Ex same-sex couple’s legal battle tests India’s gender and marriage law

In a case testing the boundaries of India’s marital laws, the Delhi High Court is now hearing two petitions filed by a biologically female litigant undergoing treatment for gender dysphoria, seeking to quash First Information Reports (FIRs) lodged by her estranged female partner.

The petitioner has in one of the petitions sought quashing of an FIR registered at a police station in the national capital for the offence of cruelty by a husband or his relatives towards a woman (Section 498A). In the second petition, she has asked the High Court to quash proceedings pending before a local court here under various provisions of the Protection of Women from Domestic Violence Act, 2005 on the ground that the parties were in a same-sex relationship.

Both matters are presently being heard by the same judge of the Delhi High Court.

The petitioner says she was born a genetic female but was later diagnosed with a Gender Identity Disorder (gender dysphoria). She consistently displayed behavioural and social characteristics aligned with a male. She has submitted to the court a certificate issued by the All India Institute of Medical Sciencies (AIIMS) confirming her genetic sex, her desire to transition to the male gender, and ongoing therapy.

The couple met on social media in 2022 while the petitioner was studying medicine abroad, growing closer as she shared her struggles with gender dysphoria. After she returned to India in October 2023, they entered what they described as a “symbolic marriage” or civil union in Panchkula, Haryana, for which a certificate was issued by the Vaidik Pujan Kendra. They later moved into a rented flat in Delhi, where the relationship deteriorated.

The situation worsened further when, in October 2024, the petitioner filed a nullity petition before a family court in Delhi, stating their union was void as the law did not recognise marriage between two women. Later, the respondent lodged the complaints that eventually resulted in the petitions presently before the Delhi High Court.

Section 498A

The dispute has evoked legal dilemmas. “First, same-sex marriage is not yet recognised in law; no statute protects or endorses a marital union between same-sex couples,” Constitutional law expert Virag Gupta said.

“Second, while courts have in some cases permitted Section 498A or related proceedings in live-in relationships, each of those involved a man and a woman. Third, for relief under Section 498A, there must be a valid and lawful marriage,” Mr. Gupta said.

The legislative intent behind Section 498A is firmly rooted in traditional marital structures, advocate Tushar Sannu said. “Courts, including in Reema Aggarwal v. Anupam, have reiterated that the provision’s purpose is to safeguard women in the institution of marriage,” Mr. Sannu said. The Supreme Court’s Constitution Bench in Supriyo v. Union of India (2023) underscored the same framework, he added.

“Given the absence of formal legal recognition for same-sex spousal status, the specific safeguards under Section 498A are not available to these unions,” Mr. Sannu said.

“Section 498A is a gender-specific offence that penalises cruelty by a ‘husband’ or his ‘relatives’ against a ‘wife’. A strict, literal reading makes it inapplicable where both partners are female, because neither fits the legal definition of ‘husband’,” advocate Anand Prakash concurred.

This case highlights the gaps in India’s legal framework regarding same-sex relationships. It may finally bring clarity on whether prosecution under Section 498A can stand without a legally recognised marriage, and whether the Domestic Violence Act can apply to same-sex couples. The court’s decision could carry far-reaching implications.