Author(s): Shadli Sabarudin, Aishah Mohd Nor, Rafeah Saidon
This research aims to analyze the penalties imposed by Malaysia’s Selangor Shariah Courts on matrimonial offenders. Sections 35-40 and 124-134 of the Islamic Family Law (Selangor) Enactment 2003 (IFLSE 2003) enunciates several non-seizable matrimonial offences that fall within the criminal matrimonial offences. If a person commits any offences of the provisions, he or she may be charged for that offence and if convicted, may be penalized with either a fine or imprisonment or both, as specified under the provision. The crux of this research is to address the lacuna in the Enactment regarding the guidelines in determining the degree of penalties that should be imposed on the offenders. The study employs a qualitative approach through semi-structured interviews with the judges of the Shariah Courts and analysing files dan documents from cases in courts. The findings of this research show several mitigating factors that influence the decision of the courts to impose lighter penalties including the background of the offender, the number of offences committed, the type of offence, and the appeal made by the learned counsel of the accused, in addition to the facts of the case and the arguments presented by the Sharie Public Prosecutor. This paper concludes that a judge needs to exercise his opinion (ijtihad) in determining the appropriate penalties to be imposed on the offender. Therefore, irrespective of whether a person commits the same offence as another, he or she may be subjected to different penalties depending on the consideration of the courts after hearing the mitigating reasons presented in court.