The Bombay High Court bench of Justice B.P. Colabawalla and Justice Firdosh Pooniwalla has found itself seized of a constitutional issue relating to the validity surrounding the interpretation of the term “spouse” in the Income Tax Act (IT Act), 1961.

The Case:

Such a question arises from a writ petition filed by Payio Ashiho and Vivek Divan, a same-sex couple in a long-term relationship, who have challenged the validity of the fifth proviso to Section 56(2)(x) of IT Act. The provision, as it stands, extends exemptions from a “spouse,” but the Petitioners contend that the wording implicitly excludes same-sex partners.

Additionally, the petitioners seek relief by urging that the expression “spouse” in the fifth proviso to Section 56(2)(x) of the Income Tax Act be interpreted to encompass same-sex couples, contending that their position is identical to that of heterosexual couples, who are presumed to be in marriage.

“The above Writ Petition is filed to declare and hold that the term ‘spouse’ appearing in the explanation to the fifth proviso to Section 56(2)(x) as unconstitutional inasmuch as it excludes the Petitioners from the scope and definition of the term ‘spouse’. The declaration is also sought to extend the benefit of the fifth proviso to Section 56(2)(x) of the IT Act to the Petitioners who are in a long-term, stable same sex relationship. In the alternative to prayer clause (a), relief is sought that the term ‘spouse’ as used in the fifth proviso to Section 56(2)(x) of the IT Act be read to include same sex couples like the Petitioners, and who according to the Petitioners, are in exactly the same position as heterosexual couples which would be presumed to be in a marriage.” records the court order.

Given that constitutional validity of a statutory provision is under challenge, the bench issued notice to the Attorney General of India as well as to Department of Income Tax (Respondent No. 2).

Accordingly the matter is listed for further hearing on 18th September.

Case Title: Payio Ashiho & Anr. v Union of India & Anr., Writ Petition (L) No.24345 Of 2025

Advocates for the Petitioners: Dr.Dhruv Janssen-Sanghavi a/w Tejas Popat, Vishesh Malviya, Amandeep Mehta, Aanchal Maheshwari.