Tafsir of Al-Mujadilah 58:4

(And he who does not find, then a fast of two consecutive months before they touch one another.)

This means: he who does not find a slave to free, the duty upon him is to fast for two consecutive months before physical contact (intercourse).

"He who does not find" refers to one who does not possess a slave, nor the means to purchase one beyond what is necessary for his basic needs. This is because such funds are considered already "spent" on his needs, and are thus treated as non-existent. The measure of basic needs (the qut) for a laborer is one day’s food, and for a professional, one month’s food, according to what is stated in al-Bahr. If one owns a slave but needs the slave's service, he is considered "one who has found" (i.e., not poor), and therefore fasting is not sufficient for him. This differs from one who owns a dwelling, for that is like his clothing and the clothing of his family.

According to the Shafi'is, the meaning is one who does not own a slave or funds surplus to his needs and the needs of his dependents for their ordinary life—including expenses, clothing, housing, necessary furniture, and the settlement of his debts, even if those debts are deferred. They stated: If the slave or his price is not surplus to these needs—either because he requires the slave's service due to a position that prevents him from serving himself, or because the slave is so cumbersome that freeing him would cause the owner extreme hardship not customarily bearable—there is no duty to free a slave, because he is considered "lacking" in the eyes of the law, just like one who finds water but needs it for thirst. Layth also adopted the view that such a person is considered as one who "lacks" (the means), similar to the one who finds water but is in need of it.

The difference in our school, as mentioned by Al-Razi in Ahkam al-Qur'an, is that water is something one is commanded to reserve for one’s thirst, and using it for anything else is prohibited, unlike the case of a servant. Being "well-off" (or "destitute") is considered at the time of the expiation (kaffarah) and its performance. Malik holds this view as well.

Regarding the time of performance, there are various opinions attributed to Al-Shafi'i. The most evident, as it is with us, is that since the expiation (freeing a slave) is an act of worship for which there is a substitute of a different kind—like Tayammum relative to Wudu, or sitting relative to standing in prayer—the time of its performance is what matters. A second view, prevailing in the schools of Ahmad and the Zahiris, is that because there is a nuance of punishment in it, the time of the obligation (when the Zihar was committed) is what matters—just as if a slave commits adultery and is then freed, he is punished with the punishment of a slave. A third view considers the more severe of the two times (obligation or performance), and a fourth considers the more severe of the two generally.

As for one who owns a slave but the slave is a debt owed by others: if he cannot collect it from the debtor, he is considered "lacking," and fasting is sufficient for him. If he can collect it, he is considered "having found," and fasting is not sufficient. If he possesses wealth but owes a similar debt, he is "lacking" only after settling the debt. Before settling it, some say he is also "lacking," based on the opinion of Muhammad that charity (sadaqah) is lawful for him, indicating that his wealth, because it is rightfully owed to creditors, is legally treated as non-existent. Others say he is "having found," because the debtor’s ownership of his wealth is complete, evidenced by his right to dispose of it in any manner.

In al-Bada'i', it is stated: If a slave suitable for expiation is in his possession, he must free it, whether he has a debt or not, because he is a possessor in reality. The result is that debt does not prevent the freeing of an existing slave, but according to one of the two opinions, it prevents the obligation to purchase one using money that is equal to his debt. It is apparent that whenever purchase is obligatory, the "fair market price" is considered. Al-Nawawi and other Shafi'is explicitly stated this, saying: One is not obligated to buy a slave at an inflated price (above market value), analogous to what is mentioned regarding buying water for purification. The distinction made between the two cases regarding the recurrence of the need is weak. According to the first opinion, as Al-Adhru'i and others cited from Al-Mawardi—and relied upon—it is not permissible to switch to fasting; rather, he must wait until one is available at the market price. Similarly, if his wealth is absent, he is required to wait for its arrival. No consideration is given to the harm they suffer from the loss of conjugal relations during the waiting period, because he is the one who involved himself in this situation.

What they mentioned regarding the absence of wealth matches our school's view. If one has two expiations of Zihar for two wives and possesses only one slave, and he fasts for one, then frees the slave for the other, in al-Muhit there is a similar case that implies the fasting is not sufficient for the first. It says: If he has two expiations for oaths and possesses food enough for one, and he fasts for one then feeds the other, his fasting is not valid because he fasted while capable of paying the expiation with wealth.

The month is determined by the crescent moon. There is no difference between a complete month and an incomplete one. He who fasts according to the moons, and it happens that every month is twenty-nine days until the total of the two months is fifty-eight days, it is sufficient for him. If the crescent is obscured, each month is considered thirty days, as stated in al-Muhit. If he fasts without reference to the moons, he must complete sixty days, as stated in Fath al-Qadir.

The month is also considered by the crescent according to the Shafi'is. They said: If he begins in the middle of a month, he counts the following month by the crescent to complete it, and he completes the first month from the third to thirty days, because the hilal (crescent) cannot be determined there except by combining parts of two months. Based on this, it may happen that his fast is sixty days or fifty-nine. The first is not mandatory, as is obvious, so do not be heedless.

If he breaks his fast for one day of the two months, even the last one, due to an excuse such as illness or travel, he must restart, because the requirement of consecutiveness is broken, and he is customarily capable of it. Abu Hayyan said: If he breaks it due to an excuse like travel, Ibn al-Musayyib, Al-Hasan, 'Ata', 'Amr ibn Dinar, Al-Sha'bi, Malik, and Al-Shafi'i (in one of his two opinions) say he may continue from where he left off.

If he has intercourse with the woman he performed Zihar upon during the two months, whether at night intentionally or during the day accidentally, he must restart the fast according to Abu Hanifah and Muhammad. Abu Yusuf said: He does not restart, because it does not prevent consecutiveness, since the fast is not invalidated by it, and the fast is the condition. Their argument is that what is commanded is a fast of two consecutive months in which there is no intercourse. Therefore, if he has intercourse during it, he has not performed the command. If he has intercourse with another wife while forgetting, he does not restart according to the Imam, just as if he ate while forgetting, because the prohibition of eating and intercourse is only for the sake of the fast so that the consecutiveness is not interrupted; and it is not interrupted by forgetfulness. This is unlike the prohibition of Zihar, which is not for the fast, but because it occurred before the expiation, and its precedence over intercourse is a condition for its permissibility. By having intercourse while forgetting, the effect of the preceding fast is nullified in terms of the expiation.

Furthermore, it is necessary that the two months do not contain the month of Ramadan, because consecutiveness is explicitly stipulated, and Ramadan cannot count for Zihar as it would nullify what Allah has obligated. It also should not contain days on which fasting is prohibited: the two Eid days and the days of Tashriq, because fasting on those days is deficient due to the prohibition, so it cannot substitute for a perfect obligation. In al-Bahr: A traveler in Ramadan may fast for another obligation. Regarding the sick person, there are two narrations. Fasting days of a specific vow during the two months with the intention of the expiation does not interrupt consecutiveness.

If he becomes capable of freeing a slave on the last day of the two months before the sun sets, he is obligated to free the slave, because the intent is the continued absence of capacity until the fast is completed. His fast at that point becomes voluntary. The best is to complete that day. If he breaks the fast, he does not have to make it up because he began it as a discharge of duty, not as a vow, contrary to Zufar.

In Tuhfat al-Shafi'iyyah, it says if it becomes clear during the fasting that he had wealth he inherited and was not aware of it, he does not receive credit for the fast, according to the most valid view, based on what is the case in reality—meaning he was "having found" by that consideration. I do not have in mind the ruling of this according to our scholars. The implication of the apparent text regarding one who performs Tayammum while having water in his luggage which he did not know about is that his Tayammum is valid. The Shafi'is clearly stated regarding one who hid water in his luggage and did not fail to search for it, or if there was a hidden well nearby, that his Tayammum is void. Thus, one should look at the difference between what is here and what is there; perhaps it is the strictness in the matter of expiation versus Tayammum. It should be reviewed.

(If he is not able...) meaning, to fast two consecutive months. This is by being unable to fast at all, or being unable to maintain the consecutiveness for some reason—such as old age or an illness from which recovery is not expected, as Ibn al-Humam and others qualified it. The majority of Shafi'is are upon this. A minority, such as the Imam and those who followed him (and which was authenticated in al-Rawdah), say: What is considered is his perception that he can continue for two months, based on the general custom for such a person or the word of physicians. Ibn Hajar said: It seems sufficient to take the word of one just person among them. The Shafi'is clearly stated that one for whom fasting or maintaining consecutiveness causes severe hardship not bearable customarily—even if it does not reach the level that permits Tayammum—is considered unable. Likewise is one who fears an increase in illness.

In the Hadith of Aws, according to what Abu Hayyan mentioned, the Messenger of Allah (peace be upon him) said: "Can you fast two consecutive months?" He said: "By Allah, O Messenger of Allah, if I do not eat three times a day and night, my eyesight fails, and I fear my eyes will grow dim..." (the report continues). They counted "sexual obsession" (shabaq), which is the intensity of lust, as a cause for lack of ability.

This is inferred from what Ahmad, Abu Dawud, Ibn Majah, Al-Tirmidhi (who classified it as hasan), Al-Hakim (who authenticated it), and others recorded from Salamah ibn Sakhr: "I was a man blessed with sexual intercourse with women more than anyone else. When Ramadan entered, I performed Zihar upon my wife until Ramadan would end, fearing I might engage with her at night and not be able to pull away before dawn. One night, while she was serving me, something was revealed to me, so I jumped upon her..." until he said: "...So I went and came to the Messenger of Allah (peace be upon him) and told him my story. He said: 'Is that you?' I said: 'Yes.' He said: 'Is that you?' I said: 'Yes.' He said: 'Is that you?' I said: 'Yes, and here I am, proceed with the judgment of Allah, for I am patient for that.' He said: 'Free a slave.' I slapped my neck with my hand and said: 'No, by Him who sent you with the truth, I do not own anything else.' He said: 'Fast two consecutive months.' I said: 'Did I suffer what I suffered except from fasting?' He said: 'Feed sixty poor people.'"

The point is that by saying "Did I suffer what I suffered...", he pointed to the intensity of his obsession, with which he could not fast two consecutive months. He was not considered excused from fasting Ramadan, Ibn Hajar said, because it is inevitable for him. He mentioned that overwhelming hunger is not an excuse initially for his inability at that time, so he is obligated to begin fasting; if he becomes unable, he breaks the fast and shifts to feeding. This is different from obsession, because the latter is present at the start of the fast, so the owner of it enters into the generality of the saying of the Almighty: "And he who is not able."

(...then feeding sixty poor people.) For each poor person, half a sa' of wheat, or a sa' of dates, or a sa' of barley, and the flour of each is like its origin; likewise sawiq (parched flour). This is due to reports mentioned by Ibn al-Humam in Fath al-Qadir. The sa' is four mudds.

The Shafi'is said: For each poor person, one mudd, because it is authentic in one narration, and in another, it is a sa'. This is interpreted as a clarification of what is permissible, which is true by recommendation, for the impossibility of abrogation, so combining the two is necessary. It must be from the common staple food of the place of the person performing the expiation for the majority of the year, such as dried yogurt (aqt), even if it is for the local people. Flour that is not accepted for Zakat al-Fitr in their school is not sufficient. The school of Malik, as Abu Hayyan said, is a mudd and a third by the Prophetic mudd. Ibn Wahb narrated from him two mudds.

Some say: A mudd and two-thirds of a mudd. Others say: What satiates without a specific limit. There is no difference between transferring ownership and permitting consumption in our school. If he provides lunch and dinner to sixty people, or lunches them twice, or dinners them twice, or provides breakfast and supper, or supper twice, and satiates them with wheat bread, barley, or something similar like millet with condiments, it is sufficient, even if what they were satiated with did not reach the quantity considered for transferring ownership. The union of the sixty is considered; if he provides lunch to sixty poor people and dinner to sixty others, it is not sufficient unless he repeats either lunch or dinner to one of the two groups. If he feeds one hundred and twenty poor people in one day, one satiating meal, it is not sufficient except for half the feeding. If he repeats it for sixty of them, it is sufficient.

The Shafi'is made transferring ownership a condition, by analogy to Zakat and Sadaqat al-Fitr. This is because transferring ownership better satisfies the need; therefore, mere permission to consume does not suffice. We say: What is explicitly stated here is "feeding" (it'am), which in reality means providing access to food. Permission is sufficient, just like transferring ownership. In Zakat, the word is "giving" (i'ta'), and in Sadaqat al-Fitr, it is "payment" (ada'), and both are for transferring ownership in reality, as is stated in al-Hidayah. The scholar Ibn al-Humam said: Do not say they agreed on the permissibility of transferring ownership, so if the reality of feeding were as mentioned, it would be shared or general in its reality and metaphor, because we say: the permissibility of transferring ownership with us is by textual indication, and indication prevents acting upon the literal meaning, as in the prohibition of cursing or striking during the prohibition of saying "fie" (to parents). Thus, when it is textually provided to satisfy the need of eating, then transferring ownership—which is a cause for satisfying all needs, of which eating is one—is more permissible, as it then satisfies the need of eating and others.

Al-Wani mentioned that feeding (it'am) means making another person a "feeder" (i.e., an eater), because the reality of "I fed him food" is "I ate it," and the hamza (in at'amtu) makes it transitive to a second object, meaning "I made him an eater." As for something like "I gave you this food," it is a gift and transfer of ownership, by the context of the situation. They said: The rule is that if the second object is mentioned, it is for transferring ownership; otherwise, it is for permission. This is so, but what is mentioned in the books of language is that feeding is giving food, which is broader than being a transfer of ownership or permission. So do not be heedless.

It is permissible to combine permission and transfer of ownership for some poor people versus others, such as if he transfers ownership to thirty and feeds thirty lunch and dinner. Likewise, for one man in one of the two narrations, as if he lunches him and gives him a mudd. If he gives one poor person sixty days, it is sufficient. If he gives it in one day, it is not sufficient except for his day, because the intent is to plug the gap of the needy, and need renews every day. Giving it to him on the second day is like giving it to someone else. This is in permission without disagreement. As for transferring ownership from one poor person in multiple installments, it has been said: It is not sufficient, and it has been said: It is sufficient, because the need for ownership might renew in one day, unlike if he gave it in one installment, because splitting is mandatory by text.

The Shafi'is disagreed and said: There must be giving to sixty poor people in reality, so giving to one person for sixty days does not suffice. This is the school of Malik and the correct view in the school of Ahmad; most scholars say this because the Almighty explicitly stated "sixty poor people." By the recurrence of need in one poor person, he does not become sixty. So the reasoning that "the intent is to plug the gap of the needy" nullifies the requirement of the text. Therefore, it is not permissible. Our scholars are more in agreement with this principle; that is why they say giving to one poor person the entire quota of sixty in one installment is not sufficient, reasoning that splitting is required by the text, although the splitting of the payment is not explicitly mentioned but is the implied meaning of the number of poor people. The explicit mention of the number is more appropriate because it is what is necessitated.

... (Section on Zihar concludes with warnings against violating the limits of Allah).

(That...) is an indication of what preceded of explanation and instruction. Its place is either in the nominative as an initial, or accusative by an implied verb explained by what follows, meaning: "That is what has occurred," or "We did that so that you may believe in Allah and His Messenger, and learn the laws He has enacted for you, and abandon what you were upon in your days of ignorance." (And these...) aforementioned rulings (are the limits of Allah) which it is not permissible to transgress, so adhere to them and stop at them. (And for the disbelievers...) meaning those who transgress them and do not act upon them (is a painful punishment).

(For their disbelief.) The "disbeliever" is applied to the transgressor of the limits as a way of intensification to warn him. Similar to this is the saying of the Almighty: "And whoever disbelieves, then indeed Allah is free from need of the worlds."