Title: Kitābun-Nikāh (The Book of Marriage) from Shaikh Sālih al-Fawzān’s explanation of Buloogh al-Marām min Adillatil-Ahkām of Al-Hāfidh Ahmad Ibn `Alee Ibn Hajr al-Asqalānee (Born 773H, Died 852H). Shaikh Al-Fawzān’s tremendous explanation is entitled Tas-heel al-Ilmām bi-fiqhil-Ahādeeth min Bulooghil-Marām and is printed in seven volumes. The following is a translation of this important and very enlightening chapter, adapted in places for brevity and simplicity. The following is from volume 4, no. 1000 (English, 853)
Al-Hāfidh Ibn Hajr (rahimahullāh) said:
1000: 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.