Infliction of Proportion in Shariah Law and Malaysian Law: An Analytical Study

Abstract

The responsibility of the biological father in Malaysian law is one of the important issues that raises a lot of controversy and interest in society. This is due to the lack of equal punishment between the biological father and the mother for the child born from their adultery. This research aims to study how to deal with an accused who is convicted of adultery and the penalties resulting from it, and to study the status of children born from adultery and their relationship with the biological father, in addition to determining the responsibility that falls on the biological father towards his children born from said adultery, under the Malaysian draft law in accordance with Islamic jurisprudence. It aims to shed light on the social status of the biological father and determine the impact on the child born from adultery in Malaysian society. In some cases, a comparison between the penalties imposed on the biological father and mother can provide an explanation of how the law is applied in the Shariah court in Selangor, and introduce some new issues related to the topic. The research shows the importance of a comprehensive understanding of the provisions relating to the responsibilities and rights of the father towards the illegitimate child. This study followed the inductive, analytical, comparative, and field study methods. The curriculum was chosen to study the law used by the Selangor Sharia Court in current cases relating to biological fathers and their responsibilities towards illegitimate children in Selangor. This is done by following up on the opinions of ancient and contemporary jurists and clarifying the reasons for their differences and their evidence. One of the most important findings of this study is that the biological father is not truly responsible for the child born from adultery according to Islamic jurisprudence, but the opinions of the courts may differ on some issues, such as the right to custody and alimony for the child born from adultery, which falls on the biological father. In addition to the legal framework in Malaysia, there are legislations and mechanisms that achieve justice between the biological father and the mother with regard to responsibility towards children born from adultery. It is also necessary to sensitise and educate the community on Islamic and traditional morals to reduce the spread of negative behaviours and provide support to girls to maintain their purity and morals.