The bench will also examine whether a person can be sent to jail on the grounds that he had consensual sex with another person's wife, Bar and Bench reported.
A Constitution bench headed by Chief Justice Dipak Misra, and comprising RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra commenced hearing on pleas seeking quashing of the adultery provision in the IPC on the ground that it only punishes married men for having extra-martial sexual relations with a married woman.
On 11 July, the Centre had filed an affidavit opposing a Public Interest Litigation that seeks to make men and women equally liable for the crime of adultery under Section 497 of the IPC.
Section 497 of the 158-year-old IPC says: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."
"He shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both. In such case the wife shall not be punishable as an abettor," the section says.
During the brief hearing, the court also rejected the demand of Additional Solicitor General Pinky Anand for referring the matter to a seven-judge bench, saying these issues were totally different than the issue that was considered by a five-judge bench in 1954.
"The issue, which was considered in the 1954 verdict of a five-judge bench, was whether a woman can be considered as abettor. In the instant petition it is totally different," the bench said.
It said adultery is also a ground of divorce and apart from other civil remedies under various statutes.
"So, we have to examine whether the adultery provision requires to remain a criminal offence at all," the bench said.
Advocate Kaleeswaram Raj, appearing for petitioner Joseph Shine, an Indian who is living in Italy, said he is seeking quashing of IPC Section 497 and CrPC Section 198(2).
The Code of Criminal Procedure (CrPC) section only allows husband of the woman to file a complaint.
He said they are seeking quashing of the provisions on the ground that it is not gender neutral and violative of the fundamental right to privacy.