Is M’sia ready for same gender adultery?

PETALING JAYA: Extramarital affairs carried out by parties of the same gender would not be reasonable grounds for divorce under the Malaysian legal system, say legal experts.

Though such legal cases are rare in Malaysia, FMT unfolds the wider perspective of adultery being committed by same gender couples.

Given social developments and changes taking place in today’s world, is our legal system ready to include a broader perspective so as to cover the definition of committing adultery by having extramarital affairs with a person of the same gender?

Sharing his views with FMT, a prominent lawyer said that adultery can be interpreted as ‘beyond reasonable doubt’ and requires adequate and concrete evidence in order to prove that the spouse is guilty of an extramarital affair.

However, providing evidence becomes difficult when participants of the extramarital affair involves a same gender couple.

“When we don’t recognize marriage(s) between couples of the same gender, how can adultery be committed with persons of the same gender in Malaysia?” asked Ravindara Kumar.

Ravindra Kumar explained that one should be careful in using adultery as a clause in a divorce petition if it involved parties of the same gender. Issues such as unbecoming behaviour and loss of interest in the marriage are better grounds for divorce in such cases, he clarified.

He further said that adultery was viewed as an extramarital affair outside the marriage and usually proven through close proximity, ‘reasonable doubts’ however are raised when the spouse being accused of an extramarital affair is ‘involved’ with a partner of the same gender.

Another lawyer, Haniff Khatri said that the legal system is ready to expand the definition of adultery to cover a broader context which constitutes extra marital affairs with the same gender, however he stressed that society needs to be ready to accept such issues.

“The definition of adultery means extra marital affairs with a man or woman outside marriage. I don’t see how an offence may crop up if the grounds of adultery is with the same gender especially when it comes to women,” he said.

Haniff explained that if the adultery complaint is against the husband with another man, then its tantamount to sodomy which is a criminal offence. However it is rather difficult to prove adultery grounds if it a case of the wife having an affair with another woman.

He further explained that the law requires for a complainant to produce proof but it would be rather difficult to prove ‘sexual intercourse’ between two woman.

Same gender context

Commenting on whether the legal system was ready for such disputes he replied, “it is not about the courts, it is about whether our society is ready to adapt to the changes.”

He added that society needs to be ready to include ‘same gender’ into the adultery context.

If such a case is brought to court, it will be looked at in the proper context and the wisdom of the court is important when dealing with such matters.

Lawyer Latheefa Koya commented from the syariah perspective, saying that it was almost impossible to prove such grounds in a Syariah Court.

“The burden of proof in Syariah Court is higher than the civil court and how could one prove that the husband or the wife is having an affair with the same gender unless and if their act is caught on video,” Latheefa told FMT.

Latheefa said that in the Syariah Courts, the very act of adultery has to be proven by four righteous witnesses, it would be difficult to prove extramarital affairs between same gender partners – especially if both parties involved are women.