Question: A friend of the family has been married for four weeks and has been told by his wife that she is five months pregnant from her ex-boyfriend. The husband is willing to stay with his new wife and help bring up the child. The question opposed is, is it haram for the husband to sleep with his wife since she is pregnant but this is not his child?
Answer: Answer in the name of Allah, Most Compassionate, Most Merciful,
Adultery is without doubt a grievous sin, for which one needs to repent to Allah and seek His forgiveness.
The sister in concern should first sincerely repent to Allah and make a firm and resolute intention not to commit this sin again. Once, sincere repentance is made (with all the necessary conditions), then it is though as she has no sin.
The best of mankind, our beloved Messenger of Allah (Allah bless him and give him peace) said:“The one who repents from sin is like the one who has no sins”. (Sunan Ibn Majah & Mu’jam al-Kabir of Tabrani).
Allah Mighty and Majestic is Most Compassionate and Most Merciful. He accepts the repentance of his sinful servants and is Most Forgiving. He Himself says:“Say: “O my servants who have transgressed against their souls! Despair not of the Mercy of Allah, for Allah forgives all sins. He is Most Forgiving, Most Merciful”. (Surah al-Zumar, 53).
Therefore, after the sister has firmly repented from her sin, and made a firm resolution not to ever commit this heinous sin, she should not be rebuked or looked down upon. Humans are prone to mistakes, and the best amongst us is the one who realizes the mistake and seeks forgiveness.
As far as the marriage (nikah) is concerned, according to the reliable and preferred opinion in the Hanafi Madhhab, it is valid and legitimate. Then, if the pregnancy is of the one who committed adultery with her (meaning, adulterer and adulteress get married), then it would be permissible to have sexual relations. However, if the woman committed adultery with other than who she is marrying, then it will not be permissible to have sexual intercourse with her until she gives birth, because of the Prophetic prohibition relating to this. [Related in Abu Dawud, Ahmad, and Darimi]
The following is the explanation given in Radd al-Muhtar on this very issue by Imam al-Haskafi with explanatory notes by Imam Ibn Abidin (Allah have mercy on them both) in brackets:“Marriage with a woman who is pregnant out of adultery (zina) is valid (according to Imam Abu Hanifa and Imam Muhammad. Imam Abu Yusuf, however, says that it is not valid, but the Fatwa is according to their opinion, as mentioned in al-Quhustani from al-Muhit… The preferred view is that she will not be eligible for any maintenance, for the prevention of cohabiting with her has come from her side, contrary to menstruation, for that is beyond her control), not who is pregnant due to a reason other than adultery (includes valid marriage, invalid (fasid) marriage and ownership of slavery), for the lineage in such cases is regarded to be established (as such, she will be considered to be in the waiting period (idda), and marriage with a woman who is in her waiting period is impermissible). However, sexual intercourse and foreplay will be unlawful with her until she gives birth, so that he does not mix his sperm with that of another person (for the Messenger of Allah (Allah bless him & give him peace) said: “It is unlawful for a man who believes in Allah and the last day that he waters the plant of another” meaning having sexual intercourse with a pregnant woman. Hadith recorded by Abu Dawud in his Sunan and Tirmizi and he classed it as sound (hasan).If the adulterer himself got married with her, then it will be permissible for him to have sexual relations with her according to all (including Abu Yusuf) and the child will be attributed to him (if it was born six months after marriage, and if it was born in less than six months, paternity will not be established) and he will be responsible for her financially”. (Radd al-Muhtar ala al-Durr al-Mukhtar, 3/48-49, fasl fi al-muharramat).
In view of the above text of Radd al-Muhtar, it becomes evident that marriage with a woman pregnant from adultery is valid. If the adulterer himself is getting married to her, then sexual intercourse will also be permissible, and the wife will be entitled to her financial support. However, if another person is getting married to her, then he must abstain from any contact until she gives birth, and also she will not be entitled to any maintenance, though the husband, however, should support her, especially when she has repented from her sin.
As far as the child is concerned, if the child is born six months or more after marriage, then paternity will be will established and the child will be attributed to the husband. However, if the child is born before six months elapse after marriage, it will not be attributed to the husband. Imam Ibn Abidin states:“The child will be attributed to him if it was born six months after marriage. If however, it was borne before six months from the time of marriage, paternity will not be established, neither will the child inherit from him……for in the case where it was borne after six months, it is possible that it was conceived after the contract of marriage, and that which was prior to marriage was merely protuberance”. (Radd al-Muhtar, 3/49).
Finally, it should be remembered that the husband (or any of his family members) should not express any resentment or dislike to the wife. When he chooses to marry her and she repents from her sin, then there is no reason why she should be made a target of criticism and condemnation, for Allah who has all the right to dislike her, forgives her and considers her to be clean and pure, then what right does the servant have of showing hatred. The Messenger of Allah (Allah bless him & give him peace) said:“Show mercy to those on earth, you will be shown mercy by the one who is in the heavens”. (Tirmidhi, 1924, Abu Dawud, 4941 & Musnad Ahmad, 2/160).
And Allah knows best.
Answered by Mufti Muhammad ibn Adam, Darul Iftaa of the Hanafi fiqh list.