a woman nearing childbirth at the entrance of a tent, and he said: "Perhaps he intends to have intercourse with her?" They replied, "Yes." He said: "I had intended to curse him with a curse that would enter the grave with him. How can he employ her when it is not lawful for him? Or how can he make her his heir when it is not lawful for him?" Recorded by Muslim. This is because she is pregnant by someone else, so it is forbidden for him to marry her, just like all other pregnant women. When this is established, she is bound by the waiting period (iddah), and marriage to her is forbidden during it, because its primary purpose is to ensure the innocence of the womb. Furthermore, before the waiting period, it is possible that she is pregnant, in which case her marriage would be void; therefore, it is not valid, just like a woman who has been had intercourse with by mistake (shubhah). Abu Hanifah and al-Shafi'i said: "She has no waiting period," because it is an act of intercourse that does not make the woman a marital bed, so it resembles the intercourse of a minor. We argue based on what we have mentioned, and because if the marriage of a pregnant woman is not valid, then [marrying] another is even more prohibited. This is because the intercourse of a pregnant woman does not lead to confusion of lineage, [while for another] it is possible that the child is from the first [partner] and possible that it is from the second, which leads to the confusion of lineages, making it even more deserving of prohibition. Also, it is an act of intercourse in the vagina, which necessitates a waiting period, just like intercourse by mistake. We do not accept [the analogy of] the intercourse of a minor, as intercourse with him is not possible. The second condition is that she must repent from the adultery. [This is also the opinion of] Qatadah, Ishaq, and Abu 'Ubayd. Abu Hanifah, Malik, and al-Shafi'i said: "This is not a condition," based on what is narrated that 'Umar beat a man and a woman for adultery, and he was eager to join them together, but he refused.
= Just as it was recorded by Abu Dawud, in: The Chapter on a man who marries a woman and finds her to be pregnant, from the Book of Marriage. Sunan Abi Dawud 1/491, 492. And al-Bayhaqi, in: The Chapter on there being no waiting period for an adulteress, from the Book of Marriage. Al-Sunan al-Kubra 7/157. (15) A woman nearing childbirth (mujih): close to delivering. (16) In: The Chapter on the prohibition of having intercourse with a pregnant captive woman, from the Book of Marriage. Sahih Muslim 2/1065, 1066. It was also recorded by Abu Dawud, in: The Chapter on having intercourse with captive women, from the Book of Marriage. Sunan Abi Dawud 1/497. (17) Missing from: [The Original]. (18) In [M]: "because it". (19) Missing from: [The Original], [B]. (20) In [B], [M]: "and it is possible". (21) In [M]: "he said it".
