Marriage of the Adulterer with the Woman Whom He Committed Zina with: Difference of Opinion
Fatwa No: 447535

Question

Please issue a fatwa on If a couple did zina together and they did not repent before their nikah they repented after their nikah which was done as per shariah,is this nikah valid or not? They have heard that this type of nikah is not valid as per surah noor please explain in detail with reference.

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

This issue is one of the issues upon which there is a difference of opinion among the jurists, as there are those who are of the view that the marriage of the adulterer/fornicator with the woman whom he committed Zina (fornication or adultery) with before repentance is valid, and there are those who are of the view that it is forbidden.

Each of the two groups has their own pieces of evidence to argue with the other party. The Fatwa is not appropriate to elaborate on these pieces of evidence, such as Soorah Al-Noor [Chapter 24 of Quran] and others.

Among the scholars who reported these pieces of evidence and discussed them was Ibn Qudamah in Al-Mughni and Ibn Hazm in Al-Muhalla  may  Allaah  have  mercy  upon  them.

The matter is subject to Ijtihad, and therefore, if the marriage has already taken place, then we do not see anything wrong with acting according to the statements of the jurists who are of the view that this marriage is valid, because of the evil consequences of invalidating the marriage after consummation, especially if it has been a long time.

Al-Shatibi  may  Allaah  have  mercy  upon  him said in his book Al-Muwafakat:

In regard to the marriage upon which there is a difference of opinion among the jurists, this difference may be taken into account, so there should be no separation if this disagreement has taken place after the consummation of the marriage, as a way of taking into account the matters that are related to the consummation of the marriage which favor the side that the marriage is valid. This is all due to the consequences that would result in judging that such a marriage is void, as this will result in a disadvantage that amounts to the dislikeability, or even more [i.e. prohibition]

For more benefit on the marriage of a fornicator (adulterer) with the woman he committed Zina before repentance, please refer to Fatawa 329617, 188393, 158403, 135767, 95615, 405622, 148021, 378067 and 86903.

Allah Knows best.

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