Kutacane Shari'a Court Decision No. 27 of 2010: Close Proximity (Khalwat) Case Dismissed

The prosecution submitted that, on 28 April 2010 at around 9.30pm, the male and female co-accused were found in close proximity together out of wedlock (khalwat). Specifically, the female co-accused had allegedly left her home to purchase noodles, unbeknownst to her husband and without his blessing. After leaving her home, the female co-accused had collected the first witness and met the male co-accused, who had been waiting for her at a roadside point. The female co-accused then told the first witness to leave her alone with the male co-accused. Both co-accused were allegedly found in close proximity with one another by the husband of the female co-accused (the second witness). When the second witness found the two co-accused, the male co-accused allegedly left the scene.

The prosecution submitted that the conduct of the co-accused contravened arts 5 and 22(2) of Aceh Qanun No. 14 of 2003. Accordingly, it requested that the court sentence the co-accused to two months' imprisonment, and that it order both co-accused to pay a fine of IDR 5 million each.

The court dismissed the application of the prosecution on the grounds that, on the evidence before it, the co-accused had not committed khalwat, as defined in art 2 of Aceh Qanun No. 14 of 2003. Specifically, the definition of khalwat specifies that the conduct of both parties must be heading towards adultery (zina). Based on the submissions made by all the relevant parties, the court concluded that the conduct of the co-accused resembled an ordinary conversation. Therefore, citing art 191(1) of Law No. 8 of 1981 on Criminal Procedure, the court released the co-accused on the grounds that the prosecution had failed to establish any misconduct on their part.

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