Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir
To the Questions of the Visitors of His Facebook Page "Fiqhi"
Answer to a Question
To Al-Aabid Lillah
Question:
Assalamu Alaikum,
May Allah help you in what you are undertaking.
The question: Is it permissible to combine the two consecutive months of fasting for the expiation (kaffarah) of manslaughter between Sha’ban and Ramadan? Knowing that the expiation of fasting is obligatory in the event that one does not have a slave to free, and the fasting of Ramadan is also obligatory; so, can Sha’ban and Ramadan be combined for the expiation of fasting?
May Allah reward you with goodness.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh,
1- It is not permissible to include the fasting of the month of Ramadan in the expiation for manslaughter (qatl al-khata’). Each of them is a ruling separate from the other. The expiation for manslaughter is to fast for two consecutive months for whoever does not find a slave to free, as stated in the noble verse:
وَمَا كَانَ لِمُؤْمِنٍ أَنْ يَقْتُلَ مُؤْمِناً إِلَّا خَطَأً وَمَنْ قَتَلَ مُؤْمِناً خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ إِلَّا أَنْ يَصَّدَّقُوا فَإِنْ كَانَ مِنْ قَوْمٍ عَدُوٍّ لَكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَإِنْ كَانَ مِنْ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُمْ مِيثَاقٌ فَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ فَمَنْ لَمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِنَ اللَّهِ وَكَانَ اللَّهُ عَلِيماً حَكِيماً
"And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one] - then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah. And Allah is ever Knowing and Wise." (QS. An-Nisa [4]: 92)
It is clear from the verse that what is required is fasting these two months for the expiation, so another fasting that is obligatory for a reason other than the expiation—such as the fasting of the month of Ramadan—cannot be included in it. The Shar’i text regarding the fasting of Ramadan:
شَهْرُ رَمَضَانَ الَّذِي أُنْزِلَ فِيهِ الْقُرْآنُ هُدًى لِلنَّاسِ وَبَيِّنَاتٍ مِنَ الْهُدَى وَالْفُرْقَانِ فَمَنْ شَهِدَ مِنْكُمُ الشَّهْرَ فَلْيَصُمْهُ
"The month of Ramadan [is that] in which was revealed the Qur'an, a guidance for the people and clear proofs of guidance and criterion. So whoever sights [the new moon of] the month, let him fast it." (QS. Al-Baqarah [2]: 185)
is different from the Shar’i text for the expiation of manslaughter, so they do not overlap. I ask Allah (swt) to help you in this trial and to multiply your reward, and Allah is the protector of the righteous.
2- As for the case of permanent inability to fast due to a valid reason, there are two opinions regarding its ruling:
First: That no feeding (it’am) is required of him. This is because Allah (swt) did not mention feeding if one is unable to fast in the expiation of killing. If there were feeding, He (swt) would have mentioned it as He mentioned it in the expiation of zihar (the husband’s comparison of his wife to his mother’s back)... and this is the opinion of the majority (jumhur).
Second: Analogy (qiyas) of the expiation of manslaughter to other expiations such as the expiation of zihar, where it is obligatory to feed sixty poor people if one cannot fast sixty days (two consecutive months). Allah (swt) said:
وَالَّذِينَ يُظَاهِرُونَ مِنْ نِسَائِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِنْ قَبْلِ أَنْ يَتَمَاسَّا ذَلِكُمْ تُوعَظُونَ بِهِ وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ * فَمَنْ لَمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ مِنْ قَبْلِ أَنْ يَتَمَاسَّا فَمَنْ لَمْ يَسْتَطِعْ فَإِطْعَامُ سِتِّينَ مِسْكِيناً ذَلِكَ لِتُوعَظُونَ بِهِ وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ
"And those who pronounce thihar from their wives and then [wish to] go back on what they said - then [there must be] the freeing of a slave before they touch one another. That is what you are admonished with; and Allah is Acquainted with what you do. And he who does not find [a slave] - then a fast for two months consecutively before they touch one another; and he who is unable - then the feeding of sixty poor persons. That is for you to believe in Allah and His Messenger; and those are the limits [set by] Allah. And for the disbelievers is a painful punishment." (QS. Al-Mujadilah [58]: 3-4)
...and this is one of the two opinions of the Shafi'is.
3- What I prefer is that if he is unable to fast for a valid reason as mentioned above, then nothing is required of him; rather, he should seek Allah’s forgiveness and draw closer to Him with voluntary acts (nawafil), and Allah is Forgiving, Merciful. As for why we do not apply analogy (qiyas) between the expiation of manslaughter and the expiation of zihar, it is because there is no qiyas in expiations as they are not rationalized (mu’allal).
It is stated in the book The Islamic Personality (Ash-Shakhsiyya al-Islamiyya), Volume 3, Chapter "Conditions for the Ruling of the Original Case" regarding Analogy, page 338 of the PDF file:
[Fifth: That the ruling of the original case (asl) is not one that deviates from the norms of analogy (sunan al-qiyas). Things that deviate from the norms of analogy are of two types:
First: That which is not rationally perceivable in its meaning (la yu'qalu ma'nahu), which is either an exception to a general rule or an original/initial ruling:
An exception to a general rule, such as accepting the testimony of Khuzaymah alone, as narrated by Al-Bukhari; for it, despite its meaning not being rationally perceivable, is an exception to the general rule of testimony.
An original/initial ruling, such as the number of rak'at, the estimation of zakat thresholds (anisbah), the amounts of the prescribed punishments (hudud), and the amounts of expiations (kaffarahs); for these, despite their meanings not being rationally perceivable, are not exceptions to a general rule. In both cases, analogy (qiyas) is prohibited in them...] End quote.
I hope this is sufficient, and Allah is All-Knowing and All-Wise.
Your brother, Ata Bin Khalil Abu Al-Rashtah
15 Sha’ban 1443 AH 18/03/2022 CE
Link to the answer from the Ameer's Facebook page (May Allah protect him): On Facebook