Introduction:
In a significant development that once again brings the question of equality and inclusivity of same-sex couples under Indian law into the spotlight, the Bombay High Court recently heard a petition filed by a same-sex couple, Payio Ashiho and Vivek Divan, challenging the constitutional validity of Section 56(2)(x) of the Income Tax Act, 1961. The petitioners approached the court contending that this provision—while granting tax exemption to heterosexual couples on gifts exchanged between spouses—indirectly discriminates against homosexual couples, as their relationships are not legally recognised as “marriage” under Indian law. The Division Bench of Justice Burgess Colabawalla and Justice Amit Jamsandekar, while acknowledging the arguments raised, refused to grant interim relief to the couple and clarified that the matter required detailed hearing and deliberation before any conclusion could be drawn. The case, therefore, assumes importance not only from the perspective of taxation law but also in terms of the ongoing constitutional debate surrounding the recognition and rights of same-sex couples in India.
Arguments on Behalf of the Petitioners:
The counsel appearing for the petitioners submitted that Section 56(2)(x) of the Income Tax Act taxes any money, property, or valuable asset received if its value exceeds ₹50,000, classifying such receipts as “income from other sources.” However, the fifth proviso to this section provides that gifts received from certain “relatives” including a “spouse” are exempt from tax. The petitioners argued that while this exemption operates to protect heterosexual couples, it unfairly excludes same-sex partners because the term “spouse” is not defined to include partners in homosexual relationships. This, according to them, results in indirect discrimination that violates the fundamental rights guaranteed under Articles 14, 15, and 21 of the Constitution of India. The counsel pointed out that the petition does not challenge the intention behind the provision but rather its impact—stressing that while heterosexual couples are safeguarded from tax liability when gifting each other, homosexual couples are compelled to bear financial burdens for the same act of affection and support.
The petitioners’ counsel further submitted that the principle of equality under Article 14 requires that if a law protects one class of persons, it must equally extend such protection to another class placed in a similar situation. He contended that homosexual couples are no less in their relationship dynamics and emotional bonds than heterosexual couples and hence must not be excluded from the ambit of legal recognition merely due to the absence of marriage laws for them. The counsel also urged that the bench consider the practical implications, stating that the final date for compliance with the said provision is December 31, 2025, and therefore, some interim protection should be extended in the form of a “no coercive action” order until the matter is conclusively decided.
During the hearing, Justice Colabawalla posed a thought-provoking question to the counsel by stating, “Your main argument is that if a law protects apples, the same law must protect oranges too, right?”—signifying that while the law currently caters to heterosexual couples, the petitioners’ plea seeks parity for same-sex couples within the same legal framework. The counsel reiterated that such parity is essential to uphold the constitutional mandate of equality and non-discrimination.
Arguments on Behalf of the Respondents (State and IT Department):
On the other side, Additional Solicitor General (ASG) Anil Singh appeared on behalf of the Income Tax Department as well as the Central Government. He submitted that the Income Tax Act operates strictly within the framework of existing statutory definitions and that “spouse” under Indian law is a term recognised only within the context of marriage as defined under various personal laws. Since same-sex marriages are not legally recognised in India, same-sex partners cannot be considered as “spouses” under the existing legal scheme. He emphasised that the alleged discrimination is not an act of the judiciary or tax department, but a consequence of the statutory framework that only Parliament can amend.
ASG Singh further relied on the recent Constitution Bench judgment of the Supreme Court delivered in Supriyo Chakraborty v. Union of India (2023), wherein the apex court held that the recognition of same-sex marriages or unions could only be granted by way of legislation and not through judicial interpretation. He argued that in light of that authoritative pronouncement, it is beyond the jurisdiction of the High Court to interpret or expand the definition of “spouse” to include same-sex partners. The ASG submitted that the petitioners’ plea indirectly sought a judicial amendment of the tax law, something that could not be done by the courts.
He also submitted that the IT Department had already filed its affidavit-in-reply, and the Central Government was in the process of deciding whether to adopt that reply or file an independent response. Furthermore, he requested the bench to defer the hearing, stating that such a sensitive constitutional issue required detailed arguments and deliberations rather than hurried interim orders.
Court’s Observations and Judgment:
After hearing both sides, the Division Bench of Justice Burgess Colabawalla and Justice Amit Jamsandekar declined to grant any interim relief to the petitioners. The bench observed that the matter involved complex constitutional and legislative questions, which could not be decided summarily or through interim orders. Justice Colabawalla remarked that while the petitioners had raised a legitimate constitutional question concerning equality, the court could not, at this stage, intervene merely on the plea of urgency regarding the tax filing deadline.
When the counsel for the petitioners requested that the court pass an interim order restraining coercive action until the matter was decided, Justice Colabawalla responded, “We cannot pass interim orders… End of the day, each one of us has to pay tax. If you succeed, you will get your money back… but till then, we cannot protect you by any order. Also, the alleged discrimination is not by us but by the State.” This statement reflected the court’s reluctance to pre-emptively interfere with a fiscal provision without first conducting a full-fledged constitutional analysis.
The bench further explained that any modification or expansion of the term “spouse” to include same-sex partners would amount to a legislative act, which falls outside the purview of the judiciary. The judges reiterated that as per the Supreme Court’s ruling, any recognition of same-sex unions must be achieved through parliamentary legislation, and not judicial pronouncements. Justice Colabawalla candidly noted that even if the bench were to sympathise with the petitioners’ situation, they were bound by judicial restraint and the existing legal framework.
In essence, the High Court made it clear that while the petition raised a valid issue of constitutional interpretation, no relief could be granted until the court had the opportunity to hear extensive arguments, analyse precedents, and apply its judicial mind to the broader implications. Therefore, the matter was adjourned to the second week of December for detailed hearing, giving both sides time to prepare their submissions comprehensively.
Analysis:
This case presents a microcosm of the broader struggle for LGBTQ+ equality in India, especially in the aftermath of the Supreme Court’s landmark rulings decriminalising homosexuality in Navtej Singh Johar v. Union of India (2018) and recognising the right to love and live with dignity under Article 21. However, the current legal landscape still denies same-sex couples many economic and legal benefits that are automatically available to heterosexual couples. The petitioners’ grievance in this case directly stems from this systemic exclusion—one that manifests even in fiscal laws like the Income Tax Act.
By declining interim relief, the Bombay High Court has not dismissed the case but rather adopted a cautious approach, ensuring that constitutional interpretation is not carried out in haste. The court’s reasoning reflects a balance between judicial restraint and acknowledgment of the evolving constitutional discourse surrounding same-sex rights. However, the matter also underscores the pressing need for legislative reform to bridge the gap between constitutional morality and statutory recognition. While the Supreme Court in Supriyo Chakraborty refrained from legalising same-sex marriage, it did call upon the government to consider providing certain rights and protections to same-sex couples, including financial and social benefits.
Until Parliament acts on this, same-sex couples remain excluded from several benefits, such as joint property ownership, tax exemptions, pension entitlements, and next-of-kin rights. This ongoing exclusion perpetuates financial inequality and social stigma, despite constitutional recognition of equal dignity. The Bombay High Court’s decision, though legally justified within existing limitations, once again brings into sharp focus the need for legislative action to ensure that equality in law translates to equality in life.