The Ruling on Contracting a Marriage With a Woman Who is Pregnant Due to Illegal Sexual Intercourse

Question :

What is the ruling on contracting a marriage with a woman, a non-virgin who is in the eighth month of pregnancy as a result of illegal sexual intercourse? Is the contract considered to be invalid or incorrect, because two scholars in our community have disputed in this matter, one of them declaring the contract to be invalid, while the other declared it to be correct, although he said that it is forbidden for the one who married her to have sexual intercourse with her until after she delivers her baby?

Answer:

If a man marries a woman who is pregnant as a result of illegal sexual intercourse, his marriage is invalid and it is forbidden for him to have sexual intercourse with her, according to the generality of Allah, Most High's Words:
"And do not consummate the marriage until the term prescribed is fulfilled."

"And for those who are pregnant (whether they are divorced or their husbands are dead), their "Iddah (prescribed period) is until they lay down their burden.

and the generality of the words of the Prophet:
"It is not permissible for a man who believes in Allah and the Last Day to irrigate the crop of another man with his water."

Narrated by Abu Dawud and graded Sahih by At-Tirmithi and Ibn Hibban.

And the generality of the words of the Prophet:
"A pregnant woman should not be engaged in sexual intercourse (with another man) until she delivers."

This was the saying of Malik and Ahmad may Allah be pleased with them both. Abu Hanifah and Ash-Shafi'i (in one narration attributed to him) said that the contract is correct, although Abu Hanifah said that it is forbidden for him to have sexual intercourse with her until she delivers the baby, according to the aforementioned Hadiths. Ash-Shafi'i permitted sexual intercourse with her, because the water (semen) of adultery is not a prevention for him, and the child is not attributed to the adulterer, according to the words of the Prophet:
"and stoning is for the adulterer.

-and likewise his parenthood is not attributed to the man who marries her, because what she has, belongs to his bed after the pregnancy. From this the reason for the difference of opinion between these two Shaikhs is clear, and that each of them has spoken according to the ruling of the Imam whom he follows. However, the correct view is the first, according to the generality of the two Verses and the Hadiths which prove its forbiddance.