Is the option to annul a marriage due to defect (Khiyar al-'Ayb) immediate or is it permissible to delay exercising it?
Chapter on Marriage of Polytheists
Al-Mughni
Book of Marriage
Primary text
The option to annul a marriage due to a defect (Khiyar al-'Ayb) is established as permissible to be exercised over time (ala al-Tarākhi) and is not forfeited unless an action indicating contentment with the defect occurs. Contentment is indicated by a statement, the husband's enjoyment (Istimtā'), or the wife's yielding (Tamkīn). This is the apparent position from the statement of Al-Khiraqi, who cited that if a woman knows her husband is impotent ('ayyin) and remains silent about demanding annulment, she may still demand it later. The evidence supporting the permissibility of delay is that this option serves to avert a confirmed harm, thus it should be exercised over time, analogous to the option in retribution (Khiyar al-Qisās). The harm here is immediate because the purpose, which is enjoyment, is lost due to the defect.
Supporting text
The opinion that the option must be exercised immediately (ala al-Fawr) is attributed to Al-Qadhi, and this is also the position of the Shafi'i school. They argue that delaying the annulment despite knowledge and ability to act invalidates the option because it resembles the option to return based on defect in a sale, which must be immediate.