Income Tax | Bombay High Court Rejects Interim Relief Plea By Same-Sex Couple Seeking Inclusion As ‘Spouse’ Under Section 56(2)(x) Tax Exemption
Safiya Malik
The Bombay High Court Division Bench of Justice Burgess Colabawalla and Justice Amit Jamsandekar on November 13th declined to grant interim relief to a same-sex couple challenging the constitutional validity of Section 56(2)(x) of the Income Tax Act — a provision that currently exempts gifts exchanged between heterosexual spouses from taxation.
The couple contends that the exemption, available only to heterosexual spouses, is “indirectly discriminatory” toward same-sex partners who are not recognised as “spouses” under existing law. During the hearing, Justice Colabawalla distilled the petitioners’ position, asking, “Your main argument is that if a law is protecting apples, the same law must protect oranges too, right?”
The petition seeks an amendment to the proviso of Section 56(2)(x) so that same-sex couples are also covered under the exemption. The provision taxes monetary gifts or transfers of property valued over ₹50,000 as “income from other sources,” but its fifth proviso excludes gifts received from specified relatives, including spouses.
The couple argues that denying this exemption to same-sex partners creates an unconstitutional distinction between similarly placed citizens. Their counsel submitted that the challenge is centred not on legislative intent but on the discriminatory effect of the provision’s wording.
The petitioners also urged the court to rule before December 31, noting it as the deadline for compliance with the challenged tax requirement. The bench, however, said rushing a ruling was not feasible. Justice Colabawalla observed, “Not possible for us to pass any judgment before December 31 as we will have to first hear the detailed arguments, then decide the structure of our judgment, apply our mind etc. So we doubt if any order can be passed before the due date.”
When counsel requested interim protection in the form of a “no coercive action” directive, the judge declined, stating, “We cannot pass interim orders... End of the day each one of us have to pay the tax. If you succeed, you will get your money back... but till then we cannot protect you by any order. Also, the alleged discrimination is not by us but by the State.”
Meanwhile, Additional Solicitor General Anil Singh placed on record a reply from the Income Tax Department, though he noted that the Centre had yet to decide whether it would adopt the department’s affidavit or file its own. Singh argued that the Supreme Court’s Constitution Bench has made clear that legal recognition of same-sex unions requires legislative action, not judicial direction. He asked the bench to defer substantive arguments, citing the need for a detailed hearing.
The court has now scheduled the matter for further consideration in the second week of December.
