Thread by @sirnucy

Pregnant Before Marriage

1. A couple of weeks ago, an Imām called me & asked, "Ustādh, is it Harām to do wedding for a pregnant lady?" This question, though appears to be simple is a tricky one. It is simple because the answer to it is a straightforward YES.

2. It's however tricky given the ignorance, nay misconception of "Marriage" by a lot of Muslims in the contemporary time. In several of my articles on marriage, for example "Introduction without 'Aqd: A legalization of Fornication" & " 'Aqd and Walīmatu n-Nikāh in perspective",

3. I explained that the real Nikāh recognized by the Sharī'ah is the 'Aqd (expression of consent by the waliyy of a lady). Once such consent is sought and given, the prospective couple have now been legally married and can mutually enjoy each other sexually and otherwise.

4. Whatever arises from such affair is legitimate in the view of the Sharī'ah. This is why parents must understand the implications of their consent to marriage proposals, & make adequate findings about the religiosity & character of the suitor before accepting his proposal.

5. Today, what the local Alfas & Imāms consider as Nikāh is the public formality to which they are usually invited to officiate. This is what the average Muslim also thinks is the 'Majlis al-'aqd', & it's ONLY from this day that many begin to see the couple as legitimate spouses.

6. For this, it's important that such gatherings be strictly for feasting & nothing more. There's no need for asking questions as to whether or not the couples should be 'tied together' and all the attendant extortion. A mere announcement to inform the gathering will suffice.

7. This is why it was a bit complicated for me to give an instant response without first trying to know whether or not consent has been given earlier by the lady's waliyy. For if such consent has been given earlier, there's nothing stopping the wedding ceremony from taking place.

8. The pregnancy came into being after the 'aqd and not before it. As such, the child is a legitimate one. If, however, a lady got pregnant before the 'aqd was done, then, such child is illegitimate & both the adulterer & the adulteress shall be lashed 100 times respectively.

9. The man shall receive his punishment immediately without delay, while the lady's punishment shall be postponed till after childbirth and weaning. Ibn al-Qayyim rahimahuLlaah said:

وَتَأْخِيرُ الْحَدِّ لِعَارِضٍ : أَمْرٌ وَرَدَتْ بِهِ الشَّرِيعَةُ، كَمَا يُؤَخَّرُ عَنْ :

10.الْحَامِلِ ، وَالْمُرْضِعِ ، وَعَنْ وَقْتِ الْحَرِّ وَالْبَرْدِ ، وَالْمَرَضِ" إعلام الموقعين "(3/ 14)

"Delaying the punishment for a certain condition is something that the Sharī'ah acknowledges. Such as the case of the pregnant & breastfeeding woman, as well as due

11. to (extreme) heat, or cold or due to illness."

The basis for this is a hadīth narrated by Muslim on the authority of Sulaimān bn Buraidah from his father that a pregnant woman from the Ghāmidī tribe came to the Prophet to confess that her pregnancy was a product of Zinā.

12. The Prophet did not Punish her until after she was delivered of her child. An-Nawawī rahimahuLlāh said regarding the hadīth:

" فِيهِ أَنَّهُ لَا تُرْجَمُ الْحُبْلَى حَتَّى تَضَعَ ، سَوَاءٌ كَانَ حَمْلُهَا مِنْ زِنًا أَوْ غَيْرِهِ ، وَهَذَا مُجْمَعٌ عَلَيْهِ لِئَلَّا يُقْتَلَ

13. جَنِينُهَا ، وَكَذَا لَوْ كَانَ حَدُّهَا الْجَلْدَ وَهِيَ حَامِلٌ لَمْ تُجْلَدْ بِالْإِجْمَاعِ حَتَّى تَضَعَ "

" شرح صحيح مسلم " (11/34

In the hadīth is an indication that the pregnant woman shall not be stoned to death until she has been delivered of her child, whether

14. her pregnancy is a product of Zinā or not. This is agreed upon by consensus so as to protect the fetus. Also, if her punishment were 100 lashes, the consensus is that she shall not be lashed until after childbirth."

15. Ibn Qudaamah added:

"وَلَا يُقَامُ الْحَدُّ عَلَى حَامِلٍ حَتَّى تَضَعَ ، سَوَاءٌ كَانَ الْحَمْلُ مِنْ زِنًى أَوْ غَيْرِهِ ، لَا نَعْلَمُ فِي هَذَا خِلَافًا ... وَلِأَنَّ فِي إقَامَةِ الْحَدِّ عَلَيْهَا فِي حَالِ حَمْلِهَا إتْلَافًا لَمَعْصُومٍ ، وَلَا سَبِيلَ إلَيْهِ ،

16. وَسَوَاءٌ كَانَ الْحَدُّ رَجْمًا أَوْ غَيْرَهُ ، لِأَنَّهُ لَا يُؤْمَنُ تَلَفُ الْوَلَدِ مِنْ سِرَايَةِ الضَّرْبِ وَالْقَطْعِ ، وَرُبَّمَا سَرَى إلَى نَفْسِ الْمَضْرُوبِ وَالْمَقْطُوعِ ، فَيَفُوتُ الْوَلَدُ بِفَوَاتِهِ

المغني (12/32

"The hadd punishment shall not be

17. carried out on the pregnant woman until after she has been delivered of her child, whether or not the pregnancy is a product of Zinaya. We do not know of any disagreement on this matter. The reason is that, carrying out the punishment on her in that state is tantamount to

18. wasting the life of the fetus... Because it's possible that the fetus be injured as a result of the beating just as it's possible that it causes the death of the mother, thereby resulting in the death of the fetus."

19. So, after punishment has been meted out to them, they can be married together but the child resulting from such pregnancy cannot be legally attributed to him. The scholars have expressed divergent views as to whether or not the Nikāh should be conducted before childbirth.

20. The most appropriate opinion is that it should be delayed till after childbirth, because he's entitled to enjoy her sexually and the Prophet said, : لا توطأ حامل حتى تضع "A pregnant woman should not be consummated until after her she's delivered."

21. As to whether or not it's allowed to do 'aqd over a subsisting pregnancy (whether the husband is/is not the owner of the pregnancy), then, this is not allowed and such 'aqd is void. Shaykh bn Baaz, rahimahuLlaah said:

وأما العقد على المرأة الزانية وهي حبلى فهذا عقد

22. باطل ولا يجوز أن يعقد عليها وهي حامل، بل يجب انتظارها حتى تستبرأ بحيضة مع التوبة، لابد أن تتوب من عملها السيئ وإلا فلا يجوز نكاحها؛ لقول الله تعالى: الزَّانِي لا يَنكِحُ إلَّا زَانِيَةً أَوْ مُشْرِكَةً وَالزَّانِيَةُ لا يَنكِحُهَا إِلَّا زَانٍ أَوْ مُشْرِكٌ وَحُرِّمَ ذَلِكَ

23. عَلَى الْمُؤْمِنِينَ [النور:3
(binbaz.org.sa/fatwas/8028/حكم-عقد-النكاح-على-امراة-حبلى-من-الزنا)

"Performing the 'aqd for a woman that was pregnant as a result of Zinā is void & impermissible. It's obligatory to delay the 'aqd until she's free from pregnancy by way of

24. menstruation & sincere repentance. She must repent from her evil way, otherwise marrying her is not allowed. Allāh says, "The fornicator shall not marry any but a fornicatoress or a mushrik, & likewise to a fornicatoress...such marriages are forbidden to the believers."