Ruling on marrying a woman pregnant from Zina Fatwa No: 213442
- Fatwa Date:9-8-2013
my daughter committed zina and she is pregnant by another muslim who is her step brother. i took the position based on the fatawa by the permanent committee in saudi arabia that they can't get married until after the child is born. her step father is saying that sheikh uthaymeen has a position that it is permissible to get married before the child is born. can you answer this for me and direct me to the proofs and evidences from sheikh uthaymeen that it is permissible to get married before the child is born. if there is another position, should i marry them now before the child is born or should i stick with my first position and not allow them to marry until after the child is born?
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger. The early jurists differed in opinion regarding this issue. The Maaliki, Hanbali scholars and Abu Yusuf from the Hanafi school of jurisprudence said: “It is not permissible to marry her (i.e. the pregnant woman) before she gives birth to the child, as the Prophet, sallallaahu ‘alayhi wa sallam, said: “One should not have sexual intercourse with a pregnant woman until she gives birth to the child.” [Abu Daawood and Al-Haakim who graded it as Saheeh (sound)] Besides, Sa’eed ibn Al-Musayyib reported that a man married a woman and when he had sexual intercourse with her, he found out that she was pregnant, so he took the case to the Prophet, sallallaahu ‘alayhi wa sallam, and the Prophet, sallallaahu ‘alayhi wa sallam, separated between them. On the other hand, the Shaafi’i and Hanafi scholars are of the view that it is permissible to marry a woman who is pregnant from Zina (i.e. unlawful sexual intercourse) because the sperm of Zina has no sanctity. Their evidence is that the family lineage is not confirmed with it as the Prophet, sallallaahu ‘alayhi wa sallam, said: “The child is for (i.e. attributed to) the owner of the bed (legitimate husband) and the stone is for the person who commits Zina.” [Al-Bukhari and Muslim] We did not find any opinion for Shaykh Ibn ‘Uthaymeen indicating that the fornicator is allowed to marry the fornicatoress before making sure that she is not pregnant; rather, he said in Ash-Sharh Al-Mumti‘: “The words of the author indicate that it is not allowed for the fornicator or anyone else to marry her as long as she is in her waiting period (from Zina), even if she has repented. This is the opinion adopted by the majority of scholars. That is because the child from Zina is not attributed to the fornicator whether he asked for attributing it to him or not.” Thus, he did not mention what goes against that opinion. Based on this, the opinion of preventing marrying the woman who is pregnant from Zina has stronger proof and guarantees being in the safe side. So, our opinion is that you should insist on not marrying her off until she gives birth to her child.
Finally, please note that it is obligatory to avoid the causes that lead to committing Zina. Amongst those causes is that men enter upon women without observing the Islamic guidelines such as covering, Hijab and not being in seclusion with them and the like.
Allaah Knows best.