Definition of adultery
Adultery occurs when a married individual engages in sexual activity with someone other than their spouse. One must distinguish between adultery and fornication. In a legal context, adultery is sexual activity between a married man and a married woman, or at least one of them is married. Fornication is sexual activity between two unmarried people, whether or not it leads to marriage.
Adultery under Criminal Law
No provision in the Penal Code or any other law specifies a sanction for adultery. So, 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.
The law targets men 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:
- Taking, seducing, concealing, or detaining another man’s wife from that man OR any person caring for her on his behalf (i.e., a family member).
- Knowledge or belief that she is the wife of another man and
- Such taking/enticing/concealing/detaining must be done with the intent that she may engage in unlawful intercourse with him.
Who can be charged 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.
It ensures that women are not taken away against their husband’s consent. It also helps to stop the spread of infidelity and preserve 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. When the law was drafted, it viewed women as the property of their husbands.
Debates around Section 498
The law’s original intent was to make up the husband for any loss of control he may have had over the wife. Some argue the law implies the wife is the husband’s property and has no autonomy over her body once she marries.
- They claim the law seems outdated and does not reflect today’s values.
- 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, matters concerning Section 498 are considered private. 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.
Adultery under Civil Law
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, the court must be satisfied with the following before granting the divorce.
- The alleged facts as causing or leading to IBM and
- It is just and reasonable to grant a divorce.
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, when looking into what caused the marriage breakdown, the court must consider the following:
- That the respondent has committed adultery, and
- the petitioner cannot stand living with the respondent.
Proof of adultery under Section 54(1) of LRA
The wife or the husband must file for divorce under Section 53 of the LRA. Only then can adultery be used to justify divorce. The petitioner’s spouse will be named the respondent.
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 to prove beyond a reasonable doubt that the respondent committed adultery. They also must prove that the alleged affair 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 affair. The birth of a child from the affair makes it clear.
It is essential to acknowledge that tangible proof of adultery is hard to prove. Eyewitness must testify to the actual act of adultery.
Circumstantial evidence is often enough to verify an adulterous affair when there is no direct evidence. The court in Yew Yin Lai found circumstantial evidence of an extramarital affair between the petitioner and respondent. The evidence included:
- Regular visits by the respondent and co-respondent to the babysitter’s house to visit the co-respondent’s daughter;
- Discovery of the husband and co-respondent in a closed room and
- Purchase of several immovable and movable properties by the husband for the co-respondent without satisfactory justifications.
Second part of Section 58(1)(a)
Section 54(1)(a) requires two elements for proof. The petitioner must establish that:
- the respondent is guilty of adultery and
- the petitioner must find it intolerable to live with the defendant.
Damages for adultery
According to Section 54, the petitioner has the right to include the co-respondent in the divorce case. This is 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. The respondent did have three children with the co-respondent. Therefore, 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. Thus, 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.
Summary
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
[i] This Act shall not apply to Muslims or to any person who is married under Islamic law. It only applies to couples married under civil marriage.
Latest Development as of December 15th 2023
Please note that this post has been amended to reflect the most recent changes in the Malaysian legal landscape.
On December 15th, Malaysia’s highest court decided that Section 498 of the Penal Code was unconstitutional. Chief Justice Tun Tengku Maimun Tuan Mat headed the court. This law previously made it a crime to tempt a married woman away from her husband. Chief Justice remarked that the provision treats married women as chattels of their husbands.
The court examined whether Section 498 violated the fundamental right of all persons to equality before the law. Article 8 of the Federal Constitution stipulates this right.
Article 8(2) provides that “there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law”
The court found this law to be unfairly biased since it only allowed husbands to invoke this law. This clearly goes against Article 8(2) of the Federal Constitution, which forbids discrimination based on gender. The esteemed judge ordered that this law be wholly removed and repealed.
