The Ambiguity Of "It's Up To You" As Tafwīḍ Al-Ṭalāq And The Concept Of Irādah Nāqiṣah In The Divorce Of Migrant Worker Families

(Case Phenomenology Study in West Lombok)

Abstract

In classical fiqh, tafwīḍ al-ṭalāq requires two pillars: an adequate utterance (an explicit şarīḥ expression or an intended kināyah) and the free will (irādah ḥurrah) of the delegating party. However, classical fiqh did not anticipate the complexity of long-distance communication and the cumulative psychological pressure faced by modern migrant-worker families. This study examines a real case in West Lombok in which a husband—recently unemployed and bearing the entire domestic burden—answered his wife’s request for divorce (she being a female migrant worker in Saudi Arabia) over the telephone with the words “terserah kamu” (“it’s up to you”), which the wife later used as the basis for divorce and a subsequent remarriage. Using a phenomenological case-study approach with in-depth interviews of six informants—family members of both parties, two religious authorities holding opposing rulings, and a witness to the husband’s condition—combined with a normative-juridical analysis of the fiqh of the four schools and Indonesian positive law, the study finds: (1) the phrase “terserah kamu” meets neither the şarīḥ nor the kināyah requirement because of the absence of qaşd ḥaqīqī; (2) the husband experienced what this study terms irādah nāqişah—a will significantly diminished by cumulative pressure, distinct from formal ikrāh and from the Hanafi notion of ikrāh nāqiş; (3) the dispute between the two authorities reflects a methodological tension between the ẓāhir al-lafẓ and maqāşid al-sharīʽah approaches; and (4) the KHI’s silence on tafwīḍ generates a dangerous legal pluralism. The study proposes irādah nāqişah as a third category of will in Islamic law and recommends revising the KHI by adding articles on tafwīḍ together with a protocol of psychological verification in the Religious Courts.