The bench, while issuing notice to the Central government, noted in its order that on a prima facie reading of Section 497, it finds that the provision relieves the woman of any liability. It is also worthy to note that when an offence is committed by both, one is liable for the criminal offence but the other is absolved.
Section 497 of the IPC states: "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 the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both".
The Supreme Court would examine why does Section 497 treat a married man as the adulterer and the married woman as a victim.
It said it would examine the constitutional validity of the 157-year-old provision and issued notice to the Centre, seeking its response in four weeks.
Viewed in the present times when women have equal rights as men, the bench noted that such a provision tends to view wife as a "commodity" if her husband consents to another man having sexual relationship with her. The provision reduces a married woman to a property of the husband, it had said. "In such case the wife shall not be punishable as an abettor".
On the fact that a man's consent does not lead to the filing of the criminal case, the bench said: "She becomes a victim when emphasis is On the fact that a man's consent does not lead to the filing of the criminal case, the bench said: "She becomes a victim when emphasis is laid on connivance or consent of husband".
The PIL sought changes in the law based on sexual equality, saying women too be held accountable for adultery.
"Quite apart from that, it is perceivable from the language employed in the section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established". This provision, prima facie, appears to be quite archaic.
"Time has come when the society must realise that a woman is equal to a man in every respect.""When society progresses and the rights are conferred, the new generation of thoughts spring, and that is why we are inclined to issue notice".
He argued that Section 497 IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Articles 14, 15 and 21 of the Constitution. The woman is always portrayed as a victim.
He said the said provisions have been treated to be constitutionally valid in three verdicts of the apex court in 1954, 1985 and in 1988.
The provisions of the British-era Indian Penal Code recognize men as the perpetrators of adultery and women as victims.
Petitioner Joseph Shine, a Keralite settled in Italy, wants the court to scrap both laws and thereby decriminalise consensual sex between adults -- a stand with a bearing on the law that criminalises all homosexual acts, to which references were made in court on Friday.