Safar Mode So You Can Have Husband and Wife Relationship

Afwan kiyai, what is the ruling on someone traveling with the intention of having sex with husband and wife while fasting? 

Answer

By: Ahmad Syahrin Thoriq

This is the characteristic of Indonesian netizens, the questions are very creative and intriguing. If you don't answer, this is a possible problem, I want to answer, I'm confused about where to look for references. Because a person like me is certainly not a mufti, for every question, references must be sought for the answer from the scholars who are heirs to the knowledge of the Prophet. 

𝗦𝗮𝗳𝗮𝗿 𝘀𝗮𝗹𝗮𝗵 𝘀𝗮𝘁𝘂 𝘂𝗱𝘇𝘂𝗿 𝗯𝗼𝗹𝗲𝗵 𝘁𝗶𝗱𝗮𝗸 𝗯𝗲𝗿𝗽𝘂𝗮𝘀𝗮

The scholars explained that traveling with a distance that has allowed a person to join and perform prayers and not for the purpose of immorality he may take waivers not to fast.[1] This is based on the word of Allah ta'ala:

وَمَنْ كَانَ مَرِيضًا أَوْ عَلَى سَفَرٍ فَعِدَّةٌ مِنْ أَيَّامٍ أُخَرَ

"And whoever is in a state of illness or on a journey then replace it on another day (QS Al-Baqarah: 85). 

And when it is an excuse not to fast, of course a person may do all things that are prohibited for fasting people such as eating, drinking and having sex with husband and wife. 

Before going to the main issue, here are two popular things in fiqh matters that we need to know even at a glance so that we can draw conclusions about the case in question, namely the problem of Tatabu' rukhash and Hilah law. 

𝗧𝗮𝘁𝗮𝗯𝘂’ 𝗥𝘂𝗸𝗵𝗮𝘀𝗵

In the world of fiqh there is what is called tatabu' rukhash, which is a term for the activity of someone who deliberately chooses opinions that are light and in accordance with his abilities from the opinions issued by the scholars. 

Rukhsakh (jama'nya rukhash) itself means relief in religion. Al Imam Munawi Rahimahullah said:

God bless you

"Rukhsah is legal relief for someone who has been burdened with Shari'a obligations because of an excuse."[2]

Taking rukhsakh (relief) in religion which has indeed been outlined in the Shari'a, the law is that it is permissible and even some of it is recommended, as stated in a hadith:

إن الله تبارك وتعالى يحب أن تؤتى رخصه كما يكره أن تؤتى معصيته

"Indeed, Allah tabaraka wataála likes when relief is taken from Him, as He hates when disobedience to Him is done." (Narrated by Imam Ahmad)

This is different from the activity of tatabu' rukhash where someone is deliberately looking for light and easy things in religion, and this is generally prohibited by the scholars. Some of the earlier classical scholars said:

من تتبع رخص العلماء فقد تزندق

"Whoever seeks rukhshah-rukhshah from the scholars, then indeed he has done zindiq."[3]

Sulaiman at Taimi Rahimahullah said:

لو أخذت برخصة كل عالم اجتمع فيك الشر كله

"If you (only) take the opinion of every pious person lightly, then all kinds of bad things have gathered on you."[4]

Although it is undeniable that there are some scholars from the Hanafiyah circle who allow tatabu' rukhash with the understanding of choosing the opinions of scholars, but still this cannot be done with the intention of playing games. 

Al Imam Abu Abbas al Ansari al Hanafi said:

لكن لابد ??? 

“However, the purpose of following opinions lightly must not be out of play... Such a thing is agreed to be haram, because the text on the prohibition of playing games is very clear. Then understand!”[5]

𝗛𝗶𝗹𝗮𝗵

Hilah is a word that is also absorbed into Indonesian to become kilah. To argue means to deny, to avoid. It turns out that the meaning in Indonesian is also similar to the meaning in Arabic, at least etymologically. 

About what hilah is, there are many definitions made by scholars. What we think is the most jami' as well as mani' is the following definition:

الحيل ... تطلق على ‌المخارج ‌من ‌المضايق

"Hilah is taking a way out of narrowness."[6]

In the discussion about the law of doing hilah, the scholars have very sharp differences of opinion. Starting from those that are absolutely forbidden until there are scholars who sort them out, to there are types of hilah that are unlawful but some are permissible. 

An example of a case is what a husband did where he remarried his ex-wife whom he had divorced three times after his wife had married someone else first. This is permissible syar'i as long as there is no element of subterfuge in it. 

However, the law becomes prohibited if the husband commits hilah, that is, he hires another man to marry his ex-wife and then immediately divorces her so that he can return to have his ex-wife again. This is the forbidden hillah. 

Whereas hillah is permissible, for example: Someone who this year is obliged to pay zakat because his haul arrives, then he prefers to use his wealth for pilgrimage to reduce his nisab.[7]

𝗛𝘂𝗸𝘂𝗺 𝘀𝗮𝗳𝗮𝗿 𝗮𝗹𝗮𝘀𝗮𝗻 𝗮𝗴𝗮𝗿 𝗯𝗶𝘀𝗮 𝗯𝗲𝗿𝗵𝘂𝗯𝘂𝗻𝗴𝗮𝗻 𝗶𝗻𝘁𝗶𝗺

Then what is the ruling on when someone purposely makes an excuse so they can escape the obligation of fasting, such as deliberately traveling so that they can have sex with husband and wife? 

So associated with the rules of tatabu' rukhash and hilah which have been mentioned above, then the most probable law is between makruh or even haram. Of course, the possibility of mubah law is small and it is very unlikely to be sunnah law. 

𝟭. 𝗛𝗮𝗿𝗮𝗺

Because even though traveling is one of the excuses it is permissible not to fast, but with the provisions that traveling is not to commit sins. Intending to be free to indulge in lust during the day of Ramadan by circumventing the rules of Shari'a is a disgraceful act and resembles disobedience. 

This action is similar to tatabu' rukhash even with the bad aim of playing. It is also a bad form of hilah, for doing something for the sake of lust by sacrificing the great worship of fasting. 

𝟮. 𝗠𝗮𝗸𝗿𝘂𝗵

The second possibility of the law of acts like this is makruh, not to the point of being unlawful. With the reason that the intention to have intercourse with husband and wife is not an immoral act. Of course it cannot be equated with immorality, such as wanting to gamble, commit adultery, act wrongfully, which cancels the conditions for traveling, which allow a person not to fast. 

Likewise, if he is classified as tatabu' rukhash or hilah, yet there are scholars who allow things like that. So even though the intention is classified as modus, it cannot be punished as an act that is forbidden. 

But here it needs to be argued, when viewed from the intention (purpose) of doing hilah, the type of hilah is what is prohibited, namely to run away from the burden of the Shari'a for the sake of lust. So that it is a little different, for example if someone travels for Umrah in order to get relief from not fasting. 

𝗞𝗲𝘀𝗶𝗺𝗽𝘂𝗹𝗮𝗻

The strong opinion - wallahu a'lam - the act of deliberately traveling so that you can have intercourse with your wife is a type of tatabu' rukhash and also hilah which is prohibited so that the stronger law is haram.[8]

Thereby. 

______________

[1] Al Mausu'ah al Fiqhiyah Kuwaitiyah (28/49)

[2] Faidh al Qadir (2/296)

[3] Al Mukhtashar fi Ahkam p.8

[4] Siyar A'lam Nubala (6/325)

[5] Fawatih ar Rahamut (4/304)

[6] Date at Tasyri' al Islami p.334

[7] Maqashidus Syari'ah Al-Islamiyah p. 323

[8] Al Khiyal Fiqhiyah Dhawabithuha wa Tathbiqathuha p.137