Is Section 498 of the Penal Code unconstitutional?

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Section 498 of the Penal Code is being challenged as unconstitutional.

A provision within the Penal Code, specifically Section 498, which criminalises men for enticing married women, is currently facing a constitutional challenge. A lawyer representing a businessman charged under this section argued before the Federal Court that the provision violates women's fundamental right to equality before the law, as enshrined in the Federal Constitution. The core of the argument centres on the perceived discriminatory nature of the law and its potential conflict with constitutional principles of equality and gender non-discrimination.
Arguments Against Section 498

The legal challenge contends that Section 498 of the Penal Code is unconstitutional on several grounds. It is argued that the provision is discriminatory against women, as it treats them as property belonging to their husbands and is susceptible to abuse. Furthermore, it is asserted that only husbands are granted the right to initiate criminal proceedings under this section, which is seen as a violation of the principle of equality before the law, particularly in light of amendments to Article 8(2) of the Federal Constitution that explicitly include "gender" to signify equal rights for men and women.
Defence of Section 498

Conversely, the prosecution argued that Section 498 of the Penal Code is constitutional and does not contravene Article 8(1) and (2) of the Federal Constitution. The deputy public prosecutor submitted that women and men cannot be placed in the same category concerning protection from violence and crime, as the criteria differ. The stated objective of Section 498, according to the prosecution, is to safeguard a husband's right to maintain his marriage, implying a specific protective intent rather than a discriminatory one.
Legal Proceedings and Referral to Federal Court

The constitutional question regarding Section 498 was brought before a five-member Federal Court bench. The businessman, who was charged under Section 498 in 2020 for an alleged offence in 2018, had his application to refer this constitutional question allowed by the Shah Alam High Court. This referral allows the Federal Court to definitively determine the constitutionality of the section, considering the arguments presented by both the defence and the prosecution.
Federal Court Reserves Decision

Following the submissions from both the defence and the prosecution, the Federal Court bench, comprising Chief Justice Tun Tengku Maimun Tuan Mat and other Federal Court judges, announced that it would reserve its decision. The court heard detailed arguments on whether Section 498 of the Penal Code is in conflict with the constitutional guarantees of equality before the law and protection against gender discrimination.

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Is Section 498 of the Penal Code unconstitutional?

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