Question:
Assalamualaikum wbt,
I would like to ask, is it permissible for a husband who just arrives home from his travel (he did not fast because he was travelling) to have intercourse with his wife, while the wife was not travelling? Is it permissible for the wife to refuse her husband? What is the ruling for both of them if they had intercourse? Are they fined with kaffarah? Thank you.
Answer:
Waalaikumussalam wrt, wbt.,
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
Rukhsah (Facilitation) for Travellers
Rukhsah (facilitation) is given for those who experience a debilitation or have an excuse permitted by syara’. To break his fast and one of them is permissible travel. This is as stated by Allah SWT:
فَمَن كَانَ مِنكُم مَّرِيضًا أَوْ عَلَىٰ سَفَرٍ فَعِدَّةٌ مِّنْ أَيَّامٍ أُخَرَ
“So, whoever among you is ill or on a journey [during them] - then an equal number of days [are to be made up].”
Surah al-Baqarah (184)
What is meant by rukhsah for traveller is for any journey which exceed two marhalah (85 km) and when it is permissible to perform the jamak and qasar prayers. (See al-Fiqh al-Islami wa Adillatuhu li Zuhaili, 3/1695)
If a person breaks his fast because he is travelling, then it is wajib for him to replace (qadha’) the days of which he missed. And it should be replaced as soon as possible without delaying it until the following Ramadhan begins. (See al-Mausua’h al-Fiqhiyyah al-Kuwaitiyyah, 28/75-76)
Al-Imsak (restraining oneself)
If it is permissible for a person to break his fast (permitted by syara’) in the beginning of the day of fasting like having menstruation, travelling or ill, then the excuse ceases such as she becomes pure, he reaches his destination or he has recovered from his illness, then there are two opinions as to whether the person should restrain himself or not.
- It is wajib to refrain himself (al-Imsak) for the rest of the day. This means then when the excuse ceases before Subh then it is wajib to fast the whole day. If it ceases after Subuh then it is wajib to refrain himself (al-Imsak)
- It is not wajib to refrain (al-Imsak) himself according to the opinion of Ibnu Mas’ud RA, he said:
مَنْ أَكَل أَوَّل النَّهَارِ، فَلْيَأْكُل آخِرَهُ
“Whoever eats at the beginning of day, then he should eat at the end of it.”
The reason is it is an absolute permissibility for him to break his fast at the beginning of the day. If he breaks his fast, then he should continue to do so until the end of the day. It is as though the excuse still exists.
Ibnu Qudamah said: If a person has intercourse after the excuse for him to break his fast ceases to exist, then there are two narrations for this situation:
- If it is according to the opinion that it is wajib to refrain himself (al-Imsak), then it is ruled as though the intercourse had happened while he is fasting (kaffarah is applicable).
- If it is according to the opinion that it is not wajib to refrain (al-Imsak) himself then it is permissible (kaffarah is not applicable). (See al-Mausuah al-Fiqhiyah al-Quwaitiyah, 28/82)
Dr Muhammad Zuhaili said that if a travelling person breaks his fast then he returns home during daytime in Ramadhan, then it is sunnah for him to refrain himself until the time to break the fast. The purpose is to honour and respect the time of fasting. This is not wajib but it is restricted to eat or drink in front of others who do not know of his situation to avoid fitnah and accusation. (See al-Mu’tamad fi al-Fiqh al-Syafi’e, 2/197)
Kaffarah
Whoever intentionally has intercourse during the day in Ramadhan and voluntarily, then his fast is invalid and he is fined with kaffarah kubra as stated in a hadith narrated by Abu Hurairah RA, where he said:
بَيْنَمَا نَحْنُ جُلُوسٌ عِنْدَ النَّبِىِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ، إِذْ جَاءَهُ رَجُلٌ، فَقَالَ: يَا رَسُولَ اللَّهِ هَلَكْتُ. قَالَ: مَا لَكَ؟ قَالَ: وَقَعْتُ عَلَى امْرَأَتِى وَأَنَا صَائِمٌ، في رواية: في رَمَضَان. فَقَالَ رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ: هَلْ تَجِدُ رَقَبَةً تُعْتِقُهَا؟ قَالَ: لاَ. قَالَ: فَهَلْ تَسْتَطِيعُ أَنْ تَصُومَ شَهْرَيْنِ مُتَتَابِعَيْنِ؟ قَالَ: لاَ. قَالَ: فَهَلْ تَجِدُ إِطْعَامَ سِتِّينَ مِسْكِينًا؟ قَالَ: لاَ. فَمَكَثَ النَّبِىُّ صَلَّى اللهُ عَلَيْهِ وَسَلَّم، فَبَيْنَمَا نَحْنُ عَلَى ذَلِكَ، أُتِىَ النَّبِىُّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ بِفرقٍ فِيهِ تَمْرٌ. قَالَ: أيْنَ السَّائِلُ؟ فَقَالَ: أَنَا. قَالَ: خُذْهَا فَتَصَدَّقْ بِهِ. فَقَالَ: الرَّجُلُ أَعَلَى أَفْقَرَ مِنِّى يَا رَسُولَ اللَّهِ، فَوَاللَّهِ مَا بَيْنَ لاَبَتَيْهَا أَهْلُ بَيْتٍ أَفْقَرُ مِنْ أَهْلِ بَيْتِي، فَضَحِكَ النَّبِىُّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ، حَتَّى بَدَتْ أَنْيَابُهُ، ثُمَّ قَالَ: أَطْعِمْهُ أَهْلَكَ
A man came to the Messenger of Allah (ﷺ) and said, “l am ruined O Messenger of Allah (ﷺ)!" The Messenger of Allah (ﷺ) asked him, “What has ruined you?" The man replied, ‘I had intercourse with my wife during the day in Ramadan while fasting)’ The Prophet said to him, "Are you able to free a slave?" The man said, ‘No.’ The Prophet said, "Can you fast for two consecutive months?" He said, ‘NO.' The Prophet then asked him, "Can you provide food for sixty poor people?" He said, ‘No.’ Then the man sat down. A basket of dates was brought to the Prophet and he said to the man, “Give this as Sadaqah (voluntary charity)” The man said, ‘To someone who is poorer than us!’ There is no one in this city (Al-Madinah) who is in need of these dates more than us!’ The Prophet laughed until his molar teeth could be seen and said to the man, “Go and feed your family with these dates.”
Sahih al-Bukhari (1834)
Dr Muhammad Zuhaili in his book stated that it is wajib for a husband to pay kaffarah. And the woman is not fined even if she is fasting. The reason is kaffarah is of a man’s specific right and not the woman the same as mahar. This is due to the fact that the act of intercourse is of the man, then the kaffarah is wajib on him. Hence, it is only wajib for the woman to qadha’ her fast. (See al-Mu’tamad fi al-Fiqh al-Syafi’e, 2/204)
Obedience
Islam prohibits obeying other creations in matters involving transgressions and disobedience towards Allah SWT as stated in a hadith from Sayyidina Aki RA, where the Prophet PBUH said:
لاَ طَاعَةَ فِي مَعْصِيَةِ اللَّهِ إِنَّمَا الطَّاعَةُ فِي الْمَعْرُوفِ
“There is no obedience in matters involving disobedience to Allah.”
Sunan Abi Daud (2625)
Al-Khattabi commented on the hadith saying: “It is not wajib to obey something that is munkar and what is meant as makruf are matters which are considered as good according to syara’.” (See ‘Aun al-Ma’bud wa hasyiah ibnu al-Qaiyyum, 7/208)
Conclusion
According to the above question, it is permissible for the wife to refuse her husband for it is not wajib for her to obey her husband in matters of transgression. This is as narrated by Saidina Ali RA:
لاَ طَاعَةَ فِي مَعْصِيَةِ اللَّهِ إِنَّمَا الطَّاعَةُ فِي الْمَعْرُوفِ
“There is no obedience in matters involving disobedience to Allah.”
Sunan Abi Daud (2625)
If they had intercourse, then it is a prohibited act for the wife intentionally invalidate her fast. And leaving Ramadhan fast is haram according to syara’.
The same applies for the husband who encourages transgression, even if it is not wajib for the husband to fast and it is permissible for him to have intercourse due to the facilitation given to him, however, asking his wife to break her fast is haram.
Said Sabiq cited the words of Imam Zahabi saying:
“Indeed, whoever intentionally leaves Ramadhan fasting, then it is a worse act than committing fornication and drinking alcoholic beverages. Furthermore, their Islam is doubtful and they are possibly kafir zindik.” (See Fiqh al-Sunnah, 1/434)
Thus, the act of having intercourse is a great offense and it is haram according to syara’ of which it is wajib for them to repent and they should be determined to never do it again. However, the husband is not fined with kaffarah because he was not fasting because he was travelling.
Wallahua’lam.