Same-sex couples demand recognition as ‘spouses’ in the IT Act to receive tax benefits

The Bombay High Court has issued notice to the Attorney General of India on a petition seeking recognition of same-sex couples as “spouses” under the Income Tax Act, 1961. The petition filed by two men, challenges the constitutional validity of the definition of the term “spouse” in the explanation to the fifth proviso to Section 56(2)(x) of the Act, arguing that it discriminates against same-sex couples in long-term, committed relationships.

The petitioners, represented by advocates Dhruv Janssen-Sanghavi along with Tejas Popat, Vishesh Malviya, Amandeep Mehta, and Aanchal Maheshwari, argued that they should not be denied benefits under the law solely because their partnership is not heterosexual. 

Section 56(2)(x) of the IT Act deals with the taxation of money or property received without consideration. The fifth proviso carves out certain exemptions, including gifts or property received from a “spouse.” The petitioners contend that by limiting this exemption only to heterosexual marriages, the provision indirectly discriminates against same-sex couples, violating their fundamental rights under Articles 14, 15, and 21 of the Constitution. 

Parity with heterosexual couples

While not entering into the merits at this stage, a Division Bench of Justices B. P. Colabawalla and Firdosh P. Pooniwalla in an order passed on August 14, observed, “Since the constitutional validity is challenged, we issue notice to the Attorney General of India returnable on 18th September 2025. We also direct the registry to issue notice to Respondent No. 2, returnable on 18th September 2025.” 

The petition also seeks, in the alternative, that the term “spouse” be read to include same-sex couples, placing them at par with heterosexual couples for the purposes of the tax exemption. 

The Bench further said, “The Writ Petition is filed to declare and hold that the term ‘spouse’ appearing in the explanation to the fifth proviso to Section 56(2)(x) as unconstitutional inasmuch as it excludes the Petitioners from the scope and definition of the term ‘spouse.’ The declaration is also sought to extend the benefit of the fifth proviso to Section 56(2)(x) of the IT Act to the Petitioners who are in a long-term, stable same sex relationship.”

In the alternative to prayer clause (a), the Bench observed that “relief is sought that the term ‘spouse’ as used in the fifth proviso to Section 56(2)(x) of the IT Act be read to include same sex couples like the Petitioners, and who according to the Petitioners, are in exactly the same position as heterosexual couples which would be presumed to be in a marriage.”

The case is likely to be heard on September 18, 2025, when the Attorney General and the Union of India are expected to respond to the challenge.