On Committing Fornication (Zinā) During Hajj

Answer—and Allah grants success: This man must repent and feel remorse for what he has done. As for the Hajj, it has been corrupted by the act of intercourse. It was obligatory upon this man to complete the remaining rites, in His saying: “And complete the Hajj and ʿUmrah for Allah.” [al-Baqarah:196]
Accordingly, he must:
1. (Make up the Hajj in the following year, if he is able, performing a complete Hajj. (1
(1)- The madhhab does not stipulate ability (istiṭāʿah) for making up *the Hajj+.
2. Perform Ṭawāf al-Ziyārah, intending it as a completion of the Hajj of the first year.
3. Slaughter a camel (badnah) as expiation for what he committed during that invalid Hajj.
4. A sacrificial blood (dam) is due (2) for every rite he omitted in that year when the Hajj was corrupted by intercourse.
(2)- Except Ṭawāf al-Wadāʿ (farewell circumambulation).
5. A dam is due for every prohibition he committed after the act of zinā, because he remained in a state of iḥrām—this is based on what is mentioned in al-Azhar and its commentary.
I say: The preferable view is that the aforementioned Hajj was nullified by rafḍ (renunciation). For when the man committed zinā, he believed the Hajj had been invalidated, so he exited the Hajj and his iḥrām, renouncing them on the basis of what he believed.
Renunciation in Hajj and ʿUmrah is permissible in general, as evidenced by what is narrated that the Prophet (May Allah bless him and his family and grant them peace) ordered his wife ʿĀʾishah to renounce her ʿUmrah and make it a Hajj—this was because when she reached Makkah her menses began. And by what is narrated that the Prophet (May Allah bless him and his family and grant them peace) ordered those who had entered iḥrām for Hajj to make it an ʿUmrah.
And by what is narrated that the Prophet (May Allah bless him and his family and grant them peace) said to the woman who complained to him of weakness while wanting to perform Hajj: “Say: My place of release is wherever I am held back (wa-maḥillī ḥaythu ḥabastanī)”, and the scholars of the madhhab have said, as in al-Azhar and its commentary: Whoever combines one rite with another must necessarily renounce one of them.
The people of al-Ḥudaybiyyah were released from their iḥrām of the ʿUmrah whose sanctity they had entered when the idolaters prevented them from entering Makkah—about which He, Exalted, said: “They are the ones who disbelieved and hindered you from al-Masjid al-Ḥarām, and [prevented] the sacrificial animals from reaching their place of sacrifice.” [al-Fatḥ:25]. And He, Glorified, said: “Then if you are prevented—[offer] whatever can be obtained of sacrificial animals, and do not shave your heads until the sacrificial animal reaches its place of sacrifice.” [al-Baqarah:196]
From here we say: Renouncing Hajj and ʿUmrah is permissible in general.
On that basis, this man committed a tremendous crime which blood-sacrifices do not expiate; then he committed a lesser one, namely exiting Hajj and renouncing it. He, Most High, said: “O you who have believed, Allah will surely test you through something of the game that your hands and spears can reach—that Allah may make evident those who fear Him unseen. And whoever transgresses after that—for him is a painful punishment.” [al-Māʾidah:94]. No expiation was mentioned for the transgressor other than a painful punishment.
This man has committed a crime greater than the crime of one who transgresses against game. The proof that it is greater is that zinā is forbidden before iḥrām and after it—whereas hunting is forbidden only during iḥrām, not before it nor after it. We further support this by His saying: “And whoever intends therein [i.e., in the Ḥaram] deviation by wrongdoing—We will make him taste of a painful punishment.” [al-Ḥajj:25] Thus He mentioned that the sin committed within the Sanctuary incurs a painful punishment, and He did not mention an expiation.
And He, Exalted, said: “And let not the hatred of a people for having obstructed you from al-Masjid al-Ḥarām lead you to transgress. And cooperate in righteousness and piety, but do not cooperate in sin and aggression; and fear Allah. Indeed, Allah is severe in penalty.” [al-Māʾidah:2]
And His majestic saying: “Whoever has made Hajj obligatory upon himself therein—then there is to be no sexual relations, no disobedience, and no disputing during Hajj. And whatever good you do—Allah knows it. And take provisions, but indeed, the best provision is piety. And fear Me, O possessors of intellect.” [al-Baqarah:197]
What we have stated may also be supported by His saying: “And do not invalidate your deeds.” [Muḥammad:33] They explained this as referring to committing major sins, and they said: major sins are what invalidate deeds.
And He, Exalted, said: “Indeed, Allah accepts only from the righteous.” [al-Māʾidah:27]
Therefore, the man mentioned in the question must repent to Allah with a sincere repentance and increase in seeking forgiveness and remorse. He has committed a great, compounded sin; for besides the major sin of zinā, he violated the sanctity of iḥrām, the sanctity of the Sanctuary, and the sanctity of the sacred time; he disobeyed Allah Most High by nullifying the Hajj—while Allah has forbidden nullifying deeds in His saying: “And do not invalidate your deeds.” [Muḥammad:33]. He disobeyed Allah Most High by failing to complete the obligation of Allah which He commanded to be completed in His saying: “And complete the Hajj and ʿUmrah for Allah.” [al-Baqarah:196]. These are multiple violations which nothing expiates except a sincere repentance. As for sacrificial bloods, they do not expiate such a matter.
Then, after repentance, he must perform another Hajj in place of that Hajj—if he is able to find a way—since He, Exalted, said: “Allah does not charge a soul except [with that within] its capacity.” [al-Baqarah:286]. And: “Allah does not charge a soul except [with that within] what He has given it.” [al-Ṭalāq:7]. And He, Exalted, said: “So fear Allah as much as you are able.” [al-Taghābun:16]
Moreover, what we have mentioned of this fatwā concerning this ignorant man is due to his ignorance, and due to what the scholars have mentioned—that the uninformed layperson has special rulings, among them what they stated: that his actions, which he performed believing them to be permitted, are carried upon validity so long as he has not contravened consensus. They said: he is like a mujtahid, and so on, as they mentioned.
And in the ḥadīths of Hajj, the Messenger (May Allah bless him and his family and grant them peace) said to many of those asking: “No harm, no harm,” in answer to those who said, “I advanced [a rite] or delayed [it] out of ignorance.”
And in accord with what Allah Most High has directed to of ease and lightening, in His saying: “Allah intends to lighten [the burden] for you” [al-Nisāʾ:28]. And: “Allah intends for you ease and does not intend for you hardship.” [al-Baqarah:185]. And: “And He has not placed upon you in the religion any difficulty.” [al-Ḥajj:78]. And in the ḥadīth: “Make things easy and do not make them difficult,” or as he said.
If we were to issue a fatwā for such a man strictly according to the madhhab and exactly as they stated, we would have made the path of repentance difficult for one who desires it.
What further strengthens what we have said is what has come in the ḥadīth from the Prophet (May Allah bless him and his family and grant them peace): “Repentance wipes out what came before it.” And what is reported: “The penitent from sin is like one who has no sin.” Likewise, what has come in the Qurʾān concerning Allah’s ruling upon the intentional killer and the accidental killer: He, Glorified, differentiated between them—placing an expiation in the case of accidental killing, while in the case of intentional killing He mentioned only the recompense of Hell, Allah’s wrath upon him, and His curse, and He did not prescribe an expiation therein.
Similarly with the false, immersing oath (al-yamīn al-ghamūs) and the committed oath (al-yamīn al-muʿaqqadah): He placed an expiation for the latter, but not for the former. All of this supports what we have stated.
In conclusion, the matter is one of juristic reasoning, for there is no decisive proof regarding the rulings that have been mentioned concerning the muḥrim who has intercourse with his wife—of corruption [of Hajj], the requirement of one or two camels, then the obligation of completion and of making up [the Hajj] the following year. And even if we suppose definitiveness, it pertains to one who had intercourse with his wife—not to one who committed the crime of zinā.
If it is said: The one who commits zinā is to be analogized to the one who has intercourse with his wife.
We say: Such analogy is invalid for several reasons:
1. Analogizing the more severe case to the lighter one is invalid according to many scholars.
2. It is analogy in causes, which many scholars have prohibited.
3. What we previously mentioned of evidences and indications—refer back to them.
What appears is that major acts of disobedience are incompatible with acts of obedience; they do not coexist. This is a general principle in all acts of obedience.
Concerning Hajj specifically is His saying: “There is to be no sexual relations, no disobedience, and no disputing during Hajj.” [al-Baqarah:197]. It has been established that intercourse with one’s wife corrupts the Hajj, with the obligation to proceed with that invalid Hajj. Zinā is a greater crime than intercourse with one’s wife; thus it corrupts the Hajj with a corruption greater than the first—namely, the invalidation of the Hajj entirely. That is because zinā renders its perpetrator deserving of the Fire, categorically—by the proof of the verse in al-Furqān and others. Whoever commits zinā has departed from faith, categorically, and deserves the Fire, categorically; accordingly, his deed is nullified, categorically. In the ḥadīth: “The adulterer does not commit adultery while he is a believer.” And in Sūrat al-Nūr: “The [male] fornicator does not marry except a [female] fornicator or a polytheist, and the [female] fornicator—none marries her except a [male] fornicator or a polytheist; and that is forbidden to the believers.” [al-Nūr:3]
Source: Min Thimār al-ʿIlm wa al-Ḥikmah vol.1