Ahmad ibn Hanbal and others. Many earlier and later scholars held that such a marriage is permissible; this is the position of the three imams. Mālik, however, requires a waiting period to establish that the womb is clear of pregnancy, while Abū Hanīfa permits the marriage contract before this period has elapsed if she is pregnant, but does not permit intercourse with her until she gives birth. Al-Shāfi‘ī permits both the marriage contract and intercourse without qualification, because the fornicator’s semen has no legally protected status, and the child’s lineage is not attributed to him. This is the basis of his position.

Abū Hanīfa distinguishes between a pregnant woman and one who is not pregnant: if a man has intercourse with a pregnant woman, he would be acknowledging as his own a child who is certainly not his, unlike the case of a woman who is not pregnant. Mālik and Ahmad require a “precautionary waiting period,” and this is correct. Mālik, and Ahmad according to one reported position, require one menstrual period. The other position reported from Ahmad, adopted by many of his followers, including Judge Abū Ya‘lā and his followers, requires three menstrual periods.

The correct view is that only the precautionary waiting period is required. This woman is not a wife obliged to observe a marital waiting period. Her case warrants no greater requirement than that of a slave woman observing a precautionary waiting period whose child would be attributed to her master. Since only that precautionary period is required of the latter, this applies all the more to the former. Even supposing she is free—as in the case of a woman freed after her master has had intercourse with her, whom it is proposed to marry either to the man who freed her or to someone else—the majority require her to observe a precautionary waiting period, not a marital waiting period. Nor is this woman who committed unlawful sexual intercourse like a woman with whom intercourse took place under an appearance of lawfulness, whose child is attributed to the man who had intercourse with her; moreover, there is disagreement over whether even the latter must observe a marital waiting period.

The indications of the Quran, the explicit Sunnah, and the statements of the Companions establish that a “woman who obtains release from marriage in return for compensation” need only observe a precautionary waiting period of one menstrual period, not a waiting period like that of a divorced woman. This is one of the two positions reported from Ahmad, and it is the view of ‘Uthmān ibn ‘Affān, Ibn ‘Abbās, and Ibn ‘Umar in the latter of his two opinions.

Makkī stated that this was the consensus of the Companions. It is also the view of Qabīsa ibn Dhu’ayb