If she was forced into marriage and had a child, is the child to be attributed to the husband?

QUESTION :

What are the islamic rulings regarding forced marriages? Is it correct that such a marriage is invalid? If so, what is the status of a child that is born from such a mariage which is then ended through divorce some time after the childs birth? If the marriage was unwanted but brought about due to pressure and threats from a parent, then violence occured throughout the time of marriage, then would a child from such a marriage be considered as legitimate if the marriage contract was itself invalid? If this would be an invalid marriage then is the child considered the same as one being born out of wed lock? On an islamic forum it stated that a person born out of wed lock is to have no relation with their father, is this correct and what is the case if the father is also a relative of the mother? And if this rule is correct then is this rule also applied to a child who came about as a result of an unwanted relationship? 
If there are any evidences from the qur'an and sunnah regarding this, it will be greatly appreciated if you could provide them.

ANSWER :

Praise be to Allah

Firstly:

It is not permissible to force a woman to marry someone she does not want, even if she is a virgin, according to the correct fiqhi view, which is the view of the Hanafis, because the Prophet (blessings and peace of Allah be upon him) said: “and a virgin should not be married until her permission has been sought.” Narrated by al-Bukhaari (6968) and Muslim (1419).

If the marriage takes place without her consent, then the marriage contract depends upon the woman’s approval. If she approves of it, then it becomes a valid marriage contract, and there is no need to repeat it. But if she does not approve of it, then it is an invalid marriage contract.

It was narrated that Buraydah ibn al-Haseeb said: A young woman came to the Prophet (blessings and peace of Allah be upon him) and said: My father married me to his brother’s son so that he might raise his own status thereby.

[The Prophet (blessings and peace of Allah be upon him)] gave her the choice, and she said: I approve of what my father did, but I wanted women to know that their fathers have no right to do that.

Narrated by Ibn Maajah (1874); classed as saheeh by al-Buwaysiri in Misbaah az-Zujaajah (2/102). Similarly, Shaykh Muqbil al-Waadi‘i said: It is saheeh according to the conditions of Muslim. End quote from as-Saheeh al-Musnad (p. 160).

The Standing Committee for Issuing Fatwas was asked: What is the Islamic ruling on one who is married off without her consent?

They replied: If she did not agree to this marriage, then her case should be referred to the court to either confirm or annul the marriage contract.

End quote from Fataawa al-Lajnah ad-Daa’imah (18/126).

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said: If we say that the marriage is not valid, then it must be annulled, because it is not valid. But if we assume that the woman met the man and liked him, and she approved of the marriage contract, then there is nothing wrong with that, and the marriage becomes valid based on her approval.

End quote from al-Liqa’ ash-Shahri (1/343).

Secondly:

If the woman does not approve of the marriage contract, then the marriage is invalid according to the correct scholarly view, as mentioned above. But scholars other than the Hanafis regarded it as valid, so it is a marriage concerning which there is a difference of scholarly opinion.

A number of things result from that:

1.     She cannot exit this marriage except by means of divorce (talaaq) or annulment by a judge (qaadi).

Ibn Qudaamah (may Allah have mercy on him) said: If a woman is married on the basis of an invalid marriage contract, it is not permissible for her to marry anyone else until the first husband divorces her or her marriage is annulled. If he refuses to divorce her, then the judge may annul her marriage. This was stated by Ahmad.

End quote from al-Mughni (7/342),

Shaykh Ibn Baaz (may Allah have mercy on him) said: The marriage is invalid according to the more sound of the two scholarly opinions, but they may not marry until after (the first husband) has divorced her, or her marriage to him has been annulled by the shar‘i judge, so as to avoid going against those scholars who said that the marriage is valid.

End quote from Mamoo‘ Fataawa Ibn Baaz (20/411).

2.     Intercourse in such a marriage is not regarded as zina (fornication), because there is uncertainty about the invalidity of the marriage due to there being a difference of scholarly opinion.

Ibn Qudaamah (may Allah have mercy on him) said: There is no hadd punishment for intercourse in a marriage based on an invalid marriage contract, regardless of whether the partners believe it to be lawful or prohibited. With regard to invalid marriage such as marriage of a woman who is already married or who is observing ‘iddah, and the like, if both parties were aware of what is lawful and what is prohibited, then they are guilty of zina and must be subjected to the hadd punishment, and any child born as a result is not to be attributed to the man.

End quote from al-Mughni (7/344).

3.     Any child who is born from such a marriage is a legitimate child and is to be attributed to the husband.

This is applicable to any invalid marriage concerning which there is a difference of scholarly opinion.

In al-Mawsoo‘ah al-Fiqhiyyah (8/123) it says: The fuqaha’ are agreed that it is obligatory to observe ‘iddah and that any child is to be attributed to the husband, following intercourse in a marriage concerning which there is a difference of opinion among the madhhabs, such as a marriage that was done without witnesses, or without the presence of the woman’s guardian, or marriage of a muhrim (pilgrim in ihram) during Hajj, or shighaar (quid-pro-quo) marriage.

Similarly, they are agreed on the necessity of observing ‘iddah, and that any child born as a result of a marriage concerning which there is consensus that it is invalid is to be attributed to the husband, once intercourse has taken place, such as marriage of a woman who is observing ‘iddah, or marriage to a woman who is married to someone else, or marriage to a mahram (incest), if there is some doubt or confusion that may lead to waiving of the hadd punishment, such as if the parties were not aware of the prohibition, because the basic principle according to the fuqaha’ is that with regard to any invalid marriage in which the hadd punishment could not be carried out, the child is to be attributed to the man. But if there is no doubt or confusion that may lead to waiving of the hadd punishment, such as if they were aware of the prohibition, then according to the majority of scholars the child is not to be attributed to the man. This is also the view of some Hanafi shaykhs, because once the hadd punishment becomes due, the child cannot be attributed to the man. End quote.

Thirdly:

An illegitimate child cannot be attributed to the fornicator according to the majority of fuqaha’, but some fuqaha’ are of the view that if the fornicator acknowledges the child and attributes him to himself, then the child may be attributed to him. 

And Allah knows best.

-islamqa.info