When a man marries a woman who is pregnant from Zina, this marriage is invalid (batil), and in this state, it is forbidden (haram) for him to have intercourse with her. This is required by the general meaning of the Almighty’s words:
﴿وَلا تَعزِموا عُقدَةَ النِّكاحِ حَتّىٰ يَبلُغَ الكِتـٰبُ أَجَلَهُ…٢٣٥﴾… سورة البقرة
"And do not determine to undertake a marriage contract until the decreed period reaches its end." (Surah Al-Baqarah, 2:235)
Also, the Almighty says:
﴿وَأُولـٰتُ الأَحمالِ أَجَلُهُنَّ أَن يَضَعنَ حَملَهُنَّ…٤﴾… سورة الطلاق
"And for those who are pregnant, their term is until they give birth." (Surah At-Talaq, 65:4)
This is also required by the general meaning of the Prophet’s ﷺ saying:
((لا يحل لأمرىء بالله واليوم الآخر أن يسقي ماءه زرع غيره ))
(Sunan Abi Dawood)
“It is not lawful for a man who believes in Allah and the Last Day to water the crop of another with his water.”
And also the general meaning of the following prophetic saying:
((لا تبؤطا حامل حتى تضع ))
(Sunan Abi Dawood)
“A pregnant woman is not to be had intercourse with until she gives birth.”
(See: Fatawa Islamiyah / Volume: 3 / Page: 171)
If the man wishes to marry that woman, it is necessary to perform istibra al-rahm (confirming the womb is empty) with one menstrual cycle before the marriage. If it is known that she is pregnant, the marriage is not permissible before childbirth because it is in a hadith that the Prophet ﷺ forbade “a man to water the crop of another.”
(See: Fatawa Islamiyah / Volume: 3 / Page: 276)
If Allah conceals someone’s sin and it does not come before the judge, then they should also conceal their sin and repent sincerely to Allah. This is so that on the Day of Judgment, when all cases are brought before Allah’s court for perfect justice and every sin is examined, this person may be saved from the punishment of Hell.
(See: Fatwa Committee, https://urdufatwa.com/view/1/9830/%D8%B2%D9%86%D8%A7)
The marriage of the fornicator (zani) to the fornicatress (zaniyah) will not be considered an expiation. The expiation for Zina is one of two things: either the prescribed punishment (Hadd) is carried out on him if the matter reaches the ruler of the time, or he repents to Allah Almighty for this crime, corrects his actions, and stays away from places of temptation and immorality.
As for marriage, the marriage of this fornicating man and woman to each other is forbidden (haram), because Allah Almighty says:
﴿الزّانى لا يَنكِحُ إِلّا زانِيَةً أَو مُشرِكَةً وَالزّانِيَةُ لا يَنكِحُها إِلّا زانٍ أَو مُشرِكٌ ۚ وَحُرِّمَ ذٰلِكَ عَلَى المُؤمِنينَ ﴿٣﴾… سورة النور
"The fornicator does not marry except a fornicatress or a polytheist, and a fornicatress is not married except by a fornicator or a polytheist. And that has been made unlawful to the believers." (Surah An-Nur, 24:3)
However, if both of them make sincere repentance to Allah Almighty, express remorse for what happened, and do good deeds, then there is no harm in them marrying each other.
(See: Fatawa Islamiyah / Volume: 3 / Page: 404)
The child born as a result of Zina will be attributed to its mother. It is not attributed to its father because this is the requirement of the general meaning of the following saying of the Prophet ﷺ:
«الولد للفراش وللهاهر الحجر»
(Sahih al-Bukhari)
“The child is for the owner of the bed, and for the adulterer is the stone.”
‘Aahir’ means the adulterer. The meaning of the hadith is that the child will not be his, even if he marries the woman after repenting. This is because the child created from the fluid of Zina before marriage will not be his, nor will he be his heir, even if he claims that he is his son, because he is not his legitimate (shar’i) son.
(See: Fatawa Islamiyah / Volume: 3 / Page: 404)
An illegitimate child will not be sinful for the illicit act and crime of his parents, because it is not his action. Therefore, the sin is upon his parents. The Almighty says:
﴿لَها ما كَسَبَت وَعَلَيها مَا اكتَسَبَت…﴿٢٨٦﴾… سورةالبقرة
"She will get the reward for that (good) which she has earned, and she will be punished for that (evil) which she has earned." (Surah Al-Baqarah, 2:286)
And He said:
﴿وَلا تَزِرُ وازِرَةٌ وِزرَ أُخرىٰ… ﴿١٦٤﴾… سورةالانعام
"And no bearer of burdens will bear the burden of another." (Surah Al-An'am, 6:164)
Therefore, the case of an illegitimate child is like that of other human beings. If he obeys Allah, does good deeds, and dies upon Islam, he will enter Paradise. If he disobeys Allah and dies upon disbelief, he will end up in Hell. And if he does a mix of good and bad deeds and dies as a Muslim, his affair is with Allah: if He wills, He may forgive him, and if He wills, He may punish him, and then he will eventually enter Paradise through the grace and mercy of Allah Almighty. The hadith which states, “A child born of Zina will not enter Paradise,” is fabricated (Mawdu’).
(See: Fatawa Islamiyah / Volume: 4 / Page: 544)
In a hadith narrated from Hazrat Abu Huraira, the Messenger of Allah ﷺ said:
«ولد الزنا شر الثلاثة»
(Sunan Abi Dawood, Al-‘Itq, Bab fi ‘itq walad al-zina, Hadith: 3963 & Musnad Ahmad: 2/311)
“The child of Zina is the worst of the three.”
Some scholars have said that its meaning is that he is the worst of the three in terms of origin, element, lineage, and birth, because he is created from the fluid of a fornicating man and woman, and this is impure and vile fluid. Since the morals of the parents affect the children, it is possible that this vileness may also affect him and incite him to evil.
Allah Almighty, while negating evil from Sayyidah Maryam, said:
﴿ما كانَ أَبوكِ امرَأَ سَوءٍ وَما كانَت أُمُّكِ بَغِيًّا ﴿٢٨﴾… سورةمريم
"Your father was not a man of evil, nor was your mother unchaste." (Surah Maryam, 19:28)
Despite this, he will not be held accountable for the sin of his parents, because the Almighty says:
﴿وَلا تَزِرُ وازِرَةٌ وِزرَ أُخرىٰ…١٦٤﴾… سورة الانعام
"And no bearer of burdens will bear the burden of another." (Surah Al-An'am, 6:164)
In any case, the sin of Zina and its punishment in this world and the Hereafter are for his parents. Yes, there is a fear that this illicit act may affect his morals and character, causing him to also fall into vileness and sin, but this is not a fixed rule. It is also possible that Allah Almighty may make him righteous, and he may become a scholar and a pious person, proving to be the best of the three.
(See: Fatawa Islamiyah / Volume: 4 / Page: 142)
Zina is an extremely heinous sin, and it is not befitting for any Muslim to be involved in it. But Allah Almighty is very Forgiving and Merciful. If a servant repents with sincerity, Allah Almighty surely accepts his repentance and is very pleased with it.
The method of repentance is to pray two rak’ats of salah, weep and beg for forgiveness from Allah for your sin, and at the same time, promise Allah Almighty that you will not commit this sin again. May Allah Almighty purify your thoughts and forgive you for this sin. Ameen.
(See: Fatwa Committee, https://urdufatwa.com/view/1/13961/%D8%B2%D9%86%D8%A7)
If the person is a Muslim, the marriage is valid. He bears no burden for the sin of his mother and the one who committed Zina with her, because Allah Almighty says:
﴿وَلا تَزِرُ وازِرَةٌ وِزرَ أُخرىٰ … ﴿١٦٤﴾…لأنعام
"And no bearer of burdens will bear the burden of another." (Surah Al-An'am, 6:164)
This is also because he bears no shame for their actions as long as he himself is steadfast in the religion of Allah and possesses good and praiseworthy morals.
(Shaykh Ibn Baz)
(See: Fatawa Nikah wa Talaq / Silsilah Fatawa ‘Arab ‘Ulama 4 / Page: 158)
The innocent child to be born will not be slaughtered for the sin of another.
And then Allah, the Glorified and Exalted, also says:
"No one shall bear the burden of another." (Al-Isra, 15)
It is also known that the Prophet ﷺ sent back the woman from the Ghamid tribe who was pregnant from Zina, telling her to come after giving birth. When she came after giving birth, the Prophet ﷺ sent her back again, telling her to breastfeed the child until he could eat and drink and was weaned.
When she came for the third time, the child had a piece of bread in his hand. At that time, the Prophet ﷺ entrusted the child to a companion and then ordered her to be stoned. A pit was dug up to her chest, and he ordered the people to stone her.
(See: Ahkam al-Janin fi al-Fiqh al-Islami by Omar bin Muhammad bin Ibrahim Ghanim)
In this state, the child will also lose the guardianship of the parents, and he will have no guardian. This is because in Shariah, the term ‘father’ applies to one whose child is born from a valid and lawful marriage with a woman. This is also the meaning of the Prophet’s ﷺ saying:
The Prophet’s ﷺ saying is:
“The child belongs to the one on whose bed it was born, and for the adulterer is the stone.”
(Sahih al-Bukhari & Sahih Muslim)
So, in this situation, the guardian of this child will be the ruler, because whoever has no guardian, the ruler is his guardian.
(See: Ahkam al-Janin fi al-Fiqh al-Islami by Omar bin Muhammad bin Ibrahim Ghanim)
A child of Zina cannot inherit from the fornicator because, according to Shariah, the child of Zina is not the child of the fornicator. Similarly, the mother of the child of Zina—that is, the woman with whom the fornicator committed Zina and from whom a son was born—also cannot inherit from the fornicator because, according to Shariah, she is not the wife of the fornicator.
“عن عائشه رضي الله تعاليٰ عنه قالت قال النبي صلى الله عليه وسلم الولد للفراش وللعاهر الحجر”
(Sahih Al-Bukhari, Hadith No. 1948; Sahih Muslim, Hadith No. 1457)
“Aisha (may Allah be pleased with her) narrated that the Prophet ﷺ said: ‘The child belongs to the one on whose bed it was born, and for the adulterer is the stone.'”
(Written by: Muhammad Abdullah (Mahr Madrasah))
(See: Majmu’ah Fatawa Abdullah Ghazipuri / Kitab al-Fara’id / Page: 743)
Scholars have distinguished between two situations:
Regarding the first case, abortion is entirely impermissible. It is like the innocent baby girl whom some Arabs in the era of ignorance used to bury alive, about whom the Quran said:
﴿ وَإِذَا المَوءۥدَةُ سُئِلَت ﴿٨﴾ بِأَىِّ ذَنبٍ قُتِلَت ﴿٩﴾… سورةالتكوير
"And when the female infant buried alive is asked, for what sin she was killed?" (Surah At-Takwir, 81:8-9)
…unless the pregnancy has become so complicated due to the child that the mother’s life is in danger. As for the second case, aborting such a fetus in normal circumstances is also impermissible. Ibn Hazm writes: “A fetus in which some limbs have formed is like a complete fetus.” If someone causes such a woman to miscarry due to a beating, the same diyah (blood money) will be obligatory on him as is imposed for the miscarriage of a complete fetus, which is to free a male or female slave.
However, if there is a valid reason for abortion during this period, then abortion can be performed.
(See: Fatawa Sirat-e-Mustaqeem / Miscellaneous Issues / Page: 420)
A man who sees his wife committing an illicit act and still stays with her is a dayyuth (cuckold). Allah Almighty says:
﴿الزّانى لا يَنكِحُ إِلّا زانِيَةً أَو مُشرِكَةً وَالزّانِيَةُ لا يَنكِحُها إِلّا زانٍ أَو مُشرِكٌ وَحُرِّمَ ذٰلِكَ عَلَى المُؤمِنينَ ﴿٣﴾… سورة النور
"The fornicator does not marry except a fornicatress or a polytheist, and a fornicatress is not married except by a fornicator or a polytheist. And that has been made unlawful to the believers." (Surah An-Nur, 24:3)
But if the woman repents, then one who repents from a sin is like one who has not sinned.
If this woman repents and remains steadfast in her repentance with complete sincerity, it is better for the man to conceal her fault and forgive her. But if the woman repeats such an act, then he should divorce her and separate from her.
(See: Fatawa Sirat-e-Mustaqeem / Issues of Marriage and Divorce / Page: 383)
Such a person is not fit for imamate. He should be removed from this position immediately. In Sunan Abu Dawood, there is a hadith: A man, while leading people in prayer, spat towards the qibla. The Messenger of Allah ﷺ was watching. When he finished the prayer, the Prophet ﷺ said: “This person should not lead you in prayer again.” After this incident, when that person wanted to lead them in prayer again, they stopped him and told him the command of the Messenger of Allah ﷺ. He went to the Messenger of Allah ﷺ and related the matter, and the Prophet ﷺ said: “Yes.” The narrator, Sa’ib bin Khallad, says that he thinks the Prophet ﷺ also told him, “Indeed, you have harmed Allah and His Messenger.”
(Sunan Abi Dawood, Bab fi Karahiyat al-Buzaq fi al-Masjid, Hadith: 481)
Abu Dawood and Mundhiri were silent about this hadith.
When a person was removed from imamate for such a small matter, a person who commits a major sin, a fornicator, should be removed from imamate immediately. It is in Sahih al-Bukhari that the second Caliph, Umar ibn al-Khattab (may Allah be pleased with him), removed Sa’d ibn Abi Waqqas (may Allah be pleased with him) from the imamate and governorship of Kufa due to an unjust complaint (without a complaint) from the people of Kufa, out of fear of turmoil and corruption, or out of consideration for the people.
(Sahih Al-Bukhari, Bab Wujub al-Qira’ah lil-Imam wal-Ma’mum fi al-Salawat Kulliha, …etc., Hadith: 755)
(See: Fatawa Hafiz Thanaullah Madani / Kitab al-Salat / Page: 374)
It is not permissible to accuse chaste women of Zina. The proof of Zina is established only when four men testify that they have seen the very act of Zina, and they have seen the male organ enter the female organ. Or, the proof of Zina is established by the confession of the fornicating woman or man, and this confession must be without any coercion or force.
Anything other than this is considered slander against a Muslim woman, and its punishment is eighty lashes.
Allah Almighty says:
"And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient." (An-Nur, 4)
Abu Huraira and Zayd ibn Khalid al-Juhani (may Allah be pleased with them) narrated that the Messenger of Allah ﷺ said:
“(O Unais, go to this woman, and if she confesses, then stone her.) The narrator said: He went to the woman, and she confessed. So, the Prophet ﷺ ordered her to be stoned, and she was stoned.”
(Sahih al-Bukhari, Hadith No. 2575; Sahih Muslim, Hadith No. 1698)
Allah Almighty has prescribed a specific punishment for the fornicating man and woman. If the fornicating man and woman are married, they will be stoned (rajm). And if they are unmarried, they will be flogged with one hundred lashes.
Allah, the Glorified and Exalted, says:
"The [unmarried] woman or [unmarried] man found guilty of sexual intercourse - lash each one of them with a hundred lashes. And let not pity for them prevent you from [carrying out] the religion of Allah, if you should believe in Allah and the Last Day. And let a party of the believers witness their punishment." (An-Nur, 2)
Jabir (may Allah be pleased with him) narrated that a man from the Aslam tribe came to the Prophet ﷺ while he was in the mosque and said that he had committed Zina. The Prophet ﷺ turned away from him. So the man came to the side towards which he had turned and testified against himself four times. Then the Messenger of Allah ﷺ called him and said:
“Are you insane?” He replied, “No.” The Prophet ﷺ asked him, “Are you married?” He replied, “Yes.” So the Prophet ﷺ ordered him to be stoned in the prayer place. When the stones hit him, he fled, but he was caught in a place called al-Harrah and killed.
(Sahih al-Bukhari, Hadith No. 4969; Sahih Muslim, Hadith No. 1691)
(Source: Islam Question & Answer (Shaykh Muhammad Saalih al-Munajjid, may Allah preserve him))
The answer is:
It is not befitting for anyone to implement the prescribed punishments (Hudud) without the permission of the ruler. If there is no ruler and sultan who judges according to Islamic Shariah, it is not permissible for the common people to implement the Hudud. This is because implementing a Hadd requires proof, ijtihad (legal reasoning), and Shariah knowledge to know when a Hadd is established, when it is negated, what its conditions are, etc.
The common people do not have this knowledge. Furthermore, if the common people were to start implementing Hudud, it would lead to a great deal of corruption, and the peace of society would be destroyed. In this way, people would start transgressing against each other and would start killing each other, using the excuse of implementing Hudud after accusing one another.
Imam al-Qurtubi (may Allah have mercy on him) says:
“There is no difference of opinion that no one other than the Uli al-Amr (those in authority) can carry out the retaliation for murder. It is the Uli al-Amr upon whom it is obligatory and a duty to implement retaliation and Hudud. This is because Allah, the Glorified, addressed all believers regarding retaliation, but it was not intended for all believers to gather for retaliation. Rather, the sultan and ruler were made their representatives in implementing retaliation and other Hudud.”
(See: Tafsir al-Qurtubi (2 / 245-246))
(Source: Islam Question & Answer (Shaykh Muhammad Saalih al-Munajjid, may Allah preserve him)
Shaykh al-Islam (may Allah have mercy on him) answered:
Praise be to Allah:
It is incumbent upon the children of this woman and her male relatives (‘asabat) to prevent her from forbidden acts. If she does not stop without confinement, they should confine her to the house. If there is a need to imprison her, they should imprison her. It is not appropriate for a son to beat his mother, and they cannot prevent her from receiving kindness and good treatment. It is not permissible for them to cut ties with her, as this would cause her to fall into evil. Rather, they should prevent her from evil as much as they are able. And if she is in need of food, drink, and clothing, they should provide them for her.
It is not permissible for them to implement the Hadd of killing or anything else on her. In doing so, they would be sinners.
(See: Majmu’ al-Fatawa al-Kubra by Ibn Taymiyyah (34 / 177-178))
In the blessed era of the Prophet ﷺ, a few women committed Zina, and none of their family members killed any of them.
(Source: Islam Question & Answer (Shaykh Muhammad Saalih al-Munajjid, may Allah preserve him))
If the Hadd is carried out on a person, this Hadd becomes an expiation for that sin. When the Prophet ﷺ implemented the Hadd of Zina on Ma’iz al-Aslami, someone said some very harsh and inappropriate words about him. The Prophet ﷺ said, “Do not say that. This person has made such a repentance that if it were to be distributed over a whole nation, it would suffice them.”
(Sahih Muslim, Al-Hudud, Hadith: 1696. In one narration, it is said that if his repentance were distributed over a hundred people, it would suffice them. (Al-Sunan al-Kubra lil-Nasa’i: 4/276))
(See: Fatawa Sirat-e-Mustaqeem / Miscellaneous Issues / Page: 421)
وَبِاللّٰہِ التَّوْفِیْقُ
(And with Allah is all success)
ھٰذٙا مٙا عِنْدِی وٙاللہُ تٙعٙالیٰ اٙعْلٙمْ بِالصّٙوٙاب
(This is what I have, and Allah the Exalted knows best what is correct)
وَالسَّــــــــلاَم عَلَيــْـــــــكُم وَرَحْمَــــــــــةُاللهِ وَبَرَكـَـــــــــاتُه
(And peace be upon you and the mercy of Allah and His blessings)
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