[UPDATED] Apex court rules Penal Code provision on ‘enticing married women’ unconstitutional

PUTRAJAYA – The provision in the Penal Code that criminalises men for enticing married women has been ruled unconstitutional by the Federal Court today.

The five-member bench led by Chief Justice Tun Tengku Maimun Tuan Mat unanimously declared Section 498 of the Penal Code discriminative, on grounds of gender, as it only entitles husbands to rely on the provision to the exclusion of wives.

“The fact that this is the case is also made amply clear by Section 132 of the Criminal Procedure Code, which states no court shall take cognisance of an offence under Section 498 of the code except upon a complaint made by the husband of the woman,” she said.

The section carries a maximum two-year jail term, or fine, or both if found guilty.

The court also holds the provision as a pre-Merdeka law, within Article 162 of the federal constitution, that preserves the continuity of the common (civil) law, which had been in place prior to the promulgation of the constitution.

Tengku Maimun said today’s decision sought to preserve all previous prosecutions that have already come to pass. 

The court then sent the case to the high court to be dealt with in accordance with Section 85 of the Courts of Judicature Act 1964.

“It is for the high court to make the appropriate declarations and orders to give effect to this judgment and otherwise in accordance with the law.

“(It is also) to thereafter make the appropriate directions for the ongoing proceedings at the magistrates’ court.”

She added that both parties in the suit accepted or did not deny that the sole purpose of the section was to view women as chattel (property) to their husbands – to the extent that the enticement, taking away or detention of them is considered an offence.

“The law was intended to apply to the enticement of women only, (which) is also made amply clear by Section 132 of the Criminal Procedure Code.

“We are therefore satisfied that the only possible means to bring Section 498 into accord with the constitution is to judicially repeal it in its entirety, which we hereby do.”

In explaining the decision, she said: “According to Article 162(6) of the constitution, any court or tribunal applying the provision of any existing law that has not been modified, may apply it with such modifications as may be necessary to bring it into accord with the constitution.

“Whereby clause 7 of the article stipulates the ‘modification’ that includes amendment, adaptation and repeal. 

“Giving significance to the phrase ‘bring into accord with the provisions of this constitution’, in Article 162(6), what this means is that the courts can, under Article 162 amend pre-Merdeka law to make it into accord with the federal constitution.

“(However), Section 498 is incapable of judicial amendment under Article 162(7) of the federal constitution because doing so would require extensive amendment to the extent of changing the character of the offence.”

She was joined by Chief Justice of Malaya Tan Sri Mohamad Zabidin Mohd Diah, and Federal Court judges Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil in delivering the decision today.

The case was brought to the Federal Court by a businessman, Lai Hen Beng, who was charged at the Petaling Jaya magistrates’ court in 2020 for enticing a married woman in an apartment in Selangor in 2018. He was charged after a police report was lodged by the woman’s husband.

His constitutional question relating to Section 498 was allowed to be brought to the Federal Court by the Shah Alam High Court in March this year.

He refers to the constitutional question on whether Section 498 is unconstitutional as it contradicts Articles 8(1) and (2) of the federal constitution relating to equality before the law and gender discrimination.

His lawyer Jayarubbiny Jayaraj submitted to the court on July 18 this year that the provision was discriminatory against women in marriages, and violated the amended Article 8(2) of the constitution that had included the word “gender”, which proved Parliament had signified women and men are to be seen as equals and have equal rights.

Jayarubbiny was assisted by lawyers Jay Moy Wei Jiun and Puteri Batrisyia Abdul Latif, while the prosecution was represented by deputy public prosecutors Datuk Yusaini Amer Abdul Karim and Eyu Ghim Siang. – December 15, 2023