth al-khārij in Qom

Translated by Sayyid Ali

Introduction

One of the discussions alluded to in Shaykh Anṣārī’s al-Makāsib is the notion of sharṭ al-khiyār (stipulation of choice) in the marriage contract. As per the general injunction of “al-mu’minūn ‘inda shurūṭihim”, the jurists have argued for the use of this principle in contracts other than that of transactions (bay‘) as well such as in ijārah, ju‘ālah, muḍārabah etc. As such, both the right of khiyār and faskh are applicable in such contracts. However, the jurists exclude certain instances out of this principle like the īqā‘āṭ, and more importantly the marriage contract. In other words, one cannot stipulate the condition of choice in a marriage contract whereby one party has the right to nullify the contract within the stipulated amount of time and free themselves from the contract if they are unsatisfied, simply by pronouncing the formula faskhtu.

This discussion is also partially related to contemporary discussions on women’s rights because whether this right is established for men or not, it does not impact them as much as they still have the right to initiate a divorce. However, if such a right is established in a marriage contract as a general rule, it could be of use to women.

Difference Between Sharṭ al-Khiyār and Khiyār al-Sharṭ

Āyatullah Shahīdī in Hidāyah al-Ṭālib and Sayyid Sīstānī in Lā Ḍarar have said that as per the opinion of both Shī‘ī and Sunni jurists, there is no right to sharṭ al-khiyār in a marriage contract, however khiyār al-sharṭ has been accepted by some jurists. As an example, if a man puts a condition that the woman should be a virgin, but after marriage realizes that she was not, then in this case the man has the right to dissolve the contract. Likewise, if a woman puts a condition that the man should be from a certain tribe, but later figures out that he is not, she has the right to dissolve the contract as well. Although, jurists have said not every violation of a condition gives the right to dissolve the contract to the other party, rather in some cases it does while in other cases it does not. For example, if the woman puts a condition that the man should be 30 years old, but later learns that he is older or younger, jurists have said she does not have the right to dissolve the contract, even though it is a violation of a condition. This is while in all other contracts, such a right is absolutely established in the case of a violation.

Another point is that the popular opinion amongst the jurists is that there is no difference between permanent and temporary marriage when it comes to the impermissibility of sharṭ al-khiyār, but some jurists such as Sayyid Shubayrī Zanjānī have opined that this right is established in temporary marriage.

After the Islamic Revolution, Imam Khumaynī (r) advised the courts to grant women the right to initiate and pronounce the divorce in certain situations through wakālah – for example, in a case where the husband was suffering from drug addiction. This is one way that Imam Khumaynī (r) made the life-affairs of women easier. Though our subject in this discussion differs, since we are speaking about sharṭ al-khiyār, it is still similar in the sense that it can assist many women in a marriage.

Sharṭ al-Khiyār in Marriage Contract

Shaykh Anṣārī writes:

[أقسام العقود من حيث دخول خيار الشرط فيها]

و أمّا العقود: فمنها ما لا يدخله اتّفاقاً، و منها ما اختلف فيه، و منها ما يدخله اتّفاقاً.

فالأوّل: النكاح، فإنّه لا يدخله اتّفاقاً، كما عن الخلاف و المبسوط و السرائر و جامع المقاصد و المسالك: الإجماع عليه. و لعلّه لتوقّف ارتفاعه شرعاً على الطلاق و عدم مشروعيّة التقايل فيه.

Shaykh Anṣāri cites consensus from al-Khilāf and al-Mabsūṭ of Shaykh Ṭūsī, from al-Sarā’ir of Ibn Idrīs al-Ḥillī, Jāmi‘ al-Maqāṣid of Muḥaqqiq Karakī, and al-Masālik of Shahīd Thānī. Shaykh Anṣārī than speculates that perhaps the reason for a consensus on this matter is because the marriage contract can only be nullified with a divorce. Ṣāḥib al-Jawāhir¹ considers this ruling to be from the necessities of jurisprudence and cites a consensus from Kashf al-Lithām.

Evidence 1: Consensus

Shaykh Anṣārī does not mention any other evidence besides consensus. Other scholars who have relied solely on consensus are: Ṣaḥib al-‘Urwah (d. 1337 AH)², Muḥaqqiq Isfahānī (d. 1361) in his ḥāshiyah on al-Makāsib³, Sayyid Muḥammad Rūḥānī⁴, Sayyid ‘Abd al-A‘la Sabzwārī⁵, Sayyid Ṣādiq Rūḥānī⁶, and Sayyid Zanjānī in his Kitāb al-Nikāḥ.

Ṣāḥib al-‘Urwah says⁷:

الأولى لا يجوز في النكاح دواما أو متعة اشتراط الخيار في نفس العقد‌

فلو شرطه بطل و في بطلان العقد به قولان المشهور على أنه باطل و عن ابن إدريس أنه لا يبطل ببطلان الشرط المذكور و لا يخلو قوله عن قوة إذ لا فرق بينه و بين سائر الشروط الفاسدة فيه مع أن المشهور على عدم كونها مفسدة للعقد و دعوى كون هذا الشرط منافيا لمقتضى العقد بخلاف سائر الشروط الفاسدة التي لا يقولون بكونها مفسدة كما ترى و أما اشتراط الخيار في المهر فلا مانع منه و لكن لا بد من تعيين مدته و إذا فسخ قبل انقضاء المدة يكون كالعقد بلا ذكر المهر فيرجع إلى مهر المثل هذا في العقد الدائم الذي لا يلزم فيه ذكر المهر و أما في المتعة حيث إنها لا تصح بلا مهر فاشتراط الخيار في المهر فيها مشكل‌

Only Sayyid Mar‘ashī Najafī has a comment on this ruling where he says this ruling is not free from critique, and hence it is only out of precaution that one must not do this. We will return back to the issue of consensus at the end of our discussion when we review what Sayyid Zanjānī has to say on this matter.

Evidence 2 – Nullification of Nikāḥ Depends on Ṭalāq

Shaykh Anṣārī speculates on one possible reason for this ruling when he writes:

و لعلّه لتوقّف ارتفاعه شرعاً على الطلاق و عدم مشروعيّة التقايل فيه

The la‘alla signifies that Shaykh himself was not convinced of this argument nor had certainty in it. Some other jurists have alluded to this evidence, such as Muḥaqqiq Isfahānī in his ḥāshiyah on al-Makāsib.⁸

This is not a strong argument, because we know for a fact that Nikāh can be nullified or dissolved by other means as well, such as certain deficiencies in one of the two couples which leads to the nullification of the contract – this has nothing to do with ṭalāq.

In addition, as we said earlier – when we spoke about the difference between khiyār al-sharṭ and sharṭ al-khiyār – jurists allow nullifying the nikāḥ with khiyār al-sharṭ in some cases. Furthermore, even if we say nikāḥ is only nullified with ṭalāq, is that necessarily in conflict with saying it can also be nullified by khiyār? There is no way to prove that nullification of nikāh is restricted (has ḥaṣr) to ṭalāq.

Some have responded and said those other methods besides ṭalāq have naṣṣ for them, but they have missed the point of our critique which is that there is no restriction to just ṭalāq. In other words, nikāh can be nullified by other means as well such as deficiencies or khiyār al-sharṭ.

Evidence 3: Taqāyul

A third argument is be referring to a principle that Shaykh Anṣārī mentions in al-Makāsib⁹:

أقول: و الأظهر بحسب القواعد إناطة دخول خيار الشرط بصحّة التقايل في العقد، فمتى شرع التقايل مع التراضي بعد العقد جاز تراضيهما حين العقد على سلطنة أحدهما أو كليهما على الفسخ، فإنّ إقدامه على ذلك حين العقد كافٍ في ذلك بعد ما وجب عليه شرعاً القيام و الوفاء بما شرطه على نفسه، فيكون أمر الشارع إيّاه بعد العقد بالرضا بما يفعله صاحبه من الفسخ و الالتزام و عدم الاعتراض عليه قائماً مقام رضاه الفعلي بفعل صاحبه، و إن لم يرضَ فعلًا.

و أمّا إذا لم يصحّ التقايل فيه لم يصحّ اشتراط الخيار فيه؛ لأنّه إذا لم يثبت تأثير الفسخ بعد العقد عن تراضٍ منهما، فالالتزام حين العقد لسلطنة أحدهما عليه لا يحدث له أثراً؛ لما عرفت: من أنّ الالتزام حين العقد لا يفيد إلّا فائدة الرضا الفعلي بعد العقد بفسخ صاحبه، و لا يجعل الفسخ مؤثّراً شرعيّاً، و اللّه العالم.

Taqāyul is the act of breaking off an agreement as long as both sides are satisfied with it. Shaykh Anṣārī says that any contract in which taqāyul cannot be done, one cannot do sharṭ al-khiyār in it, and every contract in which one can do taqāyul in, one can do sharṭ al-khiyār in it. As per this necessitation, one cannot invalidate the Nikāh with sharṭ al-khiyār since taqāyul is also not allowed in it.

We know one cannot break off the nikāḥ with taqāyul, but what is the evidence for the necessitation between that and sharṭ al-khiyār? Many scholars have critiqued this relationship, such as Muḥaqqiq Isfahānī¹⁰, who believes there is no evidence for it. In fact, as per the legal injunction of al-mu’minūn ‘inda shurūṭihim the believers must remain true to the conditions they put in the contract, and there needs to be evidence, on the contrary, making an exception to certain conditions. If such evidence does not exist, we cannot rely on some speculative necessitation or resemblance that we observe. If the rational laity tends to do such a thing, then at that point we could have used the sīrah al-‘uqalā’ to prove such a relationship, but such a practice does not exist.

Evidence 4: Nikāh is a Deficient Form of Worship

The author of al-Jawāhir¹¹ relies on a different argument:

لأن فيه شائبة العبادة التي لا تقبل الخيار

He says, because nikāḥ is like a lesser form of worship, and acts of worship do not have khiyār, nikāh will also therefore not accept such a khiyār. In other words, since acts of worship are tawqīfī, nikāh also gives off a scent of being tawqīfī.

In response to this justification, we can say that even some acts of worship accept self-imposed conditions. For example in i‘tikāf and ḥajj, on some occasions, it is recommended to place certain conditions. Secondly, nikāḥ is simply not an act of worship, just because it is recommended like acts of worship are recommended does not make nikāh itself an act of worship. Sayyid Shubayrī Zanjānī and Muḥaqqiq Isfahānī both point this fallacy out.

Nikāḥ is a practice the laity engages in and has existed since the time of Adam and Eve. Islam has made some alterations to it in some places, but other than these places where such interference and alterations have taken place, we must deal with it as per the principles the laity follow. There is no evidence to argue for nikāḥ being an act of worship and for considering it tawqīfī. If the ‘uqalā’ accept that at the beginning of the nikāh one can make an agreement in which the two parties can decide to live together for a while till they can see if they are satisfied or not, then such a condition can be justified.

Evidence 5: Harm to Women

The author of al-Jawāhir in passing also says that stipulating a condition of choice is an abuse of women and is harmful. In response to this, we say, this is at the very same time also assistance and a benefit for women. Another point to allude to here – just as Muḥaqqiq Isfahānī and Sayyid Ṣādiq Rūḥānī have also said – is that harm that a person themself initiates is outside the scope of the legal injunction of Lā Ḍarar, and this principle is concerned with harms that are inflicted on people from the practice of Islam itself.

Evidence 6: Stipulating Choice is Against the Nature of the Contract

The author of al-Jawāhir also argues by saying that just like not mentioning the fixed time in a temporary marriage results in the contract becoming a permanent contract, as that is the nature of the temporary marriage contract, likewise stipulating a condition of choice in a permanent contract is against its nature. He says¹²:

فيكون حينئذ اشتراط الخيار فيه منافيا لمقتضاه المستفاد من الأدلة الشرعية ، بل لم يريدا بلفظ العقد معنى النكاح مع اشتراطه، ومن هنا كان هذا الشرط مبطلا للعقد

Firstly, the narrations on temporary marriage that suggest such a thing are weak or are predicated on another matter by many jurists. We believe in the arguments put forth by jurists like Sayyid Khū‘ī or Shahīd Thānī who believe the temporary marriage contract will simply be invalidated if the time is not mentioned, not that it will automatically turn into a permanent marriage.

Secondly, how do we know stipulating such a condition is against the nature of the contract? This condition is neither deceptive nor against the Qurān and Sunnah, so why is it against the nature of the contract?

Evidence 7: Contradiction with the Contract of Nikāḥ

Sayyid Khū’ī¹³ offers a unique argument, and Sayyid Sīstānī in his discussion on Lā Ḍarar appreciates this argument and perhaps agrees with the same line of argument – as both ultimately conclude such a condition invalidates the contract.

Sayyid Khū’ī says besides the fact that it is well attested, and we have not heard nor read anyone saying ishtirāṭ is allowed, even though Ṣāḥib al-‘Urwah says if there was no ijmā‘ we would have accepted it, such a condition is oxymoronic to the very contract being recited. Sayyid Khū’ī says the essence of this condition is similar to placing a time-interval (tawqīt) on the contract which makes it like a temporary marriage. This is while we are committing to a permanent marriage – the notion of a “permanent marriage” does not go along with a condition that will make it potentially “temporary”.

Observations:

1. Who said nikāh is a contract that has “continuity” or “permanence” within its essence? How many times does the contract of nikāh get nullified through different means, divorce being one of them? As Āqā Ḥā’īrī and Sayyid Shubayrī Zanjānī have also argued, the contracts of nikāh and bay‘ have no notion of “time” within their essence. Bay‘ is simply a transfer of two entities between two parties, and nikāh is also simply a contract that grants validity to the relationship of a man and a woman, what does it have to do with time? Whether it ends up being a long-term permanent relationship or not depends on the matters and events that occur after the contract has occurred. If they have a good relationship, they will remain married until they leave this world, but if both of them are a nuisance, or one of them is, the marriage may be ended.

All you can say is that in external reality, what we see is that people’s nikāḥ contract more often than not ends up being permanent and continuous until one of them dies. This has nothing to do with the essence of the contract.

Furthermore, even if you say there is continuity in this contract, you yourselves acknowledge it can be time-bound and that its continuity can be broken through a divorce or through nullification of the contract in the case of certain defects found in either one of the parties.

2) Sayyid Khū’ī responds to this by saying since divorce and nullification based on certain defects is authorized (manṣūṣ), we agree to them, but not anything beyond that. Our response to Sayyid Khū’ī is that your initial claim that the nature of the nikāḥ is such that it does not go hand in hand with discontinuity, this is either i) a rational claim, in which case there should be no exceptions to this and the narrations cannot add exceptions to it, or ii) it is an ‘uqalāyī claim, in which case the ‘uqalā’ do not have any issue with ishtirāṭ al-khiyār nor do they see it in conflict with the contract of nikāḥ.

Secondly, even if we accept Sayyid Khū’ī’s reasoning that divorce and nullification due to defects are from the narrations and therefore we take them as exceptions, then our response to this is that ishtirāṭ al-khiyār is not something we just made up ourselves. Ishtirāṭ al-khiyār is also something we have derived from authorized sources – the nuṣūṣ.

3) A final point we want to make is, let us assume there is permanence within the essence of nikāh. But, who said ishtirāṭ al-khiyār is a type of tawqīt? Ishtirāṭ al-khiyār is a condition that places the contract in a situation where it could possibly be dissolved, but it is also possible that it isn’t dissolved. This is not tawqīt. So the question is, can we get into a contract in which we allow the potential dissolving of it? This requires evidence, and when there is nothing saying we can’t, and even the ‘uqalā’ have no issue with it, then there is no reason to say it is an invalid condition.

Evidence 8: The Qadr al-Mutayaqqan

Two scholars, namely Taqī Qumī in ‘Umda al-Maṭālib and Imam Khomeyni in his Kitāb al-Bay‘ (although his discussion is very brief and in passing), have said that the aṣl is the invalidity of the stipulation of choice and that it is only valid in places where we have certainty (such as in bay‘ and ijārah). However, in places where we are doubtful, we apply aṣālah al-luzūm and it appears they did not accept the absolute nature of the injunction of al-mu’minūn ‘inda shurūṭihim.

In response to this we say the injunction al-mu’minūn ‘inda shurūṭihim is absolute and has iṭlāq. There are many places in Fiqh where jurists have resorted to the generality and absolute nature of this specific injunction in the case of doubt. These are ḥaqīqī propositions, the injunction is not limited to just the conditions known at the time of the Prophet (p) or the Imams (a).

Unless what they mean to say is that stipulation of choice is munṣarif from this injunction since the ‘uqalā’ do not do such a thing when it comes to marriage. In this case, we have two comments:

1) How do we know the ‘uqalā’ did not do such a thing? We don’t have all such details about ancient marriage practices of different civilizations. All we know is that our jurists did not accept this practice.

2) Even if it was not accepted in the past, but it is today and ‘uqalā’ do not have an issue with it and so the injunction will be inclusive of this instance.

Evidence 9: Sayyid Zanjānī Use of Consensus

Sayyid Zanjānī¹⁴ relies on consensus, which we have already addressed, although he says: even though we have not found anyone before Shaykh Ṭūsī discussing this matter, from him onwards every scholar has given a fatwa and in fact he emphasizes that there is no difference of opinion on this matter amongst the Muslims.

Sayyid Zanjānī has addressed a point in some of his lessons, which is also attributed to Sayyid Borūjerdī, that is when a matter has no dispute amongst the Muslims, or something is widely accepted amongst the Ahl al-Sunnah and we have no conflicting narration on the matter from the Imams (a), then that is valid evidence for a verdict.

Since the Ahl al-Sunnah are against temporary marriage, Sayyid Zanjānī believes you can prove the right of khiyār in it. The practical impact of this would be that if a man marries a woman temporarily for a few years, the woman can still put the condition of khiyār for an earlier period.

Observations:

The fact that there is a consensus is because there was no reason or evidence that scholars found for it, not that there is a submissive nature to this consensus. In fact, what we have seen in the last few discussions already is that the jurists are trying to provide evidence for this ruling, and if consensus was enough, that would have been sufficient. If Sayyid Khū’ī – who has reservations on consensus – found flaws in the arguments he himself offered, perhaps he would have argued that there is no evidence for the absence of such a right. Another thing that needs to be realized is that at times a scholar – though they may have no reason to believe in the prohibition of this right – they may choose to remain silent, like in the cause of Ṣāḥib al-Ḥadā’iq, simply because a popular ruling at the time is as such and they may believe it is better and more precautious to follow that popular opinion. A real example would be when in a certain era numerous jurists would say covering the face and hands is also required for a woman and while many other jurists would say uncovering it is not a problem, they may have chosen to remain silent on it because they probably felt it is more in line with chastity to remain covered and follow the popular opinion at their time.

In other words, I do agree that if the Muslims collectively have agreed upon something, then this definitely has immense value and significance, but in the subject-matter we are in, it is clear that many scholars have tried to provide evidence for the verdict and not suffice with consensus. This also makes the consensus itself muḥtamal al-madrakīyyah.

We also know that historically jurists have focused more on the rights of men over women, this is very clear in jurisprudential discussions. The matter that we are discussing is a very contemporary matter and discussion, and the jurists would really not have concerned themselves too much with it in the past. Saying something like “but Islam has said this”, is not a valid argument. Islam says, “the believers have to abide by their contracts”, and the question here is why the jurists did not apply this principle in Nikāḥ – that has been the subject of our discussion.

Conclusion

As has been observed, nine arguments for the invalidity of sharṭ al-khiyār in the marriage contract were analyzed and criticisms were offered. Perhaps the most worthwhile argument was Sayyid Zanjānī’s use and explanation of consensus, however some weaknesses in it were respectfully pointed out. Without the presence of any valid argument, the recourse injunction to fall back on is “al-mu’minūn ‘inda shurūṭihim” which would allow for sharṭ al-khiyār in a marriage contract, as it is allowed in all other contracts.

1. Al-Jawāhir, vol. 29, pg. 149
2. Al-‘Urwah al-Wuthqa, vol. 2, pg. 500
3. Ḥāshiyah on al-Makāṣib, vol. 4, pg. 226
4. al-Murtaqa ila al-Fiqh al-Arqa, vol. 1, pg. 274
5. Muḥadhdhab al-Aḥkām, vol. 24, pg. 234
6. Minhāj al-Fiqāha, vol. 5, pg. 391
7. Al-‘Urwah al-Wuthqa, vol. 15, pg. 448
8. Ḥāshiyah on al-Makāṣib, vol. 4, pg. 223
9. Al-Makāsib, vol. 5, pg. 156
10. Ḥāshiyah on al-Makāṣib, vol. 4, pg. 220
11. Al-Jawāhir, vol. 31, pg. 265
12. Al-Jawāhir, vol. 31, pg. 106
13. Vol. 38 of his Mawsū‘ah, Kitāb al-Khiyārāt, pg. 260-261; also see 203.
14. Kitāb al-Nikāḥ, vol. 8