Context: Recently, a same-sex couple moved the Bombay High Court challenging the discriminatory levy of gift tax under the Income Tax Act.
Relevance of the Topic : Mains: Evolution of Rights of Transgenders/ Queer Couples’ and related issues.
Under the Income Tax Act, no such tax on gifts is levied on heterosexual couples. No such exemption exists for queer couples, which violates Articles 14 and Article 15 of the Constitution.
The case highlights the persistent problem of how to operationalise queer rights recognised in court verdicts and government advisories without a legal framework of relationship recognition.
Who are Queer Couples?
- Queer couples are partners where one or both identify as lesbian, gay, bisexual, transgender, or other non-heteronormative identities.
- Such couples do not fall within the conventional legal framework of marriage in India, as the marriage laws (like the Hindu Marriage Act, 1955 or Special Marriage Act, 1954) recognise only heterosexual unions.
- They may cohabit, share financial and emotional responsibilities, and live as families, but the state does not currently grant them the same legal status and protections as heterosexual couples.
Evolution of Queer Rights in India:
- Navtej Singh Johar v. Union of India (2018): The SC decriminalised consensual same-sex relations by striking down Section 377 of the Indian Penal Code.
- Deepika Singh v. Central Administrative Tribunal (2022): The SC expanded the definition of family beyond marital ties to include non-traditional households. The legal understanding of “family” may include manifestations like queer families as well as single parents.
- Supriya Chakraborty v. Union of India (2023): The SC upheld the validity of the Special Marriage Act, 1954, and held that the right to marry is not a fundamental right for queer persons. There is no unqualified fundamental right to marry under the Constitution. But it unanimously recognised that queer persons have the right to relationship, cohabitation, and choice of partner. The SC also directed the Union Government to set up a Cabinet Secretary-led committee to identify entitlements of queer couples in the absence of marriage recognition.
Right To Marry in India:
- As per Article 21 of Indian Constitution, Marriage is an element of the Right to Life. Article 21 guarantees the Right to Marry the person of one's choice.
- For Queers: The government has already acknowledged the right to love, right to cohabit, right to choose one’s partner, right to one’s sexual orientation as fundamental rights under Article 21.
Policy Measures after the 2023 Verdict
- The Department of Food and Public Distribution issued an advisory directing states to treat queer partners as members of the same household for ration cards.
- The Department of Financial Services issued an advisory clarifying that queer persons can open joint bank accounts and nominate their partners.
- The Ministry of Health and Family Welfare issued guidelines prohibiting discrimination in hospitals and allowing queer partners to claim the body of a deceased partner.
These measures are steps forward, but they remain limited to advisories and face challenges in practical implementation.
Challenges in Realising Queer Rights:
- Even if courts or government issue favourable orders, queer couples require a recognised mechanism to prove that they are in a partnership.
- Departments and authorities lack a uniform way to identify queer couples who should receive entitlements.
- Without a recognised proof of association, advisories and court verdicts risk remaining ineffective in practice.
The Bombay High Court admitted the petition of the same-sex couple challenging discriminatory taxation of gifts. A favourable ruling could extend equality in tax treatment to queer couples. However, implementation of such a verdict will still require a credible method to verify who qualifies as a partner in a queer relationship.
The Deed of Familial Association (DoFA) as a Possible Solution
- In 2023, Justice N. Anand Venkatesh of the Madras High Court suggested that the Tamil Nadu government should consider recognising a Deed of Familial Association (DoFA).
- A DoFA would allow queer partners to submit affidavits of their free will to a District Magistrate or other authorised officer to register their association.
- The issuance of a DoFA would give official proof of a queer relationship that could be presented before departments or institutions.
- It could help operationalise court orders, advisories, and government circulars by creating a uniform recognition of queer partnerships.
Such a mechanism would reduce arbitrariness, help protect rights, and ensure that entitlements already granted are actually accessible.
Also Read: Embracing Diversity: Paving the Way for Transgender Inclusivity and Equality