Question: What is the case if someone had intercourse twice with his wife during Ramadan and this happened two Ramadans ago and the person never made kafara for that, how would the person go about fixing it?
If a person breaks his fast during Ramadan by having intercourse, while being conscious that he is fasting, then his fast is nullified. Upon invalidating his fast in this manner, he is required to make up for the day [qadā] and pay kaffārah kubrā.
If he had intercourse several times on the same day, then he will only need to make one qadā and one kaffārah. The kaffārah is essentially for his first intercourse of that Ramadan day, since the first one is actually what nullified the fast. (Nawawi, Rawdah al-Tālibīn, vol. 2 p. 243)
However, if he had intercourse on different days, then qadā and kaffārah become compulsory per nullified fast day. The increase is in accordance to the number of broken fast days, whether he paid for the first day or not. (Ibid)
Kaffārah kubrā [major expiation] becomes obligatory due to intercourse breaking one’s Ramadan fast. This kaffarah is freeing a slave. When one cannot free a slave, then one must fast for two full lunar months; this is calculated as sixty consecutive days. As well, if one cannot fast the sixty consecutive days, then the last resort is to feed sixty needy persons.
If a person delays the qadā until the next Ramadan without a valid excuse, then he is obliged to pay kaffarah sughra [minor expiation]. This is likewise the case when it would not be possible to complete the qadā, meaning, if the make-up days exceed the number of days left before Ramadan. Then, he will be obliged to pay kaffārah sughrā which is fidyah [expiation] – one mud – for each day he delayed. (Ibn Hajar, Tuhfah with the Hawashī, vol. 3 pp. 477, 478) Note: the obligation to make qadā still remains.
Some fuqahā restricted the ruling of when fidyah is due, to cases when the broken fast does not also necessitate kaffārah kubrā. Qadī Husayn and Muzajjad are recorded to have opted for this view. (Shihāb al-Ramli, Hāshiyah ‘ala Sharh Rawd Tālib, vol. 1 p 429, al-‘Ubāb, vol. 2 p. 505)
Qādī Husayn stated, “if his breaking the fast entails kaffārah, as is the case with intercourse, and he delays the qadā until the next Ramadan, then, will he be obliged to pay fidyah on account of the delay or not? There are two possible answers. The first, [which he calls al-zahir] is that he is obliged to pay one kaffārah only. [His reasoning for this is:] two kaffārah cannot be confluent in one person. In the second view, he is obliged to pay both fidyah (for the delay) as well as kaffārah (for violating the month of Ramadan’s sanctity).” (Ibid, Ibn al-Rif‘ah, Kifāyat al-Nab¥h Sharh al-Tanb¥h, vol. 6 p. 386)
It seems that Adhra‘ī may have also ascribed to the first view. (Shihāb al-Ramli, Hāshiyah ‘ala Sharh Rawd al-Tālib, vol. 1 p 429)
However, most of the fuqahā opined for the second view. In Ibn Hajar’s commentary on al-‘Ubāb, he quoted the tarjih [preference of opinion] of Qad¥ Husyan and then said, “what is sound is the second one. [Meaning, there is no difference whether the nullifying of the fast entailed kaffārah or not.] This is the reason why Shaykhayn [RāfÔi and Nawawi] and others mentioned the obligation of fidyah without any restriction. They did not follow the tarjih of Qad¥ Husayn.” (Sharwāni, Hawāshī ‘alā Tuhfah al-Muhtāj vol. 3 p.489)
Sharqawi clearly concurred with the second view. He stated, “…even if his nullifying of the fast entails kaffārah, according to the mu‘tamad [relied-upon] view….” (Sharqawi, Hāshiyah ‘alā al-Tahrīr, vol. 1 p. 412)
Therefore, the person involved in the above question needs to make qadā for his nullified fast days, pay fidyah for delaying the qadā (per fast day for each year delayed), and pay kaffārah. The qadā and kaffārah kubrā will be limited to the number of broken fast days, while the fidyah will increase with each new Ramadan.
Allah knows best.
Answered by: Ml. Yaqub Yusuf