PUTRAJAYA: The Federal Court has ruled that Section 498 of the Penal Code, which makes it a crime for a man to entice a married woman, is unconstitutional.
Chief Justice Tun Tengku Maimun Tuan Mat said Friday (Dec 15) that a five-member bench unanimously decided that it "unlawfully discriminates only on the grounds of gender, which is violative of Article 8(2)" of the Federal Constitution.
“That the law was intended to apply to the enticement of women only 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 ... except upon a complaint made by the husband of the woman.'
"We are therefore satisfied that the only possible means to bring Section 498 into accord with the Federal Court is to judicially repeal it in its entirety, which we hereby do,” she added.
The other members of the bench were Chief Judge of Malaya Tan Sri Mohd Zabidin Mohd Diah and Federal Court judges Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil.
Under Section 498, a man could be sentenced to two years in jail or fined or both if convicted of enticing, taking away or detaining a married woman with criminal intent.
The apex court was ruling on a referral by a businessman who was charged under this section in a Magistrate's Court in 2018 after the woman’s husband lodged a complaint.
The businessman had applied to refer a constitutional question to the Federal Court on whether or not the section is unconstitutional as it contradicted Article 8(1)(2) of the Constitution on equality before the law and gender discrimination.
In March this year, the Shah Alam High Court allowed the man's application to refer the matter to the Federal Court.
According to Bernama, Justice Tengku Maimun said the panel also held that Section 498 was a pre-Merdeka law within the meaning of Article 162 of the Constitution.
The provision is incapable of a judicial amendment because doing so would require extensive amendment to the extent of changing the character of the offence, she added.
She said both parties had agreed that the sole purpose of the section was to view women as personal possessions of their husbands to the extent that the enticement of them was considered an offence.
She also said the judgment is taken to have effect prospectively and "seeks to preserve all previous prosecutions that have already come to pass."
"We hereby remit this case to the High Court to make the appropriate declarations and orders to give effect to this judgment," she added.
The businessman was represented by counsel Jayarubbiny Jayaraj, Jay Moi Wei Jiun and Puteri Batrisyia Abdul Latif; while DPP while Eyu Ghim Siang prosecuted.
