Open Access at: http://lamlaj.ulm.ac.id/web/
Comparative Analysis: Wives' Rights in Iddah Talaq According to Islamic Compilation and Imam Hanafi
Melza Mutiara Putri Mahrus1, Nurul Huda Prasetiya2
Faculty of Shari'ah and Law, State Islamic University of North Sumatra William Iskandar V street, Medan Estate, Deli Serdang, North Sumatra 20371
Email: [email protected]
Faculty of Shari'ah and Law, State Islamic University of North Sumatra William Iskandar V street, Medan Estate, Deli Serdang, North Sumatra 20371
Email: [email protected]
Submitted : 15/08/2023 Reviewed: 22/08/2023 Accepted:01/09/2023 Abstract: This study compares the viewpoints of the Hanafi School of Jurisprudence and the Compilation of Islamic Law concerning the rights of wives during the iddah period following talaq bain kubra. The method employed is a literature review with a normative-juridical approach, analyzing the perspectives of these two legal sources.
Primary data is drawn from the book ‘Fiqh Islam wa Adillatuhu’ by Wahbah Az- Zuhaili, while secondary data encompasses the regulations within the Compilation of Islamic Law, fiqh literature, and relevant journals. A comparative analysis is employed to delineate variances in interpretation and outlook between the two legal sources. The entitlements of wives during the iddah period after talaq bain kubra are intricate issues within the context of Islamic family law. In dissecting disparities and parallels between the Compilation of Islamic Law and Imam Hanafi’s viewpoints, this study adopts a comparative methodology, encompassing pertinent aspects of legal and theological considerations. The consequences of this study reveal a stark divergence in the treatment of spousal autonomy during the iddah period between the Compilation of Islamic Law and Imam Hanafi’s perspectives. The Compilation of Islamic Law delineates numerous rights for wives, encompassing sustenance, shelter, and safeguarding from acts of violence. Conversely, Imam Hanafi’s perspective acknowledges the wife’s entitlement to sustenance but affords the husband greater latitude in determining residence and confines the wife’s protection primarily to instances of physical violence posing a threat to life. The Compilation of Islamic Law tends to embrace a more comprehensive interpretation, deeming wives’ rights as intrinsic to the husband’s obligations. Conversely, Imam Hanafi’s viewpoints espouse a more conservative interpretation, underscoring the husband’s authority in orchestrating domestic relationships.
Keywords: Compilation of Islamic Law ; Iddah Talaq; Imam Hanafi’s DOI: 10.32801/lamlaj.v8i2.413
INTRODUCTION
The process of divorce, or talaq, is intricate and delicate within Islamic law. Linguistically, talaq signifies releasing and parting ways.1 The reasons for this are based on Article 113 of the Compilation of Islamic Law, where the termination of marriage can occur due to death, divorce, and court decisions.
Factors that contribute to divorce include economic factors, disharmony, infidelity, or it can also happen because one of the partners has abandoned Islam or is apostatized.2 In the scenario of talaq bain kubra, where the husband and wife separate irreversibly, an iddah period ensues, during which the wife must undergo a waiting phase before she can contemplate remarriage. This iddah interval serves as a waiting period intended to offer room for divorced couples to adapt and explore opportunities for reconciliation, prior to the definitive separation sanctioned by the Compilation of Islamic Law.3In this context, the Comparative Analysis of Wife's Rights during the Iddah Period of Talaq Bain Kubra, as outlined in the Compilation of Islamic Law in Indonesia and the Perspectives of Imam Hanafi, emerges as a captivating subject of exploration. Compilation Of Islamic Law functions as the legal framework governing Islamic law in Indonesia, whereas Imam Hanafi represents one of the four schools
1 Wahbah Az-Zuhaili, Fiqh Imam Syafi’i Jilid 2, Terjermahan : Muhammad Afif Dan Abdul Hafiz, Cetakan Pertama. (Jakarta: Almahira, 2010):579.
2 Logi Farman and Ferdi Aditya Hidayat, “Legal Considerations of Religious Court Judges in Divorce Applications on the Basis of Apostasy,” Lambung Mangkurat Law Journal 8, no. 2 (2023): 59–68.
3 A Zainal, “Perbandingan Hak Istri Dalam Masa Iddah Talak Bain Menurut Kompilasi Hukum Islam Dan Pandangan Imam Hanafi,” Jurnal Hukum Keluarga dan Hukum Islam 7, no. 2 (2020): 114–130.
of Islamic jurisprudence, providing distinct perspectives concerning divorce law and the iddah period.
The right of a husband to divorce his wife is recognized as a fundamental aspect of divorce in Islamic law. Talaq bain constitutes a form of divorce that is inherently irreconcilable, indicating that the couple has mutually decided to part ways without any intention of reconciliation or rekindling their marital relationship. In cases of bain divorce, the iddah period assumes a significant role and necessitates careful consideration. In the context of bain divorce, the iddah period is a pivotal factor to contemplate. The Compilation of Islamic Law, which serves as the regulatory framework for Islamic law in Indonesia, stipulates the regulations surrounding the iddah period in cases of bain divorce.
In line with this, Imam Hanafi, as one of the schools of Islamic fiqh, has a slightly different view of the iddah period in divorce bain. According to Imam Hanafi's statement, the iddah period in divorce bain is three months or three menstrual cycles for a wife who is still menstruating. However, the iddah period is three months if the wife no longer menstruates. This view is in line with Compi- lation of Islamic Law regarding the duration of the iddah period. There are significant similarities in comparing the rights of the wife during the iddah of divorce bain kubra between Compilation of Islamic Law and Imam Hanafi's view. Both recognize that the iddah period for divorce bain is three months for a wife who is still menstruating or has three periods and three months for a wife who no longer menstruates.4 However,
4 A Hidayat, “Perbandingan Hak Istri Dalam Masa Iddah Talak Bain Menurut Kompilasi Hukum Islam Dan
the difference may lie in the interpretation and practical application of the iddah period.
As a law applicable in Indonesia, Compila- tion of Islamic Law has binding legal force and officially regulates divorce procedures.
Meanwhile, Imam Hanafi's view is more likely to be a guideline in terms of fiqh and can be used by individuals or communities who follow that school of thought in living their religious life.
In the context of Islamic law in Indonesia, an interesting point is the comparison of the rights of wives in the period of iddah talaq bain kubra between the Compilation of Islamic Law and the perspective of Imam Hanafi. Although there are differences in interpretation and practical application, there are significant similarities in the duration of the iddah period recognized by both. It is important to understand these two perspectives and see how their implementation impacts the rights and protection of wives in talaq bain divorce proceedings. This study will shed light on the differences of opinion between Imam Abu Haneefa and the Compilation of Islamic Law regarding the rights of wives during the period of iddah talaq bain kubra.
The purpose of the writing is to provide a deeper understanding of the differences in views between the two sources of law and provide a more comprehensive insight into the legal framework governing the rights of wives during iddah talaq bain kubra in Islamic legal literature. Based on the previous explanation, the researcher wanted to raise this issue in a study called .
Comparative Analysis: Wives' Rights in Iddah Talaq According to Islamic Compilation and Imam Hanafi
Perspektif Imam Hanafi,” Jurnal Hukum Keluarga dan Hukum Islam 6, no. 1 (2019): 23–42.
METHOD
This study employs a literature review methodology with a normative-juridical approach to examine the perspectives of Imam Abu Hanifa and the content of Articles 119 and 120 in the Compilation of Islamic Law pertaining to the rights of wives during the iddah period following talaq bain kubra.
Primary data is drawn from Wahbah Az- Zuhaili's "Fiqh Islam wa Adillatuhu," while secondary data encompasses the regulations within the Compilation of Islamic Law, fiqh literature, and relevant journals. Additionally, a comparative analysis is employed as an auxiliary method to uncover disparities and commonalities between the viewpoints of the two sources.
Within the framework of the comparative analysis approach, data extracted from these sources undergo scrutiny to identify disparities in interpretations and perspectives.
This approach aspires to yield an in-depth comprehension of Imam Abu Hanifa's viewpoints and the Compilation of Islamic Law concerning the rights of wives during iddah talaq bain kubra. The anticipated outcomes of this analysis are poised to illuminate further dimensions within ongoing legal discussions.
The primary objective of this study is to elucidate the distinctions between the perspectives of these two sources and thereby offer a more comprehensive panorama of their respective viewpoints. Consequently, this research contributes to enhancing our comprehension of the legal framework governing wives' rights during iddah talaq bain kubra and concurrently provides insight into the diversity of perspectives encompassed within the realm of Islamic legal literature.
ANYLISIS AND DISCUSSION
Understanding and Differences in the Iddah Period of Talaq Ba'in Sughra and Talaq Bain Kubra
Talaq bain is a unique form of divorce that stands apart due to its capacity to eliminate the possibility of reconciliation between spouses, except through remarriage. This type of divorce marks a permanent termination of the marital bond. The concept of Talaq bain can be divided into two primary categories:
Firstly, Talaq Bain Sughra, which involves revoking the former husband's right to seek reconciliation. It's important to note that despite this form of divorce, the ex-wife retains her rights for a potential new marriage. The components encompassed within Talaq Bain Sughra include situations where:5 a) a divorce is carried out before the consummation of the marriage, b) “Khulu'" takes place, signifying a divorce that comes with a ransom or compensation, and c) instances where the Religious Court enforces the Talaq decre.6
One of the additional effects of talaq bain sughra is as follows: a) The marriage relationship between the two parties will end; b) The right to associate between the two parties will cease, including khalawat; c) Each cannot inherit when one of them dies;
d) There will be a new contract and dowry agreement.
Regarding Talaq Bain Kubra,which is a triple divorce, it has the potential to remove the former spouse's right of reconciliation.
However, this type of divorce must be initiated by both former spouses, either
5 Ibrahim Muhammad Al-Jamal, Fiqh Al-Mar’ah Al- Muslimah, Terjemahan. Anshori Umar Sitanggal,
“Fiqih Wanita” (Semarang: CV. Asy-Syifa, 1986):411.
6 Imam Alaudin Abu Bakar Mas’ud al-Kausani Al- Hanafi, Bada’i Ash-Shana’i Juz VII (Beirut: Daar al- Fikr, n.d.):268.
during the iddah (waiting) period or after it.
The legal consequences are as follows: a) The former spouse cannot be reconciled and is not eligible for remarriage; b) If a "muhalill"
(a third person who facilitates remarriage between the ex-spouse and her previous partner) exists, the marriage contract can be reestablished after the ex-spouse has married someone else. Subsequently, her 'iddah period ends with the separation.
Severing conjugal relations in a marriage is referred to as talaq bain sughra, which is similar to talaq bain kubra. However, talaq bain kubra does not allow the ex-husband to remarry his ex-wife unless she marries another man and separates from him shortly after marriage, often with little reason for the marriage itself. There are several ways in which talaq bain kubra must be implemented, some of which include: a) The act of separation occurring multiple times in various periods. For instance, if a wife is separated from her husband with a single talaq during her idah period, then again during the second waiting period, and yet again during the third period, this situation results in a triple talaq;
b) A married couple initially separates with a single talaq. After their separation, if they remarry through a new marriage contract and subsequently separate again for the third time after the iddah period has ended, this leads to the declaration of the third talaq; c) Uttering the words talaq three times simultaneously, directly pronouncing a triple "talaq," with each utterance contributing to the occurrence of the three divorces.
Regarding the concept of issuing triple talaq at once, certain societies contend that directly pronouncing triple talaq in a single instance constitutes the application of triple talaq. This viewpoint further encompasses situations
where a spouse enforces repeated divorces at different instances. The basis for this perspective lies in the ijtihad or atsar of Umar ibn Khattab. During the era of the Prophet and under the rule of Caliph Abu Bakr, Umar was indeed a pioneering figure in Islamic governance. The predominant consensus among Islamic scholars to this day maintains that the pronouncement of three divorces can potentially be deemed insufficient, assuming that the divorce was executed all at once. This stance is particularly endorsed by the Hanafi school of thought.7
As delineated by Islamic law, in relation to talaq bain kubra, certain researchers delve into the components that constitute this form of divorce. These components encompass various facets of marriage dissolution, such as ila', zihar, and lian. Additionally, talaq bain kubra can transpire when a couple undergoes multiple separations at different times. This is permissible within Islamic law; however, this form of separation is not valid unless specific conditions are met. Notably, the wife must remarry another man and subsequently separate, and the duration of this termination must adhere to the regulations set forth by Islamic law. Both positive law and Islamic Sharia display similarities concerning talaq bain kubra, or at least can accommodate scenarios in which a husband employs triple talaq, provided that the divorces are pronounced at distinct times rather than all at once. Nonetheless, a discrepancy arises between the two legal sources. If a particular legal system mandates that the pronouncement of talaq must occur under the supervision of a court, Islamic law maintains that the divorce becomes legally valid and carries legal
7 Sayuti Thalib, Hukum Kekeluargaan Indonesia (Jakarta: Universitas Indonesia, 2009):10.
consequences even if not proclaimed before a court
Rights of the Wife during the Iddah Period of Ba'in Sughra Talaq and Ba'in Kubra Talaq: Imam Hanafi Mazhab's Perspective
In accordance with Hanafi provisions, in cases involving talaq bain,couples are prohibited from cohabiting. In such instances, it is incumbent upon the husband to vacate the residence until the woman completes her iddah period. With regard to the rights bestowed upon women within the framework of talaq bain: a) If the woman is pregnant, she also possesses the right to comprehensive support, encompassing provisions for clothing, sustenance, and secure housing. b) As per the Hanafi perspective, if the woman is not pregnant, she is still entitled to full sustenance, provided she remains within the residence designated for her during the iddah period. Should she leave her home without the husband's consent, her action is classified as "nusyuz," consequently resulting in the nullification of her right to maintenance. c) Throughout the iddah period, if the woman departs from the premises without the husband's authorization, it is considered an act of "nusyuz," leading to the forfeiture of her entitlement to maintenance.8
If a wife is divorced in the form of
"bain," whether "bain sughra" or "bain kubra,"
and she is pregnant, she is entitled to housing and maintenance. This is elucidated in Surah At-Talaq, verse 6.
8 Wahbah Az-Zuhaili, Al-Fiqh Al-Islami Wa Adillatuhu, Volume 7. (Beirut: Dar al-Kotob al-Ilmiyyah, 2012):401.
"Settle them (wives) where you can, and do not trouble them to constrain them. And if they (the divorced wives) are pregnant, give them their maintenance until they give birth.
If they suckle your (children), then give them their reward, and bargain among yourselves (everything) well, and if you encounter difficulties, then another woman may suckle (the child) for her."
If she is not pregnant, scholars analyze the situation differently. Some scholars, such as Umar and his sons, Ibn Mas'ud, Ibn Abbas, Imam Malik, Al-Shafi'iy, and Ahmad, argue that a woman is entitled to shelter but not to a livelihood. On the contrary, the opinions of Ali, Ibn Abbas, Jabir, Atha', Thawus, and Daud Al-Zhahiriy suggest that a woman not only lacks a place to live but also lacks a means of livelihood. The rationale behind this lies in the complete dissolution of the marriage, absolving the husband from the responsibility of providing for her during pregnancy. This viewpoint finds support in the sahabi atsar from the discourse of Fatimah Qais, which states: "There is no income for you unless you are pregnant." The third stance, held by most scholars including Abu Haneefah, al-Tsawriy, al-Hasan, and Ibn Shubrumah, asserts that women are entitled to both shelter and a means of livelihood.
When a wife becomes a widow due to her husband's demise, certain protocols are
observed. During this period, the widow is advised against adorning herself with elaborate attire, using fragrances, or donning flamboyant garments such as those in red or yellow hues. Regarding the rights of a spouse who has been abandoned by their deceased partner, the circumstances differ.
In the instance of a pregnant widow, scholars concur that she is entitled to financial support and accommodation. However, if the widow is not pregnant, scholarly opinions diverge. Some scholars, among them Imam Malik, Al-Shafi'iy, and Abu Haneefa, assert that widows in their iddah period retain the right to residence. Conversely, other scholars, including Imam Ahmad, contend that an unborn child-less widow is not entitled to sustenance and lodging upon her husband's demise. This view stems from the understanding that, in such cases, the passing of the husband constitutes inheritance of his estate by divine design. 9
According to the Opinion of the Compilation of Islamic Law
The Compilation of Islamic Law in Indonesia has almost the same rules in this regard. It is confirmed by Article 149 b:
"Provide bread, food and kiswa to the ex during iddah, unless the ex has separated bain or nusyuz and is not pregnant"
According to the explanation of article 149 b, the former spouse can obtain nafkah, maskan, and kiswah during the iddah of divorce raj'i. However, for the iddah of divorce bain, the spouse cannot receive nafkah and kiswah unless their wife is pregnant.10
9 Annisa Siti Salamah, “Hak-Hak Istri Dalam Perkara Cerai Talak Untuk Mendapatkan Nafkah Madiyah, Mut’an Dan Nafkah Iddah. (Studi Putusan PA Serang No. 1623/Pdt.G/2019/PA.,Srg),” 2020, 66–67.
10Riyan Erwin Hidayat, “Pendapat Imam Mazhab Tentang Hak Istri Pada Masa Iddah Talak Ba’in Dan
If the divorce is initiated by the husband, then during the iddah period, the ex-wife is entitled to financial support from her ex- husband. This provision is outlined in Article 149 of the Compilation of Islamic Law.
Furthermore, Article 151 of the Compilation of Islamic Law stipulates that the ex- husband, during his ex-wife's iddah period, is responsible for her upkeep, refrains from seeking the vow, and refrains from marrying another woman. Consequently, a logical implication of this responsibility is that the ex- husband is obligated to provide for any child born during this period, as this obligation arises from his commitment. However, it's essential to note that this entitlement may not apply if the ex-wife's behavior constitutes
"nusyuz," in which case the ideal iddah income may not be applicable. Additionally, it's crucial to recognize that the decision to provide support, regardless of whether it's full or partial, is influenced by the nature of the separation, rather than solely by the length of the iddah period.
In Article 119 of the Compilation of Islamic Law, the first clause elucidates talaq bain sughra, which distinguishes itself from
"qabla al-dukhul." This form of talaq indicates an irreconcilable divorce that can nonetheless be remedied through a new marriage contract with the same former spouse, even within the iddah period. Religious courts oversee divorces enacted through compensation or khuluk. As for "talaq bain kubra," as defined by Article 120 of the Compilation of Islamic Law, it refers to a third instance of divorce.
This form of talaq can neither be reinstated nor permit remarriage, unless the ex-wife
Relevansinya Dengan Undang-Undang Perkawinan Di Indonesia,” Jurnal Hukum Keluarga dan Hukum Islam 15, no. 1 (2018): 153.
marries another person and the subsequent marriage dissolves. In such instances, the
"ba'da al-dukhul" relationship is severed, and the iddah period aligns with the provisions of the Compilation of Islamic Law.11
Couples who separate, can make them wait for the time or waiting time, which is as follows:12 (1) During Pregnancy: If a husband or wife initiates separation while the wife is pregnant, the iddah period continues until the birth of the baby in her womb; (2) When Not Pregnant: a) If a spouse separates from their partner before the marriage is consummated, the iddah period does not apply. b) In the case of a wife separating from her ex-husband af- ter consummation (dukhul):
• For couples where the wife still experiences menstruation, the waiting period applies to three consecutive pure cycles, with each cycle lasting not less than 90 days.
• For wives who are not currently experienc- ing menstruation, the iddah period is three months or 90 days.
• For wives who previously experienced menstruation but are not menstruating dur- ing the iddah due to breastfeeding, the iddah duration extends to three times the length of the normal pure cycles.
• Under the circumstances mentioned in verse (5), where breastfeeding is not expected, the iddah period lasts for one year. However, if menstruation resumes within a year, the id- dah period becomes three times the normal pure cycles.
Comparison of Wives' Rights in the Period of Iddah Talaq Bain Kubra According to
11 Mahkamah Agung RI, Himpunan Peraturan Perundang-Undangan Yang Berkaitan Dengan Kompilasi Hukum Islam (Jakarta: Mahkamah Agung RI, 2011):93.
12Ibn Mas’ud Al-Kasari, Badai’ Ash-Shanai’ Juz V (Beirut: Daar al-Kutub al Ilmiyah, n.d.):121.
the Compilation of Islamic Law and the Views of Imam Hanafi
In the context of comparing the rights of wives during the iddah of talaq bain kubra, there exist divergent perspectives between the Compilation of Indonesian Islamic Law and the teachings of Imam Hanafi.
The Compilation of Indonesian Islamic Law stands as one of the authoritative legal references in Indonesia, while Imam Hanafi's school of thought significantly shapes our comprehension of Islamic jurisprudence.
This compilation furnishes comprehensive guidelines concerning the entitlements of wives during the period of iddah talaq bain kubra. Broadly, wives possess the entitlements to care, sustenance, housing, and continued interaction with their ex-husbands throughout the iddah period. However, more specifically, the Compilation of Indonesian Islamic Law outlines specific policies to regulate these rights. For instance, the provision of a livelihood for the wife is contingent upon her inability to meet her own necessities or when the ex-husband is obligated, by virtue of his self-awareness, to offer support to his ex-wife undergoing the iddah period due to none other than the occurrence of the talaq from him.
On the other hand, the Hanafi School holds that women who talaq bain sughra or kubra are entitled to joint livelihood and shelter, except for the assumption that the woman has iddah as a result of separation caused by a wife's transgression, such as the wife's disobedience after marriage or the wife's activities that tarnish the privileges of her in-laws, e.g. her in-laws and relatives, the wife only have a choice to live but no choice to help. Justifying this judgment, Hanafi scholars adhere to verse 6 of QS al-Talaq. A wife who separates as talaq bain, either bain
sughra or bain kubra and she is pregnant, for this analysts agree that she has honor for a living or a house. The principle of division of property among spouses determines how the ex-husband should provide for his ex-wife.
This standard follows the view that the wife is the provider, the food she obtains becomes her full right and then the husband is placed as the provider, then the wife is the breadwinner.
How much support is mandatory just to meet the needs endlessly and pay attention to the condition and abilities of the partner. 13
Imam Hanafi's perspective offers an alternative outlook on comprehending the rights of wives during the iddah period of talak bain kubra. Imam Hanafi's stance leans towards affording greater flexibility to the wife. According to this viewpoint, the wife holds the entitlement to care, financial support, and shelter throughout the iddah period, with fewer restrictions and conditions imposed.14 This difference shows variations in the interpretation and application of Islam- ic law in regulating the rights of wives during the iddah period of divorce bain kubra. Al- though Compilation of Islamic Law applies in Indonesia, in some instances, the views of Imam Hanafi or other madhhabs may still be considered in deciding the rights of wives in judicial practice.
The perception of the wife’s rights in the iddah period of divorce bain kubra accord- ing to the Compilation of Indonesian Islamic Law and the perspective of Imam Hanafi can provide insight into the differences in views and understanding regarding the rights of the
13Sulaiman Rashid, Fiqh Islam (Bandung: Sinar Baru, 2013).
14Mahfudz, F., & Nursyamsi, M, Komparasi Hukum Islam Dan Hukum Positif Dalam Menentukan Hak Istri Dalam Masa Iddah Talak Bain,” Jurnal Hukum Islam 14, no. 2 (2020): 221-238.
wife in this period. In the context of Compi- lation of Islamic Law, the rights of wives in the iddah period of divorce bain kubra are regulated by separate policies through legal considerations. Although the wife does not have the right to care, nafkah, and shelter, it has also been emphasized in Article 149 (b) Compilation of Islamic Law in non-pregnant conditions. It is different if she is pregnant;
the former wife gets her rights until she gives birth, which is intended as a right for the child she carries through her former husband. This approach may protect the wife's interests but also limit her rights.15
Differences in perceptions of the rights of wives in the iddah period of divorce bain kubra can have implications for gender equal- ity and the protection of women’s rights. Is- lamic feminist perspectives and critical think- ing can also contribute to analyzing these differences in perception and fighting for the equal rights of wives in the iddah period of divorce bain kubra. In order to achieve a more comprehensive and equitable understanding of the rights of wives in the iddah period of divorce bain kubra, it is important to engage in dialogue and discussion involving various parties, including scholars, legal practitioners, Islamic feminists, and other relevant parties.
It can help to formulate interpretations that are more inclusive and supportive of gender equality in the context of the rights of wives in the iddah period of divorce bain kubra.16
With the enactment of Article 149 (b)
15Azis N, “Analisis Komparatif Hak Istri Dalam Masa Iddah Talak Bain MenurutKompilasi Hukum Islam Dan Pandangan Imam Hanafi,” Jurnal Hukum Islam 12, no. 2 (2018): 145–162.
16Busyro, “Pengarusutamaan Gender Dalam Pemikiran Hukum Imam Abu Hanifah Dan Relevansinya Dengan Pembaharuan Hukum Islam,” AlHurriyah Jurnal Hukum Islam 1, no. 1 (2016).
Compilation Of Islamic Law, which stipulates that spouses who are divorced bain kubra do not get the option to help with iddah, it turns out that according to the orientation view, the principles determined by the Islamic Law Council are essentially incompatible with the idea of the orientation of uniformity and equity, wherein the concept of the orientation of uniformity and equity among people have equal freedom of freedom, including decisions that must be handled seriously according to the law. Especially since the ex- spouse cannot survive after being isolated because they have no other job than taking care of the house, while the spouse is proven to be able to provide iddah to live on; for this case, the rules in Indonesia, including Com- pilation of Islamic Law should not prohibit the ex to provide iddah maintenance to the ex during their iddah period.
Judging from the assessments of the mazhabs, the sizable opinion of Imam Abu Hanifah is more in the direction of equality, in this case, the satisfaction of a woman's freedom when it comes to performing iddah and living in her partner's house during the iddah period. Imam Abu Hanifah left before there was a direction of conviction and has a good chance of changing the marriage guidelines in Indonesia. In Imam Abu Hanifah's legal thinking, the law of justice is not only related to the issue of iddah and life but also opens the way for women to become judges, keep the gate for themselves and others, and make women equal to men in various matters. The legal consequences for an ex-wife who shirks her commitment to providing maintenance to her ex after divorce bain kubro, especially during the iddah period and while pregnant, become an obligation on herself and are considered responsible. Since
the spouse has freedom, she can ask for more than her husband can bear. As such, the court can conclude how much support is warranted.
More specifically, here is a comparison between the opinions of the Compilation of Islamic Law and Imam Hanafi in Table 1.
Islamic Compilation Law Imam Hanafi
In the Compilation Of Islamic Law there are 3 (three) Articles that
talks about this mut'ah, namely in Articles 158,159, and Article 160, which state that a husband who wants to divorce his wife is obliged to give
mut'ah with conditions:
• There is no dowry for the wife who is qobla dukhul.
• The divorce is by the will of the husband.
Give proper mut’ah to his ex-wife, either in the form of money or objects, unless the ex-wife is qobla al-dhukhul.
In the provisions of the Compilation of Islamic Law in terms of wives
sentenced with bain and in a state of non-pregnancy not getting a living, maskan and kiswa (Article 149 letter (b) of the Compilation of Islamic Law).
If pregnant, then still get full income, shelter, and kiswa.
If she is pregnant then the subsistence is still given to the wife after being rejected ba’in until she gives birth.
So the woman has clearly been pregnant. It means that her husband has interfered with her deliberately when he divorced her.
If she is not pregnant, she will still earn a full living as long as the woman does not leave the house given to her to undergo iddah. If she leaves home without her husband’s consent, she is considered nusyuz, and her right to provide will be canceled.
CONCLUSION
The Compilation of Islamic Law and the Views of Imam Hanafi states that there are significant differences in views and interpretations regarding the rights of wives during the period of iddah talaq bain kubra between the Compilation of Indonesian Islamic Law and the views of the Imam Hanafi School.
The compilation of Indonesian Islamic Law establishes rules and regulations governing the rights of wives during the period of iddah talaq bain kubra. Article 149(b) clarifies that the wife has no right to bread, shelter and care during the period of iddah talaq bain kubra, unless the wife is pregnant. This rule places quite strict restrictions on the rights of wives in such situations, especially when the wife is not pregnant. Although the Compilation of Islamic Law provides protection for pregnant wives by providing a living and shelter, the
rights of wives in other conditions are more limited.
On the other hand, Imam Hanafi's views, presented in the journal article, provide a more inclusive perspective on the rights of wives during the iddah talaq bain kubra. This view tends to give wives the right to care, bread, and shelter jointly, albeit with some specific exceptions. Imam Hanafi considers that wives have the right to earn a living and shelter during the period of iddah without many restrictions, regardless of pregnancy status or not.
The difference between the Indonesian Compilation of Islamic Law and Imam Hanafi's views on the rights of wives during the period of iddah talaq bain kubra affects the protection and equality of women's rights. The compilation of Islamic Law applies more strict and rigid rules, while Imam Hanafi's view is
more inclined towards granting freedom and privilege to wives in such situations.
In conclusion, the difference in the interpretation and application of Islamic law regarding the rights of wives in the period of iddah talaq bain kubra between the Compilation of Indonesian Islamic Law and the views of Imam Hanafi is a reflection of the diversity in religious interpretation and implementation of law. The compilation of Indonesian Islamic Law emphasizes more on the limitation of wives' rights, while Imam Hanafi's views prioritize the protection and equality of women's rights. In an effort to achieve better gender justice, debate and dialogue involving various perspectives are important to understand and decide the regulation of wives' rights in the context of Islamic law.
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