IT IS one of those claims that sounds like it should be true. Surely, in a country that takes the institution of marriage seriously, there must be a law against luring someone's spouse away.
The answer, as it turns out, involves a 163-year-old colonial law, a Federal Court showdown and one of the more unusual constitutional rulings in Malaysian legal history.
Is seducing someone's husband or wife a criminal offence in Malaysia?
Verdict:
FALSE
Not anymore. But it was, and the story of how it stopped being one is worth telling.
For over 60 years after independence, Section 498 of the Penal Code made it a criminal offence for a man to entice, take away or detain a married woman with the intent that she may have illicit intercourse with any person.
The punishment was imprisonment of up to two years, or a fine, or both.
The provision was inherited from the Indian Penal Code of 1860, drafted during the British colonial era, and had been sitting in Malaysian law ever since. It was not a dead letter either.
It was used in court on multiple occasions over the years.
But Section 498 had a problem that became increasingly difficult to ignore the longer it stayed on the books.
The law only worked in one direction.
A man who enticed a married woman could be charged. A woman who enticed a married man could not.
Only husbands could initiate criminal proceedings under the section. Wives had no equivalent right.
The law, as written, treated married women as property belonging to their husbands, and the offence was essentially one of interference with that property rather than a protection of the marriage itself.
The constitutionality of the provision was eventually challenged before the Federal Court.
The argument was straightforward: Section 498 violated Article 8 of the Federal Constitution, which guarantees equality before the law and prohibits discrimination on the grounds of gender.
The provision was discriminatory against women in marriages because it treated them as their husband's property and was open to abuse by husbands.
On December 15, 2023, the Federal Court agreed.
Chief Justice Tun Tengku Maimun Tuan Mat, leading a five-member bench, declared Section 498 unconstitutional and judicially repealed it in its entirety.
"We hold that Section 498 is unconstitutional for the reason that it unlawfully discriminates only on the grounds of gender, which is violative of Article 8(2)," said the Chief Justice, as reported by The Star.
The court found that the section could not be judicially amended to fix the gender imbalance because doing so would require changing the entire character of the offence.
The only option was to strike it down completely.
"Both parties either accept or do not deny that the sole purpose of Section 498 was to view women as chattels to their husbands to the extent that the enticement, taking away or detention of them was considered an offence," the Chief Justice said.
The ruling applied prospectively, meaning all previous prosecutions that had already concluded remained valid, but no new charges could be brought under the section.
So as of December 2023, seducing someone's husband or wife is no longer a criminal offence in Malaysia under civil law.
Adultery itself has never been a criminal offence under the Penal Code, though it remains a ground for divorce under civil marriage law.
A law that survived 163 years, two colonial administrations and six decades of Malaysian independence was undone not by a moral argument about adultery but by a constitutional argument about equality. The offence was not struck down because it was too harsh. It was struck down because it was not fair.
Sources:
1. https://www.thestar.com.my/
2. https://www.thestar.com.my/
