KUALA LUMPUR: Is the offence of enticing a married woman for sex an archaic law?
Prosecutors have hardly used section 498 of the Penal Code and lawyers familiar with family and criminal jurisprudence said the last time such a case went to court was more than 50 years ago.
This provision came into public domain recently when celebrity TV presenter Daphne Iking's husband initiated a private summons against a businessman for enticing her.
The Attorney-General's Chambers declined to prosecute and it was referred to a magistrate who gave sanction for private prosecution.
Family law lawyer Balwant Singh Sidhu said it was a surprise that the law remained on the statute books in an age when women had been emancipated and given equal rights.
"It has to be repealed because the reason for the rule no longer exists and has been overtaken by the march of time."
Balwant said how this archaic section came into being has to be viewed in history.
He said the Penal Code was an identical version of the Indian penal law introduced in 1860 and this included the offence of enticing a married woman.
The British introduced the same Indian penal law in Malaya. He said that in those days, the women were subordinated to their husbands upon marriage.
"The wife's property became that of the husband upon marriage. The husband became liable for civil wrongs committed by her and even crimes by her in his presence."
Balwant said it was in this context that the wife was under the protection and control of the husband and the offence of enticement must be understood in those circumstances.
He said it was also clear from the section that only a man who seduced a married woman could be charged but not a woman who seduced a married man.
Another lawyer Datuk N. Sivananthan said the provision of the law was quite insulting to a woman who is educated, financially independent and has her own views.
"This section is redundant as an aggrieved spouse has adequate legal remedy in civil proceedings."
Sivananthan said under the Law Reform (Marriage and Divorce) Act 1976, a non-Muslim spouse could petition for divorce on grounds of adultery.
He said the aggrieved party could bring the person who caused the breakdown of the marriage as co-respondent and the court could award damages.
Criminal lawyer Gurbachan Singh, however, said the offence should remain on the statute books to ensure the sanctity of marriage and promote the family institution.
"This law ensures that nobody interferes and destroys the marriage by enticing a married woman for illicit sex."
He said there was a fine distinction between a woman committing adultery and a man enticing a woman.
"In adultery, a woman may be a consenting party but under section 498, she may not be a consenting party but yet the woman is made a subject of enticement against her own will."
Mohamad Hanif Khatri Abdullah said the provision should remain as the family unit formed the nucleus of a society.
"A punishment to entice a married woman will serve as deterrent to others."
Hanif said confidence in marriage between a man and woman would remain only if there was a state law to prevent any sort of interference by a third party.
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