The issue of homosexuality and the rights of same sex couples are back in the limelight, and this time, it’s not about their right to live with dignity and choose their life partner, irrespective of gender bias. But, this time, a provision of a financial statute, “Income Tax Act” is in question. Even though the beneficial piece of legislation enshrined under Entry 81, Schedule VII to the Constitution talks about an interpretation in favour of the taxpayer, it is discriminatory at least, as it was claimed that the term ‘spouse’ appearing in the fifth proviso to Section 56(2)(x) of the Income Tax Act, is not beneficial to ‘same-sex couples, as it is for ‘heterosexual couples’.
Accordingly, while considering a petition by Payio Ashiho, a homemaker, and his partner Vivek Divan, a lawyer who had practised at the High Court and worked at the UN headquarters, who were alleging unequal economic treatment of same-sex couples, the Bombay High Court issued notice to the Attorney General of India, before deciding on the next date of hearing i.e., September 18, 2025, on the constitutional validity of the term ‘spouse’ appearing in the explanation to the fifth proviso to Section 56(2)(x) of the Income Tax Act, since it excludes the Petitioners from the scope and definition of the term ‘spouse’.
Acceding to the claim that denial of the equal protection of the law based on sex, is a form of discrimination prohibited by Articles 14 and 15 of the Constitution of India, the Division Bench comprising Justice B.P. Colabawalla and Justice Firdosh P. Ponniwalla observed that the Petitioner had also sought a declaration to extend the benefit of the fifth proviso to Section 56(2)(x) to those who are in a long-term, stable same sex relationship, or, in the alternative, the term ‘spouse’ as used in the fifth proviso to Section 56(2)(x) shall be amended to include same sex couples who are in the same position as heterosexual couples, which would be presumed to be in a marriage.
The Bench therefore directed the registry to issue notice to the Respondent/ Department and Government of India, and fixed the next date of hearing, i.e., September 18, 2025.
Appearances:
Advocates Dr. Dhruv Janssen-Sanghavi, Tejas Popat, Vishesh Malviya, Amandeep Mehta, and Aanchal Maheshwari, for the Petitioners
NA, for the Respondent
