A man committed zina with a girl and they wanted to marry them; should they wait for her waiting period from his pregnancy?

The questioner : A man committed zina with a girl, and they did not know about their situation until after a period of time. When they found out, some people suggested they get married. Does he have to wait for the waiting period, given that she is pregnant from him?

The Shaykh : It is known that the waiting period is for the purification of the womb. If it is known with certainty that this child is from him, there is no need for a waiting period.

The questioner : In one view of some scholars, since that child is a product of zina, it is not permissible for us to mix what Allah has made lawful with what He has forbidden. The first point is that this child came from something forbidden, and now she has become his wife through what is lawful.

The Shaykh : That is correct, but the biggest problem that your question reminded me of is: what are they planning to do with this child?

The questioner : They want to raise both of them... Well, Professor, what is the solution if they do not marry them according to the Shari'ah? The woman is a fornicator.

The Shaykh : Of course...

The questioner : Meaning, with this marriage, he is forced to live with them, or is there another solution?

The Shaykh : I do not know of a solution for this. What is forbidden is forbidden, and a child of zina is a child of zina. The solutions they have come up with are due to the neglect of applying the rulings of the Shari'ah. Everyone... marries the woman to the man, and the problem is over.

The questioner : Even, Professor, this problem has something that makes one more affected: the girl is engaged to her cousin, the girl who did this... and the young man who committed this act is engaged to his cousin.

The Shaykh : There is no power or might except with Allah. I seek refuge in Allah.

The questioner : Is it authentic from Abu Bakr or 'Umar in this matter that he married... after establishing the hadd of zina upon him?

The Shaykh : I have no knowledge...

The questioner : ...from Abu Bakr or 'Umar, and I strongly suspect that Abu Bakr (may Allah be pleased with him) established the hadd upon them and then married them to each other.

The Shaykh : Well, this problem is easy, but what about the pregnancy?

The questioner : No, there is no pregnancy.

The Shaykh : The problem is the existence of the pregnancy.

The questioner : Well, in this case, Professor, what is the position of the first husband according to the Shari'ah? He is the first fiancé, her fiancé.

The Shaykh : Has the marriage contract been written?

The questioner : The marriage contract has been written for her, under the responsibility of another man. What is required of her according to the Shari'ah?

The Shaykh : What is required of the fornicator?

The questioner : No, the fiancé.

The Shaykh : The fiancé, and he knows?

The questioner : He knows, and I went to his house. I went to them to resolve the issue, but I have not reached a solution until now. It is a big problem.

The Shaykh : He naturally does not want to marry her, because a fornicator does not marry except a fornicator or a polytheist. And if she has a mahr, it is returned.

The questioner : He is her cousin, which makes him like her father's brother.

The Shaykh : That is not important; it does not advance or delay anything.

The questioner : And there is another thing. I felt from the family, despite their good religious inclination, that they want to get her out of prison, because she is currently in prison, and the young man as well. They want to get them out by marrying her to her cousin and then killing her. That is what I inferred from their words and actions. So I took the eldest among them, in whom I felt righteousness, and I took him outside and said to him: "You must fear Allah regarding this girl. She has made a mistake, so you do not treat a mistake with another mistake. Look for a solution other than killing." He said, "We do not want to kill her." I said to him, "But I see the young men are enthusiastic about this."

The Shaykh : I seek refuge in Allah. It is a disaster. They are the cause of the problem, and then they want to eliminate it with another problem. They were negligent in raising the girls, negligent in eliminating free mixing. Yes, there is nothing strange about this; this is her cousin, this is our relative, this is so and so, until the incident happens. When the incident happens, "Oh, for the sake of Allah, we want to kill, we want to die, we want..."

The questioner : One has honor, and then if they marry her, Shaykh, it is forbidden for them... My teacher, some people said that in such matters, and in the context of blocking the means to harm and teaching the sinful girls and young men, that they should not commit this act and should rely on the fact that the solution is marriage. Perhaps the young man is poor and cannot afford the mahr of a woman of high status, for example. So he breaks the engagement without his right, then fixes it and marries her. Some people say, even in the context of blocking the means to harm and instilling fear, that we permit her family to kill this girl so that others may be afraid. Does this statement have any basis in truth?

The Shaykh : I seek refuge in Allah

The questioner : I heard that Imam al-Shafi'i said, "I would kill him with her."

The Shaykh : Yes, transgressing the limits of Allah; this is the statement of al-Shafi'i and its basis...

The questioner : Our Shaykh, this is different from a husband who sees a man with his wife and kills her...

The Shaykh : Who said that this is permissible?

The questioner : It is permissible in the state of a man's agitation when he sees his wife in this state.

The Shaykh : But in the hadith, did he permit it?

The questioner : ...

The Shaykh : In your case, you need to look into another situation.

The questioner : He was killed.

The Shaykh : And then you need to distinguish between one who is not permitted to be killed because she is a virgin, and one who is permitted to be killed because she is a married woman whose husband is jealous. There is a great difference between the two matters.

The questioner : What is derived from the hadith, our Shaykh? Is it about their jealousy...?

The Shaykh : It is derived from it that Allah has legislated killing because Allah is jealous, and indeed Sa'd is jealous, and indeed Allah is more jealous than Sa'd. And for that reason, He has forbidden the open sins.

The questioner : Meaning, we benefit from this hadith that you should be patient, for Allah is more jealous and He will establish the hadd upon her.

The Shaykh : Meaning, there is no doubt that the one who kills his wife and sees her in a state of open sin, and is overcome by jealousy, is not like the one who kills another man's woman, for example. There is a difference, but that does not mean it is permissible to do so. It is not permissible to kill except after bringing the four witnesses, and this is very rare.

The questioner : My teacher, so here, the marriage contract does not allow the ruler to establish the hadd except after consummation. Meaning, if a girl is engaged and her husband has not yet consummated the marriage, and she commits zina, the hadd is not established upon her by stoning; rather, she is flogged. And the same applies to the husband. But if another man has consummated the marriage, it is over.