Chapter on the Right of Option

Introduction

Khiyār is an infinitive noun; an infinitive noun (ism al-maṣdar) is a form that drops some of the letters of its verb while sharing with the verbal noun the sense of the action it denotes. In legal usage, khiyār refers to seeking the better of two alternatives—either to uphold the marriage or to annul it.

The marriage contract is classified as a binding contract that leaves no room for either khiyār or rajʿa (revocation). This ruling is founded on the narration recorded by the compilers of the Sunan from Abū Hurayrah, in which the Prophet ﷺ said: “Three matters whose seriousness is seriousness and whose jest is also seriousness: marriage, divorce, and taking a wife back.” Accordingly, once the marriage has been concluded through offer and acceptance and all its pillars and conditions have been met, it becomes obligatory. At that point neither of the two parties retains the khiyār al-majlis (option while the session is still in progress), the khiyār al-sharṭ (option by stipulation), or any other form of option—except the khiyār arising from a concealed defect, which belongs to each spouse, as will be explained, God willing.

There are, nevertheless, a few individual cases in which one of the spouses may exercise a choice; these will be treated in detail, Allah the Exalted willing.

The reason—Allah knows best—why marriage becomes binding from the moment the contract is concluded, with no khiyār attached to it, returns to two considerations:

First: The contract is not finalized until after consultation and deliberation, with each of the prospective spouses making inquiries about the other. There is therefore no need for a khiyār, unlike in sales, which occur repeatedly and often take place suddenly, without prior thought or reflection, leading to unfairness and similar problems; hence a khiyār was legislated for sales.