THE Federal Court ruled today that the law penalising men for enticing married women is “unconstitutional”.

Chief Justice Tengku Maimun Tuan Mat, who delivered the unanimous judgment of a five-member panel,  said articles 162(6) and 162(7) of the Federal Constitution applied instead of section 498 of the Penal Code, which is a pre-Merdeka law. 

“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 was quoted as saying on Free Malaysia Today.

The chief justice sat with Chief Judge of Malaya Zabidin Diah and Justices Harmindar Singh Dhaliwal, Abu Bakar Jais, and Abdul Karim Abdul Jalil to hear the appeal.

In 2020, a 54-year-old businessman was charged at the Petaling Jaya magistrates’ court with enticing a married woman after the woman’s husband filed a police report.

The Shah Alam High Court in March had allowed the man’s application to refer the constitutional question to the Federal Court for determination.

The court said the question of law for consideration was whether section 498 of the Penal Code violated the fundamental right of all persons to equality before the law as set out in articles 8(1) and 8(2) of the constitution.

The bench unanimously answered the question in the affirmative.

However, Tengku Maimun said the ruling would not be applied retrospectively.

The bench then remitted the matter for the Shah Alam High Court to make a declaration and order under section 85 of the Courts of the Judicature Act 1964.

Enticing, taking away or detaining with criminal intent a married woman is an offence under section 498 of the Penal Code and is punishable upon conviction with a jail term of up to two years or a fine, or both.

Earlier, in the course of submissions, Tengku Maimun said that both parties had agreed that section 498 treats married women as their husband’s chattel.

Counsel Jayarubbiny Jayaraj, assisted by Jay Moy and Puteri Batrisyia Abdul Latif, had contended that section 498 was archaic, paternalistic and infringes on the autonomy and dignity of women.

Jayarubbiny said the provision was discriminatory against married women and open to abuse because it treated them as the property of their husbands.

In reply, deputy public prosecutors Yusaini Amer Abdul Karim and Eyu Ghim Siang submitted that section 498 did not violate articles 8 of the Federal Constitution.

Yusaini said the provision was not a discriminatory law, adding that a woman in a marriage cannot be classified in the same category as a man, particularly from the aspect of protection from violence and crime as different criteria applied.

The objective of section 498 is to protect the husband’s right to maintain a marriage, he added. – December 15, 2023.