The Implementation Of Local Wisdom In The Granting Of ‘IwāḌ Khulu’ Within Judicial Decisions Of Divorce Cases 2020-2021

Abstract

This study analyzes the inconsistency between the concept of khulu‘ as regulated in the Indonesian Compilation of Islamic Law and the application of ‘iwāḍ in judicial practice, where a different procedural pattern has emerged. In several cases, court decisions impose ṭalāq bā’in ṣughrā accompanied by ‘iwāḍ, a mechanism closely associated with khulu‘. The findings indicate that: (1) in a number of Religious Court decisions examined, ‘iwāḍ is not always processed under formal khulu‘ proceedings, but also appears in ordinary divorce claims through the reconvention, as reflected in decisions of the Religious Courts of Bintuhan, Madiun Regency and Watampone; (2) there is ambiguity in the operative part of judgments, which substantively internalize the classical fiqh concept of ‘iwāḍ khulu‘ and local wisdom, yet are formally recorded as ṭalāq bā’in ṣughrā rather than ṭalāq khul‘ī; and (3) disparities in decisions epistemologically shift the concept of ‘iwāḍ khulu‘ within the Indonesian Compilation of Islamic Law framework, as similar cases may be decided differently depending on judicial construction. These findings demonstrate the need for reformulation or normative clarification within positive law regarding the status of ‘iwāḍ in contested divorce proceedings, in order to ensure legal certainty and balanced protection of the rights of both spouses