Is marriage permissible to a woman known to have committed fornication (Zina)?
Chapter on What is Prohibited to Marry and Combining Between Them and Other Matters
Al-Mughni
Book of Marriage
Primary text
Marriage to a woman who has committed Zina is not permissible for one who knows about it unless two conditions are met. The first condition is the completion of her waiting period (Iddah). If she became pregnant from the Zina, the Iddah is completed only upon delivery of the child, and marriage is not permissible before delivery. This is the position of Malik and Abu Yusuf, and one narration from Abu Hanifa. The supporting evidence includes the Prophet's saying: Whoever believes in Allah and the Last Day, let him not water another man's field, meaning intercourse with pregnant women. Also, the Prophet said: A pregnant woman shall not have intercourse with anyone until she delivers, which is general evidence. Furthermore, a narrator mentioned that the Prophet separated a man from a woman whose pregnancy was known to be from another man, made her pay the dower, and flogged her one hundred times. Marriage is prohibited because she is pregnant by another, similar to all pregnant women.
Supporting text
An alternative view, held by Al-Shafi'i and another narration from Abu Hanifa, states that marriage becomes permissible immediately, and the contract is valid, because the act was intercourse without establishing lineage, thus it does not prohibit marriage, similar to cases where there is no pregnancy. Furthermore, Al-Shafi'i and Abu Hanifa state that there is no required Iddah because the intercourse does not make the woman a vessel whose state needs to be ascertained, resembling the intercourse with a minor.