Question:

Assalamualaikum ustaz. Is it permissible to marry a woman who is pregnant as a result of fornication?

Answer:

Waalaikumussalam wrt. wbt.,

Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.

Fornication according to the 4th Edition of Kamus Dewan means invalid or prohibited intercourse (not between husband and wife). [1]

Fornication is a contemptible act and results in the wrath of Allah SWT as stated in His statement:

وَلا تَقْرَبُوا الزِّنَا إِنَّهُ كَانَ فَاحِشَةً وَسَاءَ سَبِيلا

And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way.” [2]

The ruling for muhsan fornicator

For a fornicator who fulfils the characteristics of muhsan which are has reached puberty, sane rational mind, free and has had intercourse in a valid marriage, then he is subject to the punishment of 100 times caning and exiled for a year. The punishment of 100 times caning is stated in al-Quran as stated by Allah SWT:

الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِّنْهُمَا مِائَةَ جَلْدَةٍ ۖ وَلَا تَأْخُذْكُم بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ إِن كُنتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۖ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِّنَ الْمُؤْمِنِينَ

“The [unmarried] woman or [unmarried] man found guilty of sexual intercourse – lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah, if you should believe in Allah and the Last Day. And let a group of the believers witness their punishment.” [5]

As for the punishment of getting exiled for a year is sabit according to the sahih hadith of Rasullullah PBUH narrated from Ubadah bin al-Somit RA, he said Rasullullah PBUH said:

خُذُوا عَنِّي خُذُوا عَنِّي، قَدْ جَعَلَ اللهُ لَهُنَّ سَبِيلًا، الْبِكْرُ بِالْبِكْرِ، جَلْدُ مِائَةٍ وَنَفْيُ سَنَةٍ، وَالثَّيِّبُ بِالثَّيِّبِ، جَلْدُ مِائَةٍ وَالرَّجْمُ

“Receive from me (this revelation), receive from me (this revelation). Allah has ordained a way for those women (unmarried females who committed adultery). When an unmarried man, commits adultery with an unmarried woman, they should receive one hundred lashes and be exiled for a year. If they (fornicate while they) were married, they shall receive a hundred lashes and be stoned to death.” [6]

According to the above question, in the issue of marrying a woman who is pregnant as a result of fornication, there is khilaf among scholars. In madhhab al-Syafie, the marriage is valid:

“If a man marries a woman who is pregnant due to fornication is valid according to Abu Hanifah and Muhammad (bin Hasan al-Syaibani), however, it is impermissible for him to have intercourse with his wife until she gives birth so that he wouldn’t flow his water on the field of another’s (which means intercourse), according to the statement of Rasullullah PBUH it is impermissible for a person who believes in Allah and the hereafter to flow his water on another’s field and the Prophet PBUH said don’t have intercourse with a pregnant woman until she gives birth, hence, this is the evidence that shows the prohibition against having intercourse with one’s wife until she gives birth. This is different from madhhab Syafie which states that it is permissible to marry and have intercourse with a woman who is pregnant with a child out of wedlock according to the asah opinion.” [7]

The evidence presented in madhhab Syafie is based on the statement of Allah SWT:

وَأُحِلَّ لَكُم مَّا وَرَاءَ ذَٰلِكُمْ

““And lawful to you are [all others] beyond these [those who were prohibited in the previous verse],” 

From Ibn Umar R.Anhuma, Rasullullah PBUH said:

لاَ يُحَرِّمُ الْحَرَامُ الْحَلاَلَ

“What is Haram does not make what is Halal into what is Haram.” [8]

Thus, just like it is permissible to marry a woman who didn’t commit fornication, then it is not prohibited to marry a woman who has committed fornication because marriage is permissible.

There is a narration where a man has a son. He marries a woman who has a daughter. Their children then committed fornication. Saidina Umar al-Khattab RA asked them about this matter and both of them confessed and Umar punished them with caning. Umar suggested marrying them but the son disagreed and Umar didn’t consider the matter to cause iddah. This matter wasn’t disagreed by any companions and thus became the ijmak. Fornication is intercourse that doesn’t make the child a person’s lineage or pregnancy due to fornication, thus it doesn’t hinder the validity of marriage during pregnancy. [9]

The 3rd National Fatwa Committee for Religious Affairs Malaysia which convened on 21st – 22nd January 1971 discussed the issue of Marrying a Pregnant Woman Carrying Out of Wedlock Child. The committee decided that it is permissible but the child:

• Cannot be named as the man’s child,
• Can’t receive any inheritance from him,
• Is not the man’s mahram,
• And the man is impermissible from acting as the wali for the child. [10]

May Allah SWT protect us and our lineage from the act of fornication that is prohibited by syara’. We end with the supplication:

رَبَّنَا هَبْ لَنَا مِنْ أَزْوَاجِنَا وَذُرِّيَّاتِنَا قُرَّةَ أَعْيُنٍ وَاجْعَلْنَا لِلْمُتَّقِينَ إِمَامًا

“Our Lord, grant us from among our wives and offspring comfort to our eyes and make us an example for the righteous.”

Wallahu a’lam.

[1] See https://prpm.dbp.gov.my/cari1?keyword=zina

[2] Surah al-Nisa’: 32

[3] See al-Tasyri’ al-Jina’iy al-Islami, 2/322-324

[4] Narrated by Al-Bukhari (6830) and Muslim (1691)

[5] Surah al-Nur: 2

[6] Narrated by Muslim (1690)

[7] See Mausu’ah al-Fiqhiyyah al-Kuwaitiyyah, 29/338

[8] Narrated by Ibn Majah (2015)

[9] See al-Majmu Sharh al-Muhazzab, 16/241-242

[10] See Keputusan Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan Bagi Hal Ehwal Ugama Islam Malaysia, Fatwa Munakahat, pg. 47