Monday, 4 July 2011

Can the marriage contract of a zaaniyah be annulled?


Praise be to Allaah.

If a married woman commits zina, her marriage contract is not
annulled and she does not become divorced because of her committing this
sin, but if she does not repent and she persists in this evil action, her
husband is enjoined to divorce her, so as to protect his honour and his

Ibn Qudaamah (may Allaah have mercy on him) said: 

If a woman commits zina with a man, or her husband commits
zina, the marriage contract is not annulled, whether that occurs before or
after consummation, according to the majority of scholars. This was the view
of Mujaahid, ‘Ata’, al-Nakha’i, al-Thawri, al-Shaafa’i, Ishaaq and ashaab
al-ra’y. But Ahmad regarded it as mustahabb for the man to leave his wife if
she commits zina, and he said: I do not think that he should keep such a
woman, because there is no guarantee that she will not be unfaithful to him 
and attribute to him a child who is not his. Ibn al-Mundhir said: Perhaps
those who said that keeping this woman is makrooh did not mean that doing so
is haraam, so it is similar to this view of Ahmad’s.  

Ahmad said: And he should not have intercourse with her until
it has been established that she is not pregnant by waiting for three
menstrual cycles. 

But it is more likely that this may be established by waiting
for one menstrual cycle. End quote. 

Al-Mughni (9/565). 

It says in Kashshaaf al-Qinaa’ (5/2): 

If a woman commits zina before or after consummation, the
marriage contract is not invalidated, or if a man commits zina before or
after consummating the marriage with his wife, the marriage is not
invalidated by zina, because it is a sin that does not put one beyond the
pale of Islam, like stealing, but he should not have intercourse with her
until she has observed an ‘iddah, if she is the one who committed zina. End

Shaykh al-Shanqeeti (may Allaah have mercy on him) said: 

It should be noted that if a man marries a woman thinking
that she is chaste, then she commits zina when she is married to him, the
more correct of the two (scholarly) opinions is that the marriage is not
annulled, and it is not haraam for him to continue with the marriage. This
was the view of some of those who did not allow marriage to a zaaniyah, as
they differentiated between continuing such a marriage and initiating it. 

Those who held this view quoted as evidence the hadeeth of
‘Amr ibn al-Ahwas al-Jashami (may Allaah be pleased with him) who was
present during the Farewell Pilgrimage with the Messenger of Allaah
(peace and blessings of Allaah be upon him). He praised and glorified
Allaah, and reminded and exhorted (the people), then he said: “I enjoin good
treatment of women, for they are prisoners with you, and you have no right
to treat them otherwise, unless they commit blatant sin. If they do that,
then forsake them in their beds and hit them, but without causing injury or
leaving a mark. If they obey you, then do not seek means of annoyance
against them….” 

Al-Shawkaani said concerning this hadeeth of ‘Amr ibn
al-Ahwas: It was narrated by Ibn Majaah and al-Tirmidhi, who classed it as
saheeh. Ibn ‘Abd al-Barr said in al-Istee’aab in his biography of
‘Amr ibn al-Ahwas: His hadeeth about the Farewell Sermon is saheeh. End

His hadeeth about the Farewell Sermon is this hadeeth, based
on the words, He praised and glorified Allaah, and reminded and exhorted
(the people). This reminding and exhortation refers to the sermon as is well

Thus you may understand that the opinion of one who says that
if a man’s wife commits zina, the marriage is annulled and she becomes
haraam for him, is contrary to the correct view, and Allaah knows best. End

Adwa’ al-Bayaan (6/82, 83) 

And Allaah knows best.


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