The Maqāṣid Analysis on the Nafkah Iddah of Divorce Lawsuit in the Compilation of Islamic Law (KHI) Article 149 (b) and the Supreme Court Verdict Number 137/K/AG/2007

Abstract

This article examines the nafkah iddah of divorce lawsuit in the Islamic Law Compilation (KHI) Article 149 (b) and the verdict issued by the Supreme Court Number 137/K/AG/2007. It also analyses their legal basis based on the Jasser Auda’s maqāṣid al-sharī’ah approach concerning the preservation of life and treasure. The primariy objective of this article is to find the main differences between the KHI and the Verdict in determining the nafkah iddah of divorce suit. Although some scholars have concerned about the case of nafkah iddah, the Jasser Auda’s maqāṣid al-sharī’ah approach seems to be rare to be dealt with the case. Accordingly, the maqāṣidi approach will be mainly utilised in order to consider the effectiveness of both the KHI and the Verdict. This article finds that the KHI states that a wife who applies for a divorce is considered disloyal. As a consequence, she is undeserving of receiving nafkah iddah. The additional finding is that the Verdict decides that in the case of the divorce filled by the ex-wife, it brings a responsibility for the former husband to pay the nafkah iddah. From the perspective of maqāṣid al-sharī’ah, this article argues that the implementation of the Verdict gains better benefit rather than the KHI, because the legal basis evolved for the nafkah iddah of divorce suit is in line with the maqāṣid principles of the preservation of life and property. In the particular case, the principles tend to protect the ex-wife’s safety and welfare after the divorce.