A Critique of Shiite Jurists and Civil Law’s Popular Opinion Concerning Unauthorized Marriage

Abstract

In this article the meaning of an ‘unauthorized marriage’ has been evaluated from the point of view of Shiite Scholars and civil law. The different opinions presented have been stated and the bases of each one have been separately examined. The most important question of this article is whether such a marriage, in principle, is null and void or not; but rather is it not binding or is it necessary that this right has been recognized through the permission of the guardian or whoever recognizes this right to be theirs? In general, three points of view have been stated among the Shiite scholars. One group believes in the validity of officious marriage; the second group believes that it is not valid and the third believes that further details are required. According to the third group, such a marriage has the ability of correctness in nine instances, and outside these items it is basically null and void. Although Iranian Civil Code has not explicitly stated the authenticity of such a marriage; however, it had accepted implicitly the popular opinion of Shiite scholars. It seems that the opinion which requires further details in this case does not lead to the consequences of the first opinion. Consequently, in this case, whether from the perspective of issuance of a religious verdict or from the perspective of law making, the farther away it keeps from generalization and the closer it gets to a detailed point of view, the more compatible it will be with caution and it will have less social repercussions.

Keywords

• officious marriage
• permission
• potential completion (sehat-e ta-aholeia)
• shi'ite jurisprudence