Adultery vis-a-vis Asian values

Says (30 May 2020):

The Absurdity Of A Law That Implies Women Are The Personal Property Of Their Husbands

A 24-year-old male celebrity in Kuala Lumpur has been charged with "seducing a married woman" under Section 498 of the Penal Code after the 36-year-old woman's husband filed a complaint that she left with the man without his permission.

On Friday, 29 May (2020), at the Ampang Magistrate's Court in Kuala Lumpur, a male actor was charged with "seducing" or enticing a 36-year-old married woman with the intention of having illicit intercourse with him

According to the facts of the case, the 24-year-old actor was charged under Section 498 of the Penal Code, which carries a maximum two years' imprisonment, or a fine, or both, if found guilty.

The actor, who was named as Muhammad Shah Radhi Hazvee, pleaded not guilty.

The alleged offence — which involves Shah Hazvee enticing 36-year-old Nurul Haireena Isnin to have illicit intercourse with him despite knowing that she is the lawful wife of 38-year-old Syed Mukhris Syed Ismail Shahabudin — was said to have been committed in Taman Sering Ukay at 8pm on Monday, 25 May.

Shah Hazvee, who was detained under remand for three days, was allowed to be released on bail of RM2,000 in one surety with Magistrate Farah Nasihah Annuar setting 5 August for mention.

Image via Mohamad Shahril Badri Saali/New Straits Times

The case came to light after the 36-year-old woman's husband filed a complaint that she left with Shah Hazvee without his permission

As per a report in Bernama on 27 May, the 38-year-old husband claimed, in his police complaint on 25 may, that his wife had — without his permission — left their residence with another man.

The husband, Syed Mukhris, claimed that the actor, whom he knew, had been in contact with his "wife with intent to entice her in order to obtain something", the Bernama report said.

According to Ampang Jaya district police chief ACP Noor Azmi Yusoff, the actor was detained after he came forward to provide a statement in relation to the husband's complaint.

A Malay Mail report on Wednesday cited an anonymous source saying that "the forbidden relationship began last year" after Nurul Haireena started working with the man 12 years younger than her.

What exactly does Section 498 of the Penal Code say?

It covers enticement/seduction or taking away or detaining with a criminal intent a married woman.

Image via SAYS via Attorney General's Chambers

Shah Hazvee is not the first man to be charged under Section 498.

This is reportedly the third time in Malaysia that a person has been charged with enticing a married woman, and there are multiple cases of men being fined under the same law. In fact, back in 2017, a senior official of the Malaysian Anti-Corruption Commission (MACC) was investigated for an affair with a married woman.

The first reported use of Section 498 involves another Malaysian celebrity, Daphne Iking, in over a decade ago when the case resulted in a public apology from the accused, Darren Choy Khin Ming, to Daphne's then-husband Ryan Chong Yiing Yih for causing him "embarrassment and humiliation".

Daphne Iking

What's the issue?

Section 498 — like many laws in the Malaysian legal system — comes from the Indian Penal Code (IPC), where it was drafted over a century ago in 1860, which was itself based on the old Victorian-era laws.

Over the years, it has been called "an equal law" and discriminatory as it holds only one person responsible — the other man, while completely disregarding consent or willingness on the part of the married woman.

At the time of it being drafted, women were perceived as the property of their husbands.

In essence, Section 498 criminalises consensual intimate relationships between adults. However, it only privileges the husband with the right to sue another man for the enticement of his wife. The wife has no say.

Back in 2017, Astro AWANI's then Business Desk Editor, Ibrahim Sani, had argued that "the law is deemed to be outdated and that it no longer reflects the values of modern society".

While discussing a 2017 case under the section, Sani, who is now anchor and presenter, wrote, "The law is worded to ensure that the husband could exert his control over her and therefore treats the wife as an 'item' or 'property' of him, and therefore he must be compensated for any loss of control he has over her."

Furthermore, because of the way Section 498 is worded, the husband must be compensated by the State for any loss of control, perceived or otherwise, he has over the wife.

The court can also order the said wife "to return to her husband", implying personal possession.

Another issue is that Section 498 takes away a woman's agency with regards to her own body once she becomes someone's wife

It implies that married women are unable to think for themselves and are incapable of making decisions.

Well, dear readers, what do you think?

Up until a few years ago, South Korea deemed adultery as a crime. In 2015, the South Korean top courts ruled that adultery is no longer a crime, stating such a law would be unconstitutional.

In the ruling at a provincial court in Goyang, judge Cho Min-seok said, “The accused deserves to be blamed. But we took into account her husband’s indifference to his wife and she has already gone through immense mental agony since the trial started.” Ok’s husband, Park Chul, is also a famous entertainer.

Prosecutors had sought an 18-month jail term for the popular actress, who admitted to having an extramarital affair with an opera singer.

After the ruling, she told reporters that she is uncertain whether or not she will appeal. “I’m sorry for causing such a controversy,” she told reporters.

Her secret lover, a 38-year-old opera singer, was sentenced to a six-month jail term, also suspended for two years. The judge added that the actress’s secret lover had felt remorse for his adultery.

Park filed for divorce in October of last year after learning that his wife had had sex several times with the opera singer. On the heels of the end to their 11-year marriage, Park also filed a criminal suit against Ok for adultery.

In response, Ok sought to overturn a law that criminalizes extramarital affairs. She filed a petition with the Constitutional Court, claiming that the law violates the right to choose sexual relations. In October, the court ruled that it’s constitutional.

Like South Korea, Japan also had such a law, but dismissed it in 1947, while India also abandoned the adultery law in 2018.

The last Asian country to rule that the adultery law was unconstitutional has been Taiwan in May 2020, yes just last year, wakakaka.

Three of the above 4 nations, Japan, South Korea and Taiwan, being Confucian-oriented nations, originally considered the law on crime of adultery as one that was "essential in safeguarding marriage, the family system, and the social order".

India's adultery law has been inherited from the British, and passed on to Malaysia, where one of its naughty points has been the treatment of the wife as the husband's property. Additionally, apart from the social moral impact as for the Confucian-influenced nations (China-Taiwan, South Korea, Japan), India's adultery laws was originally also influenced by Hindu laws, where one of its main concerns regarding adultery had been the probable confusion of castes.

Of course, illegal or illicit sex in Muslim countries would be punished as acts of crimes.

I wonder what you think, when courts in many (non-Muslim) Asian countries eg. South Korea, Taiwan, India, talk about the adultery law as being unconstitutional. That would be akin to elevating illicit sex to the level of constitutionality, wakakaka.

My take is that marriage is a 'contract' between two parties, usually between a man and a woman. There are some rules, agreement and promises, etc, in a marriage vow, hence the unwritten terms of the marriage contract. In my view, adultery is thus a breach of contract (unless in a marriage vow, the couple made an unusual promise to be able or allowed to eff whoever they like, wakakaka).

While I would not go as far as to deem adultery as an act of crime, I would consider it as a breach of contract. But adultery or rumours of it could be dangerous, as in a recent case in Penang, where a jealous husband on hearing of her alleged infidelity, pushed her out of their living room window of their 18th floor home at the Bukit Awana condominium in Ayer Itam.

What then does one do in a case of breach of contract as in adultery?