Case:

Brief Facts:

• The Appellant, Lai Hen Beng (hereinafter referred as “LHB”) was charged with an offence under section 498 of the Penal Code (PC) in the Magistrate’s Court.
  
  
• Section 498 PC states “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”.
  
  
• He sought to challenge the constitutionality of Section 498 PC.
  
  
• LHB’s argument was that Section 498 PC unlawfully discriminated against women. It was submitted that the section followed the paternalistic and archaic approach of treating women as chattel to their husbands.
  
  
• LHB argued that an aggrieved husband was entitled to pursue the prosecution of any other person who had enticed or taken away his wife, but there was no recourse to a wife whose husband was enticed by another woman.
  
  
• He further argued, Section 498 only protects a husband’s right to a peaceful and happy marriage without the interference of a third party, which discriminates against women by treating them with indignity and inequality in violation of both Article 8(1) and (2) of the Federal Constitution [FC].
  
  
• What does Article 8 state under the FC?
  
  
• Clauses (1) and (2) of Article 8 stipulates “Equality”

1. Article 8 (1) states All persons are equal before the law and entitled to the equal protection of the law; and
2. Article 8 (2) states “Except as expressly authorised by this Constitution there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law …..”

• The matter was then transmitted to the High Court and then further transmitted to the Federal Court.

THE DECISION OF FEDERAL COURT

• The court has determined that Section 498 is unconstitutional because it unlawfully discriminates solely on the ground of gender, violating Article 8(2) of the Federal Constitution (FC).
  
  
• Section 498 allows husbands to make complaints under this provision to the exclusion of wives, thus constituting gender-based discrimination.
  
  
• The court notes that even Section 132 Criminal Procedure Code (CPC) acknowledges and reinforces this discriminatory practice by specifying that no court shall take cognizance of an offence under section 498 except upon a complaint made by the husband.
  
  
• Section 498 is recommended for repeal under Article 162, not based on its anachronistic nature, but because adapting or amending it would not bring it into accord with Article 8(2).