Group Discussion - Adultery

Article:

Adultery, legal or illegal in M'sia?

March 25th, 2008

What is adultery?

My friend said “adultery is having secret relationship with someone who has married.”

Based on L B Curzon, Dictionary of Law, 4th edition, (International Law Book Services: Kuala Lumpur), 1995, “adultery“ means an act of voluntary sexual intercourse (which need not be completed) between two persons not married to each other, but one or both of whom are married at the time of the act to a third person.

So is it legal to have sex with someone who is married?

There is no provision either in the Penal Code or the Criminal Procedure Code that stipulates punishment for adultery.

Meaning adultery as an act itself is not a criminal offence in Malaysia under the law.

Enticing Away a Married Woman Is illegal

However, Section 498 of the Penal Code provides for the punishment for the offence of enticing or taking away or detaining with a criminal intent a married woman.

Section 498 Penal Code:
“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 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.”

It is very interesting to see that, in fact, only man who takes or entices away any married woman may be charged under this provision. This similar provision does not apply to woman who entices or takes away a married man.

That means if a woman entices a married man, she will not be held guilty under this provision of law. Unfair? well, I think the law presumes that ALL women are good and decent, they will never entice a married man. This may (may not) be true in the ancient time, but I definitely don’t think it is true now a day. haha!

So MAN, please watch out for the law when you want to have a “2nd woman” out of your family. 2 years jail is “no play play”.

For your information, even though adultery is not a crime under the criminal law, adultery can be evidence of irretrievably breakdown of a marriage, which is a ground for the presentation of a divorce petition by a petitioner under the Law Reform (Marriage and Divorce) Act 1976 (refer to section 53 and 54 of the same Act). However, most people always find it hard to prove it in court.

My opinion:
It was a good tips about the adultery. I tend to think the law was more likely written in a time when maried women were considered to be the “property” of their husbands. Hence, a crime was committed when someone enticed or detained a man’s property and’ took’ what was ‘rightfully’ his.

However, if a man chose to let himself be enticed or detained for such a purpose … no harm, no foul. And certainly no ‘crime’ was seen to have been committed against the wife. Interesting view of the world, isn’t it?