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Kembaraxtra-Malaysian Criminal Law-Incest under Islamic Law, Penal Code and Syariah Law in Malaysia
Question 1
What is meant by incest in Islamic law?
Answer:
Incest refers to sexual relations between a man and a woman who are closely related to each other and fall within the category of mahram, that is, persons between whom marriage is permanently prohibited. Since Islam forbids marriage between such persons, any sexual relationship between them is unlawful, regardless of consent.
Question 2
What is the Qur’anic basis for the prohibition of incest?
Answer:
The prohibition is derived primarily from Surah Al-Nisa (4): 22–24, where the Qur’an clearly lists categories of persons with whom marriage is forbidden. Islamic law extrapolates from this that sexual relations with such persons are equally prohibited, as lawful sexual relations are permitted only within valid marriage.
Question 3
What are the three bases of prohibited relationships in Islamic law?
Answer:
Islam recognises three main bases for prohibited relationships:
- Consanguinity (blood relationship)
- Affinity (relationship by marriage)
- Fosterage (relationship through suckling / rada‘ah)
All three create mahram relationships, making marriage and sexual relations unlawful.
Question 4
What is consanguinity and who falls under it?
Answer:
Consanguinity refers to relationships by blood. Under Islamic law and section 9(1) of the Islamic Family Law (Federal Territories) Act 1984, marriage is prohibited between:
- Parents (mother and father)
- Grandparents and ascendants
- Children, grandchildren and descendants
- Siblings (full, half, paternal or maternal)
- Nieces and nephews
- Aunts and uncles (father’s and mother’s side)
Sexual relations with any of these persons constitute incest.
Question 5
What is affinity and who falls under it?
Answer:
Affinity refers to relationships created through marriage. Section 9(2) of the Islamic Family Law (Federal Territories) Act 1984 prohibits marriage between:
- Parents-in-law and their ascendants
- Stepparents
- Step-grandparents
- Children-in-law
- Stepchildren (where the marriage has been consummated)
Sexual relations within these relationships are also prohibited and amount to incest.
Question 6
What is fosterage (rada‘ah) and how does it create prohibited relationships?
Answer:
Fosterage (rada‘ah) arises when a child is breastfed by a woman other than the biological mother under conditions recognised by Islamic law. Section 9(3) provides that foster relationships create the same prohibitions as blood relations. Thus, foster parents, foster siblings and foster children are treated as mahram, and sexual relations between them are prohibited.
Question 7
Is it permissible for a man to marry two women who are closely related?
Answer:
No. Section 9(4) of the Islamic Family Law (Federal Territories) Act 1984 prohibits a man from having two wives at the same time who are so closely related by consanguinity, affinity or fosterage that marriage between them would be unlawful if one were male.
Question 8
What is the Hadith position on prohibited family relationships?
Answer:
The Prophet (SAW) stated that a woman should not be married together with her father’s sister or her mother’s sister, reinforcing the prohibition of close family unions and supporting the broader prohibition of incest.
Question 9
Does consent or willingness of the parties affect the offence of incest?
Answer:
No. Islam prohibits all promiscuous relationships, irrespective of consent. Even if the woman willingly participates, the act remains unlawful. The Qur’an clearly states: “Do not approach the bounds of adultery.”
Question 10
How is incest defined under the Penal Code in Malaysia?
Answer:
Under section 376A of the Penal Code, a person commits incest if he or she has sexual intercourse with another person whom he or she is not permitted to marry under applicable law, religion, custom or usage.
Question 11
What is the punishment for incest under the Penal Code?
Answer:
Under section 376B(1) of the Penal Code, incest is punishable by:
- Imprisonment of not less than six years and not more than twenty years, and
- Whipping.
This reflects the serious view taken by Malaysian law toward incest.
Question 12
How have Malaysian courts described the seriousness of incest?
Answer:
In Ismail Rasid v PP, the court described incest as a heinous and despicable crime, especially where a parent abuses a child. Sentences must reflect society’s abhorrence and protect vulnerable victims.
Question 13
What sentencing principles were emphasised in Mohd Zandere Arifin v PP?
Answer:
The court held that incest offences outrage public conscience and justify severe or maximum sentences. Public interest and deterrence override the personal hardship faced by offenders.
Question 14
Can Muslims be tried in civil courts for incest?
Answer:
Yes. Muslims are frequently tried in civil courts under the Penal Code for incest because criminal law is a federal matter, and the Penal Code provides heavier punishment consistent with the gravity of the offence.
Question 15
What is the punishment for incest under Syariah law in the Federal Territories?
Answer:
Under section 20 of the Syariah Criminal Offences (Federal Territories) Act 1997, incest is punishable by:
- A fine not exceeding RM5,000, or
- Imprisonment not exceeding three years, or
- Whipping not exceeding six strokes, or
- Any combination thereof.
Question 16
Why is there a difference between Penal Code and Syariah punishments for incest?
Answer:
The difference exists because the Syariah Courts’ criminal jurisdiction is constitutionally limited by the Syariah Courts (Criminal Jurisdiction) Act 1965, whereas the Penal Code allows more severe punishments to reflect society’s strong condemnation of incest.
Exam Tip (Strong Conclusion Sentence)
Incest is strictly prohibited in Islam due to forbidden relationships based on consanguinity, affinity and fosterage, criminalised under both Syariah law and the Penal Code, but most severely punished under the Penal Code to reflect public abhorrence and protect vulnerable family members.
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