Written by: Averroes
(1.0) Introduction
Terengganu Incident
A policeman was guilty for enticing a married woman with the intent to illicit sexual intercourse. However, the convicted policeman is now challenging the law to be unconstitutional. He was sentenced to 6 months of jail and fined RM3500, as he wooed someone's wife, but his sentencing is stayed as he appealed.
He was found guilty of committing the said offence in Kuala Terengganu between 25th November 2016 to 17th June 2018.
Since the man is challenging it's constitutionality, the matter will be heard in the Kuala Terengganu High Court. The provision that he is challenging and the same one that he was convicted under is section 498 of the Penal Code (PC).
The punishment under the law is maximum amount of 2 years jail or fine or both if guilty. To challenge the constitutionality, it is pursuant to article 8 of the Federal Constitution (FC), whereby all persons are entitled to equal protection of the law.
Johor Incident
Another similar incident where a policeman was accused by his colleague that he cheated with his wife. The policeman was also charged under section 498 of the PC, and many have complained that the law is outdated.
The policeman denied the allegations that he was secretly having a relationship with his colleague's wife and lodged a report.
Critics argue that the law is outdated, made by the colonialist British to show that the wife is the property of the husband. The law also punishes those outside the marriage, but not the spouse who committed the adultery or infidelity.
Also, an actor by the name Muhammad Shah Radhi Hazvee was also charged for having sexual intercourse with a married woman.
(1.1) Unconstitutionality due to article 8 of the Federal Constitution (FC)
Another notorious case that involved enticing or cheating with someone's wife is the one involving celebrity Daphne Iking. We don't know for sure if the husband was over-reacting or over-protective when his wife was cheating with a corporate figure or it was true.
In the Daphne Iking case, the lawyers argued that the law is unequal, since only the enticer, not the wife would be held accountable. Hence, it is against article 8(1) and (2) of the FC, since the act itself to begin with was consensual and only puts one party to blame.
Also, if a woman entices the husband of another woman, then there is no law to prosecute her. Hence, it is double standard and only a law designed to cement husband's ownership over the wife. Therefore, the husband and his mistress are not responsible, but only the wife's paramour.
To determine if a law is unconstitutional, which counters article 8, then we may view the case of Jamaludin bin Md Ali lwn Zulkifle bin Ramli [2020] MLJU 1341 which illustrated two journal articles and may be summed as below.
Similar to the Jamaluddin case, Meera Samanther who was the WAO president back in 2009, she said that the Daphne Iking case with the outdated law, said that the law infers woman cannot think for herself.
It assumes that women cannot make decisions on consensual sex and that husbands have control over their sex lives and bodies. The law insults women, because they are unable to think and make rational decisions.
She further adds that, women have their own right to their sexuality and bodies. The law solidifies that wife's are the property and subordinate to the husband's and only do traditional roles. However, society has drastically changed and women are now CEOs, bosses and hold high-ranking jobs.
Therefore, when two persons get married and one of them cheats, it should be their own personal matter and that State should not interfere or criminalise the conduct. There are already adequate provisions under the Law Reform (Marriage and Divorce) Act 1976 to get divorced, custody and maintenance among others.
If there is a violation between the spouses, it should be domestic violence and marital rape. Maintaing section 498 of the PC is more disastrous, as instituting a trial would further damage the marriage and end in eventual divorce and misunderstanding. The children in the marriage would be most affected by the law.
(2.0) How does section 498 of the Penal Code work?
According to the law, in order for the man to be guilty of enticing the wife, there are two elements;
(i) Whoever takes or entices away any woman who is and whom he knows... to be the wife of any other man ....
(ii) With the intent that she may have illicit intercourse with any person
One interesting case was in Public Prosecutor v Liew Hin Alias Liew Wah [1934] 1 MLJ 12, while it is true that the wife herself voluntarily let herself be taken away by the accused or lover, but she told him that she had no husband.
She said it, because she did have a husband, but refused to tell the lover the truth, because she was ill-treated by the husband. The court found that the lover was not guilty, since he did not know that she was married, even if she was.
Therefore, even if she was enticed or taken away, there was no mens rea or the knowledge she was married.
(3.0) Conclusion
To conclude, since this is Civil Law and does not involve customary or Islamic law, then it may be abolished. This law serves to be applied to everyone regardless of race or religion in Malaysia. If there are similar laws in customary or Islamic laws, then it should be open to discussion and review.
After vetting through arguments on its abolishment, it is indeed quite logical since it is a private and personal matter and should not be criminalised. Though, it is interesting to know what the legal consequences or repercussions towards people ruining other people's marriages, would they be sued?
While it is true that the law may be abolished due to the inequality, but again how do we make sure that cheaters receive what they deserve?
Does that mean we can sue cheaters due to psychiatric illness and emotional injury, rather than a ground to irretrievably breakdown a marriage?
(4.0) References;
Gan Pei Ling & Kathlyn Lee (November, 2009) Out of date? Retrieved from, https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/out-of-date#:~:text=The%20section%20states%20that%20a,are%20unaware%20of%20Section%20498.
Ibrahim Sani (July, 2017) Law on enticing wife under spotlight again. Retrieved from, https://www.astroawani.com/berita-malaysia/law-enticing-wife-under-spotlight-again-148756
Ben Tan (September, 2021) Johor cop accused of criminally enticing another officer's wife. Retrieved from, https://www.malaymail.com/news/malaysia/2021/09/27/johor-cop-accused-of-criminally-enticing-another-officers-wife/2008774
V Anbalagan (March, 2022) Convicted cop challenges charge of enticing married woman. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/03/25/convicted-cop-challenges-charge-of-enticing-married-woman/
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