Ala-Maududi
(58:4) And he who does not find a slave (to free), shall fast for two months consecutively before they may touch each other; and he who is unable to do so shall feed sixty needy people.[11] All this is in order that you may truly believe in Allah and His Messenger.[12] These are the bounds set by Allah; and a grievous chastisement awaits the unbelievers.[13]
11. This is the divine commandment in respect of zihar. The following are the details of the law that the jurists of Islam have derived from the words of this verse, the judgments of the Messenger (peace be upon him) of Allah and the general principles of Islam
(1) This law of zahir abrogates the Arabian custom of ignorance according to which the marriage contract stood annulled and the woman became permanently forbidden to the husband. Likewise, this law annuls all those laws and customs which regard zihar as a meaningless custom, which is of no legal effect, and permit man to continue having marital relations with his wife as usual even after having compared her to his mother and other prohibited relations. For in the sight of Islam the sanctity of the mother and other prohibited relations is not such an ordinary thing that a man may even think of the comparison between them and his wife, not to speak of uttering it with the tongue. Between the two extremes the position adopted by the Islamic law in this regard is based on three principles
(a) That the marriage contract is not annulled by zihar, but the woman continues to be the husband’s wife as usual
(b) that the woman becomes only temporarily prohibited to the man by zihar, an
(c) that this prohibition operates till the time that the husband makes the expiation, and that the expiation only can remove the prohibition
(2) As for the person pronouncing zihar, it is agreed that the zihar of that husband is only reliable, who is of sound mind and mature age and pronounces the words of zihar in his right senses; the zihar of the child or of the insane person is not reliable. Moreover, the zihar of the person who might not be in his right senses at the time of pronouncing its words is also not reliable, e.g. if he mutters words during sleep, or is senseless, due to any reason. However, the jurists have differed on the following points
(a) About the person who pronounces zihar in the state of intoxication. A great majority of them including the four Imams have given the verdict that since he has intentionally used the intoxicant, his zihar, like his divorce, will be regarded as valid legally, for he has undergone this state deliberately. However, if he has taken a medicine on account of illness and has been intoxicated, or has been compelled to take wine in intense thirst in order to save life, his zihar and divorce pronounced in that state will not be enforced. This very view is held by the Hanafis and the Shafeis and the Hanbalis and also the same was the view commonly held by the companions of the Prophet (peace be upon him). Contrary to it, Uthman held the view that the zihar and divorce pronounced in the state of intoxication are not reliable. Imam Tahawi and Karkhi from among the Hanafis hold this view as preferable and a statement of Imam Shafai also supports it. According to the Malikis the zihar pronounced in the state of intoxication will be reliable in case the person concerned has not wholly lost his senses, but talks sensibly and coherently and knows what he is saying
(b) According to Imam Abu Hanifah and Imam Malik, only the zihar of the husband who is a Muslim is reliable. These injunctions do not apply to the non-Muslim subjects of the Islamic state, for the Quranic words: Alladhina yazahiruna minkum: those from among you who put away their wives by zihar, have been addressed to the Muslims, and the fasting, which is one of the three kinds of the expiations prescribed in the Quran, obviously cannot be applicable to the non-Muslim subjects. According to Imam Shafei and Imam Ahmad, these injunctions will be applicable both to the Muslims and to the non-Muslims; however, there is no fasting for the non-Muslim subject: he may only free a slave or feed 60 poor
(c) Can a woman also, like a man, pronounce zihar. For instance will it be zihar if she says to her husband: You are for me as my father, or I am for you like your mother. The four Imams say that this is not zihar and the legal injunctions of zihar do not apply to it at all. For the Quran in express words has laid down these injunctions in respect of the cases where the husbands pronounce zihar on their wives, and the authority to pronounce zihar can be held only by him who holds the authority to pronounce divorce. Just as the Shariah has not given the woman the power to divorce the husband, so it has also not given her the power to make her ownself unlawful to her husband. This same is the view of Sufyan Thauri, Ishaq bin Rahawaiyh, Abu Thaur and Laith bin Saad. They regard such a pronouncement by a woman as meaningless and without effect. Imam Abu Yusuf says that though this is not zihar, it will entail for the woman the atonement of the oath, for the pronouncement of such words by the woman means that she has sworn not to have marital relations with her husband. This same is the view of Imam Ahmad bin Hanbal as cited by Ibn Qadamah. Imam Auzai says that if before marriage the woman said that if she married a particular man he would be for her as her father, it would be zihar, and if she says such a thing after marriage it would be in the nature of an oath, which would entail the atonement for the oath. Contrary to it, Hasan Basri, Zuhri, Ibrahim Nakhai and Hasan bin Ziyad Lului say that this is zihar and will entail the expiation prescribed for zihar by the woman; however, the woman will not have the right to prevent the husband from coming in to her before making the expiation. Ibrahim Nakhai has cited this incident in support of this view. Musab, son of Zubair, sent a proposal of marriage to Aishah bint Talhah. She turned down the proposal, saying: If I marred him, he would be for me as the back of my father (huwa alayya ka-zahri abi). After some time, she decided to marry him willingly. When the jurists of Al-Madinah were asked for their ruling on it, many jurists including several companions of the Prophet (peace be upon him) ruled that Aishah would have to make an expiation for the zihar. After citing this incident Ibrahim Nakhai has expressed his own opinion, saying that if Aishah had said this thing after the marriage it would not have entailed the expiation. But since she said this before marriage when she had the option to marry, or not to marry, the expiation became obligatory on her
(3) The excuse of a sensible and mature person, who pronounces the express words of zihar in his full senses, cannot be acceptable that he uttered the words in a state of anger, or in jest, or in love, or that he had no intention of the zihar. However, in respect of the words which are not express in this regard, and which can give different meanings, the injunction will vary according to their nature. Below we shall tell what words of zihar are expressed and what words are not expressed
(4) It is agreed upon by all that zihar can be pronounced on the woman who is a wedded wife of the man. However, there is a difference of opinion whether zihar can also be pronounced on the other woman or not. In this matter, the following are the different viewpoints
The Hanafis say that if a man says to the other woman: If I marry you, you will be for me as the back of my mother, then whenever he marries her, he will not be allowed to touch her without first making the expiation. This same is the verdict of Umar. During his caliphate a man said such words to a woman and afterwards married her. Umar ruled that he would have to make the expiation for the zihar
The Malikis and the Hanbalis have also expressed the same opinion, and they add this to it: If the woman was not specified, but the man said words to the effect that all women were for him like that, then whichever woman he married, he would have to make the expiation before touching her. The same is the opinion of Saed bin al- Musayyab, Urwah bin Zubair, Ata bin Abi Rabah, Hasan Basri and Ishaq bin Rahawaiyh
The Shafeis say that zihar before marriage is meaningless. Ibn Abbas and Qatadah also hold the same opinion
(5) Can zihar be pronounced for a fixed term. The Hanafis and the Shafeis say that if a man has pronounced zihar for a certain period of time, he will have to make the expiation if he touches the wife before the expiry of that time; however, the zihar will become ineffective when the time has elapsed. Its argument is the incident concerning Salamah bin Sakhr Bayadi, who had pronounced zihar upon his wife for the month of Ramadan, and the Prophet (peace be upon him) did not tell him that the fixation of the time limit was meaningless. On the contrary, Imam Malik and Ibn Abi Laila say that whenever zihar is pronounced it will be forever and the specification of time will be of no effect, for the prohibition that has occurred cannot become void of its own accord on the expiry of the time
(6) If the zihar is conditional, expiation will become incumbent whenever the condition is violated. For instance, if a man says to his wife: If I enter the houses you will be to me as the back of my mother, then whenever he enters his house, it will be unlawful for him to touch his wife without first making the expiation
(7) In case the words of zihar are repeated several times to a wife, the Hanafis and the Shafeis say that whether this is done in one sitting or in several sittings, it will entail as many expiations as the number of the times the word were repeated, unless the man might have repeated the words only to stress what he had said before. Contrary to this, Imam Malik and lmam Ahmad bin Hanbal say that no matter how often the words are repeated, it will entail only one expiation. The same is the view of Shabi, Taus, Ata bin Abi Rabah Hasan Basri and Auzai. Ali’s ruling is that if the repetition is made in one sitting, there will be only one expiation, and if in different sittings, then there will be as many expiations as the number of the sittings in which the repetition was made. The same is the view of Qatadah ant Amr bin Dinar
(8) If zihar is pronounced upon two or more wives simultaneously in one and the same set of words, e.g. if addressing them the husband says: You are to me as the back of my mother, the Hanafis and the Shafeis say that separate expiations will have to be made to make each of them lawful. The same is the opinion of Umar, Ali, Urwah bin Zubair, Taus, Ata, Hasan Basri, Ibrahim Nakhai, Sufyan Thauri and Ibn Shihab Zuhri. Imam Malik and Imam Ahmad say that in this case one and the same expiation will suffice for all. Rabiah, Auzai, Ishaq bin Rihawaiyh and Abu Thaur also have expressed the same opinion
(9) It is agreed upon by all that if a man repeats zihar, again after making expiation for it once, the wife will not be lawful to him unless he makes another expiation
(10) Although it is sinful, according to the four Imams, to establish marital relations with the wife before making the expiation, and the man should ask for Allah’s forgiveness for it, and should refrain from repeating such a thing, yet it will entail only one expiation. The Prophet (peace be upon him) had exhorted the people who had committed such an offense in his time to implore Allah for forgiveness and not to touch the wife unless they had made the expiation, but he did not enjoin any additional expiation besides the expiation for zihar. Amr bin Aas, Qabisah bin Dhuaib, Saed bin Jubair, Zuhri and Qatadah say that it will entail two expiations and Hasan Basri and Ibrahim Nakhai have given the opinion that this will entail three expiations. Probably the Ahadith in which the Prophet (peace be upon him) gave his ruling on this matter did not reach these scholars
(11) As to comparison of the wife to whom would be zihar, the jurists have expressed different views
Amir Shabi says that her comparison to the mother only is zihar, and the Zahiriyyah say that her comparison only to the mother’s back is zihar, for the injunction does not apply to anything else. No section of the Islamic jurists, however; agrees with them in this regard, for the reason given by the Quran of the wife’s comparison to the mother being sinful is that it is absurd and a lie. Now, obviously comparison of the wife to the women whose sanctity is just like the mother’s would be as absurd as it is in the case of the mother. Therefore, there is no reason why the commandment in that case should not be the same as in the can of the comparison to the mother
The Hanafis say that in this command are included all those women, who are permanently prohibited to man on the basis of lineage, fosterage, or marital relationship, but the women who may only be temporarily prohibited and can become lawful at any time, are not included in this, e.g. the wife’s sister, her maternal and paternal aunts, or another woman, who is not the men’s wedded wife. It will be zihar if comparison is made with such a part of the permanently prohibited woman’s body as is forbidden for men to look at. However, it will not be zihar if comparison is made of the wife’s hand, foot, head, hair, tooth, etc. to the back of a permanently prohibited woman, or of the wife to her head, hand, foot, etc. for it is not unlawful to look at these parts of the mother’s or sister’s body. Likewise, to say to the wife: Your hand is like my mother’s hand, or your foot is like my mother’s foot, is not zihar
The Shafeis say that in this command are included only those women, who were, and are, permanently prohibited, i.e. mother, sister, daughter etc. but this does not include those women, who may have been lawful at some time, e.g. the foster-mother, foster-sister, mother-in-law and daughter-in-law, or those who may become lawful at any time, e.g. the wife’s sister. Apart from these temporarily prohibited women, it will be zihar to compare the wife to such parts of the permanently prohibited woman’s body as are not normally mentioned out of reverence and respect, As for those parts which are mentioned out of reverence and respect, it will be zihar to make a comparison with them only in case this is done with the intention of zihar; for instance, if a man says to his wife: You are to me like my mother’s eye, or like my mother’s hand, foot or belly, or he compares the wife’s belly, or breast, with the mother’s belly, or breast, or says that the wife’s head, back or hand is to him as his mother, it will be zihar if said with the intention of zihar and reverence if said with the intention of reverence
The Malikis say that to compare the wife to any of the prohibited women is zihar, so much so that even if a man says to his wife: You are to me like the back of such and such other woman, it would be zihar. Furthermore, they say that it would be zihar to compare any part of the mother’s body, or of an eternally prohibited woman’s body, to the wife, or to any part of the wife’s body, without any condition that the parts thus compared be such as may look at any part of the mother’s body as he looks at the wife’s
The Hanbalis include in this command all those women, who may be eternally prohibited, though they may have been lawful before, e.g. the mother-in law, or fostermother. As for the women who may become lawful at any time later (e.g. the wife’s sister), Imam Ahmad’s one statement concerning them is that comparison to them is not zihar. Moreover, according to the Hanbalis to compare any part of the wife’s body to any part of the prohibited woman’s comes under zihar. However, the non-permanent parts like the hair, nails, teeth, etc. are excluded from this command
(12) The jurists agree that to say to the wife: You are to me like the back of my mother, is expressly zihar, for the Arabs used this very formula for zihar, and the Quranic command was also sent down only concerning this. However, the jurists have disagreed as to which of the other words are such as clearly come under zihar, and which are such whose amounting or not amounting to zihar will be dependent upon the speaker’s intention
With the Hanafis, the express words of zihar are those in which a lawful woman (the wife) may have been clearly compared to an unlawful woman (i.e. any woman from among the eternally prohibited women), or compared to such part of the body which is forbidden for a man to look at, like saying: You are to me like the belly or the thigh of my mother, or of such and such prohibited woman. Apart from these, the other words are disputed. According to Imam Abu Hanifah, if the man says: You are forbidden to me like the back of my mother, it is expressly zihar, but according to Imams Abu Yusuf and Muhammad it would be zihar if there was the intention of zihar and divorce if there was the intention of divorce. The view generally held by the Hanafis is that if the man says: You are as my mother, or like my mother, it is zihar if said with the intention of zihar and irrevocable divorce if said with the intention of divorce, and meaningless if there was no such intention at all. However, according to Imam Muhammad this is express zihar. If the man calls his wife his mother or sister or daughter, it is an absurdity upon which the Prophet (peace be upon him) had expressed great anger, but he did not regard it as zihar. If the man says: You are forbidden to me like my mother, it would be zihar if said with the intention of zihar, and divorce if said with the intention of divorce, and zihar if there was no intention at all. If he says: You are to me like my mother, or as my mother, his intention will be questioned. If he said this out of respect and reverence, it would be respect and reverence, if with the intention of divorce, it would be divorce. If there was no intention whatsoever, it would be meaningless according to Imam Abu Hanifah, but would entail the atonement of the oath, though not of zihar according to Imam Abu Yusuf and would be zihar according to Imam Muhammad
With the Shafeis, the express words of zihar are that a man should say to his wife: You are to me, or with me, or for me, like the back of my mother, or you are like the back of my mother, or your body, or your self, is to me like the body or self of my mother. Apart from these, in respect of all other words the decision will be dependent on the speaker’s intention
According to the Hanbalis, every such word by which a man may have compared his wife, or a part from among the permanent parts of her body, to a prohibited woman, or to a part from among the permanent parts of the prohibited woman’s body clearly, would be regarded as express in the matter of zihar
The Malikis’ viewpoint is almost the same. However, in the details they have given different rulings For instance, according to them, a man’s saying to his wife: You are to me as my mother, or like my mother, is zihar if said with the intention of zihar, divorce if said with the intention of divorce, and zihar if there was no intention at all. According to the Hanbalis, it may be regarded only as zihar provided there was the intention. If a man says to his wife: You are my mother, this is zihar according to the MalikIs, but according to the Hanbalis it would be zihar if said in a state of anger on account of a quarrel, and it would not be zihar if it was said out of love and affection, although it is wrong. If a man says: You have divorce on you: you are like my mother, according to the Hanbalis this is divorce, not zihar, and if he says: You arc like my mother: you have divorce on you, both zihar and divorce will take place. To say: you are forbidden to me as the back of my mother, is zihar according to both the Malikis and the Hanbalis, whether the words were said with the intention of divorce, or without any intention
In this discussion about the words of zihar one should clearly understand that all the disputes of the jurists in this regard relate to the words and usage of the Arabic language. Obviously the people who speak other languages will neither pronounce zihar in Arabic nor will utter an exact and accurate translation of the Arabic words and sentences at the time they pronounce zihar. Therefore, if one has to decide whether a word or a sentence comes under the definition of zihar, or not, one should not examine it from the point of view of its being an exact translation of the words given by the jurists, but one should only see whether the speaker had compared his wife in the sexual context clearly to any of the women in the prohibited degrees, or whether there was the probability of other meanings also in his words. Its most conspicuous example is the Arabic sentence itself about which all the jurists and commentators agree that this very sentence was used for zihar in Arabic, i.e. Anti alayya kazahri ummi (you are to me like the back of my mother). Probably, in no other language of the world can the man pronouncing zihar use words that may be a literal translation of this Arabic sentence. However, he can certainly use words of his own language, which may have precisely the same meaning for which an Arab used this sentence. The meaning of this sentence was: To have sexual intercourse with you would be like having sexual intercourse with my mother, or as some foolish person might say to his wife: If I come in to you, I would be going in to my mother
(13) In the Quran what has been mentioned as entailing the expiation is not the mere zihar but one’s aud (returning) after the zihar. That is, if a man only pronounces the zihar and does not return, he does not incur any expiation. Now, the question is, what is this aud (returning) that entails the expiation. In this regard, the jurists have held the following viewpoints
The Hanafis say that aud is the intention to have the sexual intercourse, but it does not mean that the mere intention should entail the expiation; so much so that the man may have to make the expiation even if he does not take any practical step after the intention. But its correct meaning is that the man who wishes to remove the prohibition that he had imposed on him by pronouncing zihar of severing marital relations with his wife, should first make the expiation, for this prohibition cannot be removed without the expiation
Three statements have been cited from Imam Malik in this regard, but his most well known and authentic statement, according to the Malikis, is in full agreement with the Hanafi viewpoint, as stated above. He says that what the man had made unlawful for himself by zihar was the sexual relation with his wife. Now, aud means that he should return to establish the same relation with her
Imam Ahmad bin Hanbal’s view as cited by Ibn Qadamah is almost the same as of the two Imams as noted above. He says that after the zihar, expiation has necessarily to be made to make the sexual intercourse lawful. The man who wants to make it lawful after having pronounced zihar, in fact, wants to return from the prohibition. Therefore, he has been enjoined to make the expiation before making it lawful for himself, precisely like the man who wants to make the other woman lawful for himself and has to marry her before she could be lawful for him
Imam Shafeis viewpoint is quite different. He says that a man’s keeping his wife as usual and detaining her in wedlock as before after having pronounced zihar is aud, for as soon as he pronounced zihar he, in fact, forbade himself to keep her as wife. Therefore, if he did not divorce her immediately on pronouncing zihar and kept her back for so long that he could utter the words of divorce, he committed aud and the expiation became incumbent upon him. This means that if after pronouncing zihar the man did not pronounce divorce in the next breath, expiation would become incumbent, whether afterwards he might decide not to keep the woman as wife and might have no intention of having marital relations with her. So much so that even if he divorced his wife after a few moments’ thought, according to Imam Shafei, he would still have to make the expiation
(14) The Quranic injunction is that the pronouncer of zihar must make the expiation before the two, the husband and the wife, touch each other. All the four Imams agree that according to this verse not only is the sexual intercourse prohibited before the expiation but it is also prohibited that the husband touch the wife in any way. The Shafei’s regard only touching with desire as prohibited. The Hanbalis regard every kind of pleasure seeking as forbidden; and the Malikis regard even casting of the look at the wife’s body for the sake of pleasure as unlawful. According to them only casting of the look at the face and hands is an exception
(15) If after zihar, a man divorces his wife, he cannot touch her without first making the expiation in case it is a revocable divorce. If it is an irrevocable divorce, and he remarries her, he still will have to make the expiation before he could touch her. So much so that even if he has divorced her thrice, and the woman after marrying another man becomes a widow, or is divorced, and then the pronouncer of zihar remarries her, she will not be lawful to him unless he first makes the expiation. For, he has forbidden her to himself by comparing her to his mother or other prohibited woman, and this prohibition cannot be removed without the expiation. All the four Imams agree about this
(16) It is incumbent upon the woman that she should not allow the husband who has pronounced zihar on her to touch her until he makes the expiation. And since the marital relationship is a right of the woman of which the husband has deprived her by zihar, she can go to the court of law if he does not make the expiation. The court will compel the husband to make the expiation to remove the barrier he has raised between himself and her. And if he does not comply, the court can award him lashes or imprisonment or both. This also is agreed upon by all the four schools of law. However, the difference is that in the Hanafi Fiqh this is the only way out for the woman; if the court does not help her out of the situation, she will remain suspended under zihar indefinitely. For, zihar does not dissolve the marriage contract, it only forbids the husband to have marital relations with the wife. According to the Maliki school if the husband pronounces zihar and keeps the wife suspended with a view to punish her, the law of eila will be applied against him, which means that he cannot keep her suspended for more than four months. For the law of eila, see (Surah Al-Baqarah, ayat 226-227) note 245-247. According to the Shafeis, although in zihar the law of eila can be applied only if the husband might have pronounced zihar for a specific period, which does not exceed four months. Yet, since according to them the expiation becomes incumbent upon the husband from the very moment he keeps back the woman as wife, it is not possible that he may keep her suspended for along period indefinitely
(17) The express commandment of the Quran and the sunnah is that the first expiation for zihar is to free a slave. If a man cannot afford this, he can expiate by fasting two months consecutively; and if he cannot do even this, then he can feed 60 poor. But if a man cannot expiate in any of the three ways, he will have to wait till he has the means to act in one or the other way, because the Shariah has not prescribed any other form of expiation. However, the sunnah confirms that such a person should be helped out so that he can make the third kind of the expiation. The Prophet (peace be upon him) helped such people out of the public treasury, who were caught in this awkward situation by a mistake of their own, and were helpless to expiate in any of the three prescribed ways
(18) The Quran enjoins to release a neck (raqabah) as expiation, which applies both to a male and a female slave, and there is no restriction of the age in it. It would be sufficient to release a suckling child who may be in the state of slavery. However, the jurists have disagreed whether both the believing and the unbelieving slaves can be released, or whether only the believing slave will have to be released. The Hanafis and the Zahiriyyah say that it is enough to release a slave, whether a believer or an unbeliever, as expiation for zihar for the Quran only mentions raqabah (the neck); it does not say that it has to be a believer. On the contrary; the Shafeis, the Malikis and the Hanbalis impose the condition that it has to be a believing slave. They have held this injunction as analogous to the other expiations in which release of raqabah has been made conditional upon his being a believer
(19) If the pronouncer of zihar cannot afford to release a slave, the Quran enjoins him to fast for two successive months before the two can touch each other. As for the details of acting on this divine command, the viewpoints of the different juristic schools are as follows
(a) All agree that the months imply the lunar months. If fasting is begun with the sighting of the new moon, one will have to complete two months’ un-interrupted fasting. If fasting is begun on another date in the month, according to the Hanafis and the Hanbalis, one will have to fast for 60 days consecutively; and according to the Shafeis, one will observe a total of 30 fasts in the first and the third months and observe the whole of the middle lunar month, whether it is of 29 days or 30 days
(b) The Hanafis and the Shafeis say that fasting should be begun at a time when within the next two months there should neither fall the month of Ramadan nor the two Eid days, nor the day of sacrifice, nor the Tashriq days (10th to 13th of Dhil-Hajj) for the observance of the Ramadan fast and its abandonment on the Eid days and the day of Sacrifice ant Tashriq days, in the course of the expiation fasting, would break the succession of the fasting, and the pronouncer of zihar would have to start fasting afresh. The Hanbalis say that observance of the Ramadan fast and its abandonment on the forbidden days do not break the succession
(c) In the course of the two months whether one abandons a fast on account of a valid excuse, or without a valid excuse, in both cases the succession will break according to the Hanafis and the Shafeis, and one will have to start fasting afresh. The same is the opinion of Imam Muhammad Baqir, Ibrahim Nahkai, Saed bin Jubair, and Sufyan Thauri. According to Imam Malik and Imam Ahmad, fasting can be abandoned on account of illness or a journey and this does not break the succession; however, succession does break if the fast is abandoned without a valid reason. Their reasoning is that the nature of the expiation fast is not obligatory as of the Ramadan fast: when that fast can be abandoned on account of an excuse, there is no reason why this cannot be. The same is the viewpoint of Abdullah bin Abbas, Hasan Basri, Ata bin Abi Rabah, Said bin al- Masayyab, Amr bin Dinar, Shabi, Taus, Mujahid, Ishaq bin Rahawaiyh, Abu Ubaid and Abu Thaur. (d) If the man commits sexual intercourse with the wife under zihar within the two months of fasting, according to all the Imams, the succession will break, and he will have to begin fasting anew, for he has been enjoined to fast for two successive months before he could touch the wife
(20) According to the Quran and the Sunnah, the third kind of expiation (feeding the 60 poor) can be made only by him who does not have the power to make the second expiation (fasting for two months successively). The details of acting on this command as worked out by the jurists are as follows
(a) According to all the four Imams, being powerless to observe the fast means that one should either he powerless due to old age, or due to illness, or due to the reason that one may not be able to abstain from sexual intercourse for two successive months, and may become impatient at any time in the course of fasting. The validity of all these three excuses is confirmed by the Ahadith that have been cited in connection with the cases of Aus bin Samit Ansari and Salamah bin Sakhr Bayadi. However, about illness there is a little difference of opinion among the jurists. The Hanafis say that the excuse of illness will be valid only in case there is no hope of recovery, or there is the fear that the disease may worsen on account of fasting. The Shafeis say that if fasting is likely to cause a severe hardship by which the man may feel the danger of its being interrupted, this excuse also can be valid. The Malikis say that if the man strongly feels that he will be able to observe the fast in the future, he may wait till then, and if he has no such feeling, he should feed the poor. The Hanbalis say that the apprehension that the disease will worsen by fasting is a sufficient excuse for not fasting
(b) Food can be given only to those poor people whose maintenance is not the obligatory responsibility of the man concerned
(c) The Hanafis say that food can be given to both the Muslim and the non Muslim subjects of the Islamic State, but not to the belligerent disbelievers and to those who have been given protection. The Malikis, the Shafeis and the Hanbalis say that the Muslim needy ones only can be fed
(d) There is full agreement that feeding implies to feed two times a day to fill. However, there is a difference of opinion about the meaning of feeding. The Hanafis say that it is equally valid to feed with cooked food two times a day or to give away grain sufficient to meet the food requirements of a needy person two times a day, For the Quran has used the word itam, which means both to provide food and to feed. But the Malikis, the Shafeis and the Hanbalis do not regard feeding with cooked food as correct; they think it is necessary to give away grain. In case grain is given, there is full agreement that the grain should be the staple food in the city or area, and all the poor people should be given it equally
(e) According to the Hanafis, it is also valid if one and the same poor person is fed or given food for 60 days, though it is not correct to give him food for 60 days on one and the same day. However, the other three schools do not think it is valid to provide food to one and the same poor man; it is necessary to give food to 60 persons. It is not permissible in any of the four schools to provide food to 60 men at one time and to another 60 at another time
(f) This is also not permissible according to any of the four schools that one may fast for 30 days and then feed 30 poor ones, for two different expiations cannot be combined. If one has to fast, he should fast for two months successively, and if one has to feed, he should feed 60 poor once
(g) Although in connection with the expiation of feeding the Quran does not use words to the effect that this expiation should also be made before the husband and the wife can touch each other yet the context demands that this restriction will apply to this third kind of expiation as well. That is why the four Imams do not regard it as permissible that the man should go to his wife during the time the expiation of feeding is being performed. However, the difference is that according to the Hanbalis the man who commits this offense, will have to feed the poor afresh, but the Hanafis show leniency, for in respect of this third expiation there is no mention of before the two touch each other in the Quran, and this provides a basis for the concession
Bibligraphie
Hanafi Fiqh: Hedayah; Fath al-Qadir; Bidai-us-Sunat; Al Jassas Ahkam al-Quran
Shafei Fiqh: An-Nawawi, Al-Minhaj together with Sharh Mughni al-Muhtaj; Tafsir Kabi
Malaki Fiqh: Hashah ad-Dusuqi ala-sh-Sharh al-Kabir; Hedayar al-Mujtahid; Ibn al-Arabi, Ahkam al-Qura
Hanbali Fiqh: Ibn Qudamah, Al Mughn
Zahiriyyah Fiqh: Ibn Hazm, Al Muall
12. So that you may believe: So that you may adopt the attitude of a true and sincere believer. Obviously, the addressees of this verse are not the pagans and polytheists, but the Muslims who had already affirmed the faith. To tell them, after reciting to them a Shariah injunction: This is being enjoined so that you may believe in Allah and His Messenger, clearly signifies that the conduct of the person who continues to follow the traditional law of paganism even after hearing the divine command would be contradictory to his profession of the faith. It is not the character of a believer that when Allah and His Messenger have prescribed a law for him in some matter of life, he should set it aside and follow some other law of the world, or go on following his own wishes and desires
13. Here “disbeliever” does not imply the denier of Allah and His Messenger (peace be upon him), but the person who adopts the attitude and conduct of a disbeliever even after affirming faith in Allah and His Messenger (peace be upon him). In other words, it means: This, in fact, is a characteristic of the disbelievers that even after hearing the command of Allah and His Messenger (peace be upon him), they should go on following their own whims, and continue to practice the customs of ignorance, for a true and sincere believer would never adopt such an attitude. The same thing has been said in Surah Aal-Imran after enjoining the imperative duty of Hajj: And the one who disbelieves (i.e. does not obey this commandment), then Allah is Self- Sufficient and does not stand in need of anyone in the worlds. (Surah Al-Imran, ayat 97). At neither place has the word kufr been used in the sense that whoever continues to have marital relations with the wife after zihar without making the expiation, or thinks that divorce has taken place by the mere pronouncement of zihar on the wife, or does not go to perform Hajj, in spite of the means, should be declared an apostate and disbeliever by the religious court and regarded as excommunicated by the Muslims. But it means that in the sight of Allah such people as may reject His commandments by word or deed, or may at least bother to know as to what bounds their Lord has set for them, what He has forbidden and what He has enjoined, what He has made lawful and what unlawful, are not counted among the believers
