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Penal Code of Malaysia (1936, as amended 1997; selected provisions related to women) – 1: Offences Affecting the Human Body

Causing Miscarriage; Injuries to Unborn Children; Exposure of Infants; and Concealment of Births

312.Causing miscarriage.

Whoever voluntarily causes a woman with child to miscarry shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both; and if the woman be quick with child, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Explanation

A woman who causes herself to miscarry is within the meaning of this section.

Exception

This section does not extend to a medical practitioner registered under the Medical Act 1971 who terminates the pregnancy of a woman if such medical practitioner is of the opinion, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or injury to the mental or physical health of the pregnant woman, greater than if the pregnancy were terminated.

313.Causing miscarriage without woman’s consent.

Whoever commits the offence defined in section 312, without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine.

314.Death caused by act done with intent to cause miscarriage. If act done without woman’s consent.

Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if the act is done without the consent of the woman, shall be punished with imprisonment for a term which may extend to twenty years.

Explanation

It is not essential to this offence that the offender should know that the act is likely to cause death.

315.Act done with intent to prevent a child being born alive or to cause it to die after birth.

Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive, or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act is not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment for a term which may extend to ten years, or with fine, or with both.

316.Causing death of a quick unborn child by an act amounting to culpable homicide.

Whoever does any act under such circumstances that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine.

ILLUSTRATION

A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section.

317.Exposure and abandonment of a child under twelve years by parent or person having care of it.

Whoever, being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both.

Explanation

This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.

318.Concealment of birth by secret disposal of dead body.

Whoever by secretly burying or otherwise disposing of the dead body of a child, whether such child die before or after or during its birth, intentionally conceals or endeavors to conceal the birth of such child shall be punished with imprisonment for a term which may extend to two years, or with fine, or which both.

354.Assault or use of criminal force to a person with intent to outrage modesty.

Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to ten years, or with fine, or with whipping, or with any two of such punishments.

355.Assault or criminal force with intent to dishonour a person, otherwise than on grave provocation.

Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.

361.Kidnapping from lawful guardianship.

Whoever takes or entices any minor under fourteen years of age is a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation

The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception

This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

366.Kidnapping or abducting a woman to compel her marriage, etc.

Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or to a life of prostitution, or knowing it to be likely that she will be forced or seduced to illicit intercourse, or to a life of prostitution, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine.

372.Selling minor for purposes of prostitution, etc.

Whoever sells, lets to hire, or otherwise disposes of any person under the age of twenty-one years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Explanation

When a female under the age of twenty-one years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or managers a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.

373.Buying minor for purposes of prostitution, etc.

Whoever buys, hires or otherwise obtains possession of any person under the age of twenty-one years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person shall at any age be employed or used for any such purpose, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Explanation

Any prostitute, or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of twenty-one years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.

373A.Importing for purposes of prostitution.

Whoever–

(a)by any false pretence, false representation, or fraudulent or deceitful means, brings, or assists in bringing, into Malaysia any woman with intent that such woman may be employed or used for the purpose of prostitution;

(b)brings, or assists in bringing, into Malaysia any woman with intent that such woman may be sold or bought for the purpose of prostitution; or

(c)sells or buys any woman for the purpose of prostitution,

shall be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine.

375.Rape.

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:

(a)against her will;

(b)without her consent;

(c)with her consent, when her consent has been obtained by putting her in fear of death or hurt to herself or any other person, or obtained under a misconception of fact and the an knows or has reason to believe that the consent was given in consequence of such misconception;

(d)with her consent, when the man knows that he is not her husband, and consent is given she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent;

(e)with her consent, when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent;

(f)with or without her consent, when she is under sixteen years of age.

Explanation

Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Explanation

Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognised in the Federation as valid, is no rape.

Explanation 1

A woman–

(a)living separately from her husband under a decree of judicial separation or a decree nisi not made absolute; or

(b)who has obtained an injunction restraining her husband from having sexual intercourse with her,

shall be deemed not to be his wife for the purposes of this section.

 

Explanation 2

A Muslim woman living separately from her husband during the period of ‘iddah, which shall be calculated in accordance with Hukum Syara’, shall be deemed not to be his wife for the purposes of this section.

376.Punishment for rape.

Whoever commits rape shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.

Next: Chapter 2 – Offences Relating to Marriage