PUTRAJAYA - The Federal Court here today repealed Section 498 of the Penal Code that criminalises men for enticing married women as it is unconstitutional.
Chief Justice Tun Tengku Maimun Tuan Mat, in a unanimous decision, said the panel held the section as unconstitutional as unlawfully discriminates only on the grounds of gender, which is violative of Article 8(2) of the Federal Constitution.
"Section 498 only entitles husbands to rely on the provision to the exclusion of all wives. This is, as such, discrimination on grounds of gender only.
"The fact that this is the case is also made amply lucid by Section 132 of the Criminal Procedure Code, which states that 'No court shall take cognizance of an offence under Section 498 of the Penal Code except upon a complaint made by the husband of the woman,” she said.
Other judges on the panel are the Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah and Federal Court judges Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil.
The panel made the ruling after allowing a businessman's application to refer a constitutional question to the Federal Court on whether Section 498 is unconstitutional as it contradicted Article 8(1)(2) of the Federal Constitution relating to equality before the law and gender discrimination.
Justice Tengku Maimun said the panel also held that Section 498 was a pre-Merdeka law within the meaning of Article 162 of the Federal 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.
Justice Tengku Maimun said both parties had agreed that the sole purpose of the section was to view women as chattel to their husbands to the extent that the enticement of them is considered an offence.
"Therefore, we are satisfied that the only possible means to bring Section 498 into accord with the Federal Constitution is to judicially repeal it in its entirety, which we hereby do.
"Our judgment herein is to be taken to have effect prospectively. This declaration prospectively 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 53-year-old businessman man was charged in the Petaling Jaya Magistrate’s Court in 2020 for enticing a married woman in an apartment in Selangor in 2018 after a police report was lodged by the woman’s husband.
Under Section 498 of the Penal Code, the man can be sentenced to two years in jail or fined or both if convicted.
The Shah Alam High Court in March this year had allowed the man’s application to refer to the constitutional question to the Federal Court for the court to determine.
At today's proceeding, the man was represented by counsel Jayarubbiny Jayaraj, Jay Moi Wei Jiun and Puteri Batrisyia Abdul Latif while Deputy Public Prosecutor Eyu Ghim Siang prosecuted - BERNAMA
Chief Justice Tun Tengku Maimun Tuan Mat, in a unanimous decision, said the panel held the section as unconstitutional as unlawfully discriminates only on the grounds of gender, which is violative of Article 8(2) of the Federal Constitution.
"Section 498 only entitles husbands to rely on the provision to the exclusion of all wives. This is, as such, discrimination on grounds of gender only.
"The fact that this is the case is also made amply lucid by Section 132 of the Criminal Procedure Code, which states that 'No court shall take cognizance of an offence under Section 498 of the Penal Code except upon a complaint made by the husband of the woman,” she said.
Other judges on the panel are the Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah and Federal Court judges Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil.
The panel made the ruling after allowing a businessman's application to refer a constitutional question to the Federal Court on whether Section 498 is unconstitutional as it contradicted Article 8(1)(2) of the Federal Constitution relating to equality before the law and gender discrimination.
Justice Tengku Maimun said the panel also held that Section 498 was a pre-Merdeka law within the meaning of Article 162 of the Federal 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.
Justice Tengku Maimun said both parties had agreed that the sole purpose of the section was to view women as chattel to their husbands to the extent that the enticement of them is considered an offence.
"Therefore, we are satisfied that the only possible means to bring Section 498 into accord with the Federal Constitution is to judicially repeal it in its entirety, which we hereby do.
"Our judgment herein is to be taken to have effect prospectively. This declaration prospectively 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 53-year-old businessman man was charged in the Petaling Jaya Magistrate’s Court in 2020 for enticing a married woman in an apartment in Selangor in 2018 after a police report was lodged by the woman’s husband.
Under Section 498 of the Penal Code, the man can be sentenced to two years in jail or fined or both if convicted.
The Shah Alam High Court in March this year had allowed the man’s application to refer to the constitutional question to the Federal Court for the court to determine.
At today's proceeding, the man was represented by counsel Jayarubbiny Jayaraj, Jay Moi Wei Jiun and Puteri Batrisyia Abdul Latif while Deputy Public Prosecutor Eyu Ghim Siang prosecuted - BERNAMA