Assessing Criminal Penalties in Marriage Law: a Comparative Study of Policy Frameworks within Indonesian and Malaysian Legislation
Summary & Objectives
This comparative legal study examines how criminal sanctions in marriage law are formulated and applied in Indonesia and Malaysia, with specific attention to how Islamic law, national legal systems, and policy frameworks address marriage-related violations, including child marriage. Using a normative, library-based legal research approach, the study aims to compare the two countries’ policy frameworks, assess the effectiveness of criminal penalties as deterrents, and evaluate these sanctions through the lens of maslahah (public interest) as articulated by Al-Ghazali
Findings
Although Indonesia and Malaysia share a common foundation in Islamic law, they differ substantially in how criminal sanctions related to marriage are designed and enforced. In Indonesia, criminal penalties for marriage violations, including child marriage, are shaped largely by the secular national legal system, resulting in relatively moderate sanctions and weak deterrence. In Malaysia, the dual legal system gives Sharia law a more prominent role for Muslims, allowing for stricter regulation in principle, yet enforcement remains uneven across states. In both contexts, child marriage persists despite formal legal prohibitions, largely because criminal sanctions are inconsistently applied, treated as administrative measures, or undermined by legal exceptions such as court permissions. The study finds that weak implementation, limited legal certainty, and social acceptance of harmful practices reduce the effectiveness of criminal penalties in preventing child marriage
Recommendations
The authors argue for the reconstruction of marriage-related criminal sanctions to strengthen their deterrent effect and ensure legal certainty. This includes harmonising laws, clarifying minimum age requirements, strengthening enforcement mechanisms, and improving protection for victims of forced and child marriage. Drawing on Al-Ghazali’s concept of maslahah, the study recommends that sanctions be explicitly oriented toward preventing harm, protecting children’s rights, and safeguarding family wellbeing, while engaging communities and religious institutions to ensure legitimacy and effective implementation
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