The ruling concerning marrying a fornicatress and attributing the baby to the fornicator

The question:

Can we adopt, in specific cases, the fatwa of the two Imams Abu Hanîfa and Ibn Taymiyya –رحمهما الله  - which says that it is permissible for a fornicatress to marry the man who had illegal sexual intercourse with her, knowing that it is him who got her pregnant and not another man, and that this view contradicts the view of the majority of the scholars ?

The answer:

All praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon whom Allah sent as a mercy to the Worlds, upon his Family, his Companions and his Brothers till the Day of Resurrection.

This question includes two issues:

- The first concerns marrying a fornicatress.

- The second concerns the ruling regarding the attribution of the illegitimate child to the fornicator.

As for the first issue: Ibn Taymiyya, considered repentance as the first condition, following, thus, some Salaf (Predecessors) and Khalaf (Successors). This is also the opinion of Ahmad[1].So, it is forbidden for a man to marry a woman who has committed an illegal sexual intercourse unless she repents, whether it is he who committed fornication with her or another. Allah  said:

﴿الزَّانِي لاَ يَنكِحُ إلاَّ زَانِيَةً أَوْ مُشْرِكَةً وَالزَّانِيَةُ لاَ يَنكِحُهَا إِلاَّ زَانٍ أَوْ مُشْرِكٌ وَحُرِّمَ ذَلِكَ عَلَى الْمُؤْمِنِينَ﴾ [النور : 3].

The meaning of the verse:

﴾The adulterer marries not but an adulteress or a Mushrikah and the adulteress none marries her except an adulterer or a Mushrik [and that means that the man who agrees to marry (have a sexual relation with) a Mushrikah (female polytheist, pagan or idolatress) or a prostitute, then surely he is either an adulterer, or a Mushrik (polytheist, pagan or idolater, etc.) And the woman who agrees to marry (have a sexual relation with) a Mushrik (polytheist, pagan or idolater) or an adulterer, then she is either a prostitute or a Mushrikah (female polytheist, pagan, or idolatress, etc.)]. Such a thing is forbidden to the believers (of Islamic Monotheism)﴿ [An-Nûr (The Light): 3].

And we should no longer attribute fornication to her after repentance, as the Prophet  said: "The one who repents from sin is like the one who did not sin"^[2]. The previous meaning is supported by the saying of the Prophet  : "The adulterer who has been flogged shall not marry save the one like him"^[3]. Ash-Shawkâni said: "There is a proof in this hadith that it is not permissible for a woman to marry a man we know he had fornicated and it is also not permissible for a man to marry a woman we know she had fornicated. This opinion is supported by the previous verse"^[4].

As for the opinion of Abu Hanîfa, Ash-Shâfi`i and Mâlik, they do not consider repentance a condition in order that the marriage might become permissible^[5]. Although, there is in "Al-Mudawwana" what makes us think that there is such condition^[6]; from this appears the divergence of opinions between Ibn Taymiyya and Abu Hanîfa as regards this condition. Moreover, Ibn Taymiyya adds to this condition, the examination of the fornicatress in order to ascertain if her repentance is true. This assertion is supported by Allah's  saying:

﴿إِذَا جَاءكُمُ الْمُؤْمِنَاتُ مُهَاجِرَاتٍ فَامْتَحِنُوهُنَّ﴾ [الممتحنة: 10].

The meaning of the verse:

﴾When believing women come to you as emigrants, examine them﴿ [Al-Mumtahana (The Woman to be examined): 10].

The appellation Muhâjir (emigrant) is also applied to a penitent, and the proof that the term Muhâjir includes the penitent is the saying of the Prophet  : "The true emigrant (Muhâjir) is he who abandons all of what Allah  has forbidden"^[7] and "The true emigrant is he who abandons evil"^[8]. So, as long as the allegation of abandoning evil is existing, it is permissible to examine the person, as the previous verse states.

The second condition made by Ibn Taymiyya is to establish that the woman is not pregnant by waiting one menstrual cycle. Whereas the pregnant woman should wait until she gives birth. This is the opinion of Mâlik and Ahmad[9], contrarily to Abu Hanîfa who thinks that it is permissible to conclude the marriage contract if she is pregnant before childbirth. It is also the view of Muhammad Ibn Al-Hassan Ash-Shaybâni, contrarily to the view of Abu Yûssuf[10]. Starting from this condition and that before, the difference between the view of Abu Hanîfa and Ibn Taymiyya becomes evident. As for Ash-Shâfi`i, he considers the marriage contract and coitus absolutely permissible, since the semen of the fornicator is not valued[11]. It is evident that Ash-Shâfi`i's mental opinion and that before (of Abu Hanîfa) are weak if we consider the reported texts in the context of this condition which is Al-Istibrâ'[12]. Among these texts, the saying of the Prophet  : "Do not have intercourse with a pregnant woman until she gives birth, or with one who is not pregnant until she has menstruated once"[13] and the Prophet's  saying: "It is not lawful for a man who believes in Allah and the Last Day to water what another has sown with his water (meaning intercourse with women who are pregnant); it is not lawful for a man who believes in Allah and the Last Day to have intercourse with a captive woman till she is free from a menstrual course or she gives birth"[14] and the Prophet's  saying: "Do not have intercourse with a pregnant woman until she gives birth nor with a non pregnant until she is free from a menstrual cycle"[15].

As for the second issue, concerning the ruling of attributing an illegitimate child to the fornicator, there is an evident conformity between Abu Hanîfa and Ibn Taymiyya as regards the outcome and the ruling. In fact, Abu Hanîfa thinks that there is no harm if the fornicator marries the woman he got pregnant during her pregnancy and not divulge her act, and the child is his. The opinion of Ibn Taymiyya converges also at this ruling; if a man attributes the illegitimate child to himself and the woman is not the wife or the slave-woman of another man, the child will be attributed to him[16]. However, the difference between their statements (i.e. Abu Hanîfa and Ibn Taymiyya) is what has been previously said in the second condition of the first issue, namely, setting the condition of giving birth for the pregnant woman and waiting one menstrual cycle for a nonpregnant; contrarily to Abu Hanîfa. Besides, this opinion of attributing the child to the fornicator is not limited to these two Imams; it is also the opinion of Ishâq Ibn Râhawayh, Sulaymân Ibn Al-Yassâr, Ibn Sîrîn, Al-Hassan Al-Basri, Ibrâhîm An-Nakha`i and others. This opinion is opposed by the majority of the scholars and among them the three Imams who consider that the illegitimate child should not be attributed to the fornicator if he claims him, whether the woman who gave birth to the child is married (or she is a slave-woman) or not[17].

The reason of divergence among scholars as regards this issue is due to their interpretation of the hadith:"The child goes to the (owner of the) bed[18], and the fornicator gets nothing but deprivation (lit., stones)"[19]. In fact, Ibn Taymiyya – رحمه الله - thinks that the ruling included in this hadith concerns only the woman who is the wife of another man (other than the fornicator). Thus, the child will be attributed to the husband or master of the adulteress, unless he denies it by Al-Li`ân[20], and the stone (deprivation) will be for the fornicator[21], that is to say, the fornicator will receive nothing but disappointment[22]; this meaning is not included in the hadith if the woman is neither married nor a slave (lit.,if the woman is not a bed). The woman is precisely called a bed  conventionally and  by linguists after the consummation of the marriage; that is why Ibn Taymiyya thinks that the woman is considered a bed after the ascertainment of consummating the marriage and not only by concluding its contract, contrarily to Abu Hanîfa –رحمه الله-. Consequently, we do not attribute the child to the fornicator if the woman has not yet consummated the marriage with her husband. If the woman is not married, she is not considered a bed and is not concerned thus by the ruling of this hadith, and if she commits an illegal sexual relationship and gives birth to a child, the child will be attributed to his father if he claims it. It is previously said that the majority of the scholars think that the child should not be attributed to the fornicator, whether the child is given birth by a married woman (or a slave-woman) or an unmarried one (or not a slave-woman), and this according to their interpretation of the hadith. Apparently, the occasion of the hadith goes, in its context and content, with the distinction made by Sheikh Al-Islâm (Ibn Taymiyya), because the Prophet  judged in the story of Zam`a Ibn Al-Aswad's slave, who was impregnated by `Utba Ibn Abi Waqqâs as follows: Sa`d and `Abd Ibn Zam`a argued about the child, so Sa`d said: "This is the son of my brother `Utba who authorized me to take him into my custody. He said that the child is his son. `Abd Ibn Zam'a said, "He is my brother, the son of my father's slave-woman and he was born on his bed. Allah's Apostle  said: "It is for you, O `Abd Ibn Zam`a, the child goes to the (owner of the) bed[23], and the fornicator gets nothing but deprivation (lit., stones). Screen yourself from him O Sauda"[24]. So, the Prophet  decided that the child will go to the one who owns the slave-woman and not another, despite the clear resemblance to `Utba. This indicates that this hadith is specific to the case in which the woman is one's wife or slave-woman, and the ruling of this hadith does not concern a woman who is not one's wife or slave-woman.

Ibn Taymiyya supports the view of attributing the fornicator's illegitimate child to him if the woman with whom he had a sexual intercourse is not his wife or slave-woman by what was reported by Mâlik in "Al-Muatta' " that `Umar Ibn Al-Khattâb  used to attribute the children born during the Pre-Islamic period (Al-Jâhiliya) to those who claimed them during the Islamic period[25]. It means that he attributed the children to them, though they are illegitimate children. Indeed, `Îssa reported from Ibn Al-Qâssim that some people who embraced Islam attributed illegitimate children to themselves. If they are free and none claims them to be his, they are considered theirs. `Umar Ibn Al-Khattâb attributed the illegitimate children born in the period of Al-Jâhiliya to those who claimed them during the period of Islam unless the master of the slave-woman who gave birth to the child or the husband of the free woman claim them, since the Prophet  said: "The child goes to the (owner of the) bed, and the fornicator gets nothing but deprivation (lit., stones)". So, the husband or the master of the woman or the slave are more entitled to attribute the child to them[26].

If it turns out, with  proofs, that one of these two opinions is more likely to be correct, it will be obligatory for the observer or the Mujtahid (studious jurist) to issue fatwas accordingly. He should issue fatwas according to what he is convinced of absolutely, in all cases, and should not issue a fatwa which goes against what he thinks in some cases, as there is a scholarly consensus that a Mujtahid or someone on which the same rulings are applied, like Al-Mujtahid Al-Mutajazzi' (partial Mujtahid) should follow what his Ijtihâd (juristic effort) led him to and issue fatwas according to it. It is not permissible for him to issue fatwas contrarily to what he thinks; unless it turns out for him that what he adopted as opinion was wrong, so, he should change his wrong opinion, choose the correct one and follow the opinions that are supported with proofs. All this of course, if the truth is apparent and corresponding to the Book and the Sunna; in such case, the mufti must follow the truth and issue fatwas according to the true proofs albeit it goes against his school of thought. If the mufti, who has an opinion which is contradicted by another opinion which is right, it is not permissible for him to issue a fatwa that is based upon a less strong opinion. As for the matters of Ijtihâd in which the proofs are equivalent, the mufti may issue a fatwa or not, according to his Ijtihâd and the proofs he has, as Ibn Al-Qayyim -رحمه الله- stated these different categories [27].There is not among these categories that the mufti can issue different fatwas in the same matter according to the cases.

This is my opinion concerning this issue, and the perfect knowledge belongs to Allah. Our last prayer is all praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon our Prophet , his Family, his Companions and Brothers till the Day of Resurrection.

Algiers, Jumâda Al-Ûla 20^th, 1427 H.

Corresponding to: June 16^th,2006.