#912: Can A Man Marry A Woman He Impregnated Outside Marriage While She Is Pregnant?
“Assalamu alaikum warahmatullah wabarakaatuhu. I have a question please, someone commits zina and gets pregnant, then the person with whom she did the act wants to marry her and pay her dowry, while she is pregnant. Is this kind of Nikah valid?Jazakumullaahu khayran.”
ANSWER:
Wa Alaykum Salām Warahmatullāh Wabarakātuh.
Alhamdulillāh!
First, may Allāh save us and the entire Muslim Ummah from Zinā and the aftermath of it, amīn.
Second, what is compulsory upon this man and the woman with whom he had Zinā is to hasten to Tawbah and seeking forgiveness from Allāh for this is of the most severe of sins that destroy Dīn and Dunya. Delay in Tawbah is another Sin that is liable to be punished by Allāh in this World and the Next.
As for marrying her after he has impregnated her and she is still in pregnancy, the position upheld by the Imāms of the Mālikī and the Hanbalī Schools is that this is impermissible until she puts to bed. This is also the position favoured by Qādī Abū Yusuf, the First Row Student of Imām Abū Hanīfah, rahimahumullāh.
Their evidence for this is the Hadith in which the Rasūl -salallāhu Alayhi Wasallam – said:
لا توطأ حامل حتى تضع.
“A Pregnant woman must not be made Legal for sexual intercourse until she has put to bed”
This was recorded by Abū Dāwud As-Sijistānī in his Sunan and Al-Hākim An-Naysābūrī in Al-Mustadrak.
Whereas the Hanafī and Shāfi’ī Schools hold that this is Permissible. Their argument in favour is premised on the fact that he is established to be the father of the pregnancy and therefore the ruling in the Hadith referred does not apply to him.
Their explanation is based on the Hadīth that was recorded by Imām Abū Hanīfah that the Rasūl -salallāhu Alayhi Wasallam – said:
لا يحل لامرئ يؤمن بالله واليوم الآخر أن يسقي ماءه زرع غيره
“It is not Permissible for the one who believes in Allāh and the Last Day to water his semen in the farm of other than him”
The Agreed Upon interpretation of this Hadīth is that it is not Permissible for him to have Intercourse with a Slave woman he has rightfully possessed if she is pregnant until she has put to bed, and to marry a free pregnant woman from divorce or death of her husband until she has put to bed.
And there is no doubt that the stronger position is the first one: that it is not permissible that marriage be conducted between them until she has given birth if she is pregnant or had a menstrual flow if she is not pregnant and they have both made Tawbah.
This position we have favoured is what was upheld but Shaykhu Al-Islam Ibn Taymiyyah – Rahimahullāh – when he said in Majmū’atu Al-Fatāwah:
“It is Harām until she makes Tawbah. The ruling is same whether he was the one who had Zinā with her or someone else. And no doubt, this is the Correct position…”
And Allāh knows best.
Bārakallāhu Fīkum
Jazakumullāhu Khayran
Abū Āsim
6th Jumādal Ākhir, 1441AH.
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