Al-Hāfidh Ibn Hajr (rahimahullāh) said:
Abu Hurairah (رضي الله عنه) said that Allah’s Messenger (ﷺ) said:
“A man guilty of fornication who has been flogged should not marry except a woman guilty like himself.” Reported by Ahmad (8300), Abu Dawood (2052), and the narrators are trustworthy.
From the invalid marriages is marriage to a fornicating woman who has not repented from her fornication. It is not permitted for a Muslim to marry her whilst she has still not repented from fornication. The intent of his (ﷺ) saying, “flogged” is any person who is proven to have fornicated even if the actual prescribed punishment did not take place. So one should not marry his chaste daughter to a fornicator – likewise, a chaste man must not marry a fornicating woman who has not repented. And if they were to get married in such a state, then the marriage (i.e. the nikāh) is invalid. This is due to the saying of Allah, the Most High:
الزَّانِي لَا يَنكِحُ إِلَّا زَانِيَةً أَوْ مُشْرِكَةً وَالزَّانِيَةُ لَا يَنكِحُهَا إِلَّا زَانٍ أَوْ مُشْرِكٌ ۚ وَحُرِّمَ ذَٰلِكَ عَلَى الْمُؤْمِنِينَ
“The male fornicator does not marry except a female fornicator or polytheist, and none marries her except a fornicator or a polytheist – and that has been made unlawful to the believers.” [An-Noor: 3]
So, His saying, “and that has been made unlawful to the believers.” is a proof that the marriage contract with a female fornicator who has not repented is invalid, and likewise is the case with a male fornicator.
Adapted from Kitābun-Nikāh (The Book of Marriage) from Shaikh Sālih al-Fawzān’s explanation of Bulūgh Al-Marām min Adillatil-Ahkām of Al-Hāfidh Ahmad Ibn ‘Ali Ibn Hajr Al-Asqalāni (born 773H, died 852H), entitled Tas-heel al-Ilmām bi-fiqhil-Ahādeeth min Bulūghil-Marām and is printed in seven volumes. See volume 4, no. 1000 (English, 853).
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Allow me to cover a few questions that have arisen from this article:
– A person who becomes a Muslim from disbelief is considered to be free from the sins committed when they were non-Muslim, so repentance is not sought from them. The Prophet (peace and blessings be upon him) said: “[Embracing] Islam wipes away whatever came before it…”
– If a man sincerely repents from his sin of fornication, then he may marry a chaste woman. This is because the one who repents from a sin is like the one who did not sin in the first place, i.e. it is wiped away. The same applies to a woman who has fornicated.
– Without repentance (or refusal to repent) one is not allowed to marry a chaste woman, and such a marriage is invalid in accordance to the above article.
– There is no allowance in the Sharee’ah to seek out the sins of others, or to extract confessions of fornication in meetings for marriage. Rather each Muslim strives to obey Allah, avoids the major sins, and repents sincerely to Allah when he transgresses and resolves never to return back to that sin.
– Upon the guardians of women is to thoroughly research the character, religious adherence, and piety of potential suitors for their wards – and to offer only the best of what they can for those under their care.
And Allah knows best.