Praise be to Allah the Lord of the Worlds.
Zina is a major sin from which the Zani (Man or woman committing adultery/fornication) must repent and ask for forgiveness. Her having committed Zina isn`t among the conditions for valid marriage since Allah will hold her to account for that sin in the Hereafter. However, this sin doesn`t absolutely forbid her from getting married, whether to the one who had fallen into Zina with her or anyone else, and this is the opinion of the majority of the Hanafi, Maliki and Shafi scholars. However, the Maliki scholars stipulated that she observe Iddah (waiting period) after Zina, then he marries her.
As for the verse where Allah the Almighty Says, "Let no man guilty of adultery or fornication marry and but a woman similarly guilty, or an Unbeliever: nor let any but such a man or an Unbeliever marry such a woman: to the Believers such a thing is forbidden." {An-Nur, 3}, Al-Shafie states that this verse is abrogated. Also, it was reported that Sa`eid Bin Al-Mosaiiab said that it was abrogated by the verse in which Allah States, "or the virtuous ones among yourselves."{An-Nur,32}. In fact, this is a matter of controversy and involves many views by the people of knowledge. For further details, kindly refer to books about Qur`anic exegesis and legal rulings.
Al-Mawardi says: "It is permissible for a man to marry the woman with whom he had fallen into Zina, and the majority of scholars and companions are agreed to this view as well. The evidence on this is that Allah the Almighty Says, "Also (prohibited are) women already married, except those whom your right hands possess: Thus hath God ordained (Prohibitions) against you: Except for these, all others are lawful," {An-Nisa`, 24}. This verse includes chaste and unchaste women. In addition, this the common view amongst the companions, and it was narrated by Abu Baker, Omar, Ibn Omar, Ibn Abbas and Jaber." {Al-Hawi Al-Kabeer, 9/189}.
It is well known that such marriage takes place with the approval of both parties. However, they aren`t cleared from punishment if it was proven by evidence or confession that they have committed this sin. The idea, here, is to show that their marriage is valid. In fact, this sin shouldn`t absolutely shut the door for what is lawful, because when that happens, immorality will be on the rise and the adulterer/fornicator will take Zina as a profession once he realizes that he isn`t permitted to marry the woman with whom he had fallen into that sin. All in all, marrying the woman with whom he had fallen into Zina is done with the consent of both parties, in addition to the woman`s guardian. Further, it is not permissible to make that marriage happen by virtue of law to relieve the fornicator/adulterer from the punishment for both of them have the right to say no to that marriage. Moreover, they are liable for punishment once all the required conditions are met and regardless of whether they get married after falling into Zina or not.
If a man realizes for sure that his wife, Muslim or not, is committing Zina and asks her to repent, but she refuses, then he must divorce her to avoid dishonoring his good name and offspring. In this regard, the Prophet (Blessings and peace of Allah be upon him) said: "The cuckold will not enter paradise" {Abu Dawoudv At-Tayalisi}.
As for rape, it is a graver sin as it violates the inviolate and transgresses against chaste women. The rapist must be deterred by Had (prescribed penalty) or discretionary punishment. In fact, forcing him to marry* the women whom he had raped is a reward for his crime, and this is neither acceptable by custom, Sharia nor law. And Allah Knows Best.
*"By force", added 25/5/2015.
