Does Section 498A IPC Apply To Same Sex Relationships? Delhi High Court To Consider

The Delhi High Court is set to consider whether the offence of cruelty punishable under Section 498A of Indian Penal Code, 1860, applies to same sex couples or relationships.

Justice Sanjeev Narula issued notice on a plea filed by one Simmi Patwa, claiming that the provision cannot apply to same sex couples.

The petitioner submits that the primary requirement to invoke Section 498A is that the complainant should be a “wife” and the accused person should be a “husband”. It adds that in order to attract the offence, individuals should be in a heterosexual relationship and not otherwise.

Patwa has sought quashing of an FIR registered against her by her former partner for the offences punishable under Section 498A, 406, 506 and 34 of IPC.

It is her case that she is biologically female and is suffering from gender dysphoria. As per the plea, Patwa agreed to proceed with a symbolic marriage driven by her former partner's insistence and started living together thereafter.

The plea submits that Patwa was subjected to severe emotional and psychological abuse by the woman, including blackmail for surgery. It adds that the woman then resorted to threats of filing criminal complaints against Patwa and her family.

“The present case falls within the definition of a prohibited relationship as prescribed by law,” the plea states.

Patwa has said that she filed a nullity petition under Section 11 of the Hindu Marriage Act, 1955 before the Family Court as a consequence of which her former partner filed an allegedly false and frivolous complaint against her including other proceedings.

The petition contends that Patwa received a certificate from All India Institute of Medical Sciences (AIIMS), certifying that she is genetic female.

In this context, the plea avers that the Protection of Women from Domestic Violence Act, 2005 would not apply to same sex couples.

“It is submitted that the intent of the Parliament has never been to recognise same sex marriages. In the present case, the petitioner and respondents both are female. Hence, the FIR should be quashed at the outset on this ground alone,” the plea states.

It adds that since there is no registered marriage in the case in hand, the said civil union is non-est in law and that no conjugal rights would accrue in the eyes of law between two persons belonging to same sex living without a registered marriage.

The Court directed the Delhi Police and the complainant to file replies to the plea.

The matter will now be heard on November 13.

Title: SIMMI PATWA v. GNCT DELHI & ANR