Fatwa of Yahya ibn Yahya Al-Laythi for prince who had sexual intercourse in Ramadan
15-5-2017 | IslamWeb
Question:
It is reported that one of the rulers broke his oath. Al-Munthir ibn Sa‘id Al-Balluti, the famous Andalusi scholar, gave him a fatwa to fast instead of feeding the needy. The people blamed Al-Munthir that he gave a fatwa that contradicts the Sharee’ah! He said what means that the ruler could easily feed the needy and that this did not constitute any deterrence for him. However, fasting deters the ruler given that he can feed the needy and his money is abundant while it might be difficult for him to fast, and these matters are set in place to deter man, and the ruler would not be deterred by other than fasting. What is the ruling on this fatwa in the scale of the Islamic Sharee’ah?
Answer:
All perfect praise be to Allah, the Lord of the worlds. I testify that none is worthy of worship except Allah and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and messenger.
We did not find this issue in particular; however, the expiation of breaking an oath is based on choosing between feeding ten needy people, clothing them, or freeing a slave. If one is not able to do one of the three mentioned options, he should fast for three days. Ibn Qudaamah said in Al-Mughni:
People of knowledge agree in consensus that the one who breaks his oath is given the choice between feeding the needing, clothing them, or freeing a slave. If he does any of these, this avails him. That is because Allah Almighty used the coordinator ‘or’, which indicates giving the choice. Ibn ‘Abbaas said, “In the book of Allah, if there is an ‘or’, you have the choice. If there is {and whoever cannot afford…}, then the first option is to be given priority. Imam Ahmad mentioned this in At-Tafsir.”
However, what we do know of and resembles the named issue in the question is that the scholars mentioned that Yahya ibn Yahya Al-Laithi, the companion of (Imam) Malik, gave a Fatwa to the ruler of Al-Andalus about the expiation of having intercourse in the daytime in Ramadan to fast, and he did not give him the choice between freeing a slave, fasting, and feeding the needy as in the school of Malik. The jurists attending asked him why he did not give him the choice in the Fatwa. He explained that if he was not obliged to fast, he would have intercourse again and expiate by feeding. Feeding would not burden him with anything, unlike fasting, which exhausts him, so he would be deterred. Taj Al-Iklil ‘Ala Mukhtasar Khalil states:
Ibn ‘Arafah said, “Yahya ibn Yahya hastened to give a fatwa to Prince ‘Abdur-Rahman when he asked jurists about his having had intercourse with a slave girl of his in Ramadan. He told him that the expiation was that he fasts. The attendees kept silent; then they asked him afterwards why he did not give him the choice between the three options. He said, ‘If I give him the choice, he will have intercourse every day and free a slave.’ They did not disapprove. Fakhr Ad-Din commented on this, saying that the Sharee’ah cancels this, and scholars invalidated it.”
The opinion of the majority of the scholars is that expiation here is based on priority as well.
Allah knows best.