It is common to see people stray from their marriage into the arms of another, and this can often cause heartbreaks and the breakdown of a marriage.
What is adultery?
The law defines adultery as an act of voluntary sexual intercourse between a man and a woman who are not married to each other, but at least one of them is married at the time of the act.[1]
Adultery happens to be one of the legal grounds to file for a divorce for civil marriages (non-Muslims marriages) in Malaysia.
So is it legal to cheat on your spouse?
Adultery as an act itself is not a criminal offence in Malaysia under the law. There is no provision in the Penal Code that stipulates punishment for adultery.
However, enticing away a married woman is illegal
While adultery itself is not a crime in a strict sense, Section 498 of the Penal Code states that it is a crime if a man seduces or entices a married woman for illicit intercourse and this offence carries a two (2) year jail sentence, a fine or both:
“Whoever takes or entices away any woman...to be the wife of any other man...with intent that she may have illicit intercourse with any person...shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”Interestingly, although a man could be charged for cheating with someone else’s wife, there is no provision against the woman who is found to be cheating with someone else’s husband. That means if a woman entices a married man, she will not be held guilty under this provision of law.
Because the matters involved in Section 498 are quite private in nature, the Attorney General’s office has been quite reluctant to prosecute such crimes. In fact, those who may have a complaint under this law would have to hire their own lawyer and conduct a private prosecution. This is where the court actually allows individuals to conduct prosecution themselves for certain less-serious offences, with the permission of the court.[2]
There have been calls for Section 498 to include both men and women for enticement.[3] This controversial law has sparked many debates on whether it’s fair and equal to everyone.[4]
Perhaps, we’ll just have to wait and see if the Parliament repeals or amends the law for seducing a married woman.
You Can Bring a Civil Suit for Adultery
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.
Under Section 58(1) of the Law Reform (Marriage and Divorce) Act 1976, in a divorce scenario where adultery is alleged, the alleged third party can be made a co-respondent:
“On a petition for divorce in which adultery is alleged...the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.”What this means is that, firstly, the wife must establish a divorce case against her husband on the ground of adultery. The husband will be made the respondent in the matter, and then, the mistress as the co-respondent.
If the adultery in question is proven to have taken place, the mistress can be liable to pay a monetary sum that the court thinks fit to the wife.
Proving beyond reasonable doubt can be difficult
It can be challenging to prove adultery, and the court has to be convinced beyond reasonable doubt (evidence beyond mere suspicion) that the claim is true.
However, proving this can be problematic, because it’s rarely that convenient to catch your spouse in bed with another person. So, the courts rely on something called circumstantial evidence [5] to conclude that adultery has taken place.
Therefore, if a woman intends to sue her husband’s mistress for adultery, it is wise to collect any and every evidence that would support the claim. Useful evidence may include intimate pictures of the husband and the mistress and the birth of an illegitimate child in the extramarital affair.
Conclusion
So in Malaysia, while a mistress may not be charged for getting involved in an extramarital affair, she can still be ordered by the court to pay monetary compensation.
It should be noted that if a man has an affair with someone’s wife, the husband can similarly sue him in court. This provision on adultery would apply to an adulterer as well as an adulteress.
Reference:
[1]L B Curzon, Dictionary of Law, 4th edition, (International Law Book Services: Kuala Lumpur), 1995 [2] https://www.thestar.com.my/opinion/letters/2016/03/23/courts-cannot-review-decision-by-the-ag/ [3] https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/defending-a-victorian-era-law [4] https://www.astroawani.com/berita-malaysia/law-on-enticing-wife-under-spotlight-again-148756 [5] Circumstantial evidence is proof of a fact or set of facts from which one could infer the fact in question.
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