In August 2026, the Supreme Court handed down a judgment family-law practitioners had been waiting years for. In Dr. Lokesh B.H. & Ors. v. State of Karnataka & Anr., a Bench headed by Justice Sanjay Karol answered a deceptively simple question: can a man not legally married to a woman, but living with her as though he were, be prosecuted as her "husband" under Section 498A of the Indian Penal Code, now Section 85 of the Bharatiya Nyaya Sanhita? For over four decades, the plain text of the provision had suggested the answer was no. The Court said otherwise: a live-in partner in a "relationship in the nature of marriage," coupled with a demonstrated intent to marry, can be prosecuted for cruelty just as a husband can.

This is a genuinely significant moment in Indian criminal law. But while the Court reached for the language of dignity, autonomy and constitutional equality, the test it settled on keeps marriage as the measuring stick for who deserves protection. That choice leaves an entire class of vulnerable people outside the law's reach, and a bolder, functionally-defined test could have closed the gap.

A woman had alleged that the man she lived with, whom she believed to be her husband, subjected her to cruelty and dowry-related harassment; he contended no valid marriage existed, so Section 498A could never apply to him. The Karnataka High Court had already read "husband" broadly enough to include a man who induces a woman to believe she is his wife; the Supreme Court agreed with that direction but went further, addressing live-in relationships generally. It held that confining Section 498A to formally married women would defeat the provision's purpose, drawing on Reema Aggarwal v. Anupam (2004), where "husband" had already been stretched to cover a void or bigamous marriage, and on the privacy jurisprudence of K.S. Puttaswamy v. Union of India, which grounds the right to choose a life partner in the dignity and liberty guaranteed by Article 21.

Crucially, the Court then asked whether distinguishing between a married woman and a woman in a live-in relationship, for the specific purpose of Section 498A protection, could survive Article 14 scrutiny. Using the illustration of two women facing identical cruelty in identical households, one married and one not, the Bench found the distinction has no rational nexus with preventing domestic cruelty. On this basis it held that a "relationship in the nature of marriage," the phrase already used under the Protection of Women from Domestic Violence Act, 2005 and elaborated in D. Velusamy v. D. Patchaiammal and Indra Sarma v. V.K.V. Sarma, would now also attract Section 498A protection, provided an intent to marry was established.

It would be wrong to undersell what the Court accomplished. It rejected civil remedies under the DV Act as an adequate substitute for criminal protection, since criminal liability carries a deterrent force a monetary or injunctive remedy does not. It framed law as a living organism that must respond to social reality, drawing a direct line from the decriminalisation of homosexuality in Navtej Singh Johar v. Union of India to the recognition of live-in relationships as a present-day social reality. And, mindful of its own catalogue of Section 498A misuse, the Bench limited the new protection to relationships where intent to marry can actually be proved, placed the initial burden on the woman asserting it, and extended the Arnesh Kumar arrest safeguards to these cases too.

And yet, for all its progressive framing, the test the Court settled on, a relationship that mimics marriage, animated by an actual intent to eventually marry, never really leaves marriage behind. It extends matrimonial-style protection only to those on their way to marriage, or plausibly understood to be. This has a consequence the judgment never confronts: an entire category of committed, cohabiting, mutually dependent couples cannot pass this test, not because their relationship lacks any marker of vulnerability the Court cares about, but because marriage itself is legally closed to them.

Same-sex couples in India cannot marry under any existing marriage statute, and the Supreme Court's own Constitution Bench in Supriyo @ Supriya Chakraborty v. Union of India (2023) declined, 3:2, to read a right to marry into the Special Marriage Act or direct Parliament to create one, holding the matter lies within the legislature's domain. A same-sex partner can share a home, pool finances, care for an ailing partner, and present as a couple to family and friends, doing everything the Indra Sarma checklist asks of a heterosexual live-in couple, and still be unable to show an "intent to marry," because there is, in law, nothing to intend. Under the Lokesh B.H. test, that couple's domestic relationship, however real and however abusive it becomes, sits permanently outside Section 498A's reach.

This is not a hypothetical gap. Legal commentators have flagged that the DV Act, India's principal civil protection for cohabiting partners, offers no clear or tested route for same-sex couples either. A recent survey of the evolving law on LGBTQIA+ live-in relationships likewise notes that while cohabitation is not illegal, it is nowhere treated as on par with marriage, and concrete legal rights remain largely absent for queer couples. This is a strange result for a judgment that leans heavily on Puttaswamy's vocabulary of dignity and associational privacy, and that expressly analogises live-in relationships to the decriminalisation of same-sex intimacy in Navtej Singh Johar. The Court borrows the moral force of that comparison to justify extending protection to unmarried heterosexual couples, while the comparison's most direct beneficiaries, same-sex couples themselves, remain unprotected by the test it constructs. Two households in materially identical circumstances, shared home, pooled finances, years of cohabitation, public acknowledgment as partners, can face identical cruelty and receive opposite outcomes under Section 498A, solely because one couple could in principle marry and the other cannot. That is not a difference in vulnerability; it is a difference in what marriage statutes currently permit.

The fix need not have been complicated. Instead of anchoring protection in a relationship's proximity to marriage, the Court could have anchored it in the functional vulnerability Section 498A actually exists to address: cruelty inflicted by someone with whom a person shares a home, a life, and a structure of dependence. A formulation such as a "relationship of mutual love, care and interdependence" would capture that vulnerability without requiring proof that marriage was the intended destination. This is already latent in the Court's own reasoning. The indicators Indra Sarma draws on for identifying a "relationship in the nature of marriage," duration, a shared household, pooling of resources, domestic arrangements, intimacy, children, public acknowledgment, and the parties' own conduct, are, with the exception of the "intent to marry" gloss this judgment adds, entirely gender- and orientation-neutral. Same-sex couples can satisfy every one of them as readily as heterosexual couples can; the only reason they fail the Lokesh B.H. test is that additional requirement, bolted on as a safeguard against misuse. A functional test need not have dropped that safeguard altogether. The Court could still have demanded proof of durability, cohabitation and genuine interdependence, while dropping only the requirement that the parties specifically intended a wedding, preserving its limiting principle while extending protection to everyone the underlying rationale was meant to reach.

It is only fair to acknowledge why the Court may have preferred the narrower path. The Bench was already stretching considerably by reading "husband" to include an unmarried live-in partner at all; anchoring that expansion to marriage-likeness gives lower courts something concrete to test against, rather than an open-textured standard that could sweep in far more relationships than the legislature contemplated. The Court's own survey of Section 498A misuse, citing Arnesh Kumar v. State of Bihar's statistic of a charge-sheet rate near 94 percent against a conviction rate of only 15 percent, is the backdrop against which any further loosening has to be judged. There is also an institutional point: the majority in Supriyo left same-sex recognition to Parliament, declining even to create a lesser status such as civil unions on the ground that this would be judicial overreach. A two-judge Bench interpreting one criminal provision arguably should not achieve indirectly, through an expansive reading of "husband," what a five-judge Constitution Bench declined to grant directly.

Both positions have real force, and the tension between them is unlikely to be resolved by a single judgment. What can be said with more confidence is that Lokesh B.H. has opened a door it does not fully walk through. Having accepted that the marital-versus-live-in distinction fails Article 14 scrutiny for heterosexual couples, the Court leaves unaddressed why an analogous distinction, protection for those who could theoretically marry but haven't, and none for those who cannot marry at all, should survive the same scrutiny. That question will almost certainly return to the Supreme Court, quite possibly sooner than many expect. When it does, the Bench that hears it may find itself finishing what Lokesh B.H. started: replacing marriage as the test for protection with the vulnerability that protection is actually meant to address.

Author is a Lawyer currently working in Supreme Court of India as a Legal Associate. Views are personal.