Gendered power and women’s agency in nafaqah discourse: Divine legitimation, juristic conditionality, and legal ambiguity in Islamic family law

The ambiguity of Article 80(6) of Indonesia’s Compilation of Islamic Law (KHI) allows a wife to release her husband from certain obligations, potentially legitimizing the transfer of economic responsibility to her, although the Qur’an establishes the husband’s duty to provide nafaqah and Islamic jurisprudence permits its waiver only conditionally. This study examines the normative construction of the husband’s maintenance obligation, its juristic requirements, and the ambiguity of its waiver under the KHI. Using qualitative library research, it applies Braun and Clarke’s reflexive thematic analysis to identify legal themes and Lazar’s Feminist Critical Discourse Analysis to examine constructions of gender, the distribution of responsibility, and power relations within maintenance discourse. The findings show that nafaqah is constructed as the husband’s obligation and the wife’s economic right, legitimized by Islamic legal sources. Nevertheless, positioning the husband as provider may naturalize dependency and unequal marital authority. Muslim jurists also differ regarding the legal grounds triggering maintenance, the circumstances in which unpaid maintenance becomes a debt, and the criteria for determining its amount. Article 80(6) creates a paradox between formal agency and substantive vulnerability because it does not specify the scope, timing, procedure, or validity of consent; distinguish between accrued and future maintenance; or adequately protect children’s interests. This study reframes the maintenance waiver not merely as a matter of contractual autonomy but also as a matter of power relations and gender justice in marriage. Accordingly, the KHI should require free, verifiable consent and clearly delimit any waiver of the husband’s maintenance obligations.