Ali, ‘Umar and Abu Hurairah issued a verdict concerning a man who had sexual intercourse with his wife in the state of ihram. In this verdict they said: “They both must complete their Hajj, but must also make another Hajj the following year and slaughter an animal.”
Abu Al-‘Abbas At-Tabari said: “If a muhrim had sexual intercourse with his spouse before the first tahallul* from ihram, regardless of whether it was before or after ‘Arafah, it will invalidate his Hajj. Such a person, however, must continue performing the rest of his Hajj rites. He must slaughter a camel and make up for his Hajj the following year.”
If the wife was in the state of ihram and she accepted what her husband did, she must continue the performance of Hajj, but must also make it up the following year, and besides, according to the majority of the scholars, must also offer a sacrifice. According to ‘Ata some scholars hold that the husband and wife may offer only one sacrifice.
In his commentary on hadith, Sharh Al-Sunnah, Al-Baghawi said – and this is the more famous of the two sayings of Ash-Shafi’i – that a man is required to pay the penalty for sexual intercourse on a day in Ramadan. Such a couple should keep apart (Doing so is mandatory according to Ahmad and Malik, but the Hanafi and Shafi’i schools take it as a recommendation) when they go to make the next Hajj (in compensation for the first one) lest they should repeat what they did before.
If such a man is unable to slaughter a camel, then he may slaughter a cow. If he cannot afford it, then he may slaughter seven (7) sheep. And if he is even unable to do that, then he may estimate the value of the camel, and distribute food of that amount among the poor and needy people, so that every person receives one mudd. If he is unable to do so, then he should fast a day for each mudd thereof.
The scholars said: If a muhrim had sexual intercourse with his spouse before the Day of ‘Arafah, then his Hajj will be null and void, and he will have to offer in sacrifice a sheep or one-seventh of a she camel. But if he did so after the Day of ‘Arafah, his Hajj will not be invalidated, but he will have to slaughter a camel.
In case such an act is committed by a qarin pilgrim – one combining Hajj with ‘Umrah – he must make up for this Hajj qarin with another Hajj qarin and offer another sacrifice just as the pilgrim performing Hajj only does.
Sexual intercourse, if it happens after the first break in ihram (following throwing pebbles and shaving one’s head at Mina), does not invalidate Hajj nor does it require Hajj to be repeated later. This is the view of most of the knowledgeable people. But others hold that making up Hajj and offering a sacrifice is mandatory. This is the opinion of Ibn ‘Umar, Al-Hasan, and Ibrahim. There is also disagreement as to what animal is to be offered in sacrifice, a sheep or a camel?
Ibn ‘Abbas, ‘Ikrimah, and ‘Ata are of the view that it must be a camel; this is also one of the opinions of Ash-Shafi’i. According to a second opinion of Ash-Shafi’i, a sheep must be offered in sacrifice. Malik agrees with this second opinion.
A muhrim, who had a wet dream or ejaculated by thinking about or looking at a woman, incurs no penalty, according to the Shafi’i school.
These scholars, however, hold that if one kisses or touches his spouse with a sexual desire, he must offer a sheep in sacrifice regardless of whether he ejaculates or not. Ibn ‘Abbas holds that such a person incurs penalty and he must slaughter a sheep.
Mujahid said: “A man came to Ibn ‘Abbas and said to him: ‘Such and such a woman came to me with all her make up while I was in the state of ihram. I could not control myself, and ejaculated. (What should I do?)’ Ibn ‘Abbas laughed until he fell on his back and said: ‘You are very lustful. There is no harm. But you must slaughter a sheep. Your Hajj is complete.” This was reported by Sa’id Ibn Mansur.