FMT:
Non-Muslim husband can sue for adultery in divorce proceedings, says lawyer
However, civil law does not allow any remedy for such action if the third party is a Muslim man.
In a landmark ruling delivered on Friday, the Federal Court held that the offence of enticing a married woman for sex was unconstitutional as it violates Article 8 of the Federal Constitution.
PETALING JAYA: A non-Muslim spouse whose wife has been enticed by another man for sex retains a remedy against the perpetrator under civil law, a family lawyer said.
J Gunamalar said a husband may choose to end his civil marriage under the Law Reform (Marriage and Divorce) Act 1976 and name the enticer as a co-respondent.
However, he must be able to provide cogent evidence of adultery between his spouse and the third party to secure an award in damages, the lawyer added.
“The husband will be entitled to get damages against the third party for contributing to the irretrievable breakdown of marriage due to adultery by the wife,” she told FMT.
The lawyer was addressing the remedies available to a married man after a five-member Federal Court bench struck down the offence of enticing a married woman.
In a landmark ruling delivered on Friday, the apex court held that Section 498 of the Penal Code was unconstitutional on grounds that it violated Article 8 of the Federal Constitution. Article 8 guarantees that all persons are equal before the law and entitled to equal protection.
Under Section 498, a man who takes away or entices a married woman to engage in illicit sexual intercourse with her commits a criminal offence, and is liable to be jailed for up to two years or to a fine, or both.
Gunamalar said the removal of the Section 498 offence from the statute book means that the husband has lost his right to have the perpetrator investigated and prosecuted by the authorities.
“Previously a man would fear the embarrassment of being prosecuted and punished for getting involved with a married woman. This recourse has now been removed following the apex court’s ruling,” she said.
Lawyer Ravi Nekoo, however, said the civil law remedy is not available against a Muslim man.
He said another Federal Court decision handed down two years ago has held that a Muslim person cannot be named as a party in divorce and judicial separation proceedings between a non-Muslim couple in the civil courts.
“So, a (non-Muslim) husband can only name a non-Muslim man as co-respondent if his wife had committed adultery and he wants a divorce,” Ravi said.
PETALING JAYA: A non-Muslim spouse whose wife has been enticed by another man for sex retains a remedy against the perpetrator under civil law, a family lawyer said.
J Gunamalar said a husband may choose to end his civil marriage under the Law Reform (Marriage and Divorce) Act 1976 and name the enticer as a co-respondent.
However, he must be able to provide cogent evidence of adultery between his spouse and the third party to secure an award in damages, the lawyer added.
“The husband will be entitled to get damages against the third party for contributing to the irretrievable breakdown of marriage due to adultery by the wife,” she told FMT.
The lawyer was addressing the remedies available to a married man after a five-member Federal Court bench struck down the offence of enticing a married woman.
In a landmark ruling delivered on Friday, the apex court held that Section 498 of the Penal Code was unconstitutional on grounds that it violated Article 8 of the Federal Constitution. Article 8 guarantees that all persons are equal before the law and entitled to equal protection.
Under Section 498, a man who takes away or entices a married woman to engage in illicit sexual intercourse with her commits a criminal offence, and is liable to be jailed for up to two years or to a fine, or both.
Gunamalar said the removal of the Section 498 offence from the statute book means that the husband has lost his right to have the perpetrator investigated and prosecuted by the authorities.
“Previously a man would fear the embarrassment of being prosecuted and punished for getting involved with a married woman. This recourse has now been removed following the apex court’s ruling,” she said.
Lawyer Ravi Nekoo, however, said the civil law remedy is not available against a Muslim man.
He said another Federal Court decision handed down two years ago has held that a Muslim person cannot be named as a party in divorce and judicial separation proceedings between a non-Muslim couple in the civil courts.
“So, a (non-Muslim) husband can only name a non-Muslim man as co-respondent if his wife had committed adultery and he wants a divorce,” Ravi said.
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