Nikah/Wali/Paternity

Question:

‎اَلسَلامُ عَلَيْكُم

I'm asking this question on behalf of my friend. The names used are not the real names of the individuals involved.

My friend, Fatimah, is a 26 year old Hanafi woman of Gujarati Indian descent. She has been in a haram relationship with Sajid, a 30 year old Shafi’i Somali man for about 6 years. 2 years ago, she finally told her parents she wants to make things halal and marry him, but they said no because he is Black. For context, he is a practicing Muslim from a very devout family. They have rejected the proposal solely based on his race. At that time, Fatimah and Sajid envisioned marrying each other, so they continued their relationship. She is now 8 weeks pregnant with his baby. Only Fatimah, Sajid, and I know about the pregnancy.

Recently, I discovered that Sajid does not actually like Fatimah. They have been in a toxic cycle of breaking up and getting back together for about 4 years. Sajid has expressed feeling drained around Fatimah, regretting ever meeting her, resenting her racist family, and wanting nothing to do with her.

Fatimah still loves Sajid, is excited about the baby, and wants to make things work. However, no one—myself, his family, her family, or even Sajid—thinks they are compatible, and see this as a sign of a potentially destructive marriage. Nonetheless, they plan to have their nikkah in two weeks.

Is the nikkah valid if Sajid is only agreeing to it out of obligation to be a father? What are their options? Does he have to marry her? 

Fatimah has mentioned she will consider aborting the baby if they don't get married to avoid her family's wrath. Sajid has indicated that he plans to divorce her once the baby is a year old but wants to remain an active parent.

Additionally, Fatimah’s father will not agree to the marriage. As her Wali, if he doesn’t accept it, will the nikkah even be valid? 

They have burdened me with this information, and I am unqualified to advise them.

Additionally, if they have the baby and later divorce, what are the rules of lineage for the child? Does it differ since the child was conceived out of wedlock?

Answer:

Wa alaikum Salam wa rahmatullahi wa barakatuhu 

In the name of Allah the most Gracious the most Merciful, 

There are multiple questions asked and I shall endeavor to answer all of them in the order they were asked by the permission of Allah,

First and foremost, the people in question, Fatima and Sajid, both must repent to Allah swt for the great sin of Zina that was commited and the haram relationship they are in for so long, accumulation of such sin is catastrophic for a person's World and the Hereafter. 

1. Is the nikah still valid if Sajid is only agreeing to it out of obligation to be a father? 

Ans. Yes, the nikah would be valid in this case. However, Nikah is based upon trust and love towards each other and it is a worship in Islam, it should not be built upon mistrust, hate and anger. If they wish to get married, it is highly recommended they take pre-marital counseling/classes first and understand the rights and responsibilities of each other.

2. Fatima's father will not agree to the marriage. As her wali, if he doesn't accept it, will the nikah even be valid?

ANS. in the Hanafi fiqh, Nikah is still valid even without the permission of the Wali.

However, this is considered an extremely disliked matter, any woman should first seek the agreement of her father/wali first, otherwise the emphasized sunnah is missed and the Nikah will be devoid of many blessings of Allah. 

3. If they have the baby and later divorce, what are the rules of lineage for the child? Does it differ since the child was conceived out of wedlock?

Ans. the jurists mention that if one was to marry a woman whom one had impregnated and the child was to be born six months or more after marriage, then the chill will be considered legitimate. However, if the child was born prior to six months elapsing, he/she will not be considered legitimate. (See: Radd al-Muhtar and other Fiqh references)

In the light of the above, it is understood that if Fatima marries Sajid and after marriage, she remains pregnant for 6 months or more, the paternity will be established and the child will be attributed to Sajid, otherwise the child will be considered illegitimate and will not inherit from the father. 

Our advise as mentioned above is that they immediately separate, it is not allowed for them to meet or remain alone in any space together. 

They should then (separately) seek marital counsel from a qualified Imam, (women should take counseling online or along with a Mahram), repent for their sins and if they want the child to be considered legitimate in Islam, they should marry before 3 months of pregnancy. Wali of the woman should be convinced to agree to this marriage in this case.

It is making fun of this sacred act of Nikah if one intends to divorce his wife a year later, which is a grave sin, so Sajid should first correct his intentions and plan to see this marriage through with all its responsibilities. 

And Allah knows best 

Mufti Umer Farooq Saleem