An Analysis Of Prima Facie Evidence Based On Qarinah Conviction In Matrimonial Offenses In The Selangor Syariah Court

Abstract

A claim before the Syariah court aims to either attest one’s right or interest over a particular matter or defend such interest against the claiming party. At this juncture, the onus of proof lies with the party initiating the claim. In the context of Syariah Criminal Law, a Syarie Prosecutor has the discretionary power to bring a criminal claim against the accused in cases pertaining to Syariah offences, be it criminal or matrimonial, should there exist a strong qarinah that successfully establishes a prima facie case. However, there has been a lack of guidelines in proving prima facie in cases relating to matrimonial offences. Therefore, this study examines the methods of establishing prima facie based on qarinah in matrimonial cases, particularly, in cases decided by the Syariah Courts of Selangor. For data collection, the researchers employ qualitative methods through analysis of legal documents, case files from the Syariah Court, and its ratio decidendis. The findings of this study show that matrimonial offences are considered criminal offences under the Islamic Family Law (State of Selangor) Enactment 2003. Hence, a case is considered a strong establishment of qarinah, sufficient to indicate prima facie for matrimonial offences, enabling the Syarie Prosecutor to prosecute the accused. Despite that, the qarinah  itself must reach the degree of confidence, or al-zan al-ghalib, and not at the level of assumption, doubt, and waham. The authors believe this study may open doors to further discussions on Islamic Family Law, specifically in proving a prima facie case for matrimonial offences.