In today’s environment, it is not strange or a surprise for one partner to turn their back against their spouse by pursuing another person or letting themselves be chased by someone other than their spouse. This is known as cheating, which can take the form of physical infidelity or an emotional affair. Being cheated on is painful and heartbreaking, but the law is there to help the person who was cheated on receive justice when their spouse is caught being sexually involved with another person.
Adultery occurs when a married individual engages in sexual activity with someone other than their spouse. One must distinguish between adultery and fornication. In legal contexts, adultery is defined as sexual activity between a married man and a married woman (or at least one of them is married), while fornication is defined as sexual activity between two unmarried people, whether or not it results in marriage.
No provision in the Penal Code or any other law specifies a sanction for adultery. Therefore, adultery is not considered a criminal offence in Malaysia. Nonetheless, Malaysian law penalises any MAN who takes away or entices a woman he believes to be married to another man intending to engage in illicit sexual intercourse with her. This is expressly declared in Penal Code section 498.
“Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with the intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.”
To tempt or abduct a married woman intending to engage in sexual intercourse with her against her husband’s will is illegal and a crime in Malaysia, as stated above. Upon conviction, the man is subjected to up to two years in prison and/or a fine. Elements that must be fulfilled under Section 498:
This law is not applicable when a woman seduces or takes advantage of a married man. Only a man may be charged under this section if he takes or entices away any married woman. This provision aims to defend the sanctity of marriage and ensure that women are not taken away against their husband’s consent and for reasons other than stopping the spread of infidelity and preserving a stable family structure. Regardless of whether the wife agrees to the cheating, the man may face charges under this law. This is mainly because Malaysia’s Penal Code is heavily influenced by the Indian Penal Code, where women were viewed as the property of their husbands when the law was drafted.
The law’s original intent was to make up the husband for any loss of control he may have had over the wife. Since it implies that the wife is the husband’s property and has no autonomy concerning her own body once she becomes a wife to a man, it has been argued that the law seems outdated and no longer reflects the value of today’s society.
The intelligence of women is likewise insulted by such a law. It symbolises how women are viewed as naive and open to manipulation while being denied control over their bodies. Many people questioned whether it was truly fair and inclusive.
However, because matters concerning Section 498 are considered private in nature, the police do not actively seek out cheaters and adulterers/adulteresses to prosecute. Only if the husband wants the man his wife is seeing to be prosecuted under this provision can he complain to the police.
As previously stated, a wife has no right to bring an adultery claim against her husband or his lover under Section 498. Still, adultery can be grounds on which a divorce petition may be filed to indicate that the marriage has permanently broken down. According to Section 53(1) of the Law Reform (Marriage and Divorce) Act of 1975, either party to a marriage may file for divorce on the grounds of irretrievable breakdown of the marriage (IBM).[i]
However, as provided in the same section, the court, before pronouncing the divorce, must be satisfied with the followings;
According to Section 54(1)(a) of the LRA, adultery is one of the grounds for filing an IBM claim. Following the provisions of Paragraph (a) of Section 54:
The wife or the husband must file for divorce under Section 53 of the LRA before adultery can be used to justify divorce. The petitioner’s spouse will be named the respondent, while the spouse’s lover can be called a co-respondent. Once the court thinks there is sufficient evidence for adultery, only then the respondent and co-respondent can be sued for damages.
According to the ruling in Shanmugam v. Pitchamany & Anor, the petitioner has the burden of proving beyond a reasonable doubt that the respondent committed adultery and that the alleged adulterous relationship caused the marriage breakdown.
The judge in Kang Ka Heng v. Ng Mooi Tee found beyond a reasonable doubt that the petitioner’s adulterous relationship with the co-respondent led to the dissolution of their marriage. The petitioner has acknowledged the existence of such an affair, which was further evident by the birth of a child from the adulterous relationship.
It is essential to acknowledge that tangible proof of adultery is hard to prove. The existence of an eyewitness to the actual act of adultery is required. Circumstantial evidence is often sufficient to verify that an adulterous affair has occurred when there is no direct evidence of the affair’s existence. The court in Yew Yin Lai found circumstantial evidence of an extramarital affair between the petitioner and respondent, including the following:
Section 54(1)(a) requires two elements for proof. The petitioner must establish that the respondent is guilty of adultery. Second, the petitioner must find it intolerable to live with the defendant. To determine intolerability, the court would require some substantial evidence before intolerability can be proved.
According to Section 54, the petitioner has the right to include the co-respondent in the divorce case if that person was associated with the adulterous respondent. If the court finds the respondent and co-respondent guilty of adultery, the petitioner will be entitled to damages from both.
Tan Wat Yan v Kong Chiew Meng & Anor
The wife claimed that her husband had been committing adultery for the past eight years and was seeking a divorce. She additionally sought damages from the co-respondent. Since the respondent did have three children with the co-respondent, the adultery allegation was not challenged. The judge stated that he was convinced that the petitioner did not condone adultery and that she could no longer live with the respondent. Therefore, the divorce was granted, and the co-respondent was also ordered to pay damages.
Lim Siaw Ying v Wong Seng & Anor
In this case, the court ordered the second respondent to pay RM50,000 in damages to the petitioner’s wife. The petitioner held This amount in trust until her two children reached 18.
Only a husband can press criminal charges against another man in Malaysia for luring or seducing his wife. If a husband is caught engaging in adultery with another woman, the wife does not have the same legal recourse under the Penal Code. The remedy under civil law for a woman who believes and can prove that her husband has an adulterous connection with another person is to file for divorce and sue both the cheating husband and the adulteress for damages. A man can also “drag” his wife’s lover for adultery under Section 54(1)(a) of the LRA in the same way.
[i] This Act shall not apply to Muslim or to any person who is married under Islamic law. It only applies for couples married under civil marriages.
