A great question was recently submitted about a growing phenomenon. I hope that this is of some benefit to our readers.
As-Salaamu `Alaikum wa Rahmatullah,
Here are the answers to the questions:
1. Does pregnancy before marriage invalidate the marriage?
2. If they are able to marry, can it be during pregnancy or is it after?
3. Will marriage during pregnancy or after affect the validity and rights of the child?
4. Both parties are Muslim and they repented and married but they want to know if their marriage is valid and the rights of their child.
Imam Mustafa ibn Sa`d Ar-Ruhaibani (d. 1243 AH) said the following on this matter:
“It is impermissible for the fornicatress to marry the fornicator or any other man until she repents, based upon the Words of the Exalted One, So the fornicatress is not to marry except a fornicator or an idol worshipper. Surat un-Nur (24), ayah 3. This is a statement that carries the meaning of prohibition. The understanding of this is the following statement from the Exalted One, The chaste women from the believers and the chaste women from the People of the Book. Surat ul-Ma’idah (5), ayah 5.
The people mentioned in the ayah are chaste, virginal women and the Prophet, peace and blessings of Allah be upon him, said on the day of the Battle of Hunain, ‘It is not permitted for any man who believers in Allah and the Last Day that he pour his seed on a crop other than his own.’ This is referring to having sex with pregnant women. This hadith has been collected by Imams Abu Dawud and At-Tirmidhi and he said that the hadith is authentic.
Now if the fornicatress is pregnant from fornication, it is not permitted for her to be married by someone before she gives birth. The reason for this is based upon what was previously mentioned as well as the fact that she must also repent from returning to the fornication. The prohibition remains in place until she has repented as it was narrated in a text that someone said to `Umar ibn Al-Khattab ‘How do we know that she has repented?’ He said in reply to the questioner, ‘Whether or not she returns to the act or abstains. If she is still involved and succumbs to fornication, then she has not repented. However if she abstains from fornication, then she indeed is counted as being penitent.’ Imam Ahmad followed this ruling of `Umar ibn Al-Khattab and it became the primary means he used to judge if someone had repented or not.
It was mentioned by Taqi ud-Din Ibn Taymiyyah that whoever wants to mix with someone in order to check so that he knows that the individual is righteous, sinful or penitent and asks regarding that and this is the position of a body of scholars, such as Muwaffaq ud-Din Ibn Qudamah and others. They state that it is not necessary to check upon someone whether nor not they are looking to commit fornication presently but rather to see if they are truly penitent from what happened previously.
The reason for this is that someone wants to know that the repentance is for herself and not for anyone else. When the fornicatress feels remorse and makes firm determination that she will not return to it, then her repentance is valid. This is as long as she has left that sin of fornication.” Matalib Uwl in-Nuha Sharh Ghayat il-Muntaha, vol.5, pp. 186-187.
Imam Mustafa Ar-Ruhaibani says further, “It has been narrated from Ibn `Umar and Ibn `Abbas that if the woman repents from the fornication and then completes her waiting period, then she may marry the one she had fornicated with like others besides him. It should not be said or spoken of and the woman should not be spied on to look for hidden flaws that are forbidden. Remember the words of the Exalted One, So do not spy. Surat ul-Hujurat (49), ayah 12.” Matalib Uwl in-Nuha Sharh Ghayat il-Muntaha, vol.5, pp. 186-187.
Thus they should not marry until she has had the baby. If it was before, they will need to consecrate the marriage again as per the statement of the Imam mentioned above regarding the validity of marriage and times when it is not valid. Matalib Uwl in-Nuha Sharh Ghayat il-Muntaha, vol.5, pp. 170-187. This covers the prohibited types of marriage and which types are not valid. This type will not be valid until the baby is born as the `iddah (waiting period) has not been completed. Once the child is born and she finishes her nifas (post natal birth bleeding), then they may marry. If they did not do this, they will need to have a nikah done to consecrate the marriage.
Al-Hajj Abu Ja`far Al-Hanbali
brother in Islam