The Law of Pregnancy Out of Marriage and the Status of Children from Adultery
ASKING:
Assalamualaikum, Chaplain.
Want to ask. How is the law for a person who is pregnant outside of wedlock? She committed adultery with a neighbor, then became pregnant out of wedlock.
Thank you, Ustadz.
Salam,
Fulanah
ANSWER:
Wa'alaikumussalam warahmatullahi wabarakatuh.
Pregnancy outside of marriage can be two possibilities. Because of adultery, it is haram and sinful. Or, because of being raped.
In Islamic law, a person who is accused of adultery must be proven first with strong evidence. It could be by presenting four male witnesses, or it could be by confession from the perpetrators themselves, as happened during the time of the Prophet. So those who commit adultery are subject to the law of had.
If indeed he has been proven, then in Islamic law he has the right to have had. His presence was whacked 100 times, then exiled. That is if he is a person who has never been married (zina ghairu muhshan). But if she was a widow, then she was stoned (zina muhshan).
So, who carries out the punishment? The state is the executor, so that people cannot take the law into their own hands. However, in our country, the law of adultery has not been enforced until today. Therefore, it is best to ask him to repent immediately.
Regarding the status of the child resulting from adultery, it is not a legally valid child with the father. So, between father and daughter is only connected biologically, but legally syar'i is still disconnected.
And, because legally it is not a legitimate child, then that child does not get the inheritance right from the biological father, if the father dies. This is the legal consequence of the disconnection of the lines between father and son. And this applies, whether the child is a boy or the child is a girl.
Another consequence is that the biological father does not legally become the guardian of his daughter in marriage. Likewise his grandfather, uncle and brother, none of whom is legal to be a guardian over him. In fact, the existence of a guardian is the main pillar of a marriage contract. There is no marriage except in the presence of a guardian, namely the legal father in syar'i.
Jumhjur ulama said that in order to reconnect the lines between the father and son resulting from adultery, the father and mother must be legally married. Even after the child is born and grows up. In fact, even after getting married, both of them divorced. Marriage will unite the broken lines between father and son.
Although never approving of having children born out of wedlock, because it is a big sin, the most logical and syar'i action in a case that occurs in society is simply to marry off the adulterous partner. Especially, if there is already a fetus in a woman's stomach.
On the other hand, it is haraam to marry a woman who is pregnant out of wedlock to another man who did not impregnate her. The only man who is allowed to marry her while pregnant outside of wedlock is her zina partner.
If you have given birth, then the woman marries another man, the law is permissible. But better, stick with the zina partner, so that his son's lineage can be reconnected.
Wallâhu a'lam bish-showâb.
Regards!
Answered by: Ustadz H. Ahmad Fauzi Qosim.
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