THE Federal Court of Malaysia has deemed Section 498 of the Penal Code unconstitutional, specifically the provision making it a crime for a man to entice a married woman.
Chief Justice (CJ) Tun Tengku Maimun Tuan Mat delivered the unanimous judgment of the five-member panel, asserting that the pre-Merdeka law is incompatible with Articles 162(6) and 162(7) of the Federal Constitution.
“We are of the view that the provision is incapable of any modification as it will change the character of the offence. Therefore, the only possible means is to judicially repeal it,” she said.
The court determined that Section 498, which criminalises enticing, taking away or detaining a married woman with criminal intent must be judicially repealed as any modification would alter the offence’s character.
The penalty for violating this section includes imprisonment for up to two years, a fine, or both.
Moreover, the case stemmed from a 2020 incident where a 54-year-old businessman faced charges under Section 498 at the Petaling Jaya Magistrates’ Court, prompted by a report from the woman’s husband.
In March of this year, the Shah Alam High Court permitted the constitutional question to be referred to the Federal Court for examination.
The central legal issue was whether Section 498 violated the fundamental right to equality before the law, as outlined in Articles 8(1) and 8(2) of the constitution.
Furthermore, the Federal Court with Chief Judge of Malaya Zabidin Diah and Justices Harmindar Singh Dhaliwal, Abu Bakar Jais and Abdul Karim Abdul Jalil unanimously answered in the affirmative.
However, Tengku Maimun clarified that the ruling would only apply to future cases, not retroactively. The matter has been referred back to the Shah Alam High Court for a declaration and order under Section 85 of the Courts of the Judicature Act 1964.
During the proceedings, Tengku Maimun noted that both parties agreed that Section 498 treated married women as possessions of their husbands. Counsel Jayarubbiny Jayaraj argued that the provision was archaic, paternalistic and infringed on the autonomy and dignity of women, emphasising its discriminatory nature and potential for abuse.
Deputy public prosecutors Yusaini Amer Abdul Karim and Eyu Ghim Siang countered that Section 498 did not violate the constitution, asserting it was not discriminatory.
They contended that the provision aimed to protect the husband’s right to maintain a marriage, considering the distinct criteria for protecting women in marriages from violence and crime. – Dec 15, 2023
