Law of Enticement – Does its Rationale Still Hold Water Nowadays
Written by Bo Chi Chian, Liau Pin Chun, and Wallace Kew JiaRong.
Edited by ‘Umar Bin Ammar.
Reviewed by Ashley Khor Xin Hui and Ee Jie.
On 2nd November 2021, a man was convicted by the Magistrate Court under Section 498 of the Penal Code for enticing a married woman in order to have sexual intercourse with her at a palm oil plantation.[1] Section 498 is not a new law, nor has it been subjected to any recent amendment, but what surprises the public is that there are hardly any cases under Section 498 that have been brought to the court and even fewer cases reported in law journals.[2]Out of the blue, it was brought before the court as well as the eyes of the public again.
I. INTRODUCTION
The law of enticement has long been subjected to criticisms by judges and scholars. It is suggested that the law of enticement is based on a master-servant relationship — where the wife's position within a marriage is inferior to that of her husband.[3] In that logic, a husband is understood as the 'master' of the family who has the right to 'manage' his wife, ironically similar to the term 'animal husbandry’.[4] Undefinably, some may suggest that the law of enticement is premised on the deprivation of the husband's proprietary right over his wife. To put it simply, when someone takes away the property of a husband (i.e. their wives), there is ipso facto — a cause of action for the husbands to claim their rights.[5]
While the lengthy provision may take readers a moment to grasp, Section 498 can be broken down into two essential elements which need to be proven for conviction. First, the act of taking away or enticement. Second, the woman taken or enticed away must be a married woman. As the provision only requires for 'the intent that she may have illicit intercourse with any person', the element of adultery is immaterial.[6]
Under common law, marriage is viewed as a civil contract between a husband and a wife, whereby they are bound by certain contractual liabilities.[7] Unless the procedures and grounds of divorce laid out in the Law Reform (Marriage and Divorce) Act 1976 have been complied with,[8] a marriage cannot simply be dissolved.[9] It is suggested that the fundamental purpose of these provisions is to protect the sanctity of marriage.[10]
Section 498 came into the picture with the pre-existing social beliefs that the sanctity of marriage can be protected if the person who entices a married woman is punishable by law.[11] Through this, the deterrent effect may cause one to think thrice before taking away a married woman or risk statutory punishment.[12] However, following the global rise of women's rights awareness, does the rationale of 'preventing a married woman to be enticed away from her husband' or 'to protect the family institution' still hold water nowadays? Or is it merely a tool for husbands to vent out their frustration of failing to keep their families together?
II. CONTRASTING THE ORIGIN OF THE LAW AGAINST TODAY'S DEVELOPMENT
The law of criminalising the act of taking away or enticing women from their husbands can be traced back to the English Victorian era — where women were perceived as their husbands' properties. The law stands in compliance with Christian teachings, where one of the Ten Commandments in the Old Testament dictates that 'you shall not covet your neighbour's wife'.[13]
Under the common law position, marriage was premised on a master-servant relationship. As married women and children were men's personal property, the latter possessed proprietary rights over the former's services. Thus, enticing married women violate men's proprietary rights.[14] Subsequently, the British Parliament's First Law Commission drafted the Indian Penal Code based on the English common law principle.[15] This law was later codified in other colonies, such as Malaysia and Singapore. With that said, Section 498, alongside the other provisions, has been integrated into the Penal Code of the Malaysian legal system.[16] After scrutinising the origins of this law, it can be safely contended that it is discriminative in nature, for it does not place both spouses on equal footing.
The question that arises now is, whether the nature of the law has changed at all throughout time? If the answer is affirmative, does it reinforce the general belief that it could protect the sanctity of marriage? For this, reference can be made to other countries. In most Commonwealth countries — Australia, Canada, New Zealand, Singapore, and Hong Kong — enticement laws have been long forsaken.[17] The discriminative nature of this law was acknowledged by the Singaporean Parliament during the parliamentary debates:
'.... section 498 which criminalises the enticing, taking away, detaining or concealing with criminal intent a married woman will be repealed as it is an archaic offence. The section was enacted at a time when a wife was considered a chattel belonging to the husband...'[18]
Remarkably, even Britain, the country where the enticement law originated from, has repealed it. By virtue of Section 5 of United Kingdom ('UK') Law Reform (Miscellaneous Provisions) Act 1970, no person can be held liable for enticing married individuals.[19] In the recent case of Joseph Shine v Union of India, the Indian Supreme Court ruled that 'what might be acceptable at one point of time, may melt into total insignificance at another point of time'.[20] Section 497 of Indian Penal Code considers married women as the property of their husbands,[21] thereby violating their fundamental rights to equality under Article 14 of the Constitution of India — in pari materia with Article 8 of Federal Constitution. Hence, the Supreme Court struck down the adultery law — propounding the notion that women are the property of their husbands, and that adultery constitutes thievery.
In Malaysia, the concept of women as the property of their husbands is obsolete. Although a married couple is considered as a single entity,[22] a married woman is no longer a chattel of her husband. The independent legal personality of a married woman has been long recognised by Malaysian law since 1957. A married woman's rights and liabilities are provided under the Married Women Act 1957,[23] whereupon a married woman has the right to her property;[24] the right to sue and to be sued in her personal capacity as if she were a feme sole;[25] and to ensure that her legal personal representative shall have the same rights and liabilities as she would have if she were living.[26]
However, Section 498 implies that women lack the capacity of thinking independently. As the consent of women is immaterial in the aforementioned provision,[27] it denotes that women need to be 'protected' from men with dubious and ill intentions due to their naivety.[28] In the case of Ramasamy v Public Prosecutor, the court held that a case under Section 498 can be established if it can be proven that the wife is taken away from the custody of her husband.[29] In modern terminology, 'custody' refers to the legal right or duty to take care of somebody.[30] It is conventionally coined as a parental right over children who are minors at law and are incapable of thinking for themselves — leaving parents with the right to look after and make decisions on their behalves.[31] Nevertheless, married women are adults at law. They are independent and mature adults capable of self-determination, as well as the capacity to bear any legal consequences incidental to the decision made.[32] Thus, there is no need to be placed under custody, much less have their personal independence submerged under their husbands.[33]
III. AN EFFORT TO PROTECT THE SANCTITY OF MARRIAGE VS A TOOL TO VENT FRUSTRATION
From the wordings of Section 498, it is not necessary for the person who takes away the married woman to have the intent of illicit intercourse with the married woman; liability also arises if he takes away the married woman to have illicit intercourse with others.[34] At this juncture, it is crucial to note that only a person who entices away a married woman will be liable, whereas a person who entices away a man will not.
Although Section 498 has never been amended, the provision has previously been debated in the parliament. It was suggested that since the law does not place both husband and wife on equal footing, it is, therefore, discriminative on the basis of gender.[35] From data presented by the Members of Parliament, among factors causing divorce, wife adultery constitutes 11.8 per cent, whereas husband adultery amounts to 20.5 per cent.[36] Hence, Section 498, which only imposes prohibition of enticement against women, does not attain its purpose of protecting family institutions ab initio. It is crucial to note that the sanctity of a marriage can also be broken down when the husband is enticed by a woman.
Some argued that even so, it can be easily solved by amending Section 498 to equate the position of married men and women. However, would this simple amendment suffice to protect family institutions? ‘Or does it merely create yet another tool for wives to vent their anger when husbands leave their marital homes for another woman?’
In the case of Gottlieb v Gleiser, the husband sued his mother-in-law for enticing his wife to withdraw from their married life.[37] When dismissing the case on the ground that enticement is not proven, Lord Denning commented that only by kindness and consideration, can a husband keep the affection of his wife. He must place trust and faith in his wife that she will maintain her fidelity to their marriage to the exclusion of others. If she fails to do so, the only option for the husband is to mend his broken life; which neither monetary compensation, legal recourse, nor the court can help.[38]
Love begets love, violence begets violence. The root of marriage goes to the love and affection shared between spouses. Without such devotion, marriages will irretrievably break down beyond legal salvation. While some argue that the existence of Section 498 has contributed towards protecting the family institution, the question remains — what is the role played by Section 498 in protecting a marriage? Can it truly save a marriage from the brink of dissolution?
In the Malaysian case of Public Prosecutor v Liew Hin Alias Liew Wah, the accused was charged under Section 498 for taking away a married woman who had been physically abused by her husband.[39] During cross-examination, the woman confessed that she personally requested to be taken away from her matrimonial home, as she is no longer able to tolerate her abusive husband. To quote her:
'It is true that I requested you to take me away. I did tell you that I have no husband. I said so because I was ill-treated by my husband.'[40]
The case was dismissed on the ground that the accused did not have the reason to believe that the woman he took away was married. Even so, had the accused been convicted by the court, could her marriage still be saved? Was it not the abusive behaviour of the husband that coerced her to leave the matrimonial home, instead of the 'enticement' of the accused?
The authors are of the opinion that if the married woman did not leave with the accused, it is probable that her husband would continue his violent act, resulting in greater harm. This would inevitably place the wife in a more vulnerable position — leaving divorce as the final resort, even if the third party has been imprisoned. The authors also opined that the prerequisite before divorce proceedings — marriage counselling with Jabatan Pendaftaran Negara ('JPN') Marriage Tribunal — is sufficient to save the marriage. Thus, this provision itself is not necessary, but remains ancillary in nature.
Furthermore, another alarming aspect in this case is, by criminalising the accused, the law places the wife in the position of a victim. This paints a picture that the wife should not be taken by any party out of her matrimonial home — depriving her right to seek refuge outside her marriage.
In the case of Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor, the court held that the right to life under Article 5 includes the right to life in a reasonably healthy and pollution-free environment.[41] Applying the liberal definition of quality of life, it can also include the right for a woman to seek a safe and healthy living environment for a decent quality of life. Extending that, a woman then has the right to leave the matrimonial house to save herself from violent mistreatment by her husband. It should not matter whether she leaves on her own or is taken away by a third party. Not only is it her fundamental right guaranteed under Article 5 to ensure that her quality of life is well preserved, it upholds the autonomy she has over her life.[42]
Tracing back the origin of this law, it is also relatable to the law of harbouring. The former commands that nobody shall take away the wives of others out of their marital institution, whereas the latter dictates that nobody shall accept the wives of others who have run away from their matrimonial house.[43] The case of Liew Hua Lian is a clear illustration whereby it was the wife who had requested the accused to accept her. However, as declared by an English court in the 18th century:
'The ground of this action is that the defendant retains the plaintiff's wife against the inclination of her husband, whose behaviour he knows to be proper; or from selfish and criminal motives. But where she is received from principles of humanity the action cannot be supported.'[44]
IV. SECTION 498 VERSUS CEDAW
Having said that, Section 498 is not effective in protecting the sanctity of marriage. So what is left to be the guardian of family institutions? The Convention on the Elimination of All Forms of Discrimination against Women ('CEDAW') may shed some light on this matter.[45] CEDAW is an international treaty that aims to reaffirm women's rights and dignity, as well as uphold gender equality. Malaysia has been party to CEDAW since 1995, thus we are bound by it. Although international treaties can only be applied in the Malaysian courts if first incorporated into domestic laws by parliament,[46] the provisions of CEDAW are nevertheless worth looking into.
Article 16(c) of CEDAW provides that husband and wife shall have the rights and responsibilities during the marriage. Such rights and responsibilities include the right to freely choose a spouse, personal rights, guardianship, and custody of children.[47] It is suggested that the very purpose of CEDAW is to promote gender equality and foster women's rights across the globe.[48] The authors agree with the view that it is only when husband and wife share equal rights within a marital relationship, that the sanctity of marriage can genuinely be guarded.[49]
As mentioned above, international treaties can only be adopted after they have been formally codified into laws by parliament. Interestingly, Malaysian courts have already incorporated other international norms into domestic law through judicial interpretation. The case of Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors concerned the proprietary rights of the aboriginal people over their ancestral lands.[50] The court in referring to internationally recognised aboriginal rights, held that orang asli has the proprietary rights to their ancestral lands. To quote the court:
'Therefore, in keeping with the worldwide recognition now being given to aboriginal rights, I conclude that the proprietary interest of the orang asli in their customary and ancestral lands is an interest in and to the land.' [51]
Assuming that CEDAW has been incorporated as part of the Malaysian domestic law, Section 498 can be measured against CEDAW. As discussed above, Section 498 submerges the position of a woman under the custody of her husband. It does not provide an equal footing for both husband and wife before their marriage. Section 498 is therefore discriminative and contravenes Article 16(c) of CEDAW.
Furthermore, Article 15(1) of CEDAW provides that the State Parties shall accord women equally with men before the law. Nevertheless, under Section 498, only a husband has recourse to law, whereas a wife does not.[52] Thus, the inequality before the law contravenes Article 15(1).
In addition, Article 5(a) of CEDAW provides that the State Parties shall take appropriate measures to modify the social and cultural patterns of conduct of men and women to eliminate the stereotyped roles for men and women. Currently, Section 498 regards that only women can be enticed by men, while men cannot be enticed by women. In other words, it implicates women as gullible, but men as cognisant enough to leave his marriage on his own accord. To quote an article written by Datin Nor Aini Abdullah, which has also been referred to by the court in the case of Jamaludin bin Md Ali v Zulkifle bin Ramli:[53]
'It would not be wrong to say that this section (Section 498) clearly insults the intelligence of women and signifies that women are easily enticed and so naive as to be seduced.'[54]
V. WOMEN'S AUTONOMY AT STAKE?
With all those arguments being tendered upon, it is undoubtedly so that enticement law discriminates against women by disregarding their autonomy. Despite endorsing CEDAW, Malaysia does not enjoy the reputation of upholding gender equality in accordance with the international standard. Evidently, the Global Gender Gap Index 2021 rankings illustrates that Malaysia is ranked 112 among 156 countries.[55]
Section 498 is not frequently invoked in the court; its existence barely comes to the mind of the public. However, the case on 2nd November 2021 has spotlighted this once again. Coincidently, there is a similar provision codified into the newly passed Kelantan's Syariah Criminal Code (I) Enactment 2019 ('the Enactment').
Among the offences contained in the Enactment, one of them is 'female person fleeing from custody'.[56] Essentially, an unmarried woman fleeing from her parents or guardians is an offence. Surprisingly, this is not novel — this law exists as an offence under Syariah law by the Pahang State Government.[57] Although it does not concern the custody of spouses as per Section 498, they nevertheless share the same nature: women being deprived of their bodily autonomy and the right to self-ownership.
A man or a woman is of no person's property. As the famous maxim propounded by Immanuel Kant goes, 'morality can thus be defined as the relation of actions to the autonomy of the will, that is, to a will which by its maxims can make universal law.'[58] It is a shame that after nearly 240 years, Malaysia still falls short of respecting women's autonomy and their right to self-determination.
VI. CONCLUSION
An individual's dignity has a ‘sanctified realm in a civilised society. The civility of a civilisation earns warmth and respect when it respects more the individuality of a woman.'[59] Such notion shall obtain a further accent when a woman is treated with the real spirit of equality with her male counterpart. It is high time to say that a husband is not the master anymore, instead, equality should be the governing parameter. Society must realise that only mutual respect and equal rights can protect the sanctity of marriage.[60] We should no longer conceive women as the property of their husbands. Following that, provisions that promote the oppression of married women are legally and morally unsustainable. The authors hope that the legislature will repeal the impugned provision with a sense of urgency to genuinely promote the spirit of equality under Article 8 of the Federal Constitution. The power is in the parliament to incorporate CEDAW into the Malaysian legal system to not only effectively protect family institutions, but also to ensure that domestic law in relation to women’s rights is in accordance with international standards.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
[1] Malaymail. (2021, Nov 2). Miri court fines man RM1,500 for affair with married woman. Malaymail. Retrieved from <https://www.malaymail.com/news/malaysia/2021/11/02/miri-court-fines-man-rm1500-for-affair-with-married-woman/2017868>. Site accessed on 4 Nov 2021.
[2] Zuhair bin Rosli. (2021). Decriminalising Section 498 (Enticing Married Women) of the Penal Code. Malayan Law Journal Articles, 2, 299.
[3] Badariah Sahamid. (2011). Of Enticing and Enticed Married Women. The Malaysian Judiciary Yearbook 2011, 160, 162.
[4] Britannica, The Editors of Britannica. (2014, May 21). animal husbandry. Encyclopedia Britannica. Retrieved from <https://www.britannica.com/science/animal-husbandry>. Site accessed on 10 Jan 2022.
[5] Nor Aini Abdullah. (2010). Section 498, Penal Code (Act 574): An Antiquated Law? Journal of Malaysian and Comparative Law, 37, 101, 110.
[6] Ramasamy v PP [1938] 1 MLJ 137; PP v Liew Hin Alias Liew Wah [1934] 1 MLJ 12; Jamaludin bin Md Ali v Zulkifle Bin Ramli [2020] MLJU 1341.
[7] Muhammad Munir. (2008). Marriage in Islam: A Civil Contract or a Sacrosanct? Hamdard Islamicus, 30(1), 77.
[8] Law Reform (Marriage and Divorce Act) 1976 (Act 164) (Malaysia).
[9] See footnote 8 above, s 47 to s 63.
[10] Daleleer Kaur Randawar. (2015). Law Reform (Marriage and Divorce Act) 1976: Application with Regards to Violence Within a Home. Malayan Law Journal Articles, 5, 68.
[11] See footnote 2 above, 306.
[12] Penal Code (Act 574) (Malaysia) s 498.
[13] The Editors of Encyclopaedia Britannica. (2020, Nov 20). Ten Commandments. Encyclopedia Britannica. Retrieved from <https://www.britannica.com/topic/Ten-Commandments>. Site accessed on 4 Nov 2021.
[14] See footnote 3 above.
[15] The Indian Penal Code (Act 45) (India) Act No 45 of 1860.
[16] See footnote 3 above.
[17] See footnote 3 above.
[18] Singapore Parliamentary Debates, Official Report (22 Oct 2007) [, vol 83] at col 2175 [, <https://sprs.parl.gov.sg/search/topic?reportid=024_20071022_S0004_T0007> at 15 (accessed 4 Jan 2021)] [(Ho Peng Kee, Senior Minister of State for Home Affairs)].
[19] Law Reform (Miscellaneous Provisions Act) 1970 (UK) c 33, s 5.
[20] Joseph Shine v Union of India, Supreme Court of India, Writ Petition (Criminal) No. 194 of 2017, 27 Sept 2018, 4.
[21] The Indian Penal Code (India) Imperial Legislative Council, Act No. 9 of 1872, 25 April 1872, s 497.
[22] Blackstone, W. (1962). Commentaries on the laws of England. Boston, United States: Beacon Press, 430-431; See also Mimi Kamariah Majid. (1999). Family Law in Malaysia. Kuala Lumpur, Malaysia: Malayan Law Journal Sdn Bhd, 44.
[23] Married Women Act (Act 450 Rev. 1990) (Malaysia).
[24] See footnote 23 above, s 5.
[25] See footnote 23 above, s 9.
[26] See footnote 23 above, s 14.
[27] Jamaludin bin Md Ali v Zulkifle bin Ramli [2020] MLJU 1341.
[28] See footnote 5 above.
[29] Ramasamy v PP [1938] 1 MLJ 137.
[30] Oxford Learner’s Dictionaries. (n.d.). Custody. Oxford Learner’s Dictionaries. Retrieved from <https://www.oxfordlearnersdictionaries.com/definition/american_english/custody>. Site accessed on 4 Nov 2021.
[31] Wu Min Aun. (1995). Guardianship, Custody and Abduction of Children Across National Boundaries. Malayan Law Journal, 1, 1.
[32] See footnote 23 above, s 4 & s 9.
[33] See footnote 3 above, 163.
[34] See footnote 5 above.
[35] Malaysia, Parliamentary Debates, Representative, Eleventh Parliament, Third Session, 13 Jul 2006, pg 43 (Karpal Singh).
[36] Malaysia, Parliamentary Debates, Representative, Fourteenth Parliament, First Session, 13 Nov 2018, pg 11 (Hannah Yeoh).
[37] Gottlieb v Gleiser [1957] 3 All ER 715.
[38] See footnote 37 above, 716.
[39] PP v Liew Hin Alias Liew Wah [1934] 1 MLJ 12.
[40] See footnote 39 above.
[41] Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261, 288.
[42] Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750.
[43] Winchester v Fleming [1957] All ER 711.
[44] Philp v Squire (1791) 170 ER 99.
[45] Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 Mar 1980, 1249 UNTS 13 (entered into force 3 Sept 1981).
[46] AirAsia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318.
[47] See footnote 45 above, art 16.
[48] United Nations Human Rights Office of the High Commissioner. (n.d.). Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979. United Nations Human Rights Office of the High Commissioner. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx>. Site accessed on 4 Nov 2021.
[49] See footnote 2 above.
[50] Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591.
[51] See footnote 50 above, 615.
[52] See footnote 3 above.
[53] See footnote 27 above, [36].
[54] See footnote 5 above.
[55] World Economic Forum. (2021, Mar 30). Global Gender Gap Report 2021. World Economic Forum. Retrieved from <https://www.weforum.org/reports/global-gender-gap-report-2021>. Site accessed 4 Jan 2022.
[56] Malaysiakini. (2021, Nov 2). Kelantan's newly enforced syariah law covers sorcery, necrophilia, tattoos. Malaysiakini. Retrieved from <https://www.malaysiakini.com/news/597712?utm_source=facebook&utm_medium=dlvr.it&fbclid=IwAR1c-8IWpZOd0UHg7b-KQM9BivtnfB9u9yAv7EHcFZl17kLLGOrnItmh8c8>. Site accessed on 4 Nov 2021.
[57] Enakmen Kesalahan Jenayah Syariah Pahang 2013 (Enakmen 11) (Pahang) s 48.
[58] Liddell, B.E.A. (1970). Kant on the Foundation of Morality: A Modern Version of the Grundlegung. Ontario, Canada: Fitzhenry & Whiteside Limited. Retrieved from <https://publish.iupress.indiana.edu/read/kant-on-the-foundation-of-morality/section/23c43e39-b4af-4761-9249-1cb8978158a2>. Site accessed on 4 Nov 2021.
[59] See footnote 20 above, 2.
[60] See footnote 20 above.