The Federal Court Repealed Section 498 In 2023. It Said The Law Treated Wives As Their Husbands' Chattels.

On 15 December 2023, the Federal Court judicially repealed section 498 of the Penal Code.

The provision had made it an offence for a man to entice, take away, conceal or detain a married woman with intent that she have illicit intercourse — punishable by up to two years' imprisonment, a fine, or both.

Chief Justice Tun Tengku Maimun Tuan Mat, delivering the unanimous judgment of a five-member bench:

"Both parties either accept or do not deny that the sole purpose of Section 498 was to view women as chattels to their husbands to the extent that the enticement/taking away/detention of them was considered an offence… We are therefore satisfied that the only possible means to bring Section 498 into accord with the Federal Constitution is to judicially repeal it in its entirety, which we hereby do."

The constitutional basis: the section entitled only husbands to rely on it, to the exclusion of all wives. "This is, as such, discrimination on the grounds of gender only." The Court held it unconstitutional as violating Article 8(2), which prohibits discrimination on grounds of religion, race, descent, place of birth or gender.

Why repeal rather than amend. Section 498 is a pre-Merdeka law, and under Articles 162(6) and 162(7) the court could modify it. But the Chief Justice held it was "incapable of any modification as it will change the character of the offence" — so judicial repeal was the only route.

Adultery itself was never a crime

This is the point that surprises people.

No provision in the Penal Code or any other Malaysian law specifies a criminal sanction for adultery. Adultery is not a criminal offence in Malaysia.

Section 498 never punished the unfaithful spouse. It punished the outsider — and only a male outsider, and only where the spouse was a wife.

The old elements, for the record:

• the outsider takes, entices, conceals or detains a woman
• whom he knows or has reason to believe is married to another man
• with intent that she may have illicit intercourse
• and the wife's consent or willingness was entirely immaterial to his guilt

There was no equivalent for a woman who entices a married man. That asymmetry is precisely what killed the provision.

One practical note on the old law: because the matters were private in nature, the AG's Chambers was reluctant to prosecute, and complainants generally had to hire their own lawyer and conduct a private prosecution. So even before repeal, it was rarely used.

What a wronged spouse can do now

For non-Muslims — the civil route.

A husband may end his civil marriage under the Law Reform (Marriage and Divorce) Act 1976 and name the enticer as a co-respondent. He must provide cogent evidence of adultery between his spouse and the third party to secure damages.

On that evidence, the husband may be entitled to damages against the third party for contributing to the irretrievable breakdown of the marriage.

Note what changed and what did not. The criminal route is gone. The civil route survives — and unlike s.498, it does not depend on the gender of the spouse who strayed.

For Muslims — Syariah offences may still apply.

This is the most important qualification in this article. Days after the Federal Court ruling, Terengganu's Chief Syarie Judge Datuk Wan Mohd Zakri Wan Mohd stated that Muslim men in Terengganu may still face prosecution under s.43 of the Terengganu Syariah Criminal Offences Enactment 2001.

Reported consequences under that enactment: the Syariah court can order the woman involved to return to obeying her husband, while a convicted male accused can be fined not more than RM5,000 or sentenced to three years' imprisonment, or both.

Syariah criminal offences are state law and differ across the 13 states and 3 federal territories, and Syariah courts have jurisdiction only over persons professing the religion of Islam — see (A Non-Muslim Cannot Be Charged With Khalwat. In 2014, One Was Anyway.).

The debate that followed

We are setting this out because it is live and both sides are argued seriously.

For the repeal: counsel argued s.498 was archaic, paternalistic, and infringed on the autonomy and dignity of women. Women's rights groups and legal scholars had long criticised a law drafted when Malaysia was a British colony and wives were considered their husbands' property.

Against, as argued by the prosecution: deputy public prosecutors submitted that s.498 did not violate Article 8, that a woman in a marriage cannot be classified in the same category as a man — particularly on protection from violence and crime, where different criteria applied — and that the objective of s.498 was to protect the husband's right to maintain a marriage.

The reform argument now: Malaysian academic work published in 2024 found that the repeal aligns with the principles of gender equality under the Federal Constitution, while noting that adultery remains an offence against cultural, moral and religious values, particularly within the Muslim community. That work advocates enacting a new, gender-neutral provision covering the enticement of a married spouse whether husband or wife — precisely to uphold gender equality.

We do not adjudicate that. Whether Parliament should legislate a neutral replacement is a live policy question.