Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Amir of Hizb ut-Tahrir, to Questions from Visitors to His Facebook Page "Fiqhi"
To: Abu Hanifa ash-Shami
Question:
May Allah bless you, our eminent Amir,
What if someone begins fasting the two months in the month of Dhu al-Qi'dah, for example? Is it permissible for him to fast on the day of Eid al-Adha, or is he allowed to break the continuity by breaking his fast on that day and then making it up afterward?
Please advise, and may Allah bless you.
Answer:
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuh,
In your inquiry, you are commenting on the answer to a question we issued on 15 Sha'ban 1443 AH, corresponding to 18/03/2022 CE, regarding the expiation (kaffarah) for accidental killing (qatl al-khata') and whether the month of Ramadan can be part of the two months of expiation that the Sharia has obligated for those who cannot find a slave to manumit...
You are asking about the continuity (tataabu') in the two months: if he starts his fast in the month of Dhu al-Qi'dah, is it permissible for him to fast on the day of Eid al-Adha, and is he allowed to break the continuity by breaking his fast on Eid?
The answer to that is as follows:
- The ruling on the expiation for accidental killing is mentioned in the words of Allah (swt):
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 [it 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 or cannot afford it] - then [instead], a fast of two months consecutively, [as] repentance from Allah. And Allah is ever Knowing and Wise." (QS. An-Nisa [4]: 92)
According to this noble verse, what is required in the absence of a slave is the fasting of two consecutive months. This means that whoever is obligated to perform the expiation by fasting must fast at a time when he can achieve the requirement of continuity in the two months as stipulated in the verse. This is not feasible in Dhu al-Qi'dah and Dhu al-Hijjah because the fast is interrupted in them by the presence of the day of Eid al-Adha and the Days of Tashreeq...
Therefore, whoever is obligated to perform the expiation for accidental killing according to this verse must look for the possibility of fasting two consecutive months without an interruption that he is capable of avoiding, as we explained in our previous answer.
For information, the Kuwaiti Encyclopedia of Jurisprudence mentioned the opinions of the Madhhabs regarding the issue of breaking continuity by breaking the fast on the two Eids and the Days of Tashreeq as follows:
[What breaks continuity in the fasting of expiations:
Continuity in the fast of expiation is interrupted by matters mentioned by the jurists, which are: ................ C- The entry of Ramadan, the two Eids, and the Days of Tashreeq:
12- The Hanafis held that the entry of the month of Ramadan, Eid al-Fitr, or Eid al-Adha, and the Days of Tashreeq breaks the fast of expiation because of the obligation to fast Ramadan and the prohibition of fasting the rest, and because it is within his ability to find two months that do not contain what was mentioned. This is also the position of the Shafi'is regarding the fast of someone who is not a prisoner. As for the prisoner, if he fasts based on his own exertion (ijtihad) and Ramadan or Eid begins before the completion of the two months, there is a disagreement regarding the interruption of his continuity, similar to the disagreement on interruption due to a sick person breaking their fast.
As for the Malikis, they mentioned: that intentionally breaking the fast on the day of Eid breaks the continuity of the expiation fast, such as if he intentionally fasts Dhu al-Qi'dah and Dhu al-Hijjah for the expiation of Zihar while knowing that Eid occurs during them. This is contrary to if he was ignorant of it, in which case it does not break, such as if he thought that the month of Dhu al-Hijjah was Muharram, so he fasted it along with what follows it, thinking it was Safar, and then the opposite became clear...
As for the Hanbalis, they went to the position that the expiation fast is not interrupted by that at all, because of the obligation to fast Ramadan by the command of the Sharia, and because breaking the fast on the two Eids and the Days of Tashreeq is also obligatory by the command of the Sharia; meaning that the Sharia prohibited him from fasting during that time, just like the night.] End quote.
This means that the Hanafis, Shafi'is, and Malikis see that breaking the fast on the day of Eid interrupts the continuity of the two months of expiation; i.e., the person performing the expiation must start the count of the two months anew. As for the Hanbalis, the continuity of the two months of expiation is not interrupted for them by breaking the fast for Eid al-Adha.
- As for fasting on the day of Eid al-Adha and the Days of Tashreeq, it is not permissible. This is due to what Muslim narrated from Abu Hurairah (ra) that the Messenger of Allah (saw):
نَهَى عَنْ صِيَامِ يَوْمَيْنِ يَوْمِ الْأَضْحَى وَيَوْمِ الْفِطْرِ
"He forbade fasting on two days: the day of Al-Adha and the day of Al-Fitr." (Narrated by Muslim)
And due to what Muslim narrated from Nubaysha al-Hudhali, who said: The Messenger of Allah (saw) said:
أَيَّامُ التَّشْرِيقِ أَيَّامُ أَكْلٍ وَشُرْبٍ
"The days of Tashreeq are days of eating and drinking." (Narrated by Muslim)
This means that it is not permissible for the person performing the expiation to fast the day of Eid al-Adha or the Days of Tashreeq if the expiation fast includes them. Rather, he must break his fast during them, and breaking his fast during them means an interruption of the continuity in the expiation fast that he began in Dhu al-Qi'dah. This means that he must begin fasting another two consecutive months other than what he previously fasted, due to the interruption of the continuity required by Sharia in fasting the two months of expiation.
- It came to our attention when reviewing the answer to the question we issued on 15 Sha'ban 1443 AH corresponding to 18/03/2022 CE, that a clerical error occurred, seemingly out of oversight, as it was stated in the referred answer:
[...The expiation for accidental killing is fasting two consecutive months for those who do not have a slave to manumit or feeding sixty poor people 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]... And whoever does not find [one or cannot afford it] - then [instead], a fast of two months consecutively, [as] repentance from Allah. And Allah is ever Knowing and Wise." (QS. An-Nisa [4]: 92)].
The statement in the previous answer: (is fasting two consecutive months for those who do not have a slave to manumit or feeding sixty poor people), is correct up to the word (manumit). As for the phrase (or feeding sixty poor people), it is incorrect. There is no feeding of sixty poor people in the expiation for accidental killing, nor did the verse cited in the answer mention feeding sixty poor people. In fact, the answer itself stated that there is no feeding for someone who cannot fast... as mentioned in point 3 of the said answer:
(And what I prefer is that if he cannot fast for a valid reason as we mentioned above, then there is nothing upon him; rather, he should seek Allah’s forgiveness and draw closer to Him with voluntary acts, and Allah is Forgiving and Merciful. As for why we did not apply analogy (qiyas) for the expiation of accidental killing to the expiation of Zihar, it is because there is no analogy in expiations as they are not reasoned (mu'allalah)... etc.)
Accordingly, it seems that this phrase ("or feeding sixty poor people") was placed by mistake in this position, as it contradicts everything else that came in the referred answer. The correct way is to say it like this, by deleting the incorrect phrase:
[...The expiation for accidental killing is fasting two consecutive months for those who do not have a slave to manumit, 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]... And whoever does not find [one or cannot afford it] - then [instead], a fast of two months consecutively, [as] 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 expiation, so another obligatory fast for something other than expiation, such as the fast of the month of Ramadan, does not enter into it. The Sharia text regarding the fast of Ramadan:
شَهْرُ رَمَضَانَ الَّذِي أُنْزِلَ فِيهِ الْقُرْآنُ هُدًى لِلنَّاسِ وَبَيِّنَاتٍ مِنَ الْهُدَى وَالْفُرْقَانِ فَمَنْ شَهْرَ رَمَضَانَ الَّذِي أُنْزِلَ فِيهِ الْقُرْآنُ هُدًى لِلنَّاسِ وَبَيِّنَاتٍ مِنَ الْهُدَى وَالْفُرْقَانِ فَمَنْ شَهِدَ مِنْكُمُ الشَّهْرَ فَلْيَصُمْهُ
"The month of Ramadhan [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 Sharia text for the expiation of accidental killing, so they do not overlap.]
I hope the answer is clear.
Your brother, Ata Bin Khalil Abu Al-Rashtah
28 Dhu al-Qi'dah 1443 AH Corresponding to 27/06/2022 CE
Link to the answer from the Amir's Facebook page (may Allah protect him): Facebook
Link to the answer from the Amir's website (may Allah protect him): Web