Nikah with a pregnant adulteress ‘Zaniyah’
A man got a non-Muslim woman (i.e. whom he committed adultery with) to accept Islam, and he then made Nikah to her.
The man is a Muslim. This woman is now pregnant by the same man with whom she has made Nikah.
Is this Nikah permissible (i.e. valid) or not?
Zaid says that even though she has been impregnated by the same man, Nikah with her is still impermissible.
He further says that the Nikah of the witnesses to this Nikah, and all those who were present at the Nikah, has been annulled.
It is in Majmu’a Khaani Vol.2, Page 39
‘It is in Hidaya and Kaafi that if a woman comes to the Darul Islam (i.e. a territory under Islamic Rule), then Iddat is not necessary upon her, even if she became Muslim in a Darul Harb (i.e. a territory not under Islamic Rule).
This is the statement (view) of Imam Abu Hanifa Radiallaho Anhu According to Imam Abu Yusuf and Imam Mohammed, the Iddat (i.e. the prescribed term of waiting due to divorce) is necessary upon her, and there is no Iddat upon that bondswoman who was captured in a battle. All have agreed to this. Istibra (i.e. to wait until her child is born if she is pregnant) is necessary upon her.
If a woman came to the Darul Islam from a Darul Harb, then she cannot make Nikah before the child is born.
In another narration, Imam Saaheb (i.e. Imam Abu Hanifa) stated that, she can make Nikah, but intercourse with her is impermissible before she has weaned the child, just as (Nikah) with a female who is pregnant due to adultery is
permissible, but intercourse with her before the child is born is impermissible.
If from amongst the husband and the wife, one of them becomes a murtad (apostate), they will be separated, but it will not be (regarded as Talaq).
This is the view (i.e. statement) of Imam Azam Abu Hanifa and Imam Abu Yusuf Radiallaho Anhu.
According to Imam Mohammed RadiAllahu Anhu if only the husband
becomes an apostate, then there will be separation and not Talaq.
So, if after the man having become an apostate, he had intercourse with his wife, then the full Mahr is payable.
If after becoming an apostate, he did not have intercourse with her, then the Mahr and maintenance allowance are not necessary (i.e. not payable), on condition that the woman has left his home on her own accord. If she is still in his house, then the maintenance allowance is necessary (i.e. payable).
Regarding a woman who is pregnant by way of adultery
who does not already have a husband, (the ruling is that) both the adulterer and (even) anyone other than the adulterer, may make Nikah to her (i.e. anyone is permitted to make Nikah to her).
The only difference is that the one who is not the adulterer (i.e. not the one who made her pregnant), may not go to her (i.e. be intimate with her), until such time that the baby is born; and if the one who impregnated her makes Nikah to her, he is also permitted to be intimate with her.
It is in Durr e Mukhtar
صح نکاح حبلی من زنا َلحبلی من غيرہ وان رحم وطؤھا ودوا عيہ حتی تضع ولو نکحھا الزانی حل
لہ وطؤھا اتفاقا
‘Nikah is valid with one who is pregnant by way of adultery, even though touching her (i.e. any intimacy) and kissing her etc is Haraam, until such time that the child is not born. This is so that he does not
irrigate the orchard of someone else, as the hair grows from this.
However, if the adulterer himself makes Nikah to her, then it is unanimously agreed that he may be intimate with her.’
(Hence), Zaid’s statement is simply incorrect and his statement that ‘even though she has been impregnated by the same man, Nikah is still impermissible’ is an allegation upon the Shariat.
The correct and established (accepted) view is that, even though she is pregnant by someone else, Nikah with her is still permissible.
His statement about the Nikah of the witnesses and those present being annulled is a further allegation (i.e. it is a false charge).
The text which he presented from Majmu’a Khaani is clearly contrary to this, that;
ارگ وعرت را از زان لمح امدنہ اتس وخانتس اورواتس وزندیکی رکدن رواتسین اتآہکن زنادی
‘If a woman becomes pregnant by way of adultery, then Nikah with her is permissible, but intimacy (consummation) is not permissible, until such time that she does not deliver the baby.’
As for this statement which he quoted from the same that
رحہیب ہک دارااالالسم آدمہ اتس واحہلم ات زنادی اکنح ہن دنک
‘If a Harbi female enters a Darul Islam, then if she is pregnant, she
cannot make Nikah until such time that the child is born’.
This (ruling) is in the case of the pregnant wife of a Harbi kafir who came to a Darul Islam and became a Muslim, and it does not refer to the condition which is due to adultery.
[And Allah Almighty Knows Best]
Name of Book: Fatawa Africa
Author: Aala Hazrat Imam Ahmed Raza Khan
Translator: Muhammad Afthab Cassim Qadiri Razvi Noori