The Delhi High Court has taken up consideration of whether the offence of cruelty punishable under Section 498A IPC can apply to same‐sex couples or relationships. In a notice issued by Justice Sanjeev Narula, the Court invited response from the police and complainant in a petition filed by one Simmi Patwa, who contends that the provision cannot extend to same‐sex relationships. Patwa’s plea seeks quashing of an FIR registered against her by her former partner for offences under Sections 498A, 406, 506 and 34 of the Indian Penal Code (IPC). She argues that the central requirement to invoke Section 498A is that the complainant must be a “wife” and the accused a “husband”, which by its language and legislative intent presupposes a heterosexual relationship.
Patwa, biologically female and described as suffering from gender dysphoria, says she entered into a symbolic marriage at the insistence of her former partner and then cohabited with her. Her petition alleges that during this period she was subjected to severe emotional and psychological abuse by her former partner, including blackmail relating to surgery and threats of filing criminal complaints against Patwa and her family. She contends that since the relationship is between two women, it falls within what the plea terms a “prohibited relationship as prescribed by law”. According to the petition, Patwa subsequently filed a nullity petition under Hindu Marriage Act, 1955 (Section 11) before the Family Court, and shortly thereafter her former partner allegedly filed a false and frivolous criminal complaint against her in response.
The plea also notes that Patwa obtained a certificate from All India Institute of Medical Sciences (AIIMS) stating that she is genetically female. It further asserts that the Protection of Women from Domestic Violence Act, 2005 would not apply to same‐sex couples, and that the intent of the legislature was never to recognise same‐sex marriages. Because the parties were both female and no registered marriage existed between them, the petition claims the relationship is non-existent in law and that no conjugal rights accrue between two persons of the same sex living together without such a marriage.
In response to the petition, the Court directed the Delhi Police and the complainant to file replies to the petition. The matter has been scheduled for further hearing on a date specified by the Court.
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