The implementation of the Movement Control Order nationwide from March 2020 until August 2021 has seen a total of 9,015 domestic violence cases being reported.[1] Whilst the Penal Code states the punishment for whoever causes bodily pain, disease or infirmity to any person, the Domestic Violence Act 1994 (DVA 1994) (“the Act”) acts as a supplement by providing details on what domestic violence is and the people that could be protected under the Act. The protection available to victims under the Act is summarised as below:-
Domestic violence is often perceived as the abuse of spouses as this is the case for most incidents. However, domestic violence is not only confined to husband and wife. The scope of people who is protected under the Domestic Violence Act (DVA) 1994 is in fact much wider. According to the DVA 1994, people who falls under the protection of this Act includes:
● Current spouse of the offender;
● Former spouse of the offender;
● A child;
● Any other member of the family of the offender;
● An incapacitated adult.[2]
Current & Former Spouse(s)
The DVA 1994 protects spouses whose marriage are recognised by the law, which means the marriage has to be solemnised and registered. Additionally, it also protects spouses who have gone through some form of ceremony recognised as a marriage by the religion or custom of the parties, regardless of whether the ceremony is capable of being registered under the law.[3] Any kind of violence, physical or psychological, taking place between couples who already have their divorce granted absolutely by the court would also be regarded as domestic violence.[4] Furthermore, the interim protection order granted by virtue of the DVA 1994 before the divorce of the parties would remain effective even after the parties are divorced and living separately until the end of investigation.[5]
Although the question of whether unmarried couples living together constitutes “households” was raised during the debate on the amendments to the Domestic Violence Act 1994,[6] the current law on domestic violence still requires some form of marital ties between the parties for any kind of violence to come under domestic violence. This means that cohabiting couples could not rely on the DVA 1994. Nevertheless, they could still seek justice under Section 321 (Voluntarily causing hurt), Section 322 (Voluntarily causing grievous hurt) and Section 324 (Voluntarily causing hurt by dangerous weapons or means) of the Penal Code.
Children
The Act also protects children who are below the age of 18 and are living as the family member of the offender or the offender’s spouse or former spouse.[7] A protection order applied by the primary victim (in majority of cases, the wife) could be extended to protect children who are also at risk of violence.[8] In cases where the child is the primary victim, the relative, guardian, or person responsible for the care of the child or a social welfare officer other than an authorised social welfare office could also apply for the protection order on behalf of the child. This is often the case where violence is used to “educate” the child on how to behave,[9] or using any intoxicating substance or any other substance on the child and causing the child to suffer delusions.
Although there is no requirement for domestic violence to take place under the same roof, the law surrounding domestic violence emphasises on the presence of familial elements. This is apparent from the list of people protected under the DVA 1994 as most of them are either blood-related or related by living as a family. Therefore, cohabiting partners or friends sharing an accommodation would not be safeguarded under the DVA 1994. Be that as it may, legal recourse could still be taken under the Malaysian Penal Code.
[1] Rahimy Rahim, Tarrence Tan, Martin Carvalho and Fatimah Zainal, “Over 9,000 domestic violence cases recorded since MCO began, Rina Harun tell Parliament”, The Star, 23 September 2021. [2] Section 2 Domestic Violence Act 1994 [3] ibid; Chan Ah Moi v Phang Wai Ann [1995] 3 MLJ 130 at page 134 [4] Section 2 Domestic Violence Act 1994 [5] Mangaleswary a/p Ponnampalam v Giritharan a/l E Rajaratnam [2015] MLJU 0258, para [13] [6] Ida Lim, “Minister to address whether cohabiting couples considered households.”, Malay Mail, 24 July 2017. [7] Section 2 Domestic Violence Act 1994 [8] Section 5(1)(b) Domestic Violence Act 1994 [9] Public Prosecutor v Tan Keng Thong [2017] MLJU 2287
Authored by Tiffany Ding and Caylene On
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