If a woman
marries someone while she is in Iddah either after divorce or after death, the
nikah is null and void and is unaccepted, according to all four madhabs . The
man and woman are regarded as living in sin. But what if they have two children
from this marriage. Is it watiy bishubhah or not. Will children be
legitimate.  

Answer: 

If a woman marries a man during her Iddat there can be either one of two scenarios. The first scenario is that the man was aware of the fact that this particular woman that he is marrying is busy serving her Iddat, yet he still marries her. In this case, the Nikah will be null and void (Baatil) and the two parties will be purely involved in Zina.

The jurists have written that if a person marries a woman that is busy serving her Iddat, and he is fully aware of the fact that she is serving her Iddat, then the Shari’ee punishment of Zina will be applicable to the both of them (if all the conditions are found). [Re:-Fataawa Mahmoodiyya Pg. 322/323 Vol.16]

Due to the above being pure Zina, the child that is born will be considered as illegitimate and born out of wedlock and will not be attributed to the father.

The second scenario is where a man marries a woman not knowing that she is busy serving her Iddat. In this case, the Nikah will be considered to be Faasid and not Baatil as in the above scenario. Due to the Nikah being Faasid, a child that is born will be attributed to the father (if born six months after the marriage). [Re:-Fataawa Mahmoodiyya Pg. 82 Vol.20]

AND ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST

ANSWERED BY: Mufti Mohammed Desai 

CHECKED AND APPROVED BY: Mufti Muhammed Saeed Motara Saheb D.B

Date: 13 Dhul Qa’dah 1440 Darul Ifta Azaadville English Date: 16 July 2019