IS
MARRIAGE LEGAL AFTER IT IS FOUND THAT
THE
WIFE IS PREGNANT A DAY AFTER THE NIKAH?
MASJID
PLOT 94, ODUDUWA CRESCENT, PHASE 2 SITE 2, KUBWA, ABUJA
ASSEMBLED
BY MALLAM ABBA ABANA, KUBWA, ABUJA, NIGERIA
http://variousislamicdawadocuments.blogspot.com
emails:gonidamgamiri@yahoo.com;
abba.abana@gmail.com
(WHATSAPP +2347050892339
& +2349083040481)
(2014 Edition)
Bismillah Walhamdulillah Was Salaatu
Was Salaam 'ala Rasulillah. As-Salaam Alaikum Wa-Rahmatullahi Wa-Barakatuhu
Praise be
to Allaah; we seek His help and His forgiveness. We seek refuge with Allaah
from the evil of our own souls and from our bad deeds. Whomsoever Allaah guides
will never be led astray, and whomsoever Allaah leaves astray, no one can
guide. I bear witness that there is no god but Allaah, and I bear witness
that Muhammad is His slave and Messenger.
In the name of Allah, the Gracious,
the Merciful
This question is grouped into four
phases to enable understand the wife is pregnant a day after the
nikah?
1)
He did the
marriage contract with her when she was pregnant as a result of zina. He is not
aware or knowledge before.
2)
She
committed zina before her wedding and got pregnant?
3)
He wants
to marry a girl with whom he had a relationship. He is aware of Zina
4) Is nikah valid or invalid as she married him while pregnant because they committed Zina?
1.0
HE DID THE MARRIAGE CONTRACT WITH
HER WHEN SHE WAS PREGNANT AS A RESULT OF ZINA
The marriage of a man who committed zina with a woman then
got married before repenting, and before waiting for the prescribed period to
establish that there is no pregnancy, is invalid. However, this is a matter
concerning which the fuqaha’ (jurists) differ. What we present here is the view
of Imam Ahmad (may Allah have mercy on him), and the evidence supports his
view.
Some of the fuqaha’ regard as valid a marriage contract done
before repenting; some regard it as valid even if the woman is pregnant, if the
pregnancy is from the man who is marrying her.
Allah has blessed you with Islam, and Islam erases what came
before it of zina and other sins, and you have fulfilled the conditions of
repentance. Allah, may He be exalted, says (interpretation of the meaning): “Say
to those who have disbelieved, if they cease (from disbelief) their past will be
forgiven”[Holy Quran Chapter an-Anfaal 8:38].
The Hanafis and Shaafa‘is are of the view that it is
permissible to do the marriage contract with a woman who is pregnant as a
result of zina and to have intercourse with her after getting married, if he
(the husband) is the one with whom she committed zina. See: al-Mawsoo‘ah
al-Fiqhiyyah al-Kuwaitiyyah, 29/338; Haashiyat Ibn ‘Aabideen, 3/49
Undoubtedly to be on the safe side you should redo the
marriage contract, so as to avoid a matter concerning which there is a
difference of scholarly opinion. If your husband consulted a scholar who says
that the marriage is valid, or he is following the Hanafi or Shaafa‘i madhhabs
(schools of thought), then he does not have to redo the marriage contract and
in that case you will not be sinning by staying with him, seeing that the issue
is one of those issues that are subject to ijtihaad, concerning which the
scholars differed.
Renewing the contract does not have to be registered; rather
it could be done between the husband and the Muslim guardian, if there is one,
in the presence of two witnesses. If there is no Muslim guardian, the imam of
the Islamic Centre can do the marriage contract for you and act as your
guardian.
2.0
SHE COMMITTED ZINA BEFORE HER WEDDING AND GOT PREGNANT, THEN
HAD A MISCARRIAGE. IS HER MARRIAGE VALID?
2.1 If this immoral action came after the marriage contract
was done, even if it was before the wedding party, then this marriage of yours
is valid but you have to repent from this sin that you fell into.
Ibn Qudaamah (may Allah have mercy on him) said: If the
wife of a man commits zina, or her husband commits zina, the marriage contract
is not rendered invalid, whether that happens before or after consummation,
according to the opinion of most of the scholars. End quote from al-Mughni,
9/565
2.2 If this zina took place before the marriage contract was
done, the marriage contract is not valid unless it was done after establishing
that there was no pregnancy by waiting for one menstrual cycle, according to
the more correct opinion.
Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him)
said: Marriage to a zaaniyah (a woman who has committed fornication) is
haraam until she repents, whether the one who committed zina with her is the
bridegroom himself or someone else. This is the correct opinion beyond a doubt,
and it is the opinion of a number of the earlier and later scholars, including
Ahmad ibn Hanbal and others. Many of the earlier and later scholars were of the
view that it is permissible, and this is the view of the three, but Maalik
stipulated that it should be established that there is no pregnancy by waiting
for one menstrual cycle, and Abu Haneefah regarded it as permissible to do the
marriage contract before waiting for one menstrual cycle if she is pregnant,
however if she is pregnant it is not permissible to have intercourse with her
until she gives birth. Ash-Shaafa‘i regarded it as permissible to do the
marriage contract and to have intercourse in all cases, because the water
(semen) of the zaani has no value in sharee‘ah and the ruling is that no child
is to be attributed to him. This is his justification for his opinion. Abu
Haneefah differentiated between the one who is pregnant and the one who is not,
because if (the husband) has intercourse with the one who is pregnant, he will
be attributing to himself a child who definitely is not his, which is different
from the case of one who is not pregnant. Maalik and Ahmad stipulated that it
should be established that there is no pregnancy (by waiting for one menstrual
cycle), which is the correct view. But Maalik and Ahmad, according to another
report, stipulated that it should be established that there is no pregnancy by
waiting for one menstrual cycle. The other report from Ahmad is that which is
followed by many of his companions such as al-Qaadi Abu Ya‘la and his
followers, which is that it is essential to wait for three menstrual cycles.
However the correct view is that all that is required is to establish that
there is no pregnancy (by waiting for one menstrual cycle). End quote. Majmoo‘
al-Fataawa, 32/110
Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said in ash-Sharh
al-Mumti‘ (13/382): Rather the opinion narrated from Abu Bakr and a number
of the Sahaabah (may Allah be pleased with them) is that there is no ‘iddah at
all for the woman who committed zina, and there is no requirement to establish
that there is no pregnancy, especially if she has a husband, because of the
words of the Messenger (blessings and peace of Allah be upon him): “The infant
is to be attributed to the husband of the woman (who gave birth to him).”
Rather if a man knows that his wife has committed zina – Allah forbid – and has
repented, he should have intercourse with her immediately, so that no doubt
will remain in his heart in the future as to whether she became pregnant as a
result of zina or not. If he has intercourse with her immediately, the child
will be assumed to be from the husband and not from the zaani
(adulterer).
But if the woman who committed zina (fornication) did not
have a husband, it is essential to establish that there is no pregnancy by
waiting for one menstrual cycle, according to the correct opinion. End
quote.
2.3 Because this issue is the subject of a considerable
difference of opinion among the scholars, and because annulling the marriage
and admitting zina after this length of time will lead to a great deal of
trouble and disclosing that which Allah had concealed for you, and will expose
you to turmoil, we think – and Allah knows best – that in this case you do not
have to tell your husband about what happened in order to renew the marriage
contract. In the other scholarly opinion mentioned above, according to which
some of the scholars are of the opinion that it is not essential to establish
that there is no pregnancy, there is some leeway.
This, as we have said, applies if the zina took place before
the marriage contract was done and before it was established that there was no
pregnancy.
As Allah has concealed you, you must also conceal yourself
and do not breach the concealment of Allah. al-Bukhaari (6069) and Muslim
(2990) narrated that Abu Hurayrah (may Allah be pleased with him) said: I heard
the Messenger of Allah (blessings and peace of Allah be upon him) say: “All of
my ummah will be fine except those who commit sin openly, and it is part of
committing sin openly for a man to do something at night, then in the morning
when his Lord has concealed him he says: O So and so, I did such and such last
night, when his Lord had concealed him all night, but in the morning he
discloses that which Allaah had concealed for him.”
And Muslim (2590) narrated from Abu Hurayrah (may Allah be
pleased with him) that the Prophet (blessings and peace of Allah be upon him)
said: “Allaah does not conceal a person in this world but Allaah will conceal
him on the Day of Resurrection.”
Al-Bayhaqi (18056) narrated from Ibn ‘Umar that the
Messenger of Allah (blessings and peace of Allah be upon him) said, after the
stoning of al-Aslami: “Avoid this filth that Allah has forbidden, and whoever
falls into it, let him conceal himself with the concealment of Allah, may He be
glorified and exalted.”Classed as saheeh by al-Albaani in as-Saheehah
(663).
2.4 Your son is a legitimate son of your husband, and there
is no problem concerning him, in sha Allah.
With regard to the foetus whom you aborted, if that happened
before the soul was breathed into him – i.e., before four months – then there
is no expiation or diyah required for him. However you are required to repent,
feel regret and pray for forgiveness.
If that happened after four months, then you have to pay the
diyah and offer expiation.
The diyah is to free a male or female slave; if that is not
possible then you must pay the equivalent, which is five camels.
With regard to the expiation, it is to free a slave. If that
is not possible, then you must fast for two consecutive months.
3.0
HE WANTS TO MARRY A GIRL WITH WHOM HE HAD A RELATIONSHIP
3.1 Before answering your question, we must remind you that
it is obligatory to repent and regret what you have done with this woman,
because you have fallen into several major sins, the most serious of which is
zina (fornication) which is clearly forbidden in the Qur'aan and Sunnah, and
the scholars are unanimously agreed that it is haraam, and wise people are
unanimously agreed that it is abhorrent and evil.
Allaah says (interpretation of the meaning): “And
come not near to unlawful sex. Verily, it is a Faahishah (i.e. anything that
transgresses its limits: a great sin), and an evil way that leads one to hell
unless Allaah forgives him)”[ Holy Quran Chapter al-Isra’ 17:32]
And the Prophet (peace and blessings of Allaah be upon him)
said: “No adulterer is a believer at the time when he is committing adultery.”
Narrated by al-Bukhaari (2475) and Muslim (57).
There is a severe punishment for zina in al-Barzakh, before
the punishment in the Hereafter. In the famous hadeeth of Samurah ibn Jundub
(may Allaah be pleased with him) about the dream, it says: “… then we
[i.e., the Prophet (peace and blessings of Allaah be upon him) and Jibreel and
Mikaa’eel] proceeded and came to something like a tannoor (a kind of oven), in
which there were clamouring voices.” He [the Prophet (peace and blessings of
Allaah be upon him)] said: “We looked into it and there we saw naked men and
women. Flames were coming to them from the bottom of it, and when the flames
reached them, they made uproar. I said to them [i.e., the two angels who were
accompanying him], ‘Who are these?’ … They said, ‘We will tell you. As for the
naked men and women in the structure that resembled a tannoor oven, they are
the adulterers and adulteresses.’” Narrated by al-Bukhaari (6640).
Allaah has ordained the hadd punishment for zina. He says
concerning the hadd punishment for an unmarried person (interpretation of the
meaning): “The fornicatress and the fornicator, flog each of them with
a hundred stripes. Let not pity withhold you in their case, in a punishment
prescribed by Allaah, if you believe in Allaah and the Last Day. And let a
party of the believers witness their punishment”[ Holy Quran Chapter al-Noor
24:2]
As for the person who has previously been married, the hadd punishment
is execution, In the hadeeth narrated by Imam Muslim in his Saheeh
(3199) it is narrated that the Prophet (peace and blessings of Allaah be upon
him) said: “For a previously-married person with a previously-married person,
[the punishment is] one hundred lashes and stoning.”
What we have said to you applies to the woman too, and she
should realize that her sin is even worse, but because, as you say, she has
become righteous, we hope that her repentance is sincere and that Allaah will
forgive her by His grace and kindness.
3.2 You should note that if you have not both repented from
the sin of zina, then it is not permissible for you to marry her, because
Allaah has forbidden the zaani and zaaniyah to marry unless they both repent.
Allaah says (interpretation of the meaning):
“The adulterer — fornicator marries
not but an adulteress — fornicatress or a Mushrikah; and the adulteress
–fornicatress, none marries her except an adulterer — fornicater or a Mushrik
[and that means that the man who agrees to marry (have a sexual relation with)
a Mushrikah (female polytheist, pagan or idolatress) or a prostitute, then
surely, he is either an adulterer — fornicator, or a Mushrik (polytheist, pagan
or idolater). And the woman who agrees to marry (have a sexual relation with) a
Mushrik (polytheist, pagan or idolater) or an adulterer — fornicator, then she
is either a prostitute or a Mushrikah (female polytheist, pagan, or
idolatress)]. Such a thing is forbidden to the believers (of Islamic
Monotheism)”[ Holy Quran Chapter al-Noor 24:3]
Shaykh ‘Abd al-Rahmaan al-Sa’di (may Allaah have mercy on
him) said: This clearly points to the abhorrent nature of zina, and that
is tarnishes the honour of the one who does it in a way that other sins do not.
Allaah tells us that no woman would marry a zaani but a woman who is also a
zaaniyah, who is like him, or a mushrik woman who associates others with Allaah
and does not believe in the Resurrection or in reward and punishment (in the
Hereafter), and who does not adhere to the commands of Allaah. And similarly,
no one would marry a zaaniyah except a zaani or a mushrik. “Such a thing is
forbidden to the believers” means, it is haraam for them to marry zaanis or
zaaniyahs.
What the verse means is that if a person wants to marry the
man or woman who commits zina and has not repented from that, despite the fact
that Allaah has prohibited that, then he is either not adhering to the ruling
of Allaah and His Messenger, in which case he cannot be anything but a mushrik,
or he is adhering to the ruling of Allaah and His Messenger but he agrees to
this marriage despite knowing that this person has committed zina, in which
case this marriage is also zina, and he is an immoral zaani. If he truly
believed in Allaah, he would not do that. This clearly indicates that it is
haraam to marry a zaaniyah unless she repents, or to marry a zaani unless he
repents, because marriage is the strongest type of companionship, and Allaah
says (interpretation of the meaning): “Assemble those who did wrong,
together with their companions” [al-Saaffaat 37:22]. Allaah has forbidden
that because of what it involves of great evil, and lack of protective
jealousy, and attribution of children who are not his to the husband, and the
zaani failing to keep her chaste because he is distracted elsewhere, any one of
which is sufficient reason for the prohibition. End quote. Tafseer
al-Sa’di (p. 561).
The scholars of the Standing Committee were asked: A
man committed zina with a virgin and wants to marry her. Is it permissible for
him to do that?
They replied: If the matter is as described, each of
them must repent to Allaah and give up this sin, and regret what has happened
of immoral actions, and resolve not to do it again, and do a lot of good deeds,
in the hope that Allaah will accept their repentance and turn their bad deeds
into good. Allaah says (interpretation of the meaning):
“And those who invoke not any other
ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden,
except for just cause, nor commit illegal sexual intercourse ___ and whoever
does this shall receive the punishment.69. The torment will be doubled to
him on the Day of Resurrection, and he will abide therein in
disgrace;70. Except those who repent and believe (in Islamic Monotheism),
and do righteous deeds; for those, Allaah will change their sins into good
deeds, and Allaah is Oft‑Forgiving, Most Merciful 71. And whosoever
repents and does righteous good deeds; then verily, he repents towards Allaah
with true repentance”[ Holy Quran Chapter al-Furqaan 25:68-70]
If he wants to marry her, then he must wait for one
menstrual cycle to establish whether her womb is empty before doing the
marriage contract with her. If it turns out that she is pregnant, then it is
not permissible for him to do the marriage contract with her until after she
gives birth, in accordance with the hadeeth in which the Prophet (peace and
blessings of Allaah be upon him) forbade a man to water the crop of another
with his own water. End quote. Fataawa Islamiyyah (3/247).
So repent to Allaah and set your affairs straight, and do a
lot of good deeds, and after that it will be permissible for you to get
married. We ask Allaah to accept your repentance and to forgive you, by His
grace and mercy.
4.0 IS NIKAH VALID OR INVALID AS SHE MARRIED HIM WHILE PREGNANT BECAUSE THEY COMMITTED ZINA?
May Allah guide us and protect us from the evils of this world. Ameen.For your marriage to have been valid, you and your spouse should have repented sincerely to Allah after you committed adultery (zina) and then waited until the pregnancy has ended to get married. But since you married while you were pregnant, then it is not a valid marriage because the marriage did not fulfill one of the necessary conditions for marriage which is readiness of the womb. Therefore, in your case you have to renew your marriage contract for your marriage to become valid, and don't worry because it's not a difficult thing to do.
Sister, you have committed Zina more than once and you do sound regretful, but it is of no use if you do not do tawbah. Tawbah means that you do not only regret, but you must stop repeating it. If you were in a Muslim nation where the Sharee'ah was applied, you and the man involved would have been lashed 100 times, each time you did Zina.
It is sad that the western society has begun affecting the entire world, (even those places which were saved until some years ago) with its evil and the corruption has increased rapidly. This is what is deemed to happen if the laws of Allah are ignored and literally rejected.
Allah Created boundaries for us to be within them and not look at them and cross them.
Sister, you asked if you could marry him, but that is a secondary question. This is why I have said what I have said above. Fear Allah and Repent, lest He should catch hold of you on the Last Day.
I know you regret, but that is not enough. You must do sincere tawbah. Never repeat the sin in your life. Returning to Zina must look like jumping into fire, will you do it?
Allah Said: And of no effect is the repentance of those who continue to do evil deeds until death faces one of them he says,"Now I repent," nor of those who die while they are disbelievers. For them WE have prepared a painful torment.
[Surah an-Nisa', Ayah 18]
Sister, you cannot just ascribe a baby to anyone. This reminded me of the times of Jahiliyyah (before the Prophethood of our Rasool Sallallahu Alaihi Wasallam), when a woman would invite multiple men to sleep with her on different nights. When she became pregnant and delivered a baby, she would call all the men and point at anyone she wills. He would have no say and would take the baby with him.
The World is soon to end, because a sign of the Qiyaamah is that Zina will become widespread.
The medical science has developed and ways are available now to find out who the father is. Perhaps you must make use of that and inform the father of this child accordingly.
Yes, you are allowed to marry the father of this baby, but even he must do tawbah and should resolve never to commit Zina with any other woman after this day.
For the fact that you have already married this new man, if your Wali approved of this marriage and was there in the Nikah, it was valid, provided other conditions were also fulfilled. Otherwise, it is invalid.
If your nikah was valid, and tests suggest that this man is not the father of your baby, then he can not name this baby with his name. A child is ascribed only to the original father accoding to the Islamic Sharee'ah.
May Allah lead you to the straight path and forgive you.
Allah knows best
Sources
https://islamqa.info/en/106448
https://islamqa.info/en/85335
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