Criminalising men for enticing married woman unconstitutional, Federal Court told

Lawyer Jayarubbiny Jayaraj, whose client is charged with enticing a married woman, argued that Section 498 of the Penal Code violated women's right to equality before the law as the section only accorded husbands the right to initiate criminal proceedings against a person who interfered in their marriage.

She said the provision ought to be declared unconstitutional and repealed.

Jayarubbiny, also submitted that the provision was discriminatory against women in marriages because it treated women as their husband's property and was open to abuse by the husbands.

She said the amendment made to Article 8 (2) of the Federal Constitution by including the word "gender" proved that the Parliament, as the lawmaker in Malaysia, signified that women and men are to be seen as equals and to have equal rights.

Jayarubbiny, together with lawyers Jay Moi Wei Jiun and Puteri Batrisyia Abdul Latif, are representing a businessman who is referring a constitutional question to the Federal Court on whether section 498 of the Penal Code is unconstitutional as it contradicted Article 8(1)(2) of the Federal Constitution relating to equality before the law and gender discrimination.

The matter came up before the Federal Court bench comprising Chief Justice Tun Tengku Maimun Tuan Mat, 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 today.

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.

Meanwhile, deputy public prosecutor (DPP) Datuk Yusaini Amer Abdul Karim, assisted by DPP Eyu Ghim Siang, submitted that Section 498 is constitutional and does not violate Article 8(1) (2) of the Federal Constitution.

He said the provision was not a discriminatory law, adding that a woman in a marriage cannot be classified in the same category as a man, particularly from the aspect of protection from violence and crime as it has different criteria.

The objective of Section 498 is to protect the husband's right to maintain a marriage, he added.

After the court completed hearing the submissions, Justice Tengku Maimun told the parties involved that the court reserved its decision.