PUTRAJAYA (Dec 15): The Federal Court on Friday (Dec 15) declared Section 498 of the Penal Code, which made it a criminal offence for men to entice married women, as unconstitutional.

Chief Justice Tun Tengku Maimun Tuan Mat, who led a five-member bench, said the Section only entitled husbands to rely on the provision to the exclusion of all wives.

“This is, as such, discrimination on the grounds of gender only. The fact that this is the case is also made amply lucid by Section 132 of the Criminal Procedure Code (CPC), which states that 'No court shall take cognisance of an offence under Section 498 of the Penal Code except upon a complaint made by the husband of the woman'.

“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). In the premises, we answer the constitutional question (on Section 498 being unconstitutional) in the affirmative to the extent that it relates to Article 8(2) of the Federal Constitution,” she said.

Tengku Maimun sat with Chief Judge of Malaya Tan Sri Mohd Zabidin Mohd Diah, along with Federal Court judges Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil.

Article 8(1) of the Federal Constitution refers to equality before the law and equal protection before the law, while Subsection (2) stipulates that there shall be no discrimination against citizens on the grounds only of religion, race, descent or place of birth in any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

The Federal Court was responding to a referral over a businessman who had been charged under Section 498 in the Shah Alam Magistrate's Court, following a complaint made by the woman’s husband.

Under Section 498, an offender faces two years in jail, a fine, or both, if found guilty.

The question posed before the court was “whether Section 498 of the Penal Code is unconstitutional as it violates the fundamental principle of equality governed under Article 8(1) and 8(2) of the Federal Constitution"?

Tengku Maimun said that following the decision, the apex court ordered that Section 498 be repealed.

She said in her broad grounds that Section 498 is considered a pre-Merdeka law, and the court could modify it to the present times by either amending, adapting or repeal it.

However, Section 498 is incapable of a judicial amendment under Article 162(7), because it would require an extensive amendment to the extent of changing the character of the offence, she added.

“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/detention of them was considered an offence.

“That the law was intended to apply to the enticement of women only is also made amply clear by Section 132 of the CPC cited earlier. We are therefore 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,” Tengku Maimun said.

She also ordered that the decision in this case applies prospectively (not retrospectively) to seek to preserve all previous prosecutions that have already come to pass.

Following this, the apex court ordered that the businessman’s case be brought back to the High Court to make the appropriate directions for the ongoing proceedings in the Magistrate’s Court.

The businessman was represented by Jayarubbiny Jayaraj, while deputy public prosecutor Datuk Yusaini Amer Abdul Karim appeared for the prosecution.