He Committed Zina With A Married Woman Who Was Estranged From Her Husband; Can He Marry Her If Her Husband Divorces Her?
Islamic Rulings -
Living Shariah Verdicts
Islamic Questions & Answers
There is a
woman who was abused by her husband who was an
alcoholic, so therefore, she left her country to come
to North America. She thought she was divorced
automatically because someone told her that fact she
was away from her husband for one year, she becomes
automatically divorced. She met a muslim man at work
and he confirmed to her that she indeed was not
divorced, in her situation. As they got to know each
other, they fell in love and even committed zina.
Finally, the woman got her divorce papers, and
completed her iddah period. During the iddah, both man
and woman stopped seeing each other, and felt remorse
and guilt for their sins, and made taubah and repented
to Allah. Theyre planning on getting married soon
inshaAllah, so I wanted to know if their marriage is
valid? I heard that there are a few scholars of the
Maliki maddab who say that a man who spoils the
marital status of a woman is not allowed to marry that
woman. But most scholars have agreed that this
marriage would still be valid. And the man is not sure
if he falls under this category because the woman
already had intention to divorce before she met him.
Also, the man is of Hanafi school thought and the
woman is of Shafii if this helps. Even though the
majority of scholars say that marriage is valid, I
wanted to be clear and know the correct view
inshaAllah if they may marry and worship Allah
throughout their halal marriage. Please advise.
Praise be to Allah
If a woman
leaves her husband or a man leaves his wife for one or
two years, or for more or less time than that, the
marriage remains valid until the man actually divorces
his wife. So long as that has not happened, and the
man has not uttered the word of divorce (talaaq) to
his wife, or has not written words to that effect with
the intention of divorcing her, then the woman is
still his wife, even if the separation has gone on for
a long time.
Shaykh Ibn Baaz (may Allah have mercy on him) was
asked: When is a woman regarded as divorced? He said:
The woman is regarded as divorced if her husband
issues a divorce (talaaq) to her when he is of sound
mind and does so by choice, with no impediment to
divorce such as insanity, intoxication and the like,
and the woman is pure (i.e., not menstruating), during
a period of purity in which he has not had intercourse
with her, or she is pregnant or postmenopausal.
End quote from Fataawa at-Talaaq, 1/35
For more information, please see the answer to
question no. 11681
Zina (fornication or adultery) is one of the major
sins; the degree of sin is worse and the punishment is
multiplied if the woman is married, because that is a
betrayal of her husband … Hence the punishment for an
unmarried zaani is one hundred lashes, and the
punishment for a previously married zaani is stoning
Allah, may He be exalted, says (interpretation of the
"And come not near to the unlawful sexual intercourse.
Verily, it is a Fahishah (i.e. anything that
transgresses its limits (a great sin)), and an evil
way (that leads one to Hell unless Allah forgives
Shaykh as-Sa'di (may Allah have mercy on him) said:
The prohibition on approaching it or coming near it is
more eloquent than merely prohibiting the action,
because that includes the prohibition on all the
things that may lead to it or promote it, because the
one who approaches a forbidden area will soon find
himself wandering in it, especially in the case of
this matter which is very tempting for many people.
Allah described zina and its abhorrent nature as a "faashishah"
(something that transgresses its limits); in other
words it is a sin that is regarded as immoral and
odious in terms of sharee'ah, rational thought and
sound human nature, because it implies transgression
of the sacred limits with regard to the rights of
Allah, the rights of the woman and the rights of her
family or husband, betrayal of marriage, confusion of
lineage, and other negative consequences.
The words "and an evil way" mean: what an evil way is
the way of the one who dares to commit this grave sin.
End quote from Tafseer al-Kareem ar-Rahmaan fi Tafseer
Kalaam al-Mannaan, 1/457
What they must both do is repent sincerely, turn back
to Allah and keep away from the things that lead to
zina. Whoever repents, Allah will accept his
For more information on the crime of zina and
repentance therefrom, please see the answer to
question no. 47924 and 138270
The basic principle is that it is not permissible for
the zaani to marry the zaaniyah until after they have
repented sincerely, because Allah, may He be exalted,
says (interpretation of the meaning):
"The adulterer marries not but an adulteress or a
Mushrikah and the adulteress none marries her except
an adulterer or a Muskrik (and that means that the man
who agrees to marry (have a sexual relation with) a
Mushrikah (female polytheist, pagan or idolatress) or
a prostitute, then surely he is either an adulterer,
or a Mushrik (polytheist, pagan or idolater, etc.) And
the woman who agrees to marry (have a sexual relation
with) a Mushrik (polytheist, pagan or idolater) or an
adulterer, then she is either a prostitute or a
Mushrikah (female polytheist, pagan, or idolatress,
etc.)). Such a thing is forbidden to the believers (of
Repentance is attained by regretting (what one has
done) and resolving not to go back to the sin. So long
as they have repented and regretted what they fell
into of sin, it is valid for them to marry according
to most of the scholars.
Ibn Qudaamah (may Allah have mercy on him) said:
If a woman commits zina, it is not permissible for the
one who knows of that to marry her unless two
conditions are met:
1. That her 'iddah has ended
2. That she has repented from zina.
If these two conditions are met, it is permissible for
the zaani or anyone else to marry her, according to
the opinion of most of the scholars, including Abu
Bakr, 'Umar, Ibn 'Umar, Ibn 'Abbaas, Jaabir, Sa'eed
ibn al-Musayyab, Tawoos, Jaabir ibn Zayd, 'Ata', al-Hasan,
'Ikrimah, az-Zuhri, ath-Thawri, ash-Shaafa'i, Ibn al-Mundhir,
and ashaab ar-ra'y.
It was narrated from Ibn Mas'ood, al-Bara' ibn 'Aazib
and 'Aa'ishah that she is not permissible (in
marriage) for the zaani under any circumstances. They
said: They are still zaanis whenever they are
together, because of the general meaning of the verse
and the report.
It may be that what they meant by that was the period
before they repent or before it is established that
she is not pregnant, in which case it is the same as
With regard to it being forbidden in absolute terms,
that is not correct, because Allah, may He be exalted,
says (interpretation of the meaning): "All others are
lawful, provided you seek (them in marriage) with Mahr
(bridal money given by the husband to his wife at the
time of marriage) from your property" [an-Nisa' 4:24].
Because she is permissible (in marriage) for someone
other than the one who committed zina with her, she is
also permissible to him, like any other woman.
End quote from al-Mughni, 7/108.
It is not permissible for a Muslim to turn a woman
against her husband because that leads to the breakup
of families, even if there was a bitter dispute
between the spouses. Some scholars regarded this as a
major sin. The Prophet (blessings and peace of Allah
be upon him) said: "He is not one of us who turns a
woman against her husband." Narrated by Abu Dawood,
2175; classed as saheeh by al-Albaani in Saheeh Abi
Abu Dawood (5170) also narrated that Abu Hurayrah
said: The Messenger of Allah (blessings and peace of
Allah be upon him) said: "Whoever turns a man's wife
or slave against him is not one of us."
Classed as saheeh by al-Albaani in Saheeh Abi Dawood.
Shaykh 'Abd al-'Azeem Abaadi (may Allah have mercy on
"Whoever turns a woman against her husband" (means) by
mentioning the husband's bad qualities to his wife, or
mentioning the good qualities of another man to her.
'Awn al-Ma'bood, 6/159
And he said "Whoever turns a man's wife" means: he
deceives her and corrupts her, or makes the idea of
divorce attractive to her so that he or someone else
can marry her, and so on.
'Awn al-Ma'bood, 14/52
Al-Mannaawi (may Allah have mercy on him) said: Our
shaykh, ash-Sha'raawi, said: That also includes the
case where a woman who is angry with her husband comes
to him so that he can reconcile between them, for
example, so he offers her abundant food and wants to
spend on her and honour her, even if that is in order
to honour her husband, then her heart may be inclined
to someone else and she starts to look down on her
husband. This is also included in this hadeeth. The
wise man should be careful with regard to such
matters, even if his intention is good.
He said: I did this several times; I put pressure on
the woman who was angry with her husband, and I
advised my family to leave her hungry, so that she
would go back and would appreciate how blessed she was
with her husband.
End quote from Fayd al-Qadeer Sharh al-Jaami' al-Kabeer,
If a person turns a woman against her husband and
spoils her for him so that she leaves him, then he
marries her, his marriage is not valid and they must
be separated, according to the view favoured by Shaykh
al-Islam Ibn Taymiyyah (may Allah have mercy on him).
This is also the view of the Maalikis. For more
information on the ruling on this issue and what is
meant by turning a woman against her husband, please
see the answer to question no. 84849
Based on the above, if this man is the one who turned
the woman against her husband, so that she would get
divorced for his sake, it is not permissible for him
to marry her, especially when he has committed zina
with her. There is a difference of opinion concerning
marriage of the zaani to the woman with whom he
committed zina. In this case he has combined two
evils: turning a woman against her husband and zina.
But if he is not the one who turned her against her
husband, as appears to be the case from the question,
and he only got to know her and meet her after she had
left her husband and she had left his house, then his
marriage to her is valid, if she has got divorced from
her first husband, on condition that they both repent
to Allah, may He be exalted, from what occurred
And Allah knows best.