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Supreme Court's New Section 498A Test Leaves Same-Sex Partners Unprotected in Landmark Ruling
In a judgment that family-law practitioners had been awaiting for years, the has expanded the protective ambit of (now ) to cover . In
, a Bench led by Justice Sanjay Karol answered a question that had divided lower courts: can a man who is not legally married to a woman but lives with her as a husband be prosecuted for
under that provision? The Court said yes—but only if the relationship is
"in the nature of marriage"
and there is a demonstrable intent to eventually marry.
The ruling has been hailed as a progressive step towards recognising the social reality of and extending criminal protection to women in unmarried relationships. Yet, as legal commentators have swiftly pointed out, the test the Court settled on creates a glaring blind spot: it leaves same-sex couples entirely outside the law's reach, because they cannot, as a matter of law, show an .
Background: The Section 498A Puzzle
Section 498A criminalises by a husband or his relatives towards a . For decades, the plain text of the provision seemed to limit its application to legally wedded wives. But courts increasingly grappled with cases where a woman had lived with a man believing herself to be his wife, only to face when the relationship soured. The had already read "husband" broadly to include a man who induces a woman to believe she is his wife. The Supreme Court, in Lokesh B.H., affirmed that direction but went further, addressing live-in relationships generally.
The Court drew on its earlier decision in Reema Aggarwal v. Anupam (), where "husband" had been stretched to cover a , and on the of , which grounds the right to choose a life partner in the guaranteed by . Crucially, the Bench then applied 's : if two women suffer identical in identical households, one married and one not, can the distinction be justified? The Court found no with preventing .
The Test: Relationship
"in the Nature of Marriage"
Plus Intent
The Court adopted the phrase
"
"
from the
(DV Act), as elaborated in
and
. But it added a critical gloss: the relationship must be animated by an actual . This was intended as a safeguard against misuse, given the Court's own concerns about Section 498A's high charge-sheet rate (nearly 94%) versus its low conviction rate (only 15%), as noted in
.
The Court explicitly rejected the argument that civil remedies under the DV Act were an adequate substitute for criminal protection, holding that criminal liability carries a that monetary or injunctive remedies do not. It framed law as a living organism that must respond to social reality, drawing a direct line from the decriminalisation of homosexuality in to the recognition of live-in relationships.
The Gap: Where Same-Sex Couples Fall Out
For all its progressive framing, the test remains anchored to marriage. A same-sex partner can share a home, pool finances, care for an ailing partner, and present as a couple to family and friends—doing everything the Indra Sarma checklist asks of a heterosexual live-in couple—and still be unable to show an "," because there is, in law, nothing to intend. Same-sex couples in India cannot marry under any existing marriage statute, and the Supreme Court's own Constitution Bench in Supriyo @ Supriya Chakraborty v. Union of India () declined, 3:2, to read a right to marry into the or to direct Parliament to create one, holding the matter lies within the legislature's domain.
Under the Lokesh B.H. test, that couple's domestic relationship, however real and however abusive it becomes, sits permanently outside Section 498A's reach. This is not a hypothetical gap. The DV Act, India's principal civil protection for cohabiting partners, offers no clear or tested route for same-sex couples either. Legal commentators have noted that while is not illegal, concrete legal rights remain largely absent for queer couples. The irony is sharp: the judgment borrows the moral force of Navtej Singh Johar to justify extending protection to unmarried heterosexual couples, while the comparison's most direct beneficiaries—same-sex couples themselves—remain unprotected by the test it constructs.
A Functional Test Would Have Closed the Gap
The fix need not have been complicated. Instead of anchoring protection in a relationship's proximity to marriage, the Court could have anchored it in the
Section 498A actually exists to address:
inflicted by someone with whom a person shares a home, a life, and a structure of dependence. A formulation such as a
"relationship of mutual love, care and interdependence"
would capture that vulnerability without requiring proof that marriage was the intended destination. The indicators
Indra Sarma
draws on—duration, shared household, pooling of resources, domestic arrangements, intimacy, children, public acknowledgment—are, with the exception of the "" gloss, entirely gender- and orientation-neutral. Same-sex couples can satisfy every one of them as readily as heterosexual couples can.
A functional test could still have demanded proof of durability, and genuine interdependence, while dropping only the requirement that the parties specifically intended a wedding. That would preserve a limiting principle against misuse while extending protection to everyone the underlying rationale was meant to reach.
Why the Court Chose the Narrower Path
It is only fair to acknowledge why the Court may have preferred the narrower route. The Bench was already stretching considerably by reading "husband" to include an unmarried live-in partner at all; anchoring that expansion to gives lower courts something concrete to test against, rather than an that could sweep in far more relationships than the legislature contemplated. There is also an institutional point: the majority in Supriyo left same-sex recognition to Parliament, declining even to create a lesser status such as on the ground that this would be . A two-judge Bench interpreting one criminal provision arguably should not achieve indirectly, through an expansive reading of "husband," what a five-judge Constitution Bench declined to grant directly.
Both positions have real force, and the tension between them is unlikely to be resolved by a single judgment. What can be said with more confidence is that Lokesh B.H. has opened a door it does not fully walk through. Having accepted that the marital-versus-live-in distinction fails scrutiny for heterosexual couples, the Court leaves unaddressed why an analogous distinction—protection for those who could theoretically marry but haven't, and none for those who cannot marry at all—should survive the same scrutiny.
Conclusion: A Question That Will Return
The judgment is a genuinely significant moment in Indian criminal law. It acknowledges the reality of , affirms the dignity of choice, and extends criminal protection to a vulnerable class of women. But by tying that protection to the prospect of marriage, it creates a that the Constitution cannot sustain. That question will almost certainly return to the Supreme Court, quite possibly sooner than many expect. When it does, the Bench that hears it may find itself finishing what Lokesh B.H. started: replacing marriage as the test for protection with the vulnerability that protection is actually meant to address.
